author: GRAY, J.,

text:
    In re Change of Name of D.L.R.

      C.P. of Lycoming County,
    No. 14-03,024

      Christina L. Dinges, for plaintiff.

      Melody L. Protasio, for defendant.
    Feb. 20, 2015
   GRAY, J.,

The matter comes before this court on a petition filed on November 20, 2014, by the biological father, J. D. S., to change the name of his six month old son, DLR, bom August 6, 2014, pursuant to 54 Pa. C.S. § 702. Mother opposes the petition. Upon review of the evidence as presented by stipulation and case-law, it is hereby ordered and directed that father’s petition is granted.

I. Background

At the time of the hearing, both parents agreed to change their child’s name to include the surname of both parents. The dispute is about whether the child will bear the paternal or maternal surname as his own surname. At the time scheduled for an evidentiary hearing on February 2, 2015, the parties presented a stipulation as to the evidence in this matter.

The parties stipulated that, if called to testify, father would testify that he would like his son to carry his last name for the following reasons. First, it would adhere to the traditional view of the child taking the paternal last name. Second, since the child is a boy, his surname would be carried on to his children. Third, father contends that he had no input into the birth name. Finally, in the event mother re-married, mother would likely take a new last name, leaving the child with a surname belonging to neither of his parents.

The parties further stipulated that, if called to testify, mother would testify to the following. Mother believes that the parties had a brief discussion and father agreed to allow the child to bear her surname as his own. The birth certificate and acknowledgment of paternity both provide that the child’s last name is R. Father signed the acknowledgement of paternity. Mother would testify that she is not engaged and does not have a current intention of marrying. Mother believes that father’s last name, S. is associated with criminal activities including a criminal history within father’s family. Mother also believes the name is associated with an eviction. In rebuttal father would testify that he never agreed to the child’s last name being R. Rather, father would testify that he did not vocalize objection to the name because he felt that the time of birth was not the right time to do so. In addition, father disputes the criminal background.

. II. Discussion

When considering a petition pursuant to 54 Pa. C.S. § 702 to change a child’s name, the court must exercise discretion to determine whether the petitioning party established that the name change is in the child’s best interest. See In Re: Grimes, 609 A.2d 158, 161 (Pa. 1992). See also Falcucci Name Case, 50 A.2d 200, 202 (Pa. 1947). In Grimes, supra, the Pennsylvania Supreme Court held that a court should exercise discretion by comporting with “good sense, common decency and fairness to all concerned and to the public.” Grimes, supra, 609 A.2d 160. When considering whether the name change is in the child’s best interest, the court held that the three main considerations include:

the natural bonds between parent and child, the social stigma or respect afforded a particular name within the community, and, where the child is of sufficient age, whether the child intellectually and rationally understands the significance of changing his or her name.

Id.

After considering the best interest of the child and the considerations outlined by our Supreme Court in Grimes, the court finds that it is in the best interest of the child for his name to be D.L.R.S. The court will address each of the Grimes factors in turn.

Initially, the court must consider the natural bonds between the parent and the child. The court finds the child has a natural bond with both parents. The parents have shared legal and physical custody, both parents have been involved with the child since birth, and both parents intend to continue their involvement with their child as evidenced by their shared custody.

Turning to the social stigma associated with the R. and S. surnames, the court finds that neither surname is afforded any significant social stigma or respect within the community. While mother contends that there are family members with the S. name who have a criminal history and suffered an eviction, there is no evidence that such history has tied the name to social stigma or loss of respect within the community. Further, the court notes that S. appears to be a common surname. Therefore, this factor is not instructive.

Lastly, the child is not of sufficient age to understand the effect of this name change. The child at issue is approximately six (6) months old. The court finds that the child cannot rationally and intelligently understand the significance of this name change.

When considering the best interests of the child with respect to a proposed name change, some trial courts have looked to whether the child would hold the same name as a parent. In Sanders v. Funk, 47 Pa. D. & C.4th 199 (Apr. 28, 2000) (VanHorn, J.), for example, the court granted father’s petition to change the child’s surname from that of the biological mother’s boyfriend to that of the name of a biological parent. When granting father’s name change petition in Sanders, supra, that court held:

[i]t is this court’s judgment that [child] should not have the surname of a person who is unrelated to her in any manner and that to continue her surname of [boyfriend] is misleading to her as well as the public since [boyfriend] has absolutely no legal relationship to the child. The court must also consider the natural bond that exists between [father] and [child], and the child’s right to feel connected to her biological parent by the sharing of a surname as being in her best interest.

Id. at 204.

The court finds that the same rationale that the court used in Sanders is applicable in this case. Even though the child will currently bear the surname of his mother, this court cannot find that it is in the child’s best interest to bear a surname of neither of her biological parents, which would be the case if mother remarries and assumes the name of her spouse. While mother’s testimony would be that she has no current intention to re-marry and take the name of her spouse, mother did not foreclose the possibility. Moreover, despite an opportunity to do so, mother did not submit that her testimony would be that she would not re-marry, or that if she re-married, she would keep her maiden name. The court finds that father has met his burden of proving that the best interest of the child is for his name to be changed to best ensure that the child will at all times bear the surname of at least one parent.

The court notes that this decision is consistent with its prior decision in In Re: Change of Name of K.L.F., No. 12-01,076 (Lyco. Co., September 5, 2012). In that case, this court found it was in the best interest to change the child’s surname from that of the mother’s boyfriend to the father’s surname. In that case, mother asserted an intention to someday marry and take on the boyfriend’s surname. Also, the child’s sibling carried the boyfriend’s surname. Nonetheless, this court believed it best to ensure that the child bear the surname of at least one parent.

This court also believes the instant matter is distinguishable from In Re: C.R.C., 819 A.2d. 558 (Pa. Super. 2003) In C.R.C., supra, the Superior Court reversed the change of a child’s surname to the father’s surname largely because the father had not established a bond with the child. In Re: C.R.C., 819 A.2d. at 562-563. In the instant matter, the parties share legal and physical custody and both were involved with the child since birth.

Accordingly, the court enters the following order granting father’s name change petition.

ORDER

And now, this 20th day of February, 2015, based upon the foregoing reasons, it is hereby ordered and directed that father’s petition for change of name is granted. D.L.R., bom August 6,2014, shall have his name changed to D.L.R.S. and he shall be hereafter known as D.L.R.S. The parties are directed to take all necessary steps to effectuate this name change on the child’s legal records and birth certificate.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Detrick v. Burrus

      C.P. of Lackawanna County,
    No. 11 CV 1333

      Michael H. Roth, for plaintiff.

      Daniel E. Cummins, for defendant.
    Feb. 23, 2015
   NEALON, J.,

ORDER

The plaintiff, Lori Detrick (“Detrick”), in this admitted liability, motor vehicle litigation has filed a “motion in limine to preclude any evidence of or reference to plaintiff’s positive pre-screen urine drug test” during the upcoming trial commencing on March 2,2015. Detrick was involved in an automobile accident with defendant. Deidre Burrus (“Burrus”), on August 10, 2009, as a result of which she received treatment from Dr. Elizabeth Karazim-Horchos. (Docket entry no. 25 at ¶¶ 1-4; Docket entry no. 32 at ¶¶ 1-4). Prior to considering the possible prescription of Duragesic medication for Detrick, Dr. Karazim-Horchos ordered a drug screen on July 27,2010, which was positive for marijuana, opiates and Benzodiazepine. {Id. at ¶¶ 7-8).

Citing Pa.R.E. 401 and 403, Detrick contends that any evidence of that drug test is inadmissible since it is irrelevant and unduly prejudicial. (Docket entry no. 23 at pp. 3-5). Burrus counters that since Detrick denied the use of marijuana during her initial visit with Dr. Karazim-Horchos on March 15,2010, and her discovery deposition on August 17, 2011, evidence of her positive drug screen is admissible to impeach her “credibility involving her denial of marijuana use.” (Docket entry no. 31 at pp. 2, 7). Burrus further asserts that such evidence is relevant under Pa.R.E. 401 inasmuch as it “makes the existence of the fact that the plaintiff’s own post-accident treating provider has serious questions and concerns as to the plaintiff’s medication use more probable than it would be without this evidence.” (Id. at p. 14).

Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of that discretion. Parr v. Ford Motor Company, 2014 WL 7243152, at *5 (Pa. Super. 2014). “Evidence to impeach the credibility of a witness is admissible so long as it is relevant to that purpose and not otherwise barred.” Com. v. Hoover, 2014 WL 7392244, at *6 (Pa. 2014). However, it is well settled in this Commonwealth that a witness may not be impeached or contradicted on “collateral” matters. McGoldrick v. Pennsylvania Railroad Company, 430 Pa. 597, 600, 241 A.2d 90, 92 (1968); Klein v. Aronchick 85 A.3d 487, 500 (Pa. Super. 2014), app. denied, 104 A.3d 5 (Pa. 2014); Walley v. Iraca, 360 Pa. Super. 436, 444, 520 A.2d 886, 890 (1987).

In that regard, both the Supreme and Superior Court of Pennsylvania have consistently cautioned that:

No witness can be contradicted on everything he testifies to in order to “test his credibility.” The pivotal issues in a trial cannot be “sidetracked” for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial.

