author: FRIEDMAN, J.,

text:
    Frangos v. Hersh

      C.P. of Allegheny County,
    no. GD 09-15684.

      Frank G. Salpietro, for plaintiff

      James R. Cooney, for defendants.
    November 16, 2010
   FRIEDMAN, J.,

For the reasons discussed later herein, we confess error for procedural and jurisdictional reasons only and suggest that defendant’s appeal of our order dated July 7, 2010, requiring the posting of additional security under the Mechanics’ Lien Law, be granted, without prejudice. We have made a list of the dates and events that caused us to realize our error. It is attached as Appendix 1 to this opinion, for the convenience of counsel and the appellate court.

The captioned matter is procedurally confusing, one might even say garbled. It started as a mechanics lien claim against 7056 Meade Place in Pittsburgh, Pennsylvania. The original amount was roughly $43,000 and was filed against defendant Hersh, only, on September 10, 2009. Mr. Hersh then filed an emergency petition to discharge the lien, which was granted, and on September 29,2009, a consent order to that effect was entered by the undersigned. The following day, September 30, 2009, Mr. Hersh paid $43,000 into court and the mechanics’ lien on the real estate was discharged. The action on the claim continued against Mr. Hersh.

On October 16, 2009, the Honorable R. Stanton Wettick, Jr., also of this court, granted plaintiff’s motion to amend mechanic’s lien claim. One of the amendments granted by Judge Wettick was the addition of the buyer and current owner of the real estate, Mr. Jordan, as a party defendant. The other was the increase and itemization of the amount of the claim. The custom in this court is that an order of Judge Wettick permitting amendment usually contemplates that preliminary objections may nevertheless be filed once the amended complaint is filed and served. Mr. Jordan filed preliminary objections on December 3, 2009. Sitting as Motions Judge, we heard Mr. Jordan’s preliminary objections on February 3,2010 and ruled that, since he acquired the real estate after the lien had been discharged, he had no further obligations to plaintiff and was not a proper party.

In the meanwhile, Mr. Hersh had failed to file either preliminary objections or an answer to the amended complaint and, on November 23,2009, plaintiff had taken judgment against him by default in the amended amount permitted by Judge Wettick’s order. On December 3,2009, Mr. Hersh filed a petition to open the default judgment against him. The Honorable Michael E. McCarthy, also of this court, denied that petition on December 18, 2009 and also granted plaintiff’s motion for release of funds. The $43,000 was released to plaintiff on December 23, 2009. The next day, a new attorney, current counsel, entered his appearance for Mr. Hersh. On January 18, 2010, Mr. Hersh filed a notice of appeal of Judge McCarthy’s order denying his petition to open the default judgment. No bond was posted so there was no automatic stay of execution proceedings pending that appeal, which is still in Superior Court at 150 WDA 2010.

On May 21, 2010, plaintiff filed what appears to be a renewed motion to require additional security [from Hersh] and also asked that defendant Hersh be compelled to attend his deposition. At Judge Wettick’s direction, this was referred to the undersigned, who heard argument on June 15,2010. We entered the order now at issue, granting plaintiff’s motion, on July 7, 2010. At this point we were unaware of the default judgment and of the appeal from the order of Judge McCarthy. We therefore seem to have believed that the complaint on the mechanics lien was still awaiting trial. Had we registered the fact that Mr. Hersh already had a default judgment against him and that there was an appeal pending, we properly should have (and, hopefully, would have) directed plaintiff to proceed either under the rules regarding execution and discovery in aid of execution, or under the rules of appellate procedure related to a supersedeas (Pa. R.A.P. 1731, et seq.).

Because we thought the case was still open, we considered whether §1510 of the Mechanics’ Lien Law permitted or required the posting of additional security after the lien itself had been discharged. Although we hope we were correct about the law given our understanding at the time of the procedural posture of the case, we now confess error and believe the steps taken by plaintiff to increase the amount of security were procedurally inappropriate and that we had no jurisdiction to enter the order. (In the event Superior Court finds we did have jurisdiction, the reasons for our decision are set forth in the videotape of the June 15, 2010 argument, at tape time 14:47 - 14:53. Appellant has been told to have this transcribed.)

Because of the appeal then pending in Superior Court, we were without power to require additional security under the Mechanics’ Lien Law on the date we did so. See Pa. R.A.P. 1701. Rather, Mr. Hersh failed to post additional security under Pa. R.A.P. 1731, et seq. at his peril. Plaintiff was, and is, entitled to execute on whatever assets of Mr. Hersh he could locate, and plaintiff was, and is, entitled to depose Mr. Hersh in aid of execution. (Of course, plaintiff, too, acts at his peril pending appeal, if the order of Judge McCarthy is reversed and Mr. Hersh is allowed to file an answer to the mechanics’ lien complaint.)

The order of the undersigned requiring the posting of additional security was improvidently entered at a time when this court lacked jurisdiction because of another pending appeal in the matter. The appeal of Mr. Hersh should be granted and the order should be vacated, without prejudice to plaintiff’s right to proceed as the law and rules of court permit.

APPENDIX 1

Chronology of Events

NOTE: The dates shown below are the dates the item was docketed.

September 10, 2009: This case was commenced by plaintiff’s filing a statement of mechanics’ lien.

September 29, 2009: Defendant Hersh (the only defendant at that time) filed an emergency petition to discharge mechanics’ lien on deposit of money to secure claim. Plaintiff’s attorney and defendant’s former attorney appeared in court and the emergency petition was presented to the undersigned as Motions Judge, on the record. See videotape record of proceedings of September 29, 2009, tape time 14:32 - 14:36. Plaintiff’s attorney indicated that he disagreed with some of the wording of the proposed order, and we directed the two attorneys to work on the wording of the order of the record. The order, as modified and as consented to by the two attorneys, was presented to the undersigned off the record and was signed. The order, as modified, provided as follows:

“And now, on reading and filing the petition of the owner, verified September 29, 2009, praying that this court determine the amount of money necessary to be deposited by petitioner for the discharge of record of the lien hereinafter described on the deposit of the sum of money so determined. It is hereby ordered pursuant to the Act of August 24, 1963,49P.S. 1510(a), that the sum of $43,000.00 be, and hereby is, set as the amount of money necessary to be deposited by petitioner for the discharge of said lien of record;
“It is further ordered that, that [sic] upon deposit of the aforesaid sum of $43,000.00 in certified funds with the Prothonotary of this court, the lien filed by Michelle Frangos on September 10, 2009, at 3:51 p.m., in the office of the Prothonotary of the Court of Common Pleas of Allegheny County, Commonwealth of Pennsylvania, against the interest of Stephen Hersh, petitioner, in the real property in the claim described as follows: Mechanics’ Lien filed by Michelle Frangos, as an alleged contractor, in the amount of $42,210.11 for renovations to 7056 Meade Place, Pittsburgh, Pennsylvania 15208, be, and the same hereby is, discharged, and said Prothonotary is hereby directed to cancel such lien of record, marking on the lien GD-09-015684 a reference to this order and its date of entry. The action on the claim shall continue pursuant to Rule 1651, et seq. and other applicable rule, and the funds deposited pursuant to this order shall be applied to the payment of the amount finally determined to be due to plaintiff. ”

September 29, 2009: Defendant Hersh also filed a praecipe for rule to file complaint.

