author: LASH, J,

text:
    Bonsall v. Kutztown Fire Company

      C.P. of Berks County,
    no. 03-3119.

      Richard P. Haaz, for plaintiff.

      Robertson B. Taylor, for defendant Kutztown Fire Co.

      Frank G. Procyk, for defendant Barclay Contracting Co.
    July 10, 2006
   LASH, J,

The matter before this court is the motion of defendant, Kutztown Fire Company, for summary judgment. Plaintiff, Todd Bonsall, seeks damages for injuries he suffered on June 18, 2001, when he fell through a roof of a building owned by defendant Kutztown. Plaintiff was present on the roof as an employee of White Brothers Construction Inc., an independent contractor hired to perform repairs to the roof. Defendant Kutztown denies liability, claiming it has no duty to plaintiff because the independent contractor was in temporary possession of the area of the premises where the accident occurred and, therefore, had sole responsibility for acts or omissions occurring thereon. For reasons set forth herein, this court grants the motion for summary judgment.

According to the record, in the winter of 1996, the roof sustained snow damage. Defendant Kutztown’s insurer, Pennsylvania Mutual Insurance Company (PMI), directed defendant Kutztown to contract with defendant, Barclay Contracting Company, to handle repairs to the roof. Defendant Kutztown’s president, Daniel Smith, and a representative of defendant Barclay met to discuss the problem. Defendant Barclay’s representative offered two options: installation of a rubber roof or a torch applied roof. Defendant Kutztown opted for the torch applied roof, which defendant Barclay installed.

Approximately one year after installation, the roof began to leak. From June of 1997 until June of2001, Smith contacted defendant Barclay 10 or 12 times to repair the roof. Defendant Barclay’s representatives came out on one or two occasions to perform patch jobs. However, the leaking continued.

Sometime early in 2001, defendant Barclay’s vice president, Jim Spinosa, and its estimator, Kurt D. Fritz, along with Smith, examined the roof. Fritz observed bubbles and cracks on the roof and recommended to Smith that the entire roof be replaced and that he notify his insurance company. Subsequently, PMI adjuster Chris Wright contacted Fritz and scheduled a meeting to examine the roof. Spinosa, Fritz, Wright, and Smith went up on the roof for an examination in late March or early April 2001. Afterwards, Wright asked Fritz to prepare an estimate to repair the roof but told him he did not want defendant Barclay to perform the repairs because PMI did not wish to pay defendant Barclay’s 21 percent overhead and profit charges. Wright also asked Fritz to recommend a roofer for the Kutztown job, and Fritz recommended White Brothers. Defendant Barclay later prepared an estimate for the roof repairs and sent it to PMI.

On or about June 11, 2001, White Brothers’ employees, Bobby White Sr. and plaintiff, examined the roof with Smith. White informed Smith that the roof had to be completely rebuilt starting with a metal decking. John White of White Brothers called Fritz and informed him about the redecking of the roof. Fritz then called Wright and gave him an estimate for the costs of redecking. PMI approved the decking and on or about June 14, 2001, White Brothers began its work.

Bobby White Sr. and plaintiff inspected the roof before the repairs began. At that time, plaintiff and White both observed that the roof was in poor condition. Plaintiff could see that the roof was “bowed” (sagged) in spots, that the deck of the roof was “shot,” that the roof was unsafe to walk on in certain locations because of depressions, and that half the roof consisted of these depressions. White, likewise, observed that the deck was “bowing” and that the roof was unrepairable and unsafe to walk on. On June 18,2001, during the course of the roof repair, plaintiff fell through the roof and sustained serious personal injuries.

Plaintiff commenced this action by writ of summons against both defendants on March 21, 2003. The complaint was subsequently filed on May 19, 2003. Argument on defendant Kutztown’s motion for summary judgment was held on June 22,2006.

In Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001), the Supreme Court restated the standard for granting summary judgment:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which ‘an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ Pa.R.C.P. 1035.2(2). We review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992).”

The authority for defendant Kutztown’s motion comes from the Pennsylvania Supreme Court case of Hader v. Coplay Cement Mfg. Company, 410 Pa. 139, 189 A.2d 271 (1963). In Hader, the Supreme Court held that an owner of land who delivers temporary possession of a portion of the land to an independent contractor owes no duty to the employees of the independent contractor with respect to an obviously dangerous condition on that portion of the land in the possession of the contractor. The court noted the rationale of this ruling, originally set forth in Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932):

“The very phrase ‘independent contractor’ implies that the contactor is independent in the manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work and who presumably knows more about it than the man who by contract authorized him to do it? Responsibility goes with authority.” 410 Pa. at 151, 189 A.2d at 277.

In opposing the motion for summary judgment, plaintiff relies primarily on the case of Beary v. Container General Corporation, 368 Pa. Super. 61, 533 A.2d 716 (1987). In Beary, an employee of an independent contractor performing work on defendant’s property was injured when he came into contact with high voltage wires. The question posed was whether the defendant was charged with a duty of care under section 343 of the Restatement (Second) of Torts. Section 343 provides, in part:

“Section 343. Dangerous conditions known to or discoverable by possessor.

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

“(c) fails to exercise reasonable care to protect them against the danger.

“Section 343A. Known or obvious dangers.

“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

Similar to the within matter, defendant owner in Beary claimed that the independent contractor should be solely responsible for its employee’s injuries based upon the Hader holding. However, the Superior Court distinguished Hader because, among other things, defendant owner remained responsible for providing electricity to power the independent contractor’s equipment and was deemed to never have delivered possession of that portion of the land where the wires were located.

Plaintiff’s reliance on the Beary holding is misplaced. Unlike the defendant owner in Beary, defendant Kutztown was out of control of the roof where the accident occurred, as this was also the location where the work for which the contractor was hired was being performed. As stated in Hader:

“An independent contractor is in possession of the necessary area occupied by the work contemplated under the contract and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises: Bitting v. Wolfe, 368 Pa. 167, 82 A.2d 21 (1951); Engle v. Reider, 366 Pa. 411, 77 A.2d 621 (1951); Patterson v. Palley Manufacturing Company, 360 Pa. 259, 61 A.2d 861 (1948); Valles v. Peoples-Pittsburgh Trust Company, 339 Pa. 33, 13 A.2d 19 (1940); Powell v. Ligon, 334 Pa. 250, 5 A.2d 373 (1939).” 410 Pa. at 151, 189 A.2d at 277.

Plaintiff also contends that summary judgment cannot be granted because there is a material factual dispute over whether defendant Barclay was actually the general contractor supervising the repairs. According to plaintiff, the circumscribing of defendant Kutztown’s duties set forth in Hader extends only to defendant Barclay’s employees. Defendant Kutztown would still be responsible for other contractors’ employees, such as plaintiff.

In considering the extent of defendant Kutztown’s duty, we perceive no distinction over whether defendant Barclay or White Brothers was the contractor in charge of the repairs. During the time the repairs were being performed by plaintiff and other employees of White Brothers, either defendant Barclay as general contractor or White Brothers as the general or subcontractor was responsible for supervising the work being performed by plaintiff, and was in control of the location for that purpose. Defendant Kutztown was out of possession for the time it took to make the necessary repairs. The duty to protect the employees from any dangerous condition on the premises was not, at the time the accident occurred, the responsibility of defendant Kutztown.

There are exceptions to the Hader holding which also must be considered. The first is known as the “retained control exception,’’ appearing in section 414 of the Restatement (Second) of Torts. The exception was summarized by the Commonwealth Court in the case of LaChance v. Michael Baker Corporation, 869 A.2d 1054, 1057-58, (Pa. Commw. 2005), where the court stated:

“An owner of property does not have a duty to protect the employees of an independent contractor from risks arising from or created by the job contracted. Celender v. Allegheny County Sanitary Authority, 208 Pa. Super. 390, 222 A.2d 461, 463 (1966). However, under section 414 of the Restatement (Second) of Torts, the landowner that retains and exercises control over the work of the independent contractor can be held liable for failure to exercise that control reasonably; it states: ‘One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise responsible care, which is caused by his failure to exercise his control with reasonable care.’ Restatement (Second) of Torts, §414 (1965)....

“The retained control exception usually applies in the situation where a general contractor fails to use reasonable care in supervising its subcontractors. While the general contractor’s retained control may be less than that of a master over a servant, mere supervision over the work of a subcontractor, up to and including the right to stop a project, is not control sufficient to impose liability. The comment explains the requisite degree of control as follows:

“(c) In order for the rule stated in this section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Section 414 comment c.” (footnotes omitted) (emphasis in original)

There is no evidence in the record which establishes that defendant Kutztown exercised any level of supervision or control over White Brothers’ work, either directly or through defendant Barclay. Defendant Kutztown did little more than maintain a presence through Smith, who was there ostensibly to receive assessments on the nature and extent of the need for repair and to monitor progress.

A second exception to the Hader holding, known as the peculiar risk exception, also does not apply. That exception is set forth in section 416 and section 427 of the Restatement (Second) of Torts, which states as follows:

“Section 416. Work dangerous in absence of special precautions.