McGoldrick, supra; Klein, supra (quoting Com. v. Petrillo, 341 Pa. 209, 224, 19 A.2d 288, 295 (1941)). It is, therefore, axiomatic that “[t]he purpose of trials is not to determine the ratings of witnesses for general veracity.” Klein, supra; Com. v. Granberry, 346 Pa. Super. 395, 403, 499 A.2d 671, 675 (1985). It is equally clear that “[gjeneral questioning concerning the use of drugs does not bear on the witnesses’ ‘character for truth.’” Com. v. Gaddy, 468 Pa. 303, 311, 362 A.2d 217, 221 (1976).

Our appellate courts have stated that “[t]here is no rule more firmly established” than the prohibition against impeachment on collateral matters, Klein, supra (quoting Hammell v. Christian, 416 Pa. Super. 78, 610 A.2d 979, 984 (1992), app. denied, 533 Pa. 652, 624 A.2d 111 (1993)), and a matter is deemed “collateral” if it could not be admitted at trial for a purpose independent of the proffered contradiction. McGoldrick, supra, at 600, 241 A.2d at 92-93 (trial court committed reversible error by allowing autopsy evidence of alcohol consumption by automobile passenger since “[ejvidence that one of the deceased passengers in plaintiff’s automobile had been drinking heavily before the accident was clearly inadmissible apart from the contradiction.”); Klein, 85 A.3d at 501 (trial judge improperly permitted evidence of patient’s history of bulimia as plaintiff’s “disavowal of an alleged history of bulimia is a collateral matter and really has nothing to do with the case.”). Burrus has not identified an independent basis for introducing evidence of Detrick’s apparent use of marijuana more than eleven months after the subject accident. Absent proof that Detrick’s marijuana use is admissible on grounds independent of the proposed impeachment, it is simply not admissible under Pennsylvania law. See McGoldrick, supra; Petrillo, supra; Klein, supra.

Moreover, even if such evidence was somehow relevant, it is nonetheless inadmissible under Pa.R.E. 403 since its probative value is outweighed by the danger of unfair prejudice. “Unfair prejudice” supporting the exclusion of relevant evidence “means a tendency to suggest decision on an improper basis or divert the juiy’s attention away from its duty of weighing the evidence impartially.” Parr, supra, at *9 (quoting Com. v. Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008)). Evidence of Detrick’s marijuana use or positive drug screen could arguably divert the jury’s focus from its sole task of deciding the disputed issue of damages in this case, or could otherwise produce a damages award on an improper basis. See Com. v. Satzberg, 358 Pa. Super. 39, 48, 516 A.2d 758, 762 (1986) (holding that prosecutor’s remarks regarding defendant’s drug use mandated a new trial even though a curative instruction was provided, and concluding that “[t]he prosecutor’s statements about appellant’s drug habits effectively prejudiced the jury against appellant, especially with the present media and political focus on the dangers inherent in drug use.”). Consequently, even if evidence of Detrick’s positive drug screen possessed the requisite probative value, it is nevertheless inadmissible since its putative relevance is outweighed by the danger of unfair prejudice. See Pa.R.E. 403.

And now, this 23rd day of February, 2015, upon consideration of plaintiff’s “motion in limine to preclude any evidence of or reference to plaintiff’s positive pre-screen urine drug test,” defendant’s response thereto, and the memoranda of law submitted by the parties, and based upon the reasoning set forth above, it is hereby ordered and decreed that plaintiff’s “motion in limine to preclude any evidence of or reference to plaintiff’s positive pre-screen urine drug test” is granted.


author: MOTTO, P.J.,

text:
    Commonwealth v. Heaney

      C.P. of Lawrence County,
    No. 704 of 2014, CR

      Diane Shaffer, for Commonwealth.

      Stanley T. Booker, for defendant.
    Feb. 23, 2015
   MOTTO, P.J.,

Before the court for disposition is the Commonwealth’s motion to disqualify counsel from joint representation of the co-defendants in the three cases before the court. The dispositive issues are whether the representation of multiple co-defendants within a single, consolidated prosecution is a conflict of interest, per se, and whether such multiple representations acts to a detriment to each client individually.

On or about June 23, 2014 the defendants in the above cases were charged by the New Castle Police Department as conspirators and co-defendants in the “Schmidt heroin distribution organization” investigation. A preliminary hearing was held on July 21, 2014 before Magisterial District Justice Jerry Cartwright. At the hearing, defendants Paul Gravatt and Christopher Gravatt were both represented by Stanley Booker, Esq. and defendant Stacy Heaney was represented by separate counsel. At the conclusion of the preliminary hearing, at case number 704 of 2014 CR, Stacy Heaney had one count of possession of a controlled Substance with intent to deliver (35 Pa.C.S. §780-113(a)(30)), three counts of criminal conspiracy (18 Pa.C.S. §903(a)(l)), one count of solicitation of minors to traffic drugs (18 Pa.C.S. §6319(a)), one count solicitation of minors-drug free school zone (18 Pa.C.S. §6319(b)), and one count of corruption of minors (18 Pa.C.S. §6301 (a)( 1 )(i)) bound over to this court. At case number 706 of 2014 CR, Christopher Gravatt had one count of corrupt organizations (18 Pa.C.S. §911(b)(3)), one count of possession of a controlled substance with intent to deliver (35 Pa.C.S. §780-113(a)(30)), three counts of criminal conspiracy (18 Pa.C.S. §903(a)(l)), and one count of conspiracy to violate §911(b)(l), §911(b)(2), §911 (b)(3)-in that defendant did conspire and agree to be associated with the “Schmidt drug trafficking enterprise” in violation of 18 Pa.C.S. §911(b)(4), bound over to this court. At case number 707 of 2014 CR Paul Gravatt had one count of corrupt organizations (18 Pa.C.S. §911(b) (3)), two counts of possession of a controlled substance with intent to deliver (35 Pa.C.S. §780-113(a)(30)), one count of criminal conspiracy (18 Pa.C.S. §903(a)(l)), two counts of criminal use of communication facility (18 Pa.C.S. §7512(a)), and one count of conspiracy to violate §911(b)(1), §911(b)(2), §911(b)(3)-in that defendant did conspire and agree to be associated with the in violation of 18 Pa.C.S. §911(b)(4) bound over. Subsequent to the preliminary hearing, Stacy Heaney’s prior counsel did not enter his appearance for the continued representation of Heaney. However, attorney Stanley Booker filed his appearance representing Stacy Heaney in addition to co-defendants Paul Gravatt and Christopher Gravatt. The Commonwealth made a motion to consolidate all cases resulting from the “Schmidt drug trafficking enterprise” for trial as the cases involved the same witnesses and victims and arise out of the same incident. The court granted the Commonwealth’s motion for consolidation on the condition that defendants may file a motion to sever before trial. The Commonwealth now files this motion to disqualify attorney Booker from his continued representation of the three co-defendants arguing that joint representation creates a conflict of interest and serves as detriment to each client individually.

The Commonwealth’s first issue, whether joint representation of co-defendants in a consolidated prosecution creates a per se conflict of interest has been definitively answered by both the United States Supreme Court and the Pennsylvania Supreme Court. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173 (1978); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457 (1942); Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968).

In Holloway v. Arkansas, Supra, the United States Supreme Court held that requiring or permitting a single attorney to represent co-defendants, often referred to joint representation, is not a per se violation of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney, in fact, in some cases, certain advantages might accrue from joint representation. Holloway v. Arkansas, supra. 435 U.S. at 482, 98 S.Ct. at 1178.

Likewise, the question of whether j oint representation of co-defendants in a consolidated prosecution creates a per se conflict of interest has been unambiguously answered by the Pennsylvania Supreme Court in Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968). In Wilson, the Pennsylvania Supreme Court held that it is well settled that mere dual representation does not, of itself, amount to a conflict of interest. To make dual representation amount to a conflict, petitioner must at least show the possibility of harm, e.g. that he had a defense inconsistent with that advanced by the other client or that counsel neglected his case to give the other client a more spirited defense, id. 429 Pa. at 463, 240 A.2d at 501.

In the instant matter, as both the United States Supreme Court and the Pennsylvania Supreme Court have found that joint representation of co-defendants in one action does not in itself create a per se conflict of interest, this court finds that the Commonwealth’s motion to disqualify counsel based on a per se conflict of interest must be denied.

The Commonwealth’s second issue is whether attorney Booker’s joint representation of Stacy Heaney, Christopher Gravatt and Paul Gravatt acts to the detriment of each client individually.

The right to counsel of choice is guarded by the Sixth Amendment of the United States Constitution. Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692 (1988). The right to counsel of choice, however, is not absolute. Thus, where considerations of judicial administration supervene, the presumption in favor of counsel of choice is rebutted and the right must give way. United States v. Voight, 89 F.3d 1050, 1074 (3rd Cir. 1996). A conflict of interest arising from joint representation of criminal co-defendants is one instance in which a defendant’s right to counsel of choice may be rebutted, as joint representation in a criminal case “engenders special dangers of which a court must be aware.” Wheat v. United States, supra. 486 U.S. at 159, 108 S.Ct. at 1698. In Commonwealth v. Cassidy, 390 Pa. Super. 359, 568 A.2d 693 (1989), the Pennsylvania Superior Court set forth the law regarding when a defendant’s choice of counsel may be denied:

When a defendant’s selection of counsel, under the particular facts and circumstances of a case, places the fairness and integrity of the defendant’s trial in jeopardy, the defendant’s right to counsel of choice may be justifiably denied. However, a presumption must first be recognized in favor of the defendant’s counsel of choice; to overcome that presumption, there must be a demonstration of an actual conflict or a showing of a serious potential for conflict.... The right to counsel of choice should not be interfered with in cases where the potential conflicts of interest are highly speculative.