September 30, 2009: Defendant Hersh deposited the sum of $43,000.00 into court, and the lien was discharged. The real estate subject to the lien was therefore conveyed free and clear of plaintiff’s mechanics’ lien.

October 19, 2009: The Honorable R. Stanton Wettick, Jr. also entered an order providing that “upon consideration of plaintiff’s motion to Amend Plaintiff’s Mechanics ’ Lien Claim, it is hereby ordered, adjudged and decreed, that said motion be and hereby is granted. The plaintiff shall file her complaint to obtain judgment on Mechanics’ Lien, in the form set forth in Exhibit 3 to this Motion, within five (5) days.” One of the amendments requested by plaintiff was the addition of George Patrick Jordan, IV, the current owner of the property, as a defendant.

October 19, 2009: Plaintiff filed her complaint to obtain judgment on a mechanics’ lien, which included both Stephen Hersh and George Patrick Jordan, IV as defendants.

November 12, 2009: Plaintiff filed an acceptance of service of the complaint. The acceptance of service was signed by defendant’s former attorney, who stated that he was authorized to do so, for both defendants.

November 23, 2009: Plaintiff’s praecipe for entry of default judgment against defendant Stephen Hersh pursuant to PA R.C.P. 237.1 and 1037(b) was docketed, based on Hersh’s failure to answer or otherwise plead to the complaint.

November 24, 2009: Defendant Jordan’s petition to strike acceptance of service was presented to the Honorable Robert J. Colville of this court. In that petition to strike acceptance of service, defendant Jordan averred, inter alia, that defendant Hersh’s prior attorney was never authorized to represent Jordan or to accept service on his behalf. Judge Colville then entered an order that same day providing that:

1. Defendant Jordan’s petition to strike acceptance of service is withdrawn without prejudice;
2. The appearance of attorney Tomasic is withdrawn on behalf of defendant, George Patrick Jordan, IV, and the appearance of John P. Vetica, Jr. is hereby entered on behalf of Mr. Jordan;
3. Defendant Jordan shall file a responsive pleading to the complaint in this matter within twenty (20) days of the date of this order; and
4. This order shall not affect any obligations of defendant Stephen Hersh or any rights any party has against defendant Stephen Hersh.

December 3, 2009: Defendant Jordan filed preliminary objections to plaintiff’s complaint. The preliminary objections were assigned an argument date of Februaiy 3,2010.

December 3, 2009: Defendant Hersh filed a petition to open the default judgment entered against him.

December 11, 2009: Plaintiff filed a response and objection to defendant [Hersh’s] petition to open judgment, an alternative petition to require additional security, and also a motion for release of funds.

December 18, 2009: The Honorable Michael E. McCarthy of this court entered two orders: one in which he denied defendant Hersh’s petition to open judgment, and another in which he granted plaintiff’s motion for release of funds and directed the department of court records to pay to plaintiff’s counsel the $43,000.00 in funds being held, plus accrued interest, less any fee required by local rules. No order was entered regarding the alternative petition to require additional security.

December 23, 2009: The $43,000.00 in funds were disbursed to plaintiff.

December 24,2009: New counsel entered an appearance on behalf of defendant Hersh.

January 12, 2010: Defendant Hersh filed a petition to strike default judgment and a motion for reconsideration [of Judge McCarthy’s order denying Hersh’s petition to open judgment] or, in the alternative, for stay of execution pending appeal. No order disposing of either the petition or the motion is shown on the docket. We have assumed the order either was not presented to Judge McCarthy or was implicitly denied by him.

January 18, 2010: Defendant Hersh filed a notice of appeal of Judge McCarthy’s order denying his petition to open judgment. No appeal bond was filed, so there was no automatic supersedeas under Pa. R.A.P. 1731(a).

January 19, 2010: Plaintiff filed a praecipe for writ of execution against Stephen Hersh.

February 2, 2010: Defendant Hersh filed a concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 2915(b), related to Judge McCarthy’s orders.

February 3, 2010: The undersigned entered an order denying plaintiff’s motion to continue argument on [defendant Jordan’s] preliminary objections pending appeal, and also entered the following order sustaining defendant Jordan’s preliminary objections, as follows:

...it is hereby ordered, adjudged and decreed that the preliminary objections be and hereby are sustained and that the complaint of plaintiff be and hereby is dismissed, with prejudice, as to George Patrick Jordan, IV, only. We note that Mr. Jordan is not an indispensable party to this action as he acquired title after the subject lien on the real estate had been discharged.

March 13, 2010: Judge McCarthy filed his opinion regarding the appeal of his order denying defendant Hersh’s petition to open [default] judgment.

May 21, 2010: Plaintiff filed a [second] motion to require additional security [from defendant Hersh] and/ or to compel deposition [of defendant Hersh]. This was scheduled for argument on June 15, 2010.

June 15, 2010: After argument before the undersigned, with plaintiff’s attorney and defendant Hersh’s new attorney present, counsel were given leave to brief §1510 of the Mechanics’ Lien Law, with defendant’s brief due by July 1,2010 and plaintiff’s brief due by July 15,2010. On July 2,2010, an attorney from Mr. Cooney’s firm requested a continuance on his behalf due to the terminal illness of Mr. Cooney’s mother. We responded that, although we had great sympathy for Mr. Cooney, we also had to consider prejudice to the plaintiff, and therefore we declined the request for a continuance.

July 7, 2010: We entered an order granting plaintiff’s motion to require additional security and/or to require deposition and requiring defendant Hersh to appear at the law offices of plaintiff’s counsel.

July 20,2010: Plaintiff filed a motion to hold defendant Stephen Hersh in contempt of court, alleging that Hersh had neither complied with the July 7th order nor sought reconsideration. On that same date, Mr. Cooney advised the court by letter than he was in the process of drafting a motion for reconsideration, which the court eventually received.

July 28, 2010: The undersigned entered an order denying defendant Hersh’s motion for reconsideration. That order was accompanied by a letter advising counsel that “I will not consider a renewed motion to hold Mr. Hersh in contempt pending the completion of discovery in aid of execution so that Mr. Hersh’s ability to comply with the directive related to the increase in the amount of security can be determined.”