“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

“Section 427. Negligence as to danger inherent in the work.

“One who employs an independent contactor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precaution against such danger.”

In the case of Edwards v. Franklin & Marshall College, supra, the court, citing Ortiz v. Ra-El Development Corp., 365 Pa. Super. 48, 528 A.2d 1355, (1987), alloc, denied, 517 Pa. 608, 536 A.2d 1332 (1987), construes section 416 and section 427, stating that a special danger or peculiar risk exists where:

“(1) the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measurers; and

“(2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.” 444 Pa. Super, at 6, 663 A.2d at 190. (emphasis in original)

The Edwards case also involved a plaintiff employee of an independent contractor who fell through a roof while patching the roof on the building that the contractor was hired to renovate. The court found that the risk of falling through a roof which was deteriorating and in need of repair was not the type of risk which involved unusually dangerous circumstances to the plaintiff invitee, who was present on the roof for the express purpose of making repairs, particularly when the condition of the roof was known and warnings had been given.

The holding in Edwards is indistinguishable from the case at bar. The risks plaintiff faced were standard risks associated with the repair of a roof. It was known to him and his employer that portions of the roof were in poor shape and may not be strong enough to bear his weight. While the circumstances were very likely dangerous, they were certainly not peculiar or uncommon. Plaintiff cannot establish that the risk was different than the usual and ordinary risk associated with the roofing industry.

Plaintiff has failed to present any basis for the imposition of liability against defendant Kutztown. Accordingly, we enter the following order:

ORDER

And now, July 10, 2006, upon consideration of the motion of defendant, Kutztown Fire Company, for summary judgment, response thereto, briefs filed by the parties, and after argument held, the motion for summary judgment is granted. Judgment is entered in favor of defendant, Kutztown Fire Company, and against plaintiff, Todd Bonsall.

      . The terms “peculiar risk” and “special danger” are used interchangeably. Edwards v. Franklin & Marshall College, 444 Pa. Super. 1, 5, 663 A.2d 187, 189(1995).


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    Altman v. Lang

      C.P. of Lawrence County,
    no. 10429 of 2005, C.A.

      Susan M. Papa, for plaintiffs.

      Charles W. Garbett, for defendants.
    July 7, 2006
   HODGE, J.,

This matter is before the court on motion for summary judgment filed by the defendants, Frederick Thomas Lang, Frederick J. Lang and Rondi L. Lang, through their attorney, Charles W. Garbett, Esquire, submitting that the plaintiffs are precluded from splitting their causes of action and may not re-litigate a claim for personal injury at the above case number and caption arising out of an incident to which said plaintiffs have already pursued to judgment for an action in property damages.

The plaintiffs, Harry D. Altman and Deborah Altman, have filed an answer to defendants’ motion for summary judgment and brief in opposition to the same, submitting that (1) the plaintiffs’ cause of action for personal injury damages was not yet ripe at the time the property damage action was initiated and (2) whether a plaintiff motorist suffers a “serious injury” in order to recover noneconomic damages under the limited tort election provision of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1705(a), presents a question of fact for a jury to determine.

The dispositive case pertaining to the issue of ripeness for purposes of initiating both a cause of action for property damages and personal injury damage at the same time was handed down by the Supreme Court of Pennsylvania in Fitzpatrick v. Branoff, 504 Pa. 169, 470 A.2d 521 (1983). In that case, the automobile accident occurred on December 24, 1977. Id. It was on that date that a cause of action for property damage arose. Id. Under the No-Fault Act, a cause of action did not accrue for personal injuries until several months later, when the threshold had been met. Id. Regardless of that fact, however, both causes of action were mature well before the initial action for property damages was instituted. Id. Thus, appellees were required to bring all their claims, and the failure to join both their property damages and personal injury actions bars the second action. Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968). Id. This mandate is based on the doctrine of res judicata which provides that once a judgment is rendered, that judgment is conclusive between the parties with regard to all points of law directly related to the cause of action and affecting the matter before the court. Bearoff v. Bearoff Brothers Inc., 458 Pa. 494, 498, 327 A.2d 72, 75 (1974); Philadelphia Electric Co. v. Borough of Lansdale, 283 Pa. Super. 378, 389, 424 A.2d 514, 519 (1981).

As the defendants correctly point out in their brief in support of motion for summary judgment, finality of judgment is the end sought, and adherence to the policy articulated in Spinelli will produce that result. This is also in accord with the purpose of the No-Fault Act, which is to reduce the quantity of litigation involving automobile accidents.

According to Fitzpatrick, however, there exists one caveat to this mandate. The requirement that an individual bring all his ripe claims simultaneously does not preclude the institution of additional suits where the threshold for a personal injury action has not been reached at the time property damage claims are made. See Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983). If, at some later date, a personal injury claim arises, the cause of action will not be barred. This enumerated exception did not apply in Fitzpatrick because the facts clearly demonstrated that appellees were aware of both their personal injury and property damage claims when they instituted their first suit.

In the case sub judice, this enumerated exception does apply. The date of the accident occurred on June 4,2003. Plaintiffs initiated a cause of action for property damage on August 7, 2003. Plaintiffs initiated a cause of action for personal injury damages on April 13, 2005. According to the foregoing analysis, the critical time period for the court’s consideration is the time between the date of the accident, June 4, 2003, and the date of filing for plaintiffs’ cause of action for property damage, August 7, 2003 (the critical time period). That is to say, the court must review whether the plaintiffs were aware of both their personal injury and property damage claims when they instituted their first suit, on the date of August 7, 2003.

The court concludes that the plaintiffs were not aware of both their personal injury and property damage claims when they instituted their first suit for property damage only. The court bases its conclusion on the Physician’s Medical Report, attached to and included in the record. See plaintiffs’ affidavit, filed March 16, 2006. The report indicates that plaintiff Harry Altman’s initial visit with Dr. Robert Svandrak occurred on the date of July 24,2003, of which date falls within the critical time period. However, it was too premature at the time of the initial visit for the plaintiff to know whether he suffered a “serious injury” in order to recover noneconomic damages under the limited tort election provision of the MVFRL. At the initial visit on July 24, 2003, and prior to the cause of action for property damage, the plaintiff had no way of ascertaining the effect of the alleged injury on a body function. See 75 Pa.C.S. §1705. The threshold for a personal injury action was not reached at the time property damage claims were made. Therefore, the plaintiffs’ cause of action for personal injury damages was not yet ripe at the time the property damage action was initiated.

Moreover, at this point in time, the court concludes that there is a material dispute as to whether the plaintiffs suffered a “serious injury” in order to recover non-economic damages under the limited tort election provision of the MVFRL. See 75 Pa.C.S. § 1705(a); Robinson v. Upole, 750 A.2d 339 (Pa. Super. 2000). The plaintiff must be given the opportunity to introduce evidence, through expert testimony or otherwise, of the effect of the alleged injury on a body function. See 75 Pa.C.S. §1705. This inquiry amounts to a question of fact for a jury to determine. See generally, Robinson, 750 A.2d 339.

For these reasons, the court hereby denies the defendants’ motion for summary judgment.

ORDER

And now, July 7, 2006, upon consideration of the motion for summary judgment filed by the defendants, and review of the arguments made by the parties in their briefs and the applicable case law, the court hereby denies the defendants’ motion for summary judgment.

The prothonotary shall properly serve notice upon counsel of record and any party not represented by counsel.


author: PICCIONE, J,

text:
    Bacon v. Morrison

      C.P. of Lawrence County,
    no. 10797 of 2005

      Michael A. Frisk Jr., for plaintiff.

      Ryan C. Long, for defendant.

      Lori Roebuck, pro se.
    June 26, 2006
   PICCIONE, J,

OPINION

Before the court for disposition is Mariana Morrison’s (Mother) petition to relocate. This issue is again before this court based upon Mariana Morrison’s petition to supplement record for purpose of relocation. The Mother is requesting permission to relocate with the Minor Child, [ ], born February 24, 2000, to Goose Creek, South Carolina. The court will not be utilizing any notes of testimony from the hearings to supplement the record, as the court wishes to implement this custody order in an expedited manner in order to best facilitate any transitions for the Minor Child and the parties.

The existing custody order dated August 17, 2005 awards primary physical custody of the Minor Child to the Mother, subject to the partial custody rights of Mark Bacon (Father) and Lori Roebuck (Grandmother). The Father currently enjoys partial custody of the Minor Child on each Monday and Wednesday from 5 o’clock p.m. to 8 o’clock p.m. and on alternating Sundays from 1 o’clock p.m. to 6 o’clock p.m. The Mother and Father share legal custody of the Minor Child. The court was also informed at the most recent hearing (June 7,2006) that the Father has begun to exercise overnight custody with the Minor Child. The court was further informed at said hearing, by testimony, that the Mother and Grandmother have greatly improved their personal relationship and that the Grandmother sees the child on a regular basis, but does not necessarily utilize any type of custody arrangement with the Mother.