Commonwealth v. Cassidy, 390 Pa. Super at 369, 568 A.2d at 698 (internal citations omitted).

In Pennsylvania, the courts have provided guidelines for determining when dual representation is a true conflict of interest detrimental to a client. In order to receive a new trial based upon a conflict of interest, appellants must show that a conflict of interest arose and actually existed during the trial and that the conflict was a type which created a potential of harm with regard to the accused’s defense. Commonwealth v. Bracero, 262 Pa. Super. 189, 194, 396 A.2d 709, 711 (1978); Commonwealth v. Breaker, 456 Pa. 341, 344-45, 318 A.2d 354, 357 (1974). Examples of situations where a conflict of interest creates the necessary potential harm are when a co-defendant advances a defense inconsistent with the defense advanced by the other defendants, or when counsel has neglected the case of one co-defendant in favor of providing another defendant a more spirited defense. Commonwealth v. Bracero, supra. 262 Pa. Super. at 194, 396 A.2d at 711. No conflict exists where co-defendants receiving joint representation present a joint defense, such as denying culpability or blaming other persons for crimes. Id.

In the instant case, the defendants aver that no co-defendant has a defense that is inconsistent with the defenses of the other defendants. Each defendant has been charged as a co-conspirator in the “Schmidt heroin distribution organization,” however, the alleged facts and evidence underlying the individual charges against each of the defendants is distinct and not interrelated with one another. The defendants contend that the alleged crimes charged do not arise out of the same acts or series of acts, and the evidence that the Commonwealth will present for each defendant occurred on different dates, at different locations and involved different confidential informants. As a result of the distinct factual situations underlying each of the three cases, the defendants aver that no co-defendant can advance a defense inconsistent with the defenses of the other defendants. Moreover, the defendants deny the existence of the alleged “Schmidt heroin distribution organization,” and deny that a conspiracy between them to distribute drugs ever existed. Based on the above facts, the defendants contend that joint representation by attorney Booker is not detrimental to each defendant individually and that the Commonwealth’s motion to disqualify counsel be denied. Furthermore, defendants argue that should this court find that joint representation by attorney Booker does create a conflict of interest, each defendant has executed a voluntary waiver of conflict free representation. The waiver provides that each defendant is aware that a potential conflict may arise as a result of joint representation; however, each defendant voluntarily waives any potential conflict that may arise and each wish to proceed with attorney Booker as counsel.

In Pennsylvania, while the right to effective counsel is a fundamental right, it is well established that an individual may knowingly and intelligently waive a constitutional right. Commonwealth v. Carey, 235 Pa. Super. 366, 340 A.2d 509 (1975). In Commonwealth v. Coffey, 415 Pa. Super. 131, 608 A.2d 560(1992), the Pennsylvania Superior Court held:

For an individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same, in such a situation the record must clearly demonstrate an intentional relinquishment of a known right or privilege. If all of the necessary information concerning the nature of and risk of forfeiture of the constitutional right is communicated to the individual, his waiver will not be disturbed. Moreover, the Commonwealth merely needs to establish a knowing and intelligent waiver of a constitutional right by a preponderance of the evidence.

Id. at 135, 608 A.2d at 563 (internal citations omitted). In Coffey, the Commonwealth filed a motion to disqualify defense counsel from representing two defendants charged with furnishing liquor to a minor. In the motion the Commonwealth contended that defendant Coffey made a statement to authorities in which he acknowledged that the case of beer was purchased and subsequently consumed by the defendants and two female juveniles, but denied making the purchase of beer himself. Id. at 133, 608 A.2d at 562. The trial court granted the Commonwealth’s motion to disqualify counsel due to the potential conflict of interest in light of Coffey’s statement. Coffey appealed the court’s order granting the Commonwealth’s motion to disqualify arguing that a defendant has the right to be represented by counsel of their choosing, and that there is no conflict of interest or that the conflict of interest is highly speculative. Further, defendant argued that even if a conflict of interest did exist, it is waivable. Id. The Superior Court found that the question in this case was not whether under the law a person may waive a constitutional right. Clearly, constitutional rights are waivable. The question in this case was whether the trial court erred in not allowing defendants to waive the right in this case. Id. at 135-36, 608 A.2d at 563. In affirming the trial court’s decision, the Superior Court found that the statement made by Coffey implicating a co-defendant in the purchase of liquor for a minor presented a potential for a clear conflict of interest precluding a single attorney from representing both defendants at trial. Id. The court found that while defendant did knowingly waive the right to be represented by separate counsel, the opportunity for a conflict of interest in this case was great. Allowing a waiver of defendants’ rights to individual counsel could lead to a serious problem at the trial. Id. at 137, 608 A.2d at 563. The court found that because it is not possible to predict what might happen at trial and the exact nature of the problem presented by joint representation, the trial court did not commit error in finding that in light of the serious potential for a conflict of interest, defendants’ counsel should be disqualified. Id.

In Commonwealth v. Werner, 217 Pa. Super. 49, 268 A.2d 195 (1970), the Pennsylvania Superior Court held:

To waive a right intelligently, one must be aware of the considerations that make it a wise or unwise choice. Before a lawyer may represent multiple clients, he should explain fully to each client the implication of the common representation and should accept or continue employment only if the clients consent. The trial court, however, would not rely upon counsel’s explanation alone, while an accused may waive the right to counsel, whether there is a proper waiver should be cleariy determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.

Commonwealth v. Werner, 217 Pa. Super. at 56-57, 268 A.2d at 198, citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023 (1938).

The Superior Court in Werner provided a guide for the trial courts to use in making the determination whether a waiver was intelligently and voluntarily entered:

In order for an accused to intelligently evaluate his predicament, he should know what a lawyer representing him alone could do. He should know what a lawyer who represents another co-defendant may be hindered from doing. The court should tell the accused that if he cannot afford to hire another lawyer, then he will be represented by a court-appointed attorney. Certainly, whatever the risks and disabilities inhere in joint representation inhere whether counsel is appointed or retained; and whatever steps a defendant is entitled to take to avoid such problems should be make known to him whatever his economic situation may be.

Commonwealth v. Werner, 217 Pa. Super. at 57-58, 268 A.2d at 199, citing Lollar v. United States, 376 F.2d 243, 246 (D.C. Cir. 1967).

The Superior Court held that the waiver colloquy conducted by the trial court must address the above factors. The crucial determination by the trial court is whether the accused has intelligently evaluated his decision to waive the right to conflict free counsel. Id.

In the instant case, the defendants have each executed a lengthy voluntary waiver of conflict free representation. At the hearing, the defendants each testified before the court that attorney Booker has met with each defendant individually and apprised each of them of the potential risks that may arise from joint representation, as well of the limitations that may result from joint representation. The defendants contend they have been fully apprised of the risks of joint representation and choose to proceed with attorney Booker as their counsel. As evidenced by the waivers, the defendants contend they have made a strategic decision to employ joint counsel for these matters and no extrinsic factors such as financial concerns or pressure from outside forces has forced the defendants to waive their right to conflict free representation.

The court finds that under Commonwealth v. Cassidy, supra, when a defendant’s selection of counsel under the particular facts and circumstances of a case places the fairness and integrity of the defendant’s trial in jeopardy, the defendant’s right to counsel of choice may be justifiably denied. However, a presumption must first be recognized in favor of the defendant’s counsel of choice; to overcome that presumption, there must be a demonstration of an actual conflict or a showing of a serious potential for conflict. Here, the record before the court shows that there is no actual conflict, nor a serious potential for conflict. At the hearing to disqualify counsel all three defendants testified that they have no relevant information that would assist the Commonwealth in its prosecution of other jointly represented co-defendants and the Commonwealth makes no allegations that any of the three defendants engaged in any specific transaction with one another. While the Commonwealth argues that joint-representation could hinder the defendants cooperation and potential plea negotiations, the Commonwealth points to no specific instance where an actual or even a serious potential conflict exists. After a review of the preliminary hearing transcript, the court finds that the alleged crimes charged do not arise out of the same acts or series of acts and the evidence presented by the Commonwealth for each defendant is not applicable for other defendants. The alleged crimes charged against each defendant occurred on different dates, at different locations and involved different confidential informants. While the Commonwealth argues that because the defendants were all part of the “Schmidt heroin distribution ring” and are charged with corrupt organizations that joint representation is a detriment to each client, the court finds that it is not alleged that any of the three defendants engaged in transactions with one another. Furthermore, the defendants deny that a conspiracy between them ever existed. At the hearing, all three defendants testified that they have no relevant information that would assist the Commonwealth in its prosecution of either co-defendant. Moreover, defendant Stacy Heaney is not charged with being a part of the alleged corrupt organization. As all defendants have denied the existence of any conspiracy between them a joint defense is not detrimental to each client individually.

Moreover, while the defendants have each executed a lengthy and explicit voluntary waiver of conflict free representation, under Commonwealth v. Werner, supra., the court has a duty to determine whether each defendant has intelligently made the decision to waive the right to conflict free representation. At the hearing to disqualify counsel each defendant was called individually and explained the risks and liabilities inherent in joint representation. As explained in Commonwealth v. Werner, Supra, the court’s responsibility is not necessarily discharged by simply accepting the co-defendants’ designation of a single attorney to represent them both. An individual defendant is rarely sophisticated enough to evaluate the potential conflicts, and when two defendants appear with a single attorney it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks, Id. 217 Pa. Super. at 57, 268 A.2d at 199. Here, the court questioned each defendant and explained to them the possibility of a potential conflict and explained the right to separate counsel and each defendant made an informed choice to proceed with attorney Booker as counsel. The court is satisfied that the colloquy is sufficient to establish a competent and intelligent waiver.