August 6,2010: D efendant Hersh filed the instant notice of appeal. There are now two appeals pending in Superior Court, the first from Judge McCarthy’s order (150 WDA 2010) and the instant one, (1348 WDA 2010) as to which we confess error.

September 1, 2010: The undersigned filed an order directing defendant Hersh to file a statement of matters complained of on appeal.

September 14,2010: Hersh filed his statement of matters complained of on appeal seeming to raise a question about whether the case may continue at all against Mr. Hersh where the lien was discharged as to the real estate. We do not discuss this on appeal, but our understanding was that the action does continue, on complaint and answer, against the alleged debtor, Mr. Hersh, without the necessity of there being a new complaint filed at a new docket number. Defendant did not raise the issue of our lack of jurisdiction due to the pending appeal of Judge McCarthy’s order. Defendant also did not appeal at all the order of Judge Wettick raising the amount of the claim.

      . On December 11, 2009, plaintiff had filed a similar request as an alternative to her “response and objection” to Hersh’s petition to open [default] judgment. When the petition to open was denied, plaintiff’s alternative appears to have been regarded as moot.

      . Whether or not we should have been aware of the pending appeal is unclear. The videotape argument indicates it was mentioned briefly in passing at the start of the argument and never alluded to again. We therefore inadvertently focused only on the law raised by counsel, not on the possibility that we lacked jurisdiction.


source: Caselaw Access Project

author: ZULICK, J,

license: Public Domain

text:
    Mortgage Electronic Registration Systems, Inc. v. Hargrove

      C.P. of Monroe County,
    no. 718 CV 2006.

      David A. Martino, for plaintiff.

      Chandra M. Arkema, for defendants.
    October 26, 2010
   ZULICK, J,

This case comes before the court on defendants’ petition to set aside sheriff’s sale of real estate. Defendants/petitioners Anthony and Jeanine Hargrove (the Hargroves) were the owners of a home located at 1110 Meadow Lake Drive, Effort, Pa, 18330. Plaintiff/respondent Mortgage Electronic Registration Systems, Inc. (MERS) filed a mortgage foreclosure action against the Hargroves onFebruary 2,2006. MERS obtained a default judgment on March 23, 2006. A sheriff’s sale was scheduled for August 27, 2009.

On July 11, 2009 the Hargroves entered into a “Home Affordable Modification Trial Period Plan,” pursuant to a federal program for loan modification with MERS that allowed a 90 day trial loan modification. The Hargroves failed to meet the underwriting and/or delinquency standards for further modification because they did not make payment(s) as required under the trial agreement. As a result, MERS rescheduled the sheriff’s sale for October 29, 2009 and then to December 3, 2009. The Hargroves were sent a letter by the mortgage servicer, S axon Mortgage Services, Inc. (Saxon), dated November 6,2009 informing them that they had failed to meet the underwriting and/ or delinquency standards because they had failed to make scheduled payments. They were also informed that they could continue making payments until expiration of the agreement. The home was sold at the December 3, 2009 sheriff’s sale. The Hargroves filed a petition to set aside the sheriff’s sale on December 15,2009. MERS answered the petition and argument was scheduled for April 5,2010. The Hargroves then obtained a bankruptcy stay, and the argument was postponed. On September 9, 2010, MERS obtained an order for relief from stay, and the case was argued on October 4, 2010.

DISCUSSION

The Hargroves’ petition to set aside the sale relies upon Pennsylvania Rule of Civil Procedure 3132:

Rule 3132. Setting aside sale
Upon petition of any party in interest before delivery of...the sheriff’s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

“The relevant inquiry is whether proper cause has been shown to set aside the sheriff’s sale.” Irwin Union Nat’l Bank & Trust Co. v. Famous, 4 A. 3d 1099, (Pa. Super. 2010). The determination to set aside a sheriff’s sale is within the sound discretion of the trial court. Merrill Lynch Capital v. Steele, 859 A.2d 788, 791 (Pa. Super. 2004), appeal denied, 872 A.2d 1199 (Pa. 2005). A petition to set aside a sheriff’s sale is based on equitable principles. Nat'l Penn Bank v. Shaffer, 672 A.2d 326, 329 (Pa. Super. 1996). The petitioner has the burden of proof by clear and convincing evidence the circumstances warranting the exercise of the court’s equitable powers. Levitt v. Patrick, 976 A.2d 581, 590 note 4 (Pa. Super. 2009). The request to set aside a sheriff’s sale may be refused due to insufficient proof to support the allegations in the petition. Kaib v. Smith, 684 A.2d 630, 631 (Pa. Super. 1996) (internal citations omitted). Sheriff’s sales have been set aside where the validity of the sale proceedings is challenged, a deficiency pertaining to the notice of the sale exists, or where misconduct occurs in the bidding process. Blue Ball Nat’l Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super. 2002), appeal denied, 820 A.2d 702 (2003). This court will not reverse the trial court’s decision absent a clear abuse of discretion. Id.

The Hargroves argue that the December 3, 2009 sale should be set aside on equitable grounds because 1) the Hargroves did not have actual knowledge of the sale; and 2) because the record allegedly does not reflect proper service. I will address those arguments in reverse order here.

I. Proper Service of Process

In order for notice of a sheriff’s sale of real property to be valid, it must be reasonably calculated to inform interested parties of the pending action and the information necessary to provide an opportunity to present objections. M & T Mortgage Corp. v. Keesler, 826 A.2d 877, 880 (Pa. Super. 2003). Notice of sheriff’s sale of property is defective if the sale is continued indefinitely, no certain date is set, and no new notice of rescheduled sheriff’s sale was given to the property owner. First E. Bank N.A. v. Campstead, Inc., 637 A.2d 1364, 1366 (Pa. Super. 1994). Pursuant to Pa.R.C.P. 3129.2, the sheriff is required to post the subject property with the handbill and serve defendants with the notice of sale at least 30 days prior to the sale. The burden of showing inadequate notice resulting in prejudice is on the party who seeks to set aside the sale. Kaib, 929 A.2d at 1167.

The Hargroves argue that notice was not proper as they allege that they did not receive written notice as required by Pa.R.C.P. 3129.2. On that basis they contend the sale is void. They assert that “[t]he [Pa.R.C.R] 3129.1 Affidavit does not attach the Exhibits to reflect service...[tjherefore, since the notice is improper, the title must be revert [sic] to the owner.” Hargrove brief, page 3 (citing Russell v. Pivorotto, 1975 WL 16792 (Allegheny C.P. 1974)). The Hargroves do not attach the affidavit in question to their petition and so I must assume they refer to the affidavit filed on June 22, 2009. Paragraph 3 of that affidavit provides: “[i]f a return receipt is not attached hereto, then service was by personal service on the date specified on the attached Return of Service, attached hereto as exhibit ‘B’.” Thus, the reason the return receipt was not attached to the affidavit was because personal service had been effected.