The Mother and Father, parties to the instant action, conceived a child, [ ], out of wedlock. The Mother and Father finally separated in August 2004 after a history of separations and reunions. Throughout the Minor Child’s life the Grandmother, also a party to this action, has been instrumental in raising her.

The Mother and Father are and continue to be Lawrence County residents. Additionally, both the Mother and Father have many family members that reside in the Lawrence County area including the Minor Child’s Maternal and Paternal Grandparents. The Mother filed a petition to relocate on July 27, 2005 upon her engagement to Benjamin Nye. The Mother’s fiance, Benjamin Nye, is a former Lawrence County resident who has obtained employment in the Goose Creek, South Carolina area. (N.T. 09/14/05 p. 152.) Mr. Nye has relatives and friends in the Goose Creek area. (N.T. 09/14/05 p. 40.) At the time of the initial hearing, Mother was approximately three months pregnant with their child. (N.T. 09/ 14/05 p. 63.) Mother and Mr. Nye were married on or about March 8,2006 and Mr. Nye has moved from Goose Creek, South Carolina to Lawrence County and obtained temporary employment. Additionally, Mother and Mr. Nye recently had a daughter, who was born on or about March 26,2006.

The testimony of the parties revealed that Mr. Nye was addicted to Oxycodone and sought treatment for that addiction. (N.T. 09/14/05 p. 83.) The Mother provided copies of Mr. Nye’s certificates of completion from the Residential Addiction Treatment Program at the Ellen O ’ Brien Gaiser Addiction Center on May 28, 2004 and from the Moffet House on August 30,2004.

Mr. Nye presented himself to the court as recovered and capable of meeting the demands of beginning a new family.

The Mother currently has a high school degree and, prior to giving birth to her new daughter, worked approximately twenty hours per week as a server, earning $5.85 per hour plus tips. (N.T. 09/14/05 p. 8.) Mother is currently remaining home with the newborn baby and the Minor Child. The Mother has testified that she has obtained near full-time employment in Goose Creek at the rate of $15 per hour. (N.T. 09/14/05 p. 60.) Mother testified that this employment opportunity is still available if she were permitted to relocate. This employment includes benefits, which would be available to the Minor Child who currently has medical insurance under the Pennsylvania Department of Public Assistance. Furthermore, Mr. Nye continues to have an employment opportunity with One-Stop Construction in Goose Creek, South Carolina, at the approximate rate of $2,500 per month. The position remains open because he is on leave of absence and he will have to relocate to Goose Creek to retain this employment sometime in June of 2006.

Mr. Nye and the Mother had signed the lease for a townhouse at 30 Crystal Springs Dr., Goose Creek, South Carolina. (N.T. 09/14/05 p. 48.) Although relocation was previously denied, Mother testified that the same townhouse is once again available. They have also chosen a pediatrician for the Minor Child and located St. James Park as a nearby location for the Minor Child to play. (N.T. 09/14/05 pp. 53-54.) If the Mother were permitted to relocate, the Minor Child would attend school at Goose Creek Primary. (N.T. 09/14/05 p. 55.) Additionally, the Mother and Mr. Nye have provided photographs depicting these locations to the court.

The Father is currently on disability due to a back injury and unable to work. Although the Father admitted to his previous shortcomings as a parent, he is improving his relationship with the Minor Child and appears to be improving his life as a whole. Mother testified that Father has exercised his periods of custody approximately 36 of 56 opportunities since January of 2006. Both Mother and Grandmother testified that Father has greatly matured as a parent over the past six months. Father testilled that his driver’s license is under suspension for an undetermined period and that he would like more cooperation from Mother in transporting the Minor Child.

The Mother and Grandmother have attended a series of court-ordered counseling sessions at Kids in Common under the supervision of Counselor Brian Dick. Both Mother and Grandmother testify that their relationship has been repaired; specifically, Grandmother testified that their relationship was better than prior to the breakdown because she is able to act as the Minor Child’s “grandmother” as Mother has been able to assume full parenting responsibilities for the Minor Child. The Grandmother further testified that she had observed a significant change in the Mother, in that the Mother had matured as a parent and a person. The Grandmother also testified that she has observed Mother, Mr. Nye, the Minor Child, and the new infant interacting as a close family unit and that Mr. Nye has been dependable and supportive of Mother throughout their relationship.

The court finds the standards enumerated in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), apply to this case in disposing of the relocation issue presented by the Mother. The Gruber court set forth three factors a trial court must consider in determining whether a custodial parent may relocate a distance from the non-custodial parent.

(1) The potential advantages of the proposed move, economic and otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the child and is not the result of a momentary whim on the part of the custodial parent;

(2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it;

(3) The availability of a realistic substitute visitation arrangement, which will foster adequately an ongoing relationship between the child and the non-custodial parent. Gruber, 400 Pa. Super. at 186, 583 A.2d at 440; Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002).

These three factors must be included in the ultimate consideration of the court, which is the child’s best interest. Thomas v. Thomas, 739 A.2d 206 (Pa. Super. 1999). Due to the fact that a custody order currently exists, the burden of proof is on the custodial parent requesting relocation. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003); Tripathi v. Tripathi, 787 A.2d 436 (Pa. Super. 2001).

A determination of a child’s best interest must be premised upon all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. McAlister v. McAlister, 747 A.2d 390 (Pa. Super. 2000).

The court finds that the Mother will improve her quality of life by moving to Goose Creek, South Carolina. She is currently married to Benjamin Nye and they have a child together. Mr. Nye has stated that he has secured good employment in Goose Creek, South Carolina and that said employment is still available. They have obtained a home to rent and the Mother has stated that she has found near full-time employment for around $15 per hour, which also remains available. Mother’s employment includes benefits, which would be available to the Minor Child.

The Mother has researched the school system, the recreational facilities available to the Minor Child and has chosen a pediatrician in Goose Creek, South Carolina. The Mother will also be able to provide the Minor Child with a stable immediate family unit. Most of Mr. Nye’s family is located near Goose Creek, South Carolina and Mr. Nye’s mother is purported to be moving to Goose Creek as well. (N.T. 09/14/05 p. 61.) The court also finds that, because Mr. Nye and the Mother are married, Mr. Nye has a legal economic obligation towards Mother and that his employment in Goose Creek, earning approximately $2,500 per month, will significantly contribute to the increase in quality of life for the Minor Child.

Therefore, this court finds that the first prong of the Gruber analysis has been satisfied. Mother has begun a new life with Mr. Nye and, given their employment opportunities, Goose Creek, South Carolina certainly appears to be the best location for them. The proposed relocation could also benefit the Minor Child in that it could serve to provide a stable family unit for the Minor Child.

The next Gruber factor calls for the court to inquire into the integrity of the parties’ motives. Gruber, 400 Pa. Super, at 186, 583 A.2d at 440. The Mother’s motive in initially requesting the move was to be with her fiance, Benjamin Nye, who is now her husband.

Both Mother and Mr. Nye have substantial employment opportunities in Goose Creek, South Carolina that they have been unable to obtain in Lawrence County, Pennsylvania. The Father’s motive in seeking to prevent the move appears to reflect his desire to continue his improving relationship with the Minor Child. Accordingly, the court finds that the motives of the parties are pure, which satisfies the second Gruber prong.

The final prong of the Gruber analysis examines the availability of a realistic substitute visitation arrangement, which will foster adequately an ongoing relationship between the child and the non-custodial parent. Id. Currently, the Minor Child spends time with her Father and Grandmother pursuant to the order of court dated August 17,2005. The Father admitted that he leaves much to be desired as a parent; however, he has stated that he is striving to become a better parent. The testimony of Mother and Grandmother support Father’s testimony that Father is improving as a parent.

The Mother has repeatedly stated her willingness to cooperate in fostering a suitable alternative custody arrangement with Father and Grandmother. At present, Mother and Grandmother have testified that their relationship has become that of a mother and daughter and that Grandmother’s relationship with the Minor Child has been occurring without the utilization of Grandmother’s custody rights. Therefore, this court finds that a suitable alternative custody arrangement currently exists between Mother and Grandmother. However, Grandmother is still entitled to a modification of her adjudicated custody rights should she feel said modification was necessary. The court heard moving and credible testimony from Father stating that his relationship with the Minor Child has grown and the proposed relocation would hinder future growth. The court accepts that relocation would make it harder for Father to foster his relationship with the Minor Child; however, the relocation would also put Father into the position of spending much greater amounts of extended periods of custody with the Minor Child. Additionally, said relocation will put the Father into a position of assuming the role of parent in the sense that he will have sole responsibility of the Minor Child during his extended periods of custody. Therefore, while the relocation will certainly require Father to work harder to foster his relationship with the Minor Child through his periods of custody and telephonic or written communication, the relocation should not impair Father’s relationship with the Minor Child. Accordingly, the court finds that the third prong of the Gruber analysis is satisfied.