Accordingly, the court finds that there is no basis to support a conclusion that attorney Booker’s representation of defendants Stacy Heaney, Christopher Gravatt and Paul Gravatt presents an actual conflict of interest or even a serious potential for conflict. The defendants have each executed written and oral waivers. The Sixth Amendment states that there is a presumption in favor of counsel of choice. As the defendant’s theories of the case are not in conflict and it is not alleged that any co-defendant was involved in the independent actions of another, protecting the defendants’ right to counsel of choice outweighs the Commonwealth’s interest in disqualifying attorney Booker. Thus, the Commonwealth’s motion to disqualify is denied and attorney Booker may continue his representation as attorney of record for each of the co-defendants in the above cases.

ORDER OF COURT

And now, this 23rd day of February, 2015, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the Commonwealth’s motion to schedule hearing on disqualification of Stanley T. Booker, Esq. is denied and said counsel may continue his representation as attorney of record for each defendant in the above captioned cases.


author: WILLIAMSON, J,

text:
    Where’s Prime Rib, LLP v. Zoning Hearing Board of Jackson Township

      C.P. of Monroe County,
    No. 5335 CIVIL 2014

      Ira Weiner, for plaintiff.

      Jane Dunn, for defendant.
    Dec. 8, 2014
   WILLIAMSON, J,

This matter comes before the court on the petition for review of Zoning Hearing Board Determination filed by Where’s Prime Rib, LLP (hereinafter, “petitioner”) on June 27, 2014. On July 21, 2014, the Jackson Township Supervisors (hereinafter, “intervenor”) filed a notice of intervention pursuant to 53 P.S. § 1004-A. On August 19, 2014, an order was entered placing the matter on the October argument list.

On September 17,2014, petitioner filed a brief of appeal in support of the previously filed petition. On September 29,2014, the Zoning Hearing Board of Jackson Township (hereinafter, “respondent”) filed a brief in opposition to land use appeal. Intervenor filed a brief in support of respondent’s decision and in opposition to the “petition for review” on September 30, 2014. On October 1, 2014, petitioner filed an expedited motion for continuance. This court issued an order on October 1, 2014 granting the requested continuance and continuing the oral argument on the petition for review of Zoning Hearing Board Determination to November 3, 2014. On October 30, 2014, petitioner filed a reply brief on appeal. After review of the parties’ briefs and arguments thereon, we are ready to dispose of petitioner’s petition for review of Zoning Hearing Board Determination.

BACKGROUND

Petitioner, Where’s Prime Rib, LLP is the owner of real property located on 1877 Route 715 in Reeders, Jackson Township, Monroe County, Pennsylvania (“the premises”). On October 29, 2010, in case No. 4487 Civil 2010, the honorable president judge Ronald E. Vican granted permanent injunctive relief to Jackson Township and against Dizzy Dottie, LLC for violation of the Jackson Township Zoning Ordinance regarding the premises. Judge Vican concluded in that case that Dizzy Dottie, LLC was operating a business at the premises known as “Thrills” that constituted an adult cabaret (“adult business”) in a zoning district in which it was not permitted. Judge Vican also granted Jackson Township’s request to enjoin and abate violations of 68 Pa. C.S.A. § 5503(b) and (d). This resulted in an order prohibiting Dizzy Dottie, L.L.C., or anyone else, from occupying or using all or any part of the premises for a period of one year (from October 19, 2010 to October 19, 2011). At the time of the 2010 court order, the real property was located in a commercial zoning district that allowed restaurants or eating and drinking establishments.

Dizzy Dottie, LLC filed post-trial motions in that matter which were denied by order entered November 5, 2010. Dizzy Dottie, LLC then appealed to the Commonwealth Court of Pennsylvania which filed an opinion and order on December 2, 2011 affirming the trial court. By order dated July 17, 2012, the Pennsylvania Supreme Court denied Dizzy Dottie, LLC’s petition for allowance of appeal Dizzy Dottie, LLC then re-opened for business as “Thrills” at the premises in October 2011, at the expiration of judge Vican’s order prohibiting any use at the premises.

On April 17,2012, Jackson Township filed a complaint in equity with this court averring two counts for relief against Dizzy Dottie, LLC. Count I of the complaint sought to enjoin Dizzy Dottie, LLC from conducting a non-permitted use in violation of the Jackson Township Zoning Ordinance, including operation as an “adult business” at the subj ect premises it occupied at 1877 Route 715, Reeders, Jackson Township, Pennsylvania (“the premises”). Count II sought an injunction to enjoin Dizzy Dottie, LLC from occupying or using the premises for any purpose until such time as Dizzy Dottie, LLC secured a zoning permit for an allowable use at the premises. The case was re-assigned to judge David J. Williamson as judge Vican had retired. On January 25, 2013, this court issued an opinion which concluded that Dizzy Dottie, LLC changed the use of the premises when it began operating as an adult business. In an order dated January 25, 2013, judge Williamson granted both Count I and Count II of the complaint. Additionally, the order permanently enjoined Dizzy Dottie, LLC, doing business as “Thrills,” from occupying or using the premises at 1877 Route 715 as an adult business. It further permanently enjoined Dizzy Dottie, LLC, doing business as “Thrills,” from occupying or using the premises for any use until such time as a zoning permit was obtained from Jackson Township.

Petitioner then sought a zoning permit from Jackson Township to operate an eating and drinking establishment. Petitioner filed a change in use application and a variance in order to operate as an eating and drinking establishment. The zoning officer denied the application and petitioner appealed to the Zoning Hearing Board. The petitioner then withdrew the variance application.

On June 4, 2014, the Zoning Hearing Board issued their decision regarding petitioner’s appeal of the zoning officer’s denial of a change in use to an eating and drinking establishment. The Zoning Hearing Board’s decision was based on an initial hearing held on December 3, 2013, a subsequent hearing held on February 4, 2014, a final hearing held on March 4, 2014, and briefs submitted by the interested parties. During the course of the hearings, the Zoning Hearing Board heard the testimony of Michelle Amer, Jackson Township Zoning Officer; Ira Weiner, General Partner of and attorney for petitioner; Duane Kerzic, photographer; and Jonathon Koszalka, realtor.

The Zoning Hearing Board found that the zoning officer’s decision in denying the petitioner’s change in use application was correct. The Zoning Hearing Board determined that the premises is now located in a R-l Residential Zoning District, which does not permit a restaurant and eating and drinking establishment. Additionally, the Zoning Hearing Board pointed out that petitioner had never operated the premises as a restaurant and eating and drinking establishment; rather petitioner changed the use from a restaurant to an adult cabaret before opening its establishment. An adult cabaret was not permitted by the previous zoning ordinance, and therefore did not qualify as a prior non-conforming use since petitioner did not operate the premises in a lawful manner. The Zoning Hearing Board also determined that the petitioner intentionally abandoned the use of the premises as a restaurant and eating and drinking establishment in favor of an adult cabaret. Although the petitioner testified that the abandonment was not intentional, the Zoning Hearing Board did not find the testimony credible.

Following Judge Vican’s rulings, amendments were adopted to the Jackson Township Zoning Ordinance. These amendments were adopted in October 2011 before Dizzy Dottie, LLC re-opened a second time for business as “Thrills.” Prior to adoption of the new ordinance in 2011, an adult business was allowed only in an industrial zone; however, a conditional use hearing is now required. The new ordinance defines an adult business under Section 27-1602 of the ordinance. Neither the old ordinance nor the new ordinance permits an adult business in any other zoning district. Finally, the zoning classifications were changed and the premises became located in an R-l Residential Zoning District.

DISCUSSION

Petitioner filed the petition to contest the respondent’s June 4, 2014 decision affirming the Zoning Officer’s denial of a change in use. In petitioner’s appeal, petitioner argues that a lawful use continues to run with the land unless the use was intentionally and willfully abandoned. Although petitioner agrees that the use of the premises was changed to an adult cabaret, petitioner does not agree that the change was intentional. Petitioner argues that unless the record supports an intentional and willful abandonment lasting a duration of at least one year, the prior lawful use as an eating and drinking establishment must be permitted. Prior to petitioner’s ownership and use of the premises, there was a restaurant and eating and drinking establishment on the premises as a permitted use. At the time, the property was located in a commercial zoning district. Petitioner wishes to re-establish that use.

In response, respondent presented three questions. First, should the Zoning Hearing Board’s decision that petitioner was not entitled to a change of use be affirmed where the proposed use was specifically prohibited in the R-l Residential District? Second, should the Zoning Hearing Board’s decision that petitioner did not qualify for a nonconforming use be affirmed where petitioner’s use of the premises as an adult cabaret was not a legal conforming use prior to the adoption of the 2011 Zoning Ordinance? And finally, should the Zoning Hearing Board’s decision that petitioner intentionally abandoned the restaurant use in favor of an adult cabaret be affirmed where the determination is supported by substantial evidence based upon the Zoning Hearing Board’s factual and credibility determinations?