MERS has attached the sheriff’s returns of service to its response to the petition. The returns indicate that both of the Hargroves were personally served with notice of the August sheriff’s sale on May 13, 2009. No new notice was required for the October or December sales. Pa.R.C.P. 3129.3 provides that if a sale is continued or postponed to a date certain within one hundred thirty days of the scheduled sale, notice of which was given in accordance with Pa.R.C.P. 3129.2, no new notice is required. The rule also provides that “there may be only two such stays...within the one hundred thirty day period without new notice.” Id. A public announcement at the original sale or subsequent sale serves as sufficient notice for the continued or postponed sales. Here, notice was properly given for the August sale. After that, the October and December sales occurred on certain dates within one hundred thirty days of the scheduled sale. As a result, the public announcements postponing the sale at the August and October hearings served as sufficient notice to the Hargroves. For these reasons, the Hargroves have not met their burden in showing inadequate notice. It appears full notice of sale occurred and that MERS complied with Pa.R.C.P. 3129(2)(a) andPa.R.C.P. 402(a).

II. Actual Knowledge of Sheriff’s Sale

The Hargroves assert that the court should set aside the sheriff’s sale because they did not have actual knowledge of the sale. Due process requires that notice to a mortgagee be reasonably calculated to provide actual notice of a foreclosure sale. Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (emphasis added). Our Supreme Court has recognized that mortgagors are entitled to be notified of foreclosure sales in conformity with Mennonite Board, RTC Mortg. Trust 1994-N-2 v. Fry, 556 Pa. 603, 606, 730 A.2d 476, 478 (Pa. 1999) (citing First Pa. Bank v. Lancaster County Tax Claim Bureau, 470 A.2d 938, 941-42 (Pa. 1983)).

While due process, Pennsylvania case law and Pennsylvania Rules of Civil Procedure require a mortgagee to make an effort reasonably calculated to provide actual notice, they do not require a perfect effort resulting in actual knowledge. Here, MERS fully complied with Pa.R.C.R 3129.2. As a result of this effort, the Hargroves received formal notice of the August sale. After providing that notice, the rules allow announcements at the sale as proper notice of the continued sale. Actual notice is not required by the rules, and the borrower must exercise some diligence in determining the outcome of the sheriff’s sale that was scheduled in accordance with the rules. See discussion, supra.

III. Equitable Grounds

The Hargroves do not raise adequate equitable grounds to set aside the sale. While a mortgage foreclosure is an action at law, equitable relief may be available if such relief is consistent with principles of law. Union Nat’l Bank of Little Rock v. Cobbs, 567 A.2d 719, 721 (Pa. Super. 1989). A petition to set aside a sheriff’s sale is based on equitable principles. Nat’l Penn Bank v. Shaffer, 672 A.2d 326, 329 (Pa. Super. 1996). The petitioner has the burden of proof by clear and convincing evidence the circumstances warranting the exercise of the court’s equitable powers. Levitt v. Patrick, 976 A.2d 581, 590 note 4 (Pa. Super. 2009).

Here, the Hargroves do not present clear and convincing evidence justifying the use of the court’s equitable powers. They argue that they relied on representations by MERS and debt collector Saxon in “allowing] the bankruptcy to be dismissed.” Hargrove brief, page 2. They base their reliance on the “modification agreement” and November 6, 2009 letter from debt collector Saxon informing them that they “could continue to make their payments.” Id.

In requesting equitable relief and stressing their reliance on the representations of MERS and Saxon, the Hargroves call for application of the doctrine of equitable estoppel.

Equitable estoppel is a doctrine that prevents one from doing an act differently than the manner in which another was induced by word or deed to expect. A doctrine sounding in equity, equitable estoppel recognizes that an informal promise implied by one’s own words, deeds or representations which leads another to rely justifiably thereon to his own injury or detriment may be enforced in equity. Kreutzer v. Monterey County Herald Co., 560 Pa. 600, 606, 747 A.2d 358, 361 (Pa. 2000) (quoting Novelty Knitting Mills v. Siskind, 457 A.2d 502, 503 (Pa. 1983)).

Here, the representations of MERS were not reasonably relied upon. The “modification agreement” was in fact a “home affordable modification trial period plan.” Attachment to Hargrove brief (emphasis added). The plan is part of a federal program that requires borrowers to enter into such a trial period before they may receive a permanent home affordable modification. The trial plan is not a permanent modification precluding the possibility of a sheriff’s sale. In fact, if a borrower does not meet the underwriting and/or delinquency standards of the federal program’s trial period, a permanent home affordable modification will not be awarded. The Hargroves took part in a three-month trial period during which they were to make monthly payments by the first day of July, August, and September of 2009. They failed to abide by the payment schedule and essentially failed the purpose of the trial period — to test their ability to succeed under a permanent modification. The lender put the Hargroves on notice that their trial plan was not successful. As a result, it was not reasonable for the couple to rely on the trial period agreement to protect their house from being sold at the sheriff’s sale. They knew or should have known that the opportunity for a second chance on their mortgage was attempted but did not work and that MERS therefore was able to follow through on its right to sell the property.

It was also not reasonable for the Hargroves to rely upon Saxon’s letter ofNovember 6,2009 as assurance that their home would not be sold. In that letter, Saxon made clear that the Hargroves had “not me[t] the underwriting and/or delinquency standards of the program...because... payments [were] not received according to agreement.” Attachment to Hargroves’ reply to MERS’ response. It also stated that “[although you will not be given a final modification agreement, you will be permitted to continue to make your trial modification payments until the expiration of the agreement.” Id. It was not reasonable for the Hargroves to interpret language allowing them to complete their obligations in the trial period as assurance their house would not be sold. In the same letter, they received notice that they had failed to meet the standards of the program and would not be given a permanent agreement.

Finally, the Hargroves’ argument for equitable relief hinges on their contention that they “allowed the [chapter 13] bankruptcy to be dismissed” with prejudice in reliance on MERS’ and Saxon’s representations. Hargrove brief, page 2. However, they have failed to provide clear and convincing evidence of that circumstance. In fact, Judge Opel’s August 18,2010 order in United States Bankruptcy Court modifying the stay of proceedings to allow MERS to proceed with foreclosure suggests. otherwise. See Order of Bankruptcy Court for the Middle District of Pennsylvania, filed of record in this court on September 9, 2010. The modification order was granted after Wells Fargo filed a motion for “In Rem Extraordinary Relief from Automatic Stay to Permit Movant to Take Legal Action for Enforcement of its Right to Possession of Premises located at 1110 Meadow Lake Drive, Effort, PA.” Id. The Hargroves provide no additional documentation of their contention that it was they who allowed the chapter 13 bankruptcy to be dismissed. It is also clear from the record that the Hargroves were given an opportunity to modify their mortgage before sale, but that modification was unsuccessful due to their inability to comply with the trial agreement. Accordingly, I find no basis on which to exercise the court’s equitable powers to set aside the sale.