Considering all relevant factors, and the Minor Child’s best interest, the court concludes the Mother has now satisfied the standard set forth in Gruber, specifically, the court finds that the Minor Child will benefit from the proposed relocation, in that she will be in a stable family unit that is able to provide for her social, physical and economic needs. The court further finds that the repaired relationship between the Mother and Grandmother is the exception rather than the rule in situations of court-ordered counseling. Their ability to re-establish a relationship has surely improved the life of the Minor Child as well as their own lives and further seems to have enabled the Mother and Father to begin to establish the necessary communication to allow the Minor Child to grow up under the love and care of two parents. For these reasons, the Mother’s petition to relocate is granted.

ORDER

And now, June 26,2006, this court having held a hearing on June 7,2006 in order to supplement the record on Mariana Nye’s (f/k/a Morrison) petition to relocate, with Ryan C. Long, Esquire, representing Mariana Morrison, the Mother, and Michael A. Frisk, Jr., Esquire, representing Mark Bacon, the Father, and Lori Roebuck, the Grandmother, proceeding pro se, the court finds and it is hereby ordered, adjudged and decreed as follows:

(1) The court finds that the Mother has satisfied the three-prong test, analyzing the advantages of the relocation, the motives of the parties and the availability of realistic substitute custody arrangement, set forth in Gruber v. Gruber and its progeny. See Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 440 (1990). Therefore, Mother’s petition to relocate Minor Child is hereby granted as set forth in the accompanying opinion.

(2) Based on the above findings, the court enters the following order:

(a) Primary physical custody of the Minor Child, [ ], bom February 24, 2000, is awarded to the Mother; subject to the rights of partial physical custody of the Father and Grandmother as hereinafter set forth.

(b) The Father and Grandmother shall enjoy partial custody, holiday custody, and summer custody of the Minor Child as the parties from time to time shall mutually agree.

(c) In the absence of such mutual agreement, the Father and Grandmother shall enjoy custody of the Minor Child as follows:

(i) During the school year, the Father shall be entitled to custody of the Minor Child during those periods of time the child shall have a period of at least five consecutive days when she is not required to be in school.

(ii) The Minor Child’s Christmas holiday from school shall be divided into two time periods, one commencing after the last day of school at the beginning of the Christmas holiday until 5 o’clock p.m. December 26, which shall be the first time period, and another from 5 o’clock p.m. December 26th to the following January 3rd or commencement of school, whichever first occurs, which shall be the second time period. Such custody with the Minor Child shall be alternated annually between the parties with the Mother being entitled to custody during the first time period and the Father the second time period during even-numbered years, and the Father being entitled to the first time period and Mother the second time period during odd-numbered years.

(iii) The parties shall alternate custody of the Minor Child on Thanksgiving and, if any, “spring break” or similar time off from school. Such custody with the Minor Child shall be alternated annually between the parties with the Father being entitled to custody during the first time period and the Mother the second time period during even-numbered years, and the Mother being entitled to the first time period and Father the second time period during odd-numbered years.

(iv) During the summer months of June, July and August while the Minor Child is not in school, the Mother and Father shall be entitled to three weeks of physical custody with the Minor Child and with each giving at least 30 days prior notice of such selection of custody to the other party. During the even-numbered years, the Mother’s choice shall take precedent and during odd-numbered years, the Father’s choice shall take precedent. Such vacation period shall occur during the time period commencing one week after the ending of school to one week prior to the commencement of school for the Minor Child.

(v) The Grandmother shall be entitled to a one-week period of physical custody prior to or subsequent to Father’s summer custody, as the parties shall from time to time mutually agree.

(vi) Each of the parties shall enjoy reasonable telephonic visitation, including computer-aided video technology, with the Minor Child when the Minor Child is not in his or her custody at such reasonable times and hours as the parties may arrange. Neither party shall abuse the privilege by an unreasonably excessive number of contacts or length of contacts and shall not utilize the contact for any other purpose than visitation with the Minor Child. The then custodial parent and grandparent shall not intentionally withhold the availability of the Minor Child to prevent the then non-custodial parent from enjoying such visitation contact and shall make every effort to make the Minor Child available from time to time for such reasonable visitation contact.

(d) The Mother and Father shall have shared legal custody of the Minor Child and shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/ or releases for school reports, medical reports, insurance documents and documents required by state, local or federal authorities. Except in the case of medical emergencies, the custodial parent will consult with the noncustodial parent with regard to the medical, dental and psychiatric care and treatment of the Minor Child. The Mother and Father shall have the right to review medical, dental and psychiatric records of the Minor Child. Also, the custodial parent is responsible for the academic performance of the Minor Child and the Minor Child’s participation in normal extracurricular activities.

(e) In any transporting of the Minor Child, all parties and anyone involved with such transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania including those regarding child safety restraint apparatus in any vehicle used to transport the child.

(f) The transportation of the Minor Child for the purposes of the aforestated periods of custody shall be as the parties mutually agree. In the event that the parties fail to agree, such transportation shall be as follows:

(i) The Father shall initiate all requests and arrangements for such transportation.

(ii) The Mother and Father shall equally share the cost and responsibility of transporting the Minor Child to and from the aforestated periods of custody. The Mother and Father shall arrange a mutually agreeable meeting destination to exchange custody of the Minor Child. In the absence of such agreement, the Mother and Father shall select a destination that is approximately equal distance in time between the residence of the Mother and Father where the exchange of custody shall occur. It shall be the responsibility of the Mother and Father to arrive at the custody exchange destination not later than 30 minutes after the agreed-upon time of exchange.

(g) The parties shall read and fully comply with the provisions of the appendix to custody order, which is attached hereto and filed with this order.

(h) The parties are directed to cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter. Failure to do so may result in sanctions being imposed by the court upon the offending party, including suspension of custody and payment of attorney’s fees.

(i) The provisions of all existing orders of court not in conflict with or modified by the provisions of this order shall remain and continue in full force and effect.

(3) The prothonotary shall serve notice of this order of court and opinion upon counsel of record for the parties, and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: FRIEDMAN, J,

text:
    Briston v. Borough of Rankin Civil Service Commission

      C.P. of Allegheny County,
    no. GD 05-4780.

      Charlene R. McAbee and Cheryl R. McAbee, for petitioner.

      John Means, for respondent.

      Joseph G. Heminger, for intervenor.
    June 12, 2006
   FRIEDMAN, J,

INTRODUCTION

The captioned matter originally filed at the indicated general docket number is in the nature of a statutory appeal and was eventually transferred to that docket while keeping its original GD number. (See order dated June 6, 2005, by the Honorable R. Stanton Wettick Jr., administrative judge of this court’s civil division.) The statutory appeal was assigned to the undersigned for disposition.

FACTUAL AND PROCEDURAL HISTORY

The appellant, Darryl L. Briston, is the former police chief of intervenor, the Borough of Rankin. He claims he should be reinstated with back pay for the period of March 16, 2004 to date. This seems a simple enough question, but there are a variety of unusual facts that give rise to unusual issues.

Briston was suspended without pay for 10 days as of March 16, 2004, then again for three days as of March 30,2004, and then terminated as of April 24,2004, for a variety of alleged offenses. He appealed the termination (but not the suspensions) and while the matter was pending before the borough’s civil service commission, he was found guilty in federal court of four felony charges apparently unrelated to the reasons for which he was terminated. The guilty verdict was rendered on November 1, 2004, but he had not been sentenced prior to the commission’s instant adjudication, which is set forth in its order of January 19,2005. Since without the imposition of a sentence there is no “conviction,” the commission was not able to apply the Confidence in Law Enforcement Act, 53 P.S. §§752.1-752.5, which mandates the termination of Briston upon conviction. The commission agreed at the time that the Act’s mandate did not apply but nevertheless felt able to rule on all the pending charges and dismissed many but upheld three.

DISCUSSION

Regarding the penalty imposed by council of termination, one member voted to uphold the penalty of termination, and one voted to change the penalty from termination to a one-year suspension. (See section at the end of their adjudication, titled “Penalties imposed by borough council.”) The third member of the commission abstained. The court will not discuss the charges that the commission dismissed. The commission sustained the following charges:

A. “Conduct Unbecoming an Officer, Neglect and Violation of Official Duty, ” As Described in Paragraphs 3, 7, 8 and 9 of Appendix III

Those instances involve Briston’s alleged refusal to obey orders of the mayor and the council president regarding giving the mayor access to a bulletin board so he could be sure (per advice to him by the borough’s solicitor) that a certain union petition had been posted. When the mayor was finally able, through other means, to view the bulletin board, he saw that the union petition had not been posted as required by the Pennsylvania Labor Relations Board.

B. Picking Up a Police Vehicle From a Repair Shop While Not Authorized To Do So Because He Was Then on Suspension

C.“Conduct Unbecoming of an Officer and Disobedience of Orders,” As Described in Paragraph VI of Appendix IV of the Commission s Adjudication

That conduct was described as “Failure to return computer equipment to the Borough of Rankin.” Briston had allegedly been told repeatedly to return it and failed to do so. This was one of the post-termination charges filed on April 28, 2004, while Briston’s appeal to the commission was pending.