To answer the above questions, respondent argued that the Zoning Hearing Board determined that the change in use application was properly denied because it sought to change to a use that was no longer permitted in the R-l Residential District. Furthermore, the Zoning Hearing Board determined that the petitioner’s use of the premises as a restaurant would have been a permissible use in the commercial district at the time he purchased the property; however, an adult cabaret was not a legal use in the Commercial District under the Zoning Ordinance. The premises was part of the commercial district when “Thrills” opened as an adult caberet. The honorable president judge Ronald E. Vican and this court both found that the use of the premises, prior to and after the zoning change in October 2011, was changed to an adult caberet and no longer a restaurant. Although a property owner of a restaurant, a permissible use in the commercial district, could apply for a non-conforming use certificate if that use existed at the time of the zoning change, a property owner of an adult cabaret could not since an adult cabaret was an illegal and impermissible use in the commercial district, Finally, respondent argued that while petitioner states that it did not intentionally abandon the use of the premises as a restaurant, the decision of the Zoning Hearing Board was that the evidence presented established that petitioner did voluntarily and intentionally abandon the use of the premises from a restaurant to an adult cabaret.

Additionally, intervenor submitted a brief in support of the Zoning Hearing Board’s decision and in opposition to petitioner’s land use appeal. In its brief, intervenor argued that, in concurrence with the Zoning Hearing Board’s decision, the petitioner only ever allowed the premises to be an adult entertainment facility and not a restaurant or eating and drinking establishment. Like respondent, intervenor argues that the use of the premises at the time the ordinance changed was not a lawful, non-conforming use, and thus no right existed to return to a commercial use.

We must first determine whether petitioner did abandon the use as an eating and drinking establishment at the premises. The “concept of abandonment includes the intention to abandon which is to be assumed from overt acts or failure to act, as well as from statements and circumstances.” DiNardo v. City of Pittsburgh, 15 Pa. Cmwlth. 279, 284, 325 A.2d 654, 657 (1974). Furthermore, “[abandonment of a nonconforming use...is a question of fact which depends upon all the facts present in a case and which the Borough has the burden of proving.” Kuhl v. Zoning Hearing Board of Greene Township, 52 Pa. Cmwlth. 249, 415 A.2d 954 (1980).

In the present case, petitioner argues that the premise’s use as a restaurant and an eating and drinking establishment was not intentionally abandoned, and that the Zoning Hearing Board was incorrect to conclude that the premises was abandoned without the record clearly showing an intentional and willful abandonment. However, per DiNardo, an intention to abandon can be assumed from overt acts or failure to act as well as from statements and circumstances. Although petitioner argued that the use was not intentionally nor willfully abandoned in favor of an adult cabaret, we agree with respondent that the facts illustrate an intent to abandon.

While petitioner claims that the use of the premises was never intentionally changed from a restaurant and eating and drinking establishment to an adult cabaret, the facts presented indicate otherwise, including petitioner’s own statement made during oral arguments that his restaurant (“adult caberet”) may have included “the occasional motorboat.” We doubt that petitioner was referring to a type of watercraft propelled by a motor. We believe that petitioner was instead referring to a specific sexual act. Assuming that petitioner was referring to a sexual act, we find that a “motorboat,” even if only an occasional occurrence, is not a commonly offered option at a restaurant establishment. It seems more likely to be common at adult cabarets.

We further note that the Zoning Hearing Board relied on the rulings of this court in finding that the premises had been operated as an adult caberet. (ZHB decision, page 8, findings of fact #36). These opinions included findings that certainly indicate an adult caberet was operated at the premises, that Mr. Weiner was a principal or representative of both the owner of the property and of Dizzie Dottie, LLC, and the description of activities ongoing at the premises was that of an adult caberet. As those court opinions noted, Mr. Weiner knew what was going on at the premises. The Zoning Hearing Board had more than enough information to conclude that the use of the premises was willfully and intentionally changed to an adult caberet before the zoning change.

We also note that a restaurant and eating and drinking establishment was a permitted use in the commercial district. However, the petitioner allowed a change in use to a non-permitted use even prior to the zoning change. Therefore, a legal non-conforming use was not abandoned at or after the zoning change. Rather, there was no legal use at the time of the zoning change. The legal use had been abandoned (changed) prior to the zoning change. Furthermore, as the Zoning Hearing Board was in the best position to judge the credibility of the testimony, and we see no abuse of discretion based upon the facts adduced at the hearing, we will not disturb the findings of the Zoning Hearing Board in that regard.

In conclusion, this court finds that the decision by the Zoning Hearing Board was correct. The petitioner knowingly and intentionally changed the use of the premises from a restaurant and eating and drinking establishment to an adult cabaret prior to the zoning change. We base these determinations on the pleadings, oral arguments, and exhibits of petitioner, respondent, and intervenor. As an adult caberet was not an allowable use, either in the prior commercial district, or the current R-l Residential Zoning District, there can be no change of use to a restaurant or eating and drinking establishment as a non-conforming use. Such use was abandoned at the premises prior to the time of the zoning change. Instead, a use was operating at the premises that was not permitted in the commercial district. No legally permitted use was taking place at the premises at the time of the zoning change, and therefore, no right to a non-conforming use now. As such, this court finds that granting the petition for review of Zoning Hearing Board Determination is not appropriate, and we enter the following order.

ORDER

And now, this 8th day of December, 2014, upon consideration of petitioner’s, Where’s Prime Rib, LLP’s, petition for review of Zoning Hearing Board Determination, the decision of the Zoning Hearing Board of Jackson Township is upheld and Where’s Prime Rib, LLP’s petition is denied.

      . Dizzy Dottie, L.L.C. leased or was in possession of the real property subject to this zoning appeal. Ira Weiner is or was the principal or representative of both Where’s Prime Rib, LLP and Dizzie Dottie, LLC.


author: WILLIAMSON, J.,

text:
    Rosario v. Bracey’s Mt. Pocono, Inc.

      C.P. of Monroe County,
    No. 9264 CV 2011

      Daniel E. Kleiner, for plaintiff.

      Nancy J. Leddy, for defendant.
    Oct. 28, 2014
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Bracey’s Mt. Pocono, Inc. (hereinafter, “moving defendant”) on August 25, 2014. Juana Rosario (hereinafter, “plaintiff’) filed an answer to the moving defendant’s motion on September 22,2014. In the motion, moving defendant argues that plaintiff cannot show that the moving defendant knew or should have known of the condition in question, or that the condition involved an unreasonable risk of harm to the plaintiff. Specifically, moving defendant asserts that, following exchange of discovery in this case, there is no evidence that they knew or should have known of a dangerous condition on their premises. As such, moving defendant concludes that plaintiff cannot establish the requisite elements of negligence, therefore entitling moving defendant to summary judgment.

According to the parties’ pleadings, the accident in question occurred on or about November 16, 2009 at a ShopRite supermarket located in Mt. Pocono, Pennsylvania. The supermarket is operated by moving defendant. According to the complaint, filed on October 26, 2011, plaintiff was shopping in the supermarket when she slipped on white rice that had spilled onto the floor. Plaintiff was able to keep herself from falling by reaching her hand out to grab onto a shelf, but in doing so she sustained injury to her hand. Moving defendant filed an answer and new matter to plaintiff’s complaint on December 7, 2011. Plaintiff filed a reply to moving defendant’s new matter on December 12, 2011. As previously mentioned, moving defendant filed the instant motion for summary judgment on August 25, 2014. The plaintiff filed a response to moving defendant’s motion for summary judgment on September 22, 2014. Oral arguments in the instant matter were held on October 6, 2014. After review of the parties’ briefs and arguments thereon, we are ready to dispose of moving defendant’s motion for summary judgment.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469. In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

The instant motion for summary judgment requires us to determine whether, at this stage of the proceedings, granting summary judgment in favor of moving defendant is appropriate. In support of the motion, moving defendant makes two arguments. First, moving defendant argues that plaintiff has produced no evidence that the moving defendant had actual knowledge of the existence of the spilled rice on the floor. Moving defendant further argues that actual notice of a harmful condition can be shown by evidence that the store itself created the offending condition or that the condition is one that the owner knew had frequently recurred. Moultrey v. The Great A & P Tea Company, 281 Pa. Super. 525, 422 A.2d 593 (1980). Moving defendant argues that since plaintiff did not produce evidence that moving defendant caused the rice to be present on the floor nor that the spilled rice was a frequently recurring condition, plaintiff did not prove actual notice. Second, moving defendant argues there is no evidence they had, or could be imputed with, constructive notice of the spilled rice at any time prior to the plaintiff’s fall. Since the hazard cannot be identified as existing for any period of time, moving defendant claims that constructive notice cannot be established.

In response, plaintiff argues that summary judgment is not appropriate at this time. First, plaintiff argues that the relationship between plaintiff and moving defendant is that of landowner and the landowner’s invitee. Plaintiff further argues that under The Restatement (Second) of Torts, Section 343, “an invitee is entitled to expect that the [business owner] will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.” Plaintiff states that an eyewitness, Demaris Soto, has testified to the condition of moving defendant’s premises, specifically the condition of the aisle where plaintiff sustained injury. Additionally, the moving defendant’s store manager’s, Ann Kaczmarek-Strunk’s, deposition testimony states that both she and other store employees continuously walk the aisles of the store, looking for any debris or defects. Since Ms. Kaczmarek-Strunk’s recollections of the inspections conducted in the store differ from the actual observations made by Ms. Soto, plaintiff argues that this constitutes a genuine issue of material fact rendering summary judgment inappropriate.