ORDER

And now, October 26, 2010, upon consideration of the petition to set aside sheriff’s sale of the defendants, Anthony and Jeanine Hargrove, and the parties’ briefs and arguments, it is hereby ordered that defendants’ petition is denied.


author: COX, J.,

text:
    Commonwealth v. Lillibridge

      C.P. of Lawrence County,
    no. 1288 of 2009.

      Luanne Parkonen, for Commonwealth.

      Michael A. Frisk Jr., for defendant.
    December 3, 2010
   COX, J.,

Before the court for disposition is the motion for writ of habeas corpus filed on behalf of the defendant Larry G. Lillibridge, which argues that the Commonwealth failed to produce sufficient evidence to establish the defendant was driving while under the influence of alcohol and drugs as the Commonwealth was required to present expert testimony regarding the effects and interactions of the alleged intoxicants.

On October 9,2009, the defendant drove to McDonald’s in Ellwood City, Lawrence County, Pennsylvania, during the late-night shift, which was 11:00 p.m. to 4:00 a.m., and he attempted to order food by utilizing the drive thru. John McCloskey, an employee of McDonald’s, was receiving orders from the drive thru during the late-night shift. The defendant attempted to place an order with Mr. McClosky; however, the meal he wanted was not available on the late-night menu. The defendant attempted to place the same order several more times before changing his order and pulling to the next window. The defendant rolled down his window and Mr. McCloskey gave him the total for his purchase. Next, the defendant asked Mr. McCloskey if he was the “smart ass” on the speaker. Mr. McCloskey answered in the affirmative and the defendant threatened to have Mr. McCloskey fired or to physically assault him. Mr. McCloskey subsequently informed the defendant that the preparation time for his meal was six minutes. At that time, Mr. McCloskey noticed that the defendant’s speech was slurred, he was agitated and there was a strong odor of alcohol. While parked in the drive thru, the defendant exited his vehicle and retrieved something from his trunk, which prompted Mr. McCloskey to call the Ellwood City Police Department. While Mr. McCloskey was on the telephone with dispatch, the defendant proceeded to move his vehicle forward into the parking lot without being instructed to do so. Mr. McCloskey also observed that the defendant’s behavior was becoming more erratic and he was more agitated.

Officer Jon Disher of the Ellwood City Police Department, who has been employed as a patrolman for 15 years, was dispatched to McDonald’s. When he arrived, he observed the defendant standing by the trunk of the vehicle.

Officer Disher approached the defendant and asked why he was there and if there was a problem. The defendant explained that he got into an argument with an employee of McDonald’s and was waiting for that employee to exit the restaurant. Officer Disher observed that the defendant appeared to be intoxicated as he smelled of alcohol, his eyes were bloodshot and glassy, he was stumbling and his speech was slurred. The defendant also informed the police officer that he had a tire iron in his trunk and he was waiting for the employee to exit the restaurant so the defendant could fight him. Officer Disher then administered three field sobriety tests, consisting of the horizontal gaze test, the heel raise test and the heel-to-toe walk test. The defendant failed those tests and the police officer placed him under arrest for driving under the influence. Subsequently, Mr. McClosky identified the defendant as the person who argued with him at the drive thru window. Officer Disher then transported the defendant to Ellwood City Hospital and the defendant’s blood was drawn. The blood test was positive for Diazepam andNordiazepam. Additionally, the defendant had a blood alcohol content of .074 percent. The defendant was charged with driving under the influence general impairment/incapable of driving safely, driving under the influence of a controlled substance, disorderly conduct engaged in fighting, disorderly conduct obscene language or gesture and disorderly conduct hazardous or physically offensive condition.

The defendant has now filed this motion for writ of habeas corpus contending that the Commonwealth has failed to present a prima facie case that the defendant violated 75 Pa.C.S.A. § 3802(a)(1) and (d)(3) as the Commonwealth did not present expert testimony to establish that the defendant was under the influence of a controlled substance. In response, the Commonwealth stated that Officer Disher’s stipulated testimony, based upon his 15 years experience, was sufficient to establish that the defendant was incapable of safely operating his vehicle.

Where a criminal defendant seeks to challenge the sufficiency of the evidence presented at his preliminary hearing, he may do so by filing a writ of habeas corpus. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1995). The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Fox, 619 A.2d 327, 332 (Pa. Super. 1993). In a pre-trial habeas corpus proceeding, as in a preliminary hearing, the Commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 580 A.2d 412 (Pa. Super. 1990). This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994). The Commonwealth must present evidence at a preliminary hearing to establish that a crime was committed and the probability the defendant could be connected with the crime. Fox, supra. Aprima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Commonwealth v. Fountain, 811 A.2d 24 (Pa. Super. 2002).

The Commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). Additionally, the evidence is to be reviewed in a light most favorable to the Commonwealth and the Commonwealth is entitled to reasonable inferences drawn from the evidence. Id. The weight and credibility of the evidence is not a factor at this stage, the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Id.

In the current matter, the defendant was charged with violations of 75 Pa.C.S.A. §3802(a)(l) and 75 Pa.C.S.A. § 3802(d)(3). 75 Pa.C.S.A. § 3802(a)(1) states, “An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.” Similarly, 75 Pa.C.S.A. § 3802(d)(3) declares, “The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.”

Intoxication is a matter of common observation and knowledge acquired through experience, which permits the admissibility of lay opinions to establish that the defendant was intoxicated and expert testimony is not required. Commonwealth v. Horn, 395 Pa. 585, 590, 150 A.2d 872, 875 (1959). Testimony by police officers is common to establish that a defendant was under the influence of alcohol as alcohol-induced intoxication is not a condition that is outside of the realm of understanding of the ordinary person. Commonwealth v. Boerner, 407 A.2d 883, 885-886 (Pa. Super. 1979). Police officers may also testify regarding their opinion as to whether drug-induced intoxication affected the defendant’s ability to drive safely, if the police officer is personally familiar with the effects of the drugs. Commonwealth v. Yedinak, 676 A.2d 1217, 1221 (Pa. Super. 1996) (citing People v. Williams, 44 Cal. 3d 883, 245 Cal. Rptr. 336, 751 P.2d 395 (1988)).