ISSUES ON APPEAL TO THE COURT OF COMMON PLEAS

Briston condenses his 11 issues raised on appeal to the court of common pleas into three main areas — the validity of the adjudication, the applicability of the Confidence in Law Enforcement Act, and the failure of the borough to have entered a valid termination order discharging Briston. We address these areas in reverse order below.

1. Whether the Adjudication Was Rendered by a Majority of the Quorum of the Commission

The powers and duties of the commission are set forth in 53 P.S. §46191 and in the Borough of Rankin Civil Service Rules. Section 2.3 of the Borough of Rankin Civil Service Rules states:

“Two members of the commission shall constitute a quorum and no action of the commission shall be valid unless it shall have the concurrence of at least two members.”

Here the adjudication appears ambiguous, with both commissioners sustaining three of the charges, but differing on whether the appropriate penalty was a year’s suspension without pay or termination. The question then becomes one of the power of the commission: may it impose penalties or is it only to evaluate the charges made, with the penalty remaining one of borough council ’s discretion? If the commission has the power and the duty to impose penalties, there was clearly no “concurrence of at least two members” as to the penalty to be imposed. However, the Borough Rules show its power regarding the imposition of penalties is very limited.

Section 3.3(c) of the Borough Rules states:

“(c) In conducting the hearing, the commission’s standard of review shall be to determine whether sufficient evidence has been presented to support the statutory reason for the disciplinary action. If the commission finds that sufficient evidence has been introduced to support the charge, the commission shall not modify the penalty imposed unless it finds that the penalty imposed was arbitrary, discriminatory or an abuse of the discretion. In considering the appropriateness of the discipline, the commission shall not substitute its judgment for that of the borough council or mayor. The commission may request post-hearing briefs, and shall issue a written decision containing specific findings of fact and conclusions of law within 60 days of the receipt of the hearing transcript.”

Here, two of the three commissioners agreed that three of the charges were supported by sufficient evidence. None of them expressly or impliedly found that the penalty imposed was “arbitrary, discriminatory, or an abuse of discretion,” although one commissioner nevertheless wanted to reduce the penalty to a one-year suspension. There was, therefore, a majority vote in support of three of the charges. The issue for the court then is to review the record to see if there was sufficient evidence presented to the commission regarding those three charges.

A review of the transcripts for the hearing of May 5, 2004 and June 16, 2004 reveals that there was ample evidence presented to support the charges. The issues of credibility were for the members of the commission. The evidence in support of the three charges was more than sufficient.

2. Whether the “Confidence in Law Enforcement” Act Applies

Briston asserts that the commission did not properly accept the borough’s supplement to the record after the hearings were over — submitting the jury verdict, but no “conviction,” along with the reference to the Confidence in Law Enforcement Act.

The borough, on the other hand, argues that now the Act is certainly relevant and does apply. The borough also points out that if the commission’s adjudication is upheld, the issue of the mandates of the Act become moot. As discussed above, the commission members upheld the charges and did not make the findings necessary to permit them to change the penalty. The question of the Act would seem moot. Even if it is not moot, however, upon any remand, the Act requires Briston’s dismissal. Equity would require such a dismissal be nunc pro tunc. Therefore, no useful purpose would be served, even if otherwise appropriate, by remanding the matter to the commission.

3. Whether a Valid Termination Order Has Yet To Be Entered

Even though the mandates of the Confidence in Law Enforcement Act did not apply when the commission reviewed the termination, those mandates came into effect upon Briston’s federal conviction on January 19, 2005. There is no merit to Briston’s contention that his right to his salary continues beyond that date.

Even if we assume, arguendo, that the first two charges warranted only suspension, the third refusal to return the borough’s computer in April 2004 (especially given the federal charges pending since March 2004) is ample grounds for termination. The maximum amount of back pay that might be warranted, had there not been sufficient evidence to support the charges, would be for approximately one month, from March 30 to April 28.

CONCLUSION

The termination order of council is valid. The charges upon which it was based were not overturned by two of the three commission members and the commission’s adjudication that three charges were supported by sufficient evidence is borne out by the record. The appeal of Briston to the court of common pleas must be denied. See order filed herewith.

ORDER

And now, to wit, June 12, 2006, plaintiff’s appeal to the court of common pleas is hereby denied for the reasons set forth in the accompanying memorandum in support of order.

      . However, Briston contends that the animosity of the borough’s mayor and council towards him led to the filing of those charges. See brief in support of Chief Darryl Briston’s demand for full back pay and benefits, p. 3. The federal charges were filed in March 2004.

      . Another twist to this case is the fact that on April 28,2004, additional charges were filed against Briston related to alleged conduct after the date of termination. The commission concluded it could consider those later charges as well because Briston, having filed a timely appeal to the commission, had the status of a suspended officer rather than one whose termination was final. See commissioner’s adjudication, pp. 11-12.


author: NILON JR., J,

text:
    Lloyd v. Clarke
    C.P. of Delaware County,
    no. 06-2307.

      Josephine Lloyd, pro se.

      Robert Ewing, for appellant.
    May 22, 2006
   NILON JR., J,

This matter came before the trial court after appellee filed for a temporary protection from abuse order on February 27, 2006. The Honorable Maureen Fitzpatrick entered the temporary order. A hearing for a final protection from abuse order was held before the Honorable James F. Nilón Jr. and an order was entered on March 23,2006.

FINDINGS OF FACT

Appellee Mother appeared pro se during the hearing and credibly testified that on the night of February 22, 2006 between the hours of 7:30 and 8 p.m., appellee Mother was preparing dinner for her children. Their daughter telephoned appellant and told her father that appellee Mother was cooking Spam for dinner. Appellee heard appellant yelling on the phone at their daughter because of what appellee was serving for dinner. Appellee took the phone from appellant and told him to stop yelling about the food she was preparing. Appellant stated to her that he was coming over to the house to bring the child food. Appellee asked him not to bring over the food because the dinner was already prepared and she had a great deal to do to get the children ready for dinner, ready for school the next day, and help them with homework. Appellant stated that he was coming over anyway, to which appellee responded that she would call the police if he came. (N.T. pp. 7-9.)

Appellant disregarded appellee’s request and came to the house and began knocking on the door. Appellee told him to go home and did not open the door. This angered appellant and caused him to bang harder on the door. Appellee and children became frightened and appellee called the police. Appellant continued to bang on the door harder and harder to the point where he broke the glass in the door. (N.T. p. 9.) Appellee provided pictures of the broken door at trial, which showed a shattered window in the door. The police arrived and appellee made a report of the incident. Appellee testified that she went to the Yeadon District Court the next day to obtain a temporary protection from abuse order from appellant. Appellee testified that she needed a protection order because she was afraid of appellant. (N.T. p. 17.)

Appellee testified to previous incidents during her relationship with appellant when he threatened her while she was pregnant with their son in 2001. (N.T. p. 11.) Appellee further testified about an incident that happened in 2002 when appellant held a gun to appellee’s head and threatened to kill her. (N.T. pp. 11-12.) This specific incident was included in appellee’s original petition for a temporary protection order and thereby considered by the Honorable Maureen Fitzpatrick when the emergency petition was granted.

Appellant testified and did not deny the fact that he broke the door to appellee’s home, stating that he had a religious objection to his children eating pork and wanted to bring a meal for his daughter to eat. Appellant denied that he ever pointed a gun at appellee’s head or threatened to kill her. (N.T. p. 39.)

The court considered all of the evidence presented and entered a final protection from abuse order.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Appellant first states in his brief concise statement of matters complained of on appeal that the court erred as a matter of law in determining that appellant’s conduct constituted “abuse” as defined in 23 Pa.C.S. §6101 et seq. “In the PFA context, the court’s legal conclusions will be reviewed for an error of law or abuse of discretion.” Burke ex rel. Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002) citing Snyder v. Snyder, 427 Pa. Super. 494, 504, 629 A.2d 977, 982 (1993).

Pennsylvania’s Protection From Abuse Act defines “abuse” as:

“The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

“(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.

“(2) Placing another in reasonable fear of imminent serious bodily injury.

“(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. §2903 (relating to false imprisonment).

“(4) Physically or sexually abusing minor children, including such terms as defined in chapter 63 (relating to child protective services).

“(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under title 18 (relating to crimes and offenses).” 23 Pa.C.S. §6102(a).

This court notes that although “physical contact may occur, it is not a prerequisite for a finding of abuse under section 6102(a)(2) of the Act.” Fonner v. Fonner, 731 A.2d 160, 163 (Pa. Super. 1999).

In Fonner, appellant and appellee were in the same room when an argument ensued. Id. at 162. Appellant touched appellee’s arm and was badgering her and being loud. Id. When appellee pulled away, appellant punched the wall. Id. The Pennsylvania Superior Court found that this behavior constituted abuse as defined by the statute and upheld the trial court’s determinations that the appellee’s testimony was credible and that the final protection order be granted, despite the fact that there was little physical contact between the parties. Id. at 163.