As stated above in our recitation of the standard of law in a summary judgment motion, the entry of such is only appropriate when the right is “free and clear from doubt.” Musser, 562 A.2d at 280. Furthermore, we are instructed that summary judgment is appropriate when there is no genuine issue of material fact, or, if after the completion of discovery relevant to the motion, the party bearing the burden of proof at trial has failed to produce evidence of essential facts to the cause of action. See, Pa. R.C.P. 1035.2(1), (2). With regard to outstanding discovery requests and entering summary judgment, we are told that summary judgment may be entered “prior to the completion of discovery matters where additional discovery would not aid in the establishment of any material fact.” Manzetti v. Mercy Hospital of Pittsburgh, 776 A.2d 938, 950-51 (Pa. 2001). Therefore, it is imperative for us to determine whether discovery is complete, and if additional discovery would aid in the establishment of a material fact.

Taking the above arguments into consideration, we find that summary judgment is not appropriate at this time, as there are questions of material fact surrounding the issue of whether moving defendant had notice or should have known of the condition which caused the plaintiff to slip and injure herself. Further, we believe a determination of the credibility of both parties’ witnesses needs to be made by the fact finder in order to properly support judgment for either side.

Preliminarily we recognize that, for purposes of application to the type of duty owed, plaintiff in this matter is a business invitee. As such, The Restatement (Second) of Torts §343 applies directly to this case.

In a similar case, the Pennsylvania Superior Court discussed the application of §343 to a situation involving a supermarket’s responsibility to its patrons. In Neve v. Insalaco's, 771 A.2d 786 (Pa. Super. 2001), the court cited verbatim the language found in §343 and went on to state that an “invitee must present evidence proving that the proprietor deviated from the duty of reasonable care that it owed in the circumstances, i.e., that the proprietor knew or in the exercise of reasonable care should have known of the harmful condition.” Id. at 791. The court found that an invitee “can satisfy this burden by establishing, inter alia, that the proprietor had constructive notice of the harmful condition.” Id. The court also held that an “invitee can also satisfy its burden by establishing that the proprietor helped to create the harmful condition or had actual notice of it.” Id. N.5 (citing Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. 1994).

Guided by the Superior Court’s rule in Neve we find that plaintiff could establish the notice requirement of the claim if plaintiff is able to prove either that defendant helped to create the harmful condition in question, (i.e., the rice on the floor), had actual notice of the harmful condition, or had constructive notice of the condition. Currently, moving defendant is unable to meet its burden for summary judgment as questions of material fact with regard to notice still exist. Specifically, whether or not moving defendant had a hand in creating the harmful condition is an issue of material fact in dispute. An issue for the fact finder is whether or not the moving defendant knew or should have known of the hazardous condition created by the spilled rice.

In conclusion, viewing the evidence in a light most favorable to the non-moving party, this court finds there to be genuine issues of material facts as presented through the pleadings, oral arguments, depositions and exhibits of both plaintiff and moving defendant. As such, summary judgment is not appropriate at this time, and we enter the following order.

ORDER

And now, this 29th day of October, 2014, upon consideration of defendant’s, Bracey’s Mt. Pocono, Inc.’s, motion for summary judgment, the same is denied.

      . Restatement (Second) of Torts §343 has been cited with approval in Pennsylvania by the Pennsylvania appellate courts. See, e.g., Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983); Lonsdale v. Joseph Home Co., 587 A.2d 810, 811 (Pa. Super. 1991).


author: ZULICK, J.,

text:
    Clavell v. Brown

      C.P. of Monroe County,
    No. 5641 CV 2014

      James J. Conaboy, for plaintiffs.

      Neil E. Wenner, for defendants.
    Nov. 25, 2014
   ZULICK, J.,

This case comes before the court on defendants’ preliminary objections to plaintiffs’ amended complaint. The Clavells filed a complaint seeking damages for medical malpractice on September 24,2014. The plaintiffs allege in their amended complaint that Dr. Joseph Brown was negligent in his diagnosis and treatment of a diabetic ulcer on Ms. Clavell’s left foot. They also contend that Pocono Foot & Ankle Consultants, P.C. (Pocono Foot), was vicariously liable for the actions of Dr. Brown, its employee, and that Pocono Foot was directly liable to Ms. Clavell due to corporate negligence. Defendants Pocono Foot and Dr. Brown filed preliminary objections on October 2,2014, demurring to the corporate negligence allegations of Count III of plaintiffs’ amended complaint. All parties submitted briefs, and arguments were held in this court on November 3, 2014.

The facts alleged in the amended complaint may be summarized as follows. Dr. Joseph Brown treated Ms. Clavell for pain in her left foot from April through July, 2012. Dr. Brown diagnosed Ms. Clavell first with soft tissue edema and a small avulsion fracture, and later with plantar fasciitis. Plaintiffs’ amended complaint atfl 6-9. He treated the site with anesthetic injections and pain patches. Id. at ¶¶9-10. When the left foot became so swollen that Ms. Clavell was unable to walk, she saw other physicians as her foot and ankle continued to deteriorate. Id. at ¶¶ 13-18. One physician, Dr. Seth Burkey, advised Ms. Clavell that the condition of her foot was due to unsanitary conditions at the time of injection by Dr. Brown. Id. at ¶17. After Ms. Clavell was hospitalized at Windthrop University Hospital in Long Island, New York from August 21,2012 through August 27, 2012, Ms. Clavell was referred to a wound care doctor, Dr. Charles Bannon, who diagnosed a non-healing diabetic ulcer. Id. at ¶¶19-20. Ms. Clavell received lengthy treatment thereafter. Id. at ¶¶20-22.

Plaintiffs contend that Pocono Foot was negligent in failing to:

a. ...use reasonable care in the maintenance, (sic) safe and adequate facilities and equipment;
b. ...select and retain only competent physicians;
c. ...properly observe all persons who practice medicine upon plaintiff;
d. ...formulate, adopt and enforce adequate rules and policies to ensure quality care to its patients, and specifically to plaintiff, Carmen Clavell.

Amended complaint, ¶31.

Pocono Foot has objected, arguing the amended complaint fails to state a cause of action. The standard for demurrer is “whether, on the facts averred, the law says with certainty that no recovery is possible.” Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 613 A.2d 1235, 1238 (Pa. Super. 1992). “Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.” Id.

Here, defendants argue that plaintiffs have not stated a claim for the corporate negligence of Pocono Foot:

Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a non-delegable duty which the hospital owes directly to a patient. Therefore an injured party does not have to rely on and establish the negligence of a third party.

Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991).

To establish a claim for corporate negligence, a plaintiff must establish three elements:

1. The [facility] acted in deviation from the standard of care;
2. The [facility] had actual or constructive notice of the defects or procedures which created the harm; and
3. That the conduct was a substantial factor in bringing about the harm.

Rauch v. Mike-Mayer, 783 A.2d 815, 826 (Pa. Super. 2001).

Plaintiffs allege that a contaminated injection given to her by Dr. Brown was the direct cause of her exacerbated diabetic ulcer. Pocono Foot is not a hospital; however, corporate negligence has been applied to healthcare facilities other than hospitals. See Scampone v. Highland Park Care Center, LLC, 57 A.3d 582 (Pa. 2012). The question of whether corporate negligence may be imposed in this case depends upon whether Pocono Foot breached a duty to its patient. The Pennsylvania Supreme Court has held that the trial court must consider various factors in the relationship between the parties and the facts of the case to determine whether the defendant breached a duty:

Thus, the legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society. See Gardner v. Consolidated Rail Corp., 524 Pa. 445, 455, 573 A.2d 1016, 1020 (1990). The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and
(5) the overall public interest in the proposed solution. See generally Dumanski v. City of Erie, 348 Pa. 505, 507, 34 A.2d 508, 509 (1943)(relationship between the parties), Forster v. Manchester, 410 Pa. 192, 197, 189 A.2d 147, 150 (1963)(social utility), Clewell v. Pummer, 384 Pa. 515, 520, 121 A.2d 459, 463 (1956) (nature of risk), Witthoeft v. Kiskaddon, 557 Pa. 340, 353, 733 A.2d 623, 630 (1999)(foreseeability of harm), Cruet v. Certain-Teed Corp., 432 Pa. Super. 554, 558, 639 A.2d 478, 479 (1994)(relationship, nature of risk and public interest in the proposed solution). See also Bird v. W.C.W., 868 S.W.2d 767, 769 (Texas 1994)(“In determining whether to impose a duty, this court must consider the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor.”).

Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000).

The Supreme Court additionally noted in the Scampone decision that the trial court may consider Section 323 of the Restatement of Torts, 2nd, in determining whether a duty exists between a medical office and a patient:

As illustrated in Thompson, the proper question here is whether the Scampone estate offered sufficient evidence of the relationship with Highland Park, and separately with Grane Healthcare, to establish that duties of care exist, by application of Section 323 of the Restatement or by application of the Althaus factors. The inquiry is individual to each appellant, although the duties of appellants may be similar. This type of individualized inquiry into appellants’ duties of care ensures that multiple entities are not exposed to liability for breach of the same non-delegable duties.

Scampone at 606, 607.

Here, Ms. Clavell alleged that she sought treatment from Pocono Foot and that Dr. Brown was the podiatric surgeon who treated her. She alleges in the amended complaint that her injury was caused by “unsanitary conditions at the time of her injection by Dr. Joseph Brown.” Amended complaint, ¶17. Nowhere in the complaint is there an allegation that the injection occurred on the premises of Pocono Foot, or that Pocono Foot’s maintenance of the premises contributed to plaintiff’s injury. There is no factual allegation that Dr. Brown was in any way unqualified to practice podiatric surgeiy, or that rules or procedures of Pocono Foot contributed to plaintiff’s injury. The amended complaint simply restated the four non-delegable duties as detailed in Thompson without illustrating how they apply to this case. Thus, Ms. Clavell has not sufficiently established in her amended complaint that Pocono Foot breached a duty to her.