In Commonwealth v. Dunne, 690 A.2d 1233 (Pa. Super. 1997), the Court ruled that it was not necessary to have an expert testify as to whether the appellant was driving while under the influence of drugs. In Dunne, the police officer observed a vehicle, which was being driven by the appellant, traveling without its headlights activated. The police officer stopped the vehicle and asked the appellant for his driver’s license, registration and insurance card. The appellant fumbled with his wallet, but eventually handed those items to the officer. Additionally, the appellant was being belligerent and, when asked to exit the vehicle, the appellant was staggering. The police officer also noticed that the appellant’s eyes were glassy. Subsequently, the police officer asked the appellant to perform three field sobriety tests, which the appellant failed. A preliminary breath test indicated that the appellant’s alcohol level was .088 percent. The appellant was arrested and taken to the hospital where he submitted to blood and urine tests. When the blood test was administered, the police officer noticed track marks on the appellant’s arm, including a “fresh” track mark. The appellant was then transported to the police station. The blood test revealed that the appellant’s blood alcohol content was .015 percent and the urine test was positive for amphetamines and methamphetamines. The appellant was eventually convicted of driving while under the influence of a controlled substance and possession of drug paraphernalia. He filed a post-verdict motion for a new trial arguing that the Commonwealth was required to present expert testimony to establish that he was under the influence of drugs to a degree that rendered him incapable of safe driving.

The court explained, citing to Yedinak, that there is no basis to distinguish the admissibility of opinion testimony regarding drug-induced intoxication from opinion testimony of alcohol-induced intoxication in cases where the witness is personally familiar with the effects of narcotics. Id., 690 A.2d at 1238 (quoting Yedinak, supra.). The Dunne court specifically rejected the rationale that expert testimony was needed to provide the connection between the symptoms observed by the police and the drug that allegedly influenced the appellant’s driving. Id., 690 A.2d at 1238. The Dunne court held that the trial court did not err by permitting the police officer’s opinion testimony that the appellant was under the influence of a controlled substance because “The officer’s opinion was based on specific and articulable observations of appellant’s physical appearance and behavior, it was helpful to the trier of fact, and a proper foundation was laid to show that [the police officer] was familiar with the effects of narcotics.” Id.

In the case subjudice, Officer Disher has been employed as a police officer for 15 years, had made prior driving under the influence arrests and based upon that experience he was able to determine that the defendant was intoxicated to a degree which rendered him incapable of safe driving. Officer Disher first observed the defendant standing behind his vehicle in the parking lot of McDonald’s. The police officer noticed that the defendant appeared to be intoxicated as he smelled of alcohol, his eyes were bloodshot and glassy, he was stumbling and his speech was slurred. Additionally, Officer Disher conducted three field sobriety tests, which the defendant failed. As a result, the police officer decided to arrest the defendant for driving under the influence. The defendant was transported to Ellwood City Hospital where he submitted to a blood test that revealed his blood alcohol content was .074 percent. The lab report also indicated that the defendant was under the influence of Diazepam and Nordiazepam. Based upon these facts and the opinion testimony provided by Officer Disher, it is apparent that the Commonwealth has presented sufficient evidence that the defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving in violation of 75 Pa.C.S.A. § 3802(a)(1).

However, there has not been any testimony to indicate that Officer Disher was familiar with the effects of the drugs Diazepam or Nordiazepam. As indicated by the Dunne court, police officers are permitted to offer an opinion as to whether a defendant is under the influence of drugs to a degree that rendered him or her incapable of safe driving, if that police officer indicates that he or she is familiar with the effects of the drugs in question. In the current matter, the Commonwealth has not established that Officer Disher has any familiarity with the particular drugs for which the defendant tested positive. Hence, the Commonwealth is not permitted to introduce any opinion testimony from Officer Disher regarding drug-induced intoxication. Without Officer Disher’s opinion testimony, the Commonwealth has failed to meet its burden that the defendant was under the influence of alcohol and a combination of drugs to a degree that impaired his ability to safely operate his vehicle. Therefore, the Commonwealth has not established a prima facie case that the defendant violated 75 Pa.C.S.A. § 3802(d)(3).

For the reasons set forth in this opinion, the defendant’s motion for writ of habeas corpus is denied in part and granted in part. The Commonwealth has established a prima facie case that the defendant violated 75 Pa.C.S.A. §3802(a)(l); however, the Commonwealth has not provided the court with sufficient evidence that the defendant violated 75 Pa.C.S.A. § 3802(d)(3).

ORDER OF COURT

Now this December 3, 2010, this case being before the court on October 26, 2010, for a hearing on the motion for writ of habeas corpus filed by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Luanne Parkonen, Esquire, Assistant District Attorney for the County of Lawrence and the defendant, Larry G. Lillibridge, represented by counsel, Michael A. Frisk, Jr., Esquire and after a hearing held, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. The motion for writ of habeas corpus is hereby granted in part and denied in part.

2. In accordance with the attached opinion, the charge of driving under the influence of alcohol or controlled substance, under 75 Pa.C.S.A. §3802(d)(3), that being a combination of alcohol and drugs, is hereby dismissed.

3. In accordance with the attached opinion, the motion for writ of habeas corpus regarding the charge of driving under the influence of alcohol, general impairment - incapable of safe driving under 75 Pa.C.S.A. §3802(a) (1), is hereby denied.

4. The defendant shall be listed for the January 2011 criminal jury trial term.

5. The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Luanne Parkonen, Esquire and Michael A. Frisk, Jr., Esquire.

      . 75 Pa.C.S.A. §3802(a)(l).

      . 75 Pa.C.S.A. §3802(d)(3).

      . 18 Pa.C.S.A. §5503(a)(1).

      . 18 Pa.C.S.A. §5503(a)(3).

      . 18 Pa.C.S.A. §5503(a)(4).


author: LASH, J.,

text:
    Oliveras v. Oliveras
    C.P. of Berks County,
    no. 08-10063 #3.

      John J. Grenko, for plaintiff.

      E. Jay Tract, for defendant.
    November 18, 2010
   LASH, J.,

A custody trial was held on October 12, 2010 and November 16, 2010. This court enters the following findings of fact:

I.FINDINGS OF FACT

1. Plaintiff, Krystal Lynn Thomas Oliverass (hereinafter “mother”), is an adult individual who currently resides at 618 Buttonwood Street, Reading, Berks County, Pennsylvania, moving into the residence in early November 2010. Previously, she resided at 828 Green Street, Reading, Berks County, Pennsylvania 19601.

2. Defendant, Joshua Oliveras (hereinafter “father”), is an adult individual who currently resides at 905 Greenwich Street, Reading, Berks County, Pennsylvania, since November 1, 2010. Previously, father resided at 406 Community Drive, Apartment L, Shillington, Berks County, Pennsylvania 19607.

3. The parties are the natural parents of a minor child, Zahavah Lynn Oliveras, born September 22, 2006 (hereinafter “minor child”).

4. The parties are currently husband and wife, separating duringthe summer of2008. They began residing together in June 2006 when father moved in with mother in the home of the maternal grandparents. The couple then relocated to their own apartment in Jamestown Village, Reading, Berks County, Pennsylvania, in October 2006 and resided together since that time until their separation in the summer of 2008.