The behavior displayed by the appellant constituted abuse as defined by the statute. The breaking down of the appellee’s front door, although not physical abuse of appellee’s person, constituted abuse and put the appellee in reasonable fear of imminent serious bodily injury. Appellee asked appellant not to come over and he came over regardless of this request, her refusal to let him inside the home made him angry and his anger evidenced itself in his breaking down of the door. This behavior put appellee in reasonable fear of imminent serious bodily injury thereby constituting abuse as defined by the statute.

Appellee further testified that appellant held a gun to her head and abused her in the past. “Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and may be reversed on appeal only when a clear abuse of discretion was present.” Raker v. Raker, 847 A.2d 720, 726 (Pa. Super. 2004), citing Soda v. Baird, 411 Pa. Super. 80, 600 A.2d 1274 (1991). It is not an abuse of discretion to consider evidence of abuse that occurred several years prior to the alleged incident when considering the issue of granting a final protection from abuse order. See Miller on Behalf of Walker v. Walker, 445 Pa. Super. 537, 551-52, 665 A.2d 1252, 1259 (1995).

In Raker, the court found that the parties had a volatile history which involved the appellant making significant threats in the past and considered this in conjunction with the events that occurred immediately prior to the appellee’s filing for a temporary protection from abuse order to determine that a final protection from abuse order was appropriate. 847 A.2d at 726. The court explained that the purpose of the Act was to “prevent imminent harm to abused person(s),” and therefore, “some flexibility must be allowed in the admission of evidence relating to past acts of abuse.” Id., citing Snyder, 427 Pa. Super, at 503-504, 629 A.2d at 982.

Appellee in this case credibly testified that appellant held a gun to her head and abused her physically and emotionally when she was pregnant several years ago. Appellee’s demeanor during her testimony was genuinely distraught. She was unable to keep her composure when speaking about the past incidents of abuse and the court found her testimony to be genuinely credible. Appellee’s perception of appellant’s actions, both past and present, is important to the determination of whether she was in reasonable fear of serious bodily injury. Appellee’s past experience with appellant’s behavior, particularly the incident during which he placed a gun to her head, made her reasonably fearful that the appellant might inflict serious bodily injury when he began banging on her door and breaking the glass.

Next, appellant lists that this court erred as a matter of law in finding that appellee was not in reasonable fear of injury. Essentially this is the same argument that appellant first raises in his concise matters complained of on appeal, as the definition of abuse under the statute encompasses “placing another in reasonable fear of imminent serious bodily injury.” 23 Pa.C.S. §6102(a)(2). Therefore, the court incorporates the positions taken in this opinion in their entirety in response to appellant’s second alleged error as a matter of law.

For the foregoing reasons, this court requests that its final protection from abuse order entered in this matter not be disturbed.


author: CHESLOCK, J.,

text:
    In re Estate of Possinger
    C.P. of Monroe County,
    no. 98 O.C. 2005.

      Terrence J. Herron, for estate.

      David Saba, for executors Elmer and Freda Possinger.

      Diane K. Foxman and Ethan R. O’Shea, for repspondent Kelly Possinger.

      Rachel Possinger-Seidel, respondent pro se.

      James R. Nanovic, for respondent Nyles Possinger.
    April 20, 2006
   CHESLOCK, J.,

Elmer Roy Possinger, a/k/a E. Roy Possinger (decedent), died testate on May 24, 2005, leaving a last will and testament dated March 9, 1982, which was duly probated by the Register of Wills, in and for the County of Monroe, Pennsylvania. Letters testamentary were issued to Elmer F. Possinger and Freda L. Possinger (executors) by the Register of Wills on June 15, 2005. On January 30, 2006, the petitioners filed a petition for leave to sell real property at private sale and a petition for leave to sell personal property at private sale. On March 16, 2006, the respondent, Kelly Possinger, filed an answer with new matter to the petition for leave to sell real property at private sale, which, in essence, agrees with the sale of the Henning/Possinger transaction and the FERN Partnership transaction with the exception of the Pfaffinger property in the East View vacant lot should be excluded and the Perry property should not be sold. The answer of Kelly Possinger indicates that some of the properties listed in the petition for leave to sell real property are not the property of the FERN Partnership. Respondent Nyles Possinger filed a reply to the petition for leave to sell real property on March 17, 2006, in which he denied that the partnership owns 10 parcels of improved and unimproved real estate as set forth in exhibit “E” to the petition. Respondent Rachel Possinger-Seidel filed an answer and new matter to petition for leave to sell real property on March 17,2006. In her answer, Rachel Possinger denies the partnership owns all of the parcels set forth in the exhibit. A hearing was scheduled for March 22, 2006, and at time of hearing, the parties heretofore agreed to a stipulated order in which it was agreed that the executors are authorized to sell the estate’s 25 percent interest in the Henning transaction and that the executors are authorized to sell to Nyles J. Possinger the estate’s 25 percent interest in the partnership properties identified as exhibits G-l, G-2, G-3, G-4, G-7 and G-8 in the petition to sell real property. The hearing of March 22, 2006, was held on the two remaining issues: first, whether the remaining parcels listed in the petition to sell real property are part of the partnership, those being attached as exhibit G-5 and G-6 to the petition; and Rachel Possinger-Seidel’s objection to the valuation of the stocks to be sold to Nyles J. Possinger as set forth in the executor’s petition to sell personal property. We are now prepared to dispose of these matters.

In regard to the petition to sell real property, at the time of hearing, the estate indicated that it was not pursuing Count III of the petition involving the Perry property. Accordingly, the estate is withdrawing that count. In regards to the remainder of the properties, Kevin Summa, accountant for the partnership, testified before the court. Mr. Summa indicated that he prepared the tax returns from 2002 through 2004 and is familiar with the properties. For the tax return of 2004, he stated that the Maurer and Armitage properties are considered assets of the partnership even though the deeds may state otherwise. We note that on joint exhibit 5, 6 and 7, which are the partnership Federal Income Returns for 2002, 2003, and 2004 respectively, Schedule K-l indicates that the real estate rental activities and risks for both the Armitage and Maurer rentals are reported to the partnership. Mr. Summa testified that the taxes and maintenance for the partnership assets including the Maurer and Armitage property were paid for by the partnership. Mr. Summa testified that the Pathinger property is part of the partnership property.

Nyles J. Possinger also testified at the hearing on March 22,2006. He stated that the Pathinger and Miller properties were combined and sold off in lots. However, they were acquired from the partnership partners pooling their money and purchasing the Pathinger and other parcels. Mr. Nyles J. Possinger stated that the purchase may have come out of the partnership checking account; however, he was not aware if that was fact.

The objections to the proposed sale of the property were filed by respondents Nyles J. Possinger, Kelly Possinger and Rachel Possinger-Seidel. Based upon the testimony presented at hearing, we find that the properties in question are partnership property. Proof of ownership interest in the property is sufficient to make out a prima facie case that a partnership had an interest in the disputed property. Whitenight v. Whitenight, 444 Pa. 32, 36, 278 A.2d 912, 914(1971). Question of specific property being partnership property is largely a question of intention. In re Estate of Rider, 487 Pa. 373, 378, 409 A.2d 397, 400 (1979). Instantly, we believe that the evidence of the partnership tax returns, although not absolutely controlling, is evidence of the parties’ intention as to the properties. The fact that the partnership listed these properties on their Schedule K-l is indicative of the interest that the partnership maintained in those properties. We find the testimony of Nyles J. Possinger a compelling factor in determining that the properties are assets of the partnership. We find that although the record title may not be in the name of FERN Partnership, that factor alone does not affect the properties’ status as partnership property. Miller v. Miller, 370 Pa. 520, 523, 88 A.2d 784, 786 (1952). Further, Mr. Summa’s testimony solidifies our finding that these properties are assets of the partnership. Mr. Summa is a disinterested third party who has intimate knowledge about the partnership and its assets. Accordingly, based upon the testimony of Mr. Summa and Nyles Possinger, we find that the properties listed for sale in the executor’s petition to sell real property are partnership property and we authorize the sale of the same.

Next, we will address the objections to the executor’s petition for leave to sell personal property filed by Rachel Possinger-Seidel. In her objection, Rachel indicates that the formula setting out the purchase price is unconscionable in that it is undervalued by approximately one-third and requests this court to make its own valuation. In support of her position, she cites the case of the Estate of H.A. True v. Commissioner of the Internal Revenue Serv ice, 390 F. 3d 1210 (C.A. 10, 2004). In that case, the taxpayers challenged the Internal Revenue Service determination that the estate had certain deficiencies, causing it to incur taxes and penalties. The court found that the companies kept their business records according to tax book values rather than the generally accepted accounting principles and under this method the companies would take greater tax advantage of certain tax deductions and accelerated rates of depreciation. Ultimately, the court found that the buy/sell agreements served as testamentary substitutes and upheld the tax court’s deficiency determinations. The True case set forth whether the specific terms in the buy/sell agreement can control the value of assets for estate tax purposes. In that vein, the court found that a stated price in a buy/sell agreement will control for estate tax purposes where (1) the price is determinable from the agreement, (2) the terms of the agreement are binding throughout life and death, (3) the agreement is legally binding and enforceable and (4) the agreement was entered into for bona fide business reasons and is not a testamentary substitute intended to pass on the decedent’s interest for less than full and adequate consideration.