ORDER

And now this 25th day of November, 2014, upon consideration of defendant Pocono Foot & Ankle Consultants, P.C.’s preliminary objections and the briefs and arguments of both parties, it is ordered as follows:

1. Defendant Pocono Foot and Ankle Consultants, P.C.’s demurrer to Count III, corporate negligence, is sustained.

2. Plaintiffs are given twenty days to file a second amended complaint.

      . These nondelegable duties include (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care to patients. Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991).

      . §323 negligent performance of undertaking to render services
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm, or
      (b) the harm is suffered because of the other’s reliance upon the undertaking.
      REST 2d TORTS §323.


author: HARLACHER SIBUM, J.,

text:
    Gaeta v. Commonwealth

      C.P. of Monroe County,
    No. 8346 Civil 2014

      Jeffrey G. Velander, for petitioner.

      Adrian Shchuka, for respondents.
    Dec. 16, 2014
   HARLACHER SIBUM, J.,

Petitioner, Thomas Gaeta, filed a petition for return of property on October 7,2014 to recoup currency seized during a police stop conducted on August 22, 2014. Petitioner, stopped for a headlight malfunction, possessed $29,200.00 in U.S. Currency seized by police during the stop. Petitioner was neither issued a citation nor arrested as a result of the stop. A hearing was held on this matter on November 17, 2014. We are now prepared to decide this matter.

DISCUSSION

Pursuant to Pennsylvania Rule of Criminal Procedure 588, a petitioner may move to have property returned on the grounds of lawful entitlement to possession. Pa.R.Crim.P. 588. To establish lawful entitlement, a petitioner must, at minimum, make an allegation that he is entitled to lawful possession of the property. Com. v. Pomerantz, 573 A.2d 1149, 1150 (Pa. Super. 1989). Once the petitioner puts forth such an averment of entitlement, the burden then shifts to the Commonwealth to prove, by a preponderance of the evidence, that the seized property is contraband. Barren v. Com., 74 A.3d 250, 255 (Pa. Super. 2013). To meet its burden, the Commonwealth must put forth more than just evidence that the property seized was in the possession of someone who has engaged in criminal conduct; it must identify a nexus between the property and the criminal activity. Singleton v. Johnson, 929 A.2d 1224, 1227 (Pa. Commw.2007). While the Commonwealth need not present evidence directly linking the seized property to illegal activity, it must evidence more than a suspicion or possibility of a nexus. Com. v. Marshall, 698 A.2d 576 (Pa. 1997). If the Commonwealth successfully sustains its burden, the property owner then must disprove the Commonwealth’s evidence or establish a statutory defense to avoid forfeiture. Beaston v. Ebersole, 986 A.2d 876, 881 (Pa. Super. 2009).

Upon a review of the evidence, facts, and testimony, we find that petitioner has properly claimed ownership of the currency. Petitioner has adequately claimed lawful possession and has provided the court with sufficient indicia of ownership such as copies of checks, court documents, medical expense reports, and other related documents to account for the acquisition of an amount of currency similar to the amount seized during the stop. By doing so, petitioner has alleged lawful possession of the currency and shifted the legal burden to the Commonwealth to prove, by a preponderance of the evidence, that the seized currency is contraband. Id. at 882.

We find that the Commonwealth has failed to meet this burden. At hearing, the Commonwealth presented evidence that upon being stopped, the petitioner appeared nervous, excited, and had inconsistent theories for the origin of the currency in question and that the currency was found rolled in thousand dollar increments. The Commonwealth also presented evidence that an ion scan was conducted on the currency and bank bag in which the currency was found. The drug contact levels indicated by the ion scan do substantiate that the seized currency and bank bag had, at one time, been in contact with the controlled substance cocaine.

Despite this evidence, we find that the Commonwealth has failed to put forth sufficient evidence tying the currency to the sale of drugs. The Commonwealth has presented evidence indicating that the currency seized may have, at one point, been part of a drug transaction. There has not, however, been a showing by a preponderance of the evidence that petitioner used the money in a drug transaction. Where the circumstantial evidence does not lead to a single inference of drug activity, we cannot find that the Commonwealth has met its burden. Com. v. Parrino, 96, A3d 1132 (2014).

No drug paraphernalia was found on petitioner’s person or in his vehicle. No citation or arrest for drug activity or involvement was issued for petitioner. The only connections the Commonwealth can make to a drug transaction are petitioner’s slightly odd behavior and the presence of cocaine on the currency. The presence of cocaine is not enough evidence to generate the required nexus to drug activity. An ion scan testing positive for controlled substances may help to establish a nexus between the currency and illegal activity. However, the ion scan results must be considered not in a vacuum, but together with the rest of the evidence. See Com. v. Three Hundred Ten Thousand Twenty Dollars, 894 A.2d 154 (Pa. Commw. 2006). The Commonwealth’s evidence, in tandem with the documents and claim of ownership presented by petitioner suggest that while the currency may have been used in a drug transaction at some point, it is not more likely than not to have been a part of such transaction involving petitioner. There are too many inconspicuous likely alternatives to the theory presented by the Commonwealth. As such, we cannot find the Commonwealth has satisfied its burden. For these reasons petitioner’s request is granted.

Accordingly, we enter the following order.

ORDER

And now, this 16th day of December, 2014, petitioner’s petition for return of property in the amount of $29,200.00 in U.S. Currency is granted.


text:
    Commonwealth v. Mara

      C.P. of Monroe County,
    No. 3000 CV 2003

      J.P. McGowan, for plaintiff.

      Jeffrey G. Velander, for defendants.
    Dec. 26, 2014
   ZULICK, J.,

This action for injunctive relief and damages under the Unfair Trade Practices and Consumer Protection Act, 73 P.S. §201-1 et seq. was commenced by complaint filed by the office of the attorney general on behalf of the Commonwealth on May 28, 2003. An affidavit of service was filed on August 19, 2013. The affidavit of service of the complaint was signed by Charles J. Cascio, agent supervisor for the office of attorney general, bureau of consumer protection, who stated that he personally served a copy of the complaint upon Christy Mara, wife of defendant Edward Mara, at 24 Olde Mill Run, Stroudsburg, Pennsylvania on May 30, 2003 at 12:30 p.m.

Plaintiff filed an amended complaint on October 22, 2009. No answer was filed to the amended complaint and a ten day notice of intention to take default judgment was mailed to defendant c/o Tropical Pools/Mountain Services, 106 Fox Chase Road, Stroudsburg, PA 18360 and c/o Marshalls Creek Nursery, Inc., 2015-0 Tanite Road, Stroudsburg, PA 18360. When no answer was forthcoming, plaintiff took a default judgment on October 8, 2010.

The Commonwealth filed a motion on November 1, 2010 for a hearing to establish damages and to obtain remedies pursuant to P.R.C.P. 1037(d). That hearing was held on November 23, 2010. The plaintiff appeared and presented witnesses. The defendants had entered no appearance in the action and were not present.

A final order was issued on December 16, 2010. The order granted injunctive relief against Edward Mara and found in favor of nineteen consumers who had testified about damage to their properties or loss of funds caused by the defendant. Judgment was entered in favor of the Commonwealth in the amount of $428,809.49.

The Commonwealth filed a petition for sanctions on February 14, 2013, alleging that Mara had again contracted with consumers for installation of swimming pools in Pennsylvania in violation of the court’s injunction of December 16, 2010. A hearing was scheduled for March 19, 2013, and the court required that the defendant be personally served. The Commonwealth filed several motions for continuance when it was unable to obtain personal service of the petition and order upon the defendant. A hearing was eventually scheduled for July 30, 2014.

Defendant Mara filed a motion to strike off judgment and motion to dismiss for lack of jurisdiction — limitations on July 26, 2014. The petition alleged inter alia that defendant was not served with the original complaint, the amended complaint, or notice of the trial date, and that the default judgment was void due to lack of an affidavit of service on the record. The court entered a rule on the defendant’s motion on July 29, 2013, and postponed the hearing on the Commonwealth’s motion for contempt.

The Commonwealth filed an answer to the petition and the parties engaged in discovery. A hearing was held on the motion to strike judgment on August 20, 2014. The court reporter was directed to prepare a transcript and the attorneys were given leave to file briefs. Defendant Mara then filed a supplemental motion to open the judgment on October 16, 2014. A hearing was scheduled on this motion for November 3, 2014. The parties appeared for the hearing, but defendant withdrew the motion to open before any witnesses were called at the hearing.

FINDINGS OF FACT

1. Charles J. Cascio, Agent Supervisor for the Office of attorney general, bureau of consumer protection, personally served a copy of the complaint on Christy Mara, wife of defendant Edward Mara, at 24 Olde Mill Run, Stroudsburg, Pennsylvania on May 30,2003 at 12:30 p.m. He signed an affidavit of service on June 16, 2003, but this affidavit was not filed of record until August 19, 2013.

2. Edward Mara is married and has lived with his wife Christy Mara from 2003 until the time of the hearing. NT at 6.

3. Edward Mara and Christy Mara resided at 24 Olde Mill Run, Stroudsburg, Pennsylvania in 2003. They moved that year to 106 Fox Chase Road, Stroudsburg. NT at 6-7.

4. Edward Mara filed a Chapter 13 bankruptcy petition in the Bankruptcy Court for the Middle District of Pennsylvania on March 26, 2003. Commonwealth’s Exhibit 1. He was represented by Vincent Rubino, Esq.