5. Mother currently resides with her paramour, Darriel Everett. The couple have been together for approximately two and one-half (2 1/2) years. The couple have a child, Zanovia, bom February 23,2010. They reside in a five (5) bedroom house.

6. Father currently resides in a two (2) bedroom home, with his paramour, Amanda Lopez, the couple’s minor child, Joshua Oliveras, Jr., bom December 30, 2009, and the subject minor child. Father’s sister, Sasha Lynn Lopez, lives on the third floor of the same building.

7. Mother and father reside in the Reading School District.

8. Mother is employed by the Reading School District as a lunch aid working Monday through Friday from 7:00 a.m. to 1:30 p.m.

9. Father is employed with Wells Fargo as a bank teller, with hours of Mondays through Fridays from 9:00 a.m. to 5:00 p.m. and every other Saturday from 10:00 a.m. to 4:00 p.m. Father also is enrolled at Berks Technical Institute, studying computer programming.

10. Each party has filed protection from abuse petitions against the other. On August 6, 2008, after hearing held, this court entered a protection from abuse order in favor of father and against mother. The order provided temporary custody provisions, awarding primary physical custody of the subject minor child to father, with mother to have partial custody as agreed through mother’s sister, Nicole. The order was due to expire on August 6, 2011.

11. On August 13, 2008, the aforesaid final protection from abuse order was modified to provide that mother’s partial custody would be from Monday through Friday from 9:00 a.m. until 1:30 p.m., and every other weekend, from 8:00 a.m. Saturday until 6:00 p.m. Sunday. Mother’s sister, Nicole, was to continue to act as intermediary. The order also prohibited mother’s brother, Joseph Thomas, from having any contact with the minor child and also prohibited the minor child to be at the home of the maternal grandmother.

12. The final protection from abuse order was again modified on September 8, 2009, to provide that mother’s partial custody would be every other weekend from 9:00 a.m. to 7:00 p.m. on Saturdays and Sundays, plus every Wednesday from 3:00 p.m. to 7:00 p.m., thereby eliminating overnight visits.

13. Mother filedthree (3) separate protection from abuse petitions against father, all of which were dismissed.

14. Berks County Children and Youth Services implemented a safety plan, dated September 17, 2008, for mother, requiring that the minor child have no contact with mother’s brother, Joseph Thomas. The safety plan also provided that mother would meet the minor child’s needs and that mother would refrain from drug or alcohol use while supervising the minor child.

15. A court ordered independent psychological evaluation was performed by Alison L. Hill, Ph.D., a licensedpsychologist, of Berks CounselingAssociates, P.C. In compiling information, Dr. Hill interviewed the parties, mother’s paramour, Darriel Everett, father’s paramour, Amanda Lopez, observed the minor child interacting with each parent, had the parents fill out a parent questionnaire, received collateral documents from the parties, obtained criminal record checks and child abuse history clearance forms on the parties, and administered the Minnesota Multiphasic Personality lnventory-2 (MMPI-2), and the Parent Awareness Skills Survey (PASS). The interviews were conducted on several occasions spanning June through September 2009. Dr. Hill submitted a written report, which was admitted into evidence, and also testified at trial.

II. DISCUSSION

At issue is primary physical custody. In making disposition, this court considered the testimony of the parties, the testimony and written evaluation submitted by Dr. Hill, and the exhibits provided.

Mother seeks to obtain primary physical custody, or at least a 50/50 shared custody arrangement. She testified that she can properly tend to the minor child’s needs and would like the opportunity to do so. She states that she has been thwarted from access to the minor child by father, who obtained a protection from abuse order against her and then has failed to honor the custody schedule provided for in the protection from abuse order. In fact, during the past month, she had only one (1) opportunity to spend time with the minor child.

Mother believed that father does not have a valid reason for denying her visits, that the problem stems from animosity between the parties, and father being influenced by his friends. Mother notes that father often turns the minor child over to the paternal grandmother rather than watch her himself.

Father testified that he has been the caretaker for the minor child since her birth. When the parties resided together, he was responsible for all ofher daily maintenance, taking her to doctor visits, and so forth. Mother was uninvolved. After the parties’ separation, mother would not show up for her scheduled custody visits.

Father also testified that if mother had extensive time with the minor child, her care would be substandard. He does not believe that she has the capacity to be a proper parent, believing that her motivations are to make things as difficult for him as possible. Often when the parties interact, mother becomes volatile, making it difficult, if not impossible, for father to communicate with her.

Father also notes that mother’s brother, Joseph Thomas, has been found to be involved in improprieties involving children. CYS has implemented a safety plan designed to prohibit Mr. Thomas from having any contact with the minor child. Father believes that mother would not honor this safety plan.

Dr. Hill provided impressions regarding the parties, the parties’ respective interactions with the minor child, as well as the parties’ paramours. Regarding father, she observed that he is struggling to establish himself, particularly regarding employment, financial, and housing issues. She also noted that he has self-esteem issues and deep rooted feelings of alienation, which hinder his ability to interact with others. On the other hand, Dr. Hill noted that father and the minor child have a very strong bond and that his interaction with her is appropriate. He spends a good deal of time with the minor child, teaching her and assisting her with tasks. Dr. Hill concludes that father is a caring and active parent who loves the minor child and clearly wants what is best for her.

Dr. Hill found that father’s paramour, Amanda, while young and immature, has a good relationship with the minor child and can perform adequately in caring for her.

In contrast, Dr. Hill found mother to be confused, with poor attention span, and ability to focus. Her reality orientation is poor and she engages in what Dr. Hill calls “magical thinking.” She is considered to be in chronic psychological distress, with social alienations, and thought processes that are abnormal, resulting in poor judgment and unpredictable behavior. She reports mother to be “generally unreliable and unstable.” Dr. Hill was critical of mother’s actions during an interview designed to observe mother’s interaction with the minor child, as she focused on providing negative information on father and his paramour, interacting minimally with the minor child during the session. Dr. Hill states that mother was observed to “pull [the minor child] up by the arm more than once, made inappropriate and negative statements in front [the minor child], experiencing difficulty getting [the minor child] to do what she wanted to do and then made threats of timeout on which she did not follow through.” Although there is a bond between mother and the minor child, it is not a close one.

Mother’s paramour was considered to be fairly positive, although he has had little contact with the minor child and had little knowledge of her.

Dr. Hill recommends that the current custody arrangement remain the same, with father retaining primary physical custody and mother having partial custody. However, no overnights or additional time is recommended for mother.

The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 666 A.2d 1096, 1098 (Pa. Super. 1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 659 A.2d 1040, 1042 (Pa. Super. 1995).