In our case, we find that the testimony of Kevin Summa, the Certified Public Accountant for E.F. Possinger and Sons Inc., is significant in this matter. First, Mr. Summa testified that the shareholders entered into an agreement in 1999 to determine what happened to the shareholders’ interest when they die or leave the company. Accordingly, the agreement sets a price which is binding throughout life and death. Mr. Summa testified how a price was determined when a shareholder leaves or dies. Hence, we find that the price is determinable from the agreement and that the terms of the agreement are binding throughout life and death. We also find the agreement is legally binding and enforceable. We note that no one argued that this agreement is not binding or enforceable at the time of hearing. Finally, through the testimony of Mr. Summa, we believe that the agreement was entered into for bona fide business reasons. Mr. Summa testified that the agreement was drafted to determine what happens if a shareholder leaves or dies. Mr. Nyles Possinger also testified that the agreement was signed by all shareholders. We find that the agreement was entered into for bona fide business reasons, i.e., to determine the rights of shareholders to purchase the shares in the event that one wished to leave or was deceased.

Throughout her argument, Rachel implies that the shareholders’ agreement was entered into for estate planning purposes and that the price, which Nyles Possinger agreed to pay for the shares of decedent, are about one-third lower than the actual value of said shares. At hearing, Rachel did not present any testimony or evidence to support her contentions. We find her mere allegations of undervaluation are not supported by any evidence. Rachel’s arguments that the shareholder’s agreement is a substitute for a testamentary device, that the price for the purchase of decedent’s share is unconscionable, or that application of the valuation method is incorrect are without merit. There has been no allegation of fraud or incompetence on the part of the decedent at the time the decedent executed the shareholder’s agreement. Further, the valuations were made under generally accepted accounting principles which significantly differs from the True case in which the valuation was following tax book values. Moreover, we find that the price contained in the shareholders’ agreement was not an arbitrary price but was based upon the value of the business as Mr. Summa testified by adding the profits and deducting the losses for a determination of the stock value. The agreement was entered into using professional guidance or consultation which differs significantly from the True case. The instant case differs significantly from the True case which Rachel relies on to support her argument.

Rachel also argues that the purchase price is unconscionable. Unconscionability has been defined as a lack of meaningful choice coupled with a contract term which is so one-sided as to be impressive. Stanley A. Klopp Inc. v. John Deere Company, 510 F. Supp. 807, 810 (E.D. Pa. 1981). (citation omitted) There has been no allegation that the contract terms contained in the shareholders’ agreement was one-sided or that they were oppressive or that any of the parties had an unfair or superior bargaining position. We find that Rachel Possinger-Seidel has wholly failed to support her objection through evidence supported by documentation or testimony. Accordingly, we overrule her objections. Flence, because there are no other objections to the executors’ petition for leave to sell personal property, we will grant the executors’ petition and permit the sale of stock to Nyles J. Possinger.

DECREE

And now, April 20,2006, it is ordered and decreed as follows:

(1) The objections of Rachel Possinger-Seidel, Kelly Possinger and Nyles J. Possinger to the executors’ petition for leave to sell real property are dismissed. The petition of the executors, Elmer F. Possinger and Freda L. Possinger, for the sale of real property, specifically to sell to Nyles J. Possinger the estate’s 25 percent interest in FERN Partnership property is granted and we authorize the sale of the properties as listed in the executors’ petition.

(2) The objection of Rachel Possinger-Seidel to the executors’ petition for leave to sell personal property, specifically the valuation of the stocks to be sold to Nyles J. Possinger, is dismissed. The petition of the executors, Elmer F. Possinger and Freda L. Possinger, for the sale of personal property is granted and we authorize the sale of personal property as listed in the executors’ petition.

      . There was a petition for a later discovered will which is on appeal to the Pennsylvania Superior Court.


author: SPRECHER, J,

text:
    Commonwealth v. Strouse

      C.P. of Berks County,
    no. CP-06-CR-0045-2005.

      Jason Lutcavage, for Commonwealth.

      Jay Nigrini, for defendant.
    March 24, 2006
   SPRECHER, J,

On February 15, 2005, the Commonwealth of Pennsylvania filed a criminal information charging the defendant, Lynn A. Strouse, with criminal attempt to commit luring a child into a motor vehicle and disorderly conduct. At a bench trial on July 29,2005, the defendant was found guilty of criminal attempt and not guilty of disorderly conduct.

On December 27,2005, the defendant was sentenced to nine to 23 months in prison to be followed by three years probation. The defendant was found not to be a sexually violent predator.

FACTS

On October 8, 2004, at approximately 1 p.m., K.L., a female juvenile bom on July 27,1988, was walking home alone from a local restaurant, along the street near Cassidy Court in Maidencreek Township, Berks County, Pennsylvania. The defendant, who neither K.L. nor her parents knew, was driving alone in a sport utility vehicle in the area. He stopped his vehicle next to K.L. and asked if she knew where Brooke Lynn Meadows was located. K.L. responded that she did not know where Brooke Lynn Meadows was. The defendant began to drive off but merely circled the block returning to K.L.’s location. He told K.L. that he would give her $100 if she helped him find Brooke Lynn Meadows. K.L. declined. The defendant questioned whether she liked spending money. At that point, another car arrived behind the defendant’s vehicle so that he needed to move to avoid blocking the other car. K.L. then saw two women, whom she did not know, outside a nearby house. K.L., shaking and upset, approached them for help. The defendant drove past a few more times while the women were talking with K.L. One of the women telephoned the police.

K.L. was wearing a strapless, knee-length, sundress, and sneakers at the time. Her height and weight at the time were approximately five foot six inches and 140 pounds. She was wearing minimal make-up at the time, which did not cause her to appear older than she was.

Detective Sergeant Brian Homer of the Northern Berks Regional Police Department located the defendant’s vehicle at a construction site a short distance from where K.L. had seen the defendant. Detective Sergeant Homer spoke with the defendant at that site. The defendant provided a written statement that he had approached a female a short time earlier, had asked her for directions and if she was interested in earning some money. He estimated she was 18 or 19 years old. The defendant also admitted that his intention was to pay K.L. to have sex with him; however, this was not included in the defendant’s written statement.

ISSUE

The defendant’s statement of matters complained of, filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), raises the following issue:

Whether this court erred in determining that the evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt as to criminal attempt to commit luring a child into a motor vehicle, because the Commonwealth failed to prove that the defendant possessed the required mens rea to lure a person under the age of 18 into his car.

DISCUSSION

The crime of luring a child into a motor vehicle is defined in 18 Pa.C.S. §2910. At the time that the defendant approached K.L., this crime was defined as follows:

“A person who lures a child into a motor vehicle without the consent, express or implied, of the child’s parent or guardian, unless the circumstances reasonably indicate that the child is in need of assistance, commits a misdemeanor of the first degree.” 18 Pa.C.S. §2910 (amended November 10, 2005, effective January 9, 2006).

For purposes of this statute, the word “child” is defined as a person less than 18 years of age. 18 Pa.C.S. §2908(b) and 18 Pa.C.S. §2904(a). The defendant’s intent to lure K.L. is apparent from his offer of $100 for her to help him find Brooke Lynn Meadows. See Commonwealth v. Figueroa, 648 A.2d 555, 557 (Pa. 1994). The intent to harm is not required. Id. at 558.

In his concise statement of matters complained of on appeal, the defendant asserts that he lacked the required mens rea to lure a person under the age of 18 into his car. The mens rea for the element of age is not specifically stated in 18 Pa.C.S. §2910. Where the mens rea for an element of an offense is not otherwise provided, 18 Pa.C.S. §302(c) provides that “such element is established if a person acts intentionally, knowingly, or recklessly with respect thereto.” Commonwealth v. Gallagher, 874 A.2d 49, 52 (Pa. Super. 2005). The Superior Court of Pennsylvania specifically applied the culpability requirements of 18 Pa.C.S. §302(c) to the luring element of this offense in Figueroa and to the age element in Gallagher. The Superior Court held that “the Commonwealth was required to prove, beyond a reasonable doubt, that [the defendant] either intentionally sought out the complainant because [s]he was under the age of 18, knew the complainant was under the age of 18, or, at the very least, was reckless as to the complainant’s age.” Gallagher, 874 A.2d at 53.