5. On June 4, 2003, five days after Christy Mara was served with the complaint, attorney Rubino wrote a letter to attorney McGowan advising him in part:

I am in receipt of the complaint which you recently filed against Edward Mara and Marshall’s Creek Nursery, Inc. Please be advised that this office represents Mr. Mara with respect to a chapter 13 bankruptcy proceeding filed in the Bankruptcy Court for the Middle District of Pennsylvania on March 26, 2003 pursuant to 5-03-51352. Attached please find a photocopy of the face page of the Bankruptcy Petition.
As a result of the bankruptcy filing, the Commonwealth of Pennsylvania may not proceed with the civil complaint against Mr. Mara. Kindly arrange to have the complaint discontinued.

Commonwealth’s Exhibit 1.

6. On January 14, 2005, a stipulation was filed in Edward Mara’s bankruptcy proceedings which stated in part:

WHEREAS, the Commonwealth of Pennsylvania had previously filed a complaint in Equity in state court in the Monroe County Court of Common Pleas on May 28,2003 in an action against the debtor docketed at No. 3800 CV 03; and
WHEREAS, the debtor and the Commonwealth are desirous of agreeing on the creation of three classes of consumer complaints within the context of the chapter 13 proceedings and are desirous of using this stipulation as part of the resolution of the pending state court action, which may also include injunctive relief.

Commonwealth’s Exhibit 2.

7.The stipulation divided 21 individual consumer claims against Mara into three classes of claims, some of which claimed specific dollar amounts, totaling $57,918.00. Five of the claims did not have an agreed upon dollar amount. Id.

8. The Mara chapter 13 bankruptcy was dismissed on November 28, 2006. Commonwealth’s Exhibit 3.

9. The attorney general’s office sent Mara a letter at 205 Gower Road, Nazareth, Pennsylvania, dated October 8, 2010 on an unrelated consumer protection matter. Defendant’s Exhibit 3.

10. Edward Mara and his wife Christy Mara filed another bankruptcy petition in the Eastern District of Pennsylvania in 2011.

11. The Commonwealth filed a proof of claim in that bankruptcy, advising Mara that the Commonwealth claimed $525,309.49 from him, based upon the Monroe County judgment in this case. The proof of claim advised Maraofthe docket number of this case, and that a judgment by default had been entered against him on December 16, 2010. Commonwealth’s Exhibit 4.

12. Edward Mara was shown the proof of claim by his bankruptcy attorney after it was filed. NT at 21.

13. The full particulars of the judgment entered in this case were also detailed in a complaint to determine the non-dischargeability of the Commonwealth’s claims in this case against Mara. Commonwealth’s Exhibit 5. A copy of this complaint was sent to Edward Mara at 205 Gower Road, Nazareth, PA 18064 on August 29,2011. Id.

14. This bankruptcy was dismissed in 2011. NT at 21.

15. Kierra Harms was working as a babysitter for Edward Mara, Jr., defendant Edward Mara’s son, in Palmer Township, Northampton County on July 17,2013. She was 17 years of age. She was served with the petition and order scheduling the contempt hearing in this case for July 31, 2013. NT at 33.

16. Edward Mara did not enter an appearance in this litigation until July 26, 2013.

DISCUSSION

Defendant has filed a motion to strike the court’s judgment of December 16, 2010, arguing that there was no affidavit of service of the complaint on the record at the time of the judgment. A motion to strike a judgment is in the nature of a demurrer directed to defects in the record. Such a motion will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining, the motion to strike must be denied. Malakoff v. Zambar, Inc., 288 A.2d 819 (Pa. 1972); Scheiner v. Redevelopment Authority of the City of McKeesport, 465 A.2d 140 (Pa. Cmwlth. 1983).

The Pennsylvania Supreme Court stated in Franklin Interiors v. Wall of Fame Management, 511 A.2d 761 (Pa. 1986):

It is well settled beyond peradventure that a petition to strike may be granted only for defects appearing on the face of the record. (Citations omitted.) Review of a motion to strike, therefore, is limited only to the record as filed by the party in whose favor the warrant is given. (Citations omitted.) Accordingly, if the record is not self-sustaining, the judgment should be stricken.

Id. at 762.

Our supreme court has also noted that in making the determination whether fatal irregularities appear on the face of the record, a court must look only at what was in the record at the time the judgment was entered. Linett v. Linett, 254 A.2d 7 (1969).

Edward Mara contends here that the record supporting the default judgment against him was fatally defective because the Commonwealth violated Pa.R.C.P. 405. That rule provides in part:

Rule 405. Return of Service

(a) When service of original process has been made the sheriff or other person making service shall make a return of service forthwith...
(b) A return of service shall set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made.
...(d) A return of service by a person other than the sheriff shall be by affidavit...
(e) The return of service or of no service shall be filed with the prothonotary.

At the time of the entry of the default judgment on December 16, 2010, there was no affidavit of service on record. The Commonwealth filed the affidavit of service of Charles J. Cascio on August 19, 2013, in response to defendant’s motion to strike for lack of service. Mr. Cascio’s affidavit states that he served a copy of the complaint upon Christy Mara, defendant’s wife on May 30, 2003 at 24 Old Mill Run, Stroudsburg, Pennsylvania. Commonwealth’s Exhibit 6. The Commonwealth explains in its brief that when it received the letter from attorney Rubino, Mr. Mara’s bankruptcy counsel, 5 days after the complaint was served, referencing the same complaint that had just been served upon Christy Mara, it did not file the affidavit of service due to the existence of the bankruptcy automatic stay order.

The Commonwealth further argues that a review of the record shows that the complaint was properly served pursuant to Pa.R.C.P. 402(a)(2) which states that “(o) riginal process may be served... (2) by handing a copy (i) at the residence of the defendant to an adult member of the family with whom he resides;” Pa. R.C.P. 402 (a)(2). The late-filed affidavit of Charles Cascio is evidence of proper service of the complaint in compliance with the requirements of Rule 402(a). However, the superior court has held that a lack of an affidavit of service on the record at the time the prothonotary enters the default judgment may not be cured by a later filing of the affidavit:

The fact that appellee filed a return of service made by Albert Zavodnick well after appellant filed its petition to strike does not cure the defect since we are obligated to look only at the record which existed when the judgment was entered. Linett, supra, Cintas Corp. v. Lee’s Cleaning Services, Inc., 672 A.2d 1371, 1372 (Pa. Super. 1996); reversed on other grounds, 700 A.2d 915 (Pa. 1997).

A review of the record in this case shows that there was no evidence of service of original process at the time the default judgment was requested. This case is different from the situation presented in Cintas, supra, where the supreme court found that the affidavit of service which was of record was adequate to establish proof of service. There the plaintiff’s attorney signed a certificate of service stating that the complaint had been served by a process server and provided the details. The superior court held that the actual process server must file the affidavit. The supreme court reversed and held that as long as the details of service were of record, the prothonotary was correct in entering the judgment. Here, there was no evidence of service of process on the docket when judgment was entered.

This case is also distinguishable from Knickerbocker Russell Co., Inc. v. Crawford 936 A.2d 1145, 1148 (Pa. Super. 2007). There the plaintiff’s attorney attached a completed affidavit of service from the Washington County Sheriff to plaintiff’s praecipe for default judgment, but the Allegheny County Sheriff did not file the actual return until sometime later. Judge Bowes opinion stated:

...the central issue was whether sufficient information existed for the prothonotary to conclude that appellant was properly served with the complaint. McKinney, supra; Cintas Corp., supra. We find that the Allegheny County Prothonotary had ample information to make this determination because appellee produced a signed, notarized return of service that was created by the Washington County Sheriff and specified the date, time, place, and manner of service upon Ms. Moore.

Knickerbocker at 1148.

The fact that there was no evidence of service of record makes this case akin to the recent case of ANS Associates, Inc. v. Gotham Ins. Co., 42 A.3d 1074 (Pa. Super. 2012) where a writ of summons was served by regular mail. Evidence was presented after the default judgment was taken to show actual service:

ANS and Chugtai argue that there was sufficient evidence of record to establish proper service.... However, in making this argument, ANS and Chugtai rely upon evidence that PPP did in fact receive the writ of summons.... This evidence was not part of the record at the time the default judgment was entered; thus, as noted above, it may not be considered by the court in ruling upon a petition to strike. Further, “improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her.” Cintas Corp. v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 700 A.2d 915, 918 (1997). As such, the argument of ANS and Chugtai is without merit.

ANS at 1077.

The issue raised here is in the nature of a procedural defect. Although Christy Mara testified that she did not recall being served with the complaint, Edward Mara’s bankruptcy counsel referenced the complaint in a letter within five days of the time Christy Mara was served. Serving Christy Mara, defendant’s wife, at their residence, was good service. The complaint was also addressed in some detail later in the Mara bankruptcy proceedings. Pennsylvania law requires, however, that there be evidence of service of record before the prothonotary enters a default judgment.

The motion to strike judgment will be granted. However, Edward Mara’s motion to dismiss the case will not be granted, as I find that he was actually served with the original complaint. He will be directed to file a response to the amended complaint within twenty days.

ORDER

And now, this 26th day of December, 2014, following hearing and consideration of the parties’ arguments and briefs, it is ordered that:

1. The motion to strike the default judgment entered in this matter is granted. The default judgment is stricken and the order of December 16, 2010 is vacated.

2. Defendant Edward Mara shall respond to the amended complaint within twenty days.