In Gallagher, the Superior Court reversed the trial court finding of guilt with respect to the charge of luring a child into a motor vehicle. The trial court had acquitted the appellant on a charge of corruption of minors based on his testimony that he reasonably, but mistakenly, believed that the 17-year-old victim was over the age of 18. A photograph admitted at trial supported that finding of mistaken belief as to the victim’s age. The Superior Court noted “[tjhis credibility determination makes ludicrous the court’s subsequent finding that appellant knew he was dealing with a minor.” Id. at 53. The trial court had seemed to determine that the victim looked younger than 18 for the purposes of 18 Pa.C.S. §2910 but older for purposes of the corruption of minors charge. The case at hand can be distinguished from Gallagher in two ways. First, there were no such conflicting findings by this court regarding the victim’s age or defendant’s belief as to her age in this case. This court unequivocally concluded that the victim appeared to be under the age of 18 at the time of trial. Second, in Gallagher the victim was older than K.L. and a photograph taken around the time of the offense showed that the victim appeared older than 18. In the instant case, K.L. still appeared substantially younger than 18 at the time of trial. She was just over 16 years old at the time of the offense. Based on her appearance, this court believed the juvenile to be under 18 at the time of trial, which was almost 10 months after the date of the offense. Notes ofTest. 39:17-21 (July 29, 2005). “It is the function of the fact-finder to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced at trial. The fact-finder is free to believe all, part, or none of the evidence introduced.” Commonwealth v. Adamo, 637 A.2d 302, 304 (Pa. 1994). (internal citations omitted)

“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.” 18 Pa.C.S. §302(3).

The Commonwealth has proven that the defendant acted recklessly with respect to the victim’s age, which is a material element of the offense. Given K.L.’s appearance, the risk that she was under 18 was substantial. The defendant clearly disregarded this risk and it is implausible that such disregard was not a conscious disregard. Given K.L.’s youth, the defendant cannot credibly argue that it did not occur to him that she may have been under 18. By his own written statement, the defendant said he thought K.L. was 18 or 19. Given the victim’s appearance in court, this statement is unbelievable. Even if it were credible, he consciously disregarded the substantial and unjustifiable risk that she was a minor. His testimony that he believed her to be 18 or 19 shows that he consciously considered the victim’s age but either intentionally chose to disregard it or recklessly did so. There was no justification for his conscious disregard of that risk. Considering that the defendant intended to have sexual intercourse with K.L. and that she actually appeared to be barely 16, his conduct was a gross deviation from the standard of conduct that a reasonable person would observe.

The defendant possessed the required mens rea when he attempted to lure K.L. into his vehicle without the consent of her parents, when there was no indication that K.L. needed assistance, thereby committing the crime of criminal attempt to commit luring a child into a motor vehicle. For the foregoing reasons, the court respectfully requests that the defendant’s appeal be denied and the sentence affirmed.

      . 18 Pa.C.S. §901.

      . 18 Pa.C.S. §5503(a)(4).


author: SYLVESTER, J,

text:
    Waliyuddin v. University of Pennsylvania Health System

      C.P. of Philadelphia County,
    January Term 2003,
    no. 0763.

      Frank A. Rothermel, for plaintiffs.

      Elaine M. Ross, for defendant University of Pennsylvania.

      Gary M. Samms, for defendant Marón.
    March 22, 2006
   SYLVESTER, J,

I. FACTS AND PROCEDURAL HISTORY

The factual time line in this case reveals that on November 21, 2000, Constance Collier suffered a stroke and was hospitalized at the Hospital of the University of Pennsylvania for treatment until her discharge on December 7, 2000.

Following her discharge from the Hospital of the University of Pennsylvania on December 7, 2000, Ms. Collier was transferred for rehabilitation therapy to Presbyterian Medical Center Skilled Nursing Facility and/or Presbyterian Center for Continuing Care. On December 13,2000, Ms. Collier experienced a setback in her condition and was re-admitted to the Hospital of the University of Pennsylvania, where she was an inpatient for approximately one week. On December 20, 2000, Ms. Collier returned to Presbyterian Medical Center Skilled Nursing Facility and/or Presbyterian Center for Continuing Care where she remained until January 9, 2001. (See plaintiffs’ first amended complaint.)

On January 9, 2001, Ms. Collier was transferred to Presbyterian Hospital with complaints of spiked temperature and shortness of breath, where she remained for one month. On February 6,2001, Ms. Collier was transferred to St. Agnes Bum Center for treatment of alleged medication-induced Stevens-Johnson syndrome that had been developing during her December 20, 2000-January 9, 2001 admission at Presbyterian Medical Center Skilled Nursing Facility and/or Presbyterian Center for Continuing Care and her January 9, 2001-February 6, 2001 admission at Presbyterian Medical Center. Her condition evolved into toxic epidermal necrolysis syndrome. Ms. Collier was discharged from St. Agnes Medical Center on March 14, 2001.

Ms. Collier died on May 5,2001 from complications secondary to the toxic epidermal necrolysis.

A medical malpractice complaint was filed on behalf of the estate of Constance Collier against multiple defendants on May 27, 2003. The crux of the claim was that Constance Collier had been given Dilantin, for the first time ever, after her stroke in an effort to stabilize her condition. Plaintiffs’ counsel contended in his opening statement that defendant doctor and attending physician Jeffrey Marón failed to stop the Dilantin after the patient developed an allergic reaction and a visible rash. Counsel contended that Dr. Marón failed to diagnose her Dilantin hypersensitivity reaction and this led to her fatal condition of toxic epidermal necrolysis, or Stevens-Johnson Syndrome. (See Notes of Testimony (N.T.), 4/4/05, pp. 18-21.) A two-week jury trial began on March 31, 2005. Closing arguments were delivered on April 14, 2005. The trial court then charged the jury and dismissed them for the evening. On April 14, 2005 the trial court also granted a directed verdict in favor of defendants, University of Pennsylvania Health System, Presbyterian Medical Center of Philadelphia, Trustees of the University of Pennsylvania, Presbyterian Medical Center Skilled Nursing Facility, and Presbyterian Center for Continuing Care.

On April 15, 2005 a unanimous jury of 12 returned a verdict against Dr. Marón in the total amount of $1,000,000. The jury allotted $250,000 for wrongful death and $750,000 for the survival action. The jury found that he was not an ostensible agent of defendant Presbyterian Hospital. Defendant Dr. Marón appealed.

II. ANALYSIS

The trial court has carefully reviewed this matter. Defendant’s concise statement of matters complained of on appeal is neither concise nor well-drafted. Defendant’s complaints about the testimony of plaintiffs’ experts, Wendy Ziecheck M.D. and Dr. Stanley Yankovitz, are utterly without merit and will not be addressed. Their testimony speaks for itself. (See N.T. 4/6/05, pp. 4-134; N.T. 4/7/05, pp. 6-201; N.T. 4/8/05, pp. 4-90.) The jury was free to give their expert testimony whatever weight it deemed appropriate. The trial court did not commit reversible error by failing to strike any of their testimony.

Defendant’s main contention of race discrimination demands the trial court’s attention. The defendant’s allegation that the court committed reversible error by allowing plaintiff’s counsel the opportunity to use his four peremptory challenges to strike jurors based upon race is most serious. Defendant makes the specious claim that jury selection was tainted. He claims plaintiff failed to give any neutral justification for striking four Caucasian jurors. He claims the trial court permitted race-based exclusion of potential jurors. Defendant is woefully mistaken.

The Notes of Testimony of March 31,2005 reveal that, at the onset of trial, counsel for defendants complained that the plaintiff used four strikes to strike four Caucasian potential jurors. (N.T. 3/31/05, p. 4.) Furthermore, counsel “point(ed) out for the record that Doctor Marón is a white physician and the plaintiffs are a black family.” (N.T. 3/31/05, p. 5.)

This very serious charge was addressed immediately by the trial court. The court had plaintiffs’ counsel proffer their race-neutral explanations out of the presence of the jury. (N.T. 3/31/05, p. 9.) The court carefully considered the occupations and relationships articulated by plaintiffs’ counsel and discovered:

(1) Juror Wolstenholme’s wife was a hospital clerk at Thomas Jefferson University Hospital, and two major defense witnesses were from there (N.T. pp. 11-12);

(2) Juror Miller was a Penn State student who cared for Alzheimer patients, and Constance Collier was a stroke victim (N.T. pp. 14-16);

(3) Juror Berkemeyer was an assistant underwriter for an insurance company (N.T. pp. 17-18); and

(4) Juror Stearns had 10 or 12 years experience in hospital administration. (N.T. 3/31/05, pp. 19-20.)

The trial court scrupulously reviewed, prior to trial, counsel’s reasons and options for striking potential jurors 17, 4, 34 and 33. The court was satisfied that a plethora of race-neutral reasons existed for plaintiffs’ counsel’s peremptory challenges of these four potential jurors. (N.T. 3/31/05, p. 30.)

III. CONCLUSION

In sum, an attentive and dedicated jury worked for two weeks. They heard graphic testimony of how an elderly woman suffered and died due to an ongoing allergic reaction to Dilantin. They diligently deliberated. They found Dr. Marón negligent. They made an award to the family of Constance Collier. Their decision should stand.