Both of these parties have substantial issues. Both parties have been somewhat transient, moving residences primarily due to financial constraints. Each has psychological and parenting limitations, as more fully outlined by Dr. Hill. Most importantly, the parties are unable to get along, with most interactions resulting in arguments and altercations. Mother is still subject to a PFA order entered on father’s behalf. Mother has had infrequent contact with the minor child in recent months, which she attributes to father refusing to provide access, which father attributes to mother refusing to show up for the transfers, and which both attribute to the continuing animosity of the parties. This problem highlights the level of immaturity of these parties.

We conclude that mother has not established a basis for transferring primary custody to her or for otherwise substantially modifying the current order. The evidence shows that father has some rudimentary parenting skills and has been able to provide an adequate home for the minor child. While father’s track record is not optimal and while he needs to examine his own conduct in the continuing problems with mother, on balance, this court is satisfied that the minor child’s needs can be met by father. On the other hand, mother has failed to establish that she can provide a suitable home. Dr. Hill’s report of mother was extremely critical. Her conduct when interacting with father is also subject to criticism, particularly as she appears to be the catalyst in the altercations. For her to establish herself as a proper parental figure, she will need to accept responsibility for her behavior, then change in a positive way. This may require parenting counseling or some other type of counseling that will assist her in reaching this goal.

We need to modify the order to account for father’s employment schedule. Additionally, as mother is available during the afternoon while father is working, there is no reason why mother cannot assume custody of the minor child during these periods. At this time, overnight visits are not deemed appropriate.

We enter the following order:

ORDER

And now, November 18, 2010, after trial held, custody of the parties’ minor child, Zahavah Lynn Oliveras, bom September 22, 2006 (hereinafter “minor child”), shall be as follows:

1. The parties shall share legal custody of the minor child.

2. Defendant, Joshua Oliveras (hereinafter “father”), shall have primary custody of the minor child.

3. Plaintiff, Krystal Lynn Thomas Oliveras (hereinafter “mother”), shall have partial custody as follows:

A. Every other weekend on Saturday from 9:00 a.m. to 7:00 p.m., then on Sunday from 9:00 a.m. to 7:00 p.m.,

B. During father’s work hours when mother is not working, Monday through Friday from 2:00 p.m. to 5:15 p.m., until the minor child reaches school age,

C. Every Wednesday from 5:15 p.m. to 7:00 p.m., and

D. At such other times as the parties may agree.

4. Mother shall have custody every Mother’s Day and father every Father’s Day from 9:00 a.m. to 7:00 p.m.

5. Mother shall have Christmas Day each year from 1:00 p.m. to 7:00 p.m.

6. The parties shall alternate the following named holidays from 9:00 a.m. to 7:00 p.m., with father having the first holiday after the date of this order: Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving.

7. The holiday schedule shall take precedence over the regular custody schedule.

8. The protection from abuse order entered in this case against mother shall be modified to provide for the aforesaid custody schedule.

9. The custody exchanges shall take place at Burger King at Fifth Street and Green Terrance in Reading, Berks County, Pennsylvania, or at such other locations agreed to by the parties in writing.

10. At no time shall mother’s brother, Joseph Thomas, be permitted to have any contact with the minor child.

11. This order shall be considered a final order finally resolving the issues raised in mother’s complaint for custody.

12. The attached appendix shall be made a part of the within order.


author: FORD, J.,

text:
    Ace Pilot Training v. Caufman
    C.P. of Lehigh County,
    no. 2007-C-1510.

      Frederick J. Lanshe, for plaintiff.

      Gladys E. Wiles and Galen D. Hawkon, for defendants.
    November 30, 2010
   FORD, J.,

Plaintiff, Ace Pilot Training, Inc., was the lessee of a 1973 Piper Cherokee aircraft that crashed on May 13, 2005. In plaintiff’s amended complaint filed on December 14, 2007, plaintiff claims that the aircraft experienced engine power loss and crashed because the tailpipe in the aircraft’s exhaust system had been improperly installed by defendants, J ames Caufman and Slatington Aircraft Repair, LLC. Although occupants of the aircraft were injured in the crash, this is a lawsuit for property damage only.

The claims stated in the amended complaint are count I, breach of warranty, against James Caufman; count II, negligence against James Caufman; count III, breach of warranty against Slatington Aircraft Repair, LLC; and count IV, negligence against Slatington Aircraft Repair, LLC.

On February 7, 2008, the defendants filed a joinder complaint against additional defendants, Kent Heller, and Heller Aero Service, Inc.. The joinder complaint also names Heller Aero Service and Helger Aero Service, Inc. as parties but no evidence was presented at trial against such entities. The joinder complaint filed by the defendants against the additional defendants is brought under Pa.R.C.P.2252. It requests judgment in favor of defendants “and against additional defendants, for sole liability and/ or joint and several liability and indemnification and contribution.”

A bench trial was conducted before the undersigned on September 20 and September 22, 2010. At the trial, plaintiff sought a verdict in its favor in the amount of $45,398 for property damage, costs of suit, interest, and attorney’s fees.

Each claim brought by the plaintiff in the amended complaint is based upon plaintiff’s ability to prove that the crash was caused by the improper installation of the tailpipe. Because plaintiff has failed to prove that the installation of the tailpipe caused the crash, I enter a verdict today against plaintiff and in favor of the defendants and the additional defendants. The reasons for this verdict are explained in this opinion.

Findings of Fact

1. Plaintiff, Ace Pilot Training, Inc., is a Pennsylvania corporation with its business located at 600 Hayden Circle, Allentown, Lehigh County, Pennsylvania. This is on the grounds of the Lehigh Valley International Airport. Plaintiff does flight instruction and aircraft rental.

2. Plaintiff was the lessee of a 1973 Piper Cherokee aircraft, model PA-28 140, Federal Aviation Administration (FAA)registrationnumberN55165, owned by Gus Y. Yialamas, the lessor of the aircraft. Mr. Yialamas is a shareholder and officer of plaintiff corporation. Under the terms of the lease, plaintiff, as lessee, is responsible to Mr. Yialamas, as lessor, for any damages to the aircraft.

3. Defendant, James Caufman, is an adult individual who resides at 347 North Rosetree Drive, Sublimity, Oregon. Caufman resided in Pennsylvania during all events described in these findings of fact. He performed maintenance and inspection work on various airplanes for plaintiff for several years.

4. Defendant, Slatington Aircraft Repair, LLC, was a Pennsylvania limited liability corporation that was formed by defendant Caufman. At the time of the events described in these findings of fact, its business address was 4285 Kathi Drive, Bethlehem, Northampton County, Pennsylvania. The business of Slatington Repair was aircraft inspection and maintenance.

5. Additional defendant, Kent Heller, is an adult individual who resides at 74 Winchester Court, Reading, Berks County, Pennsylvania. He also performed airplane maintenance and inspection work for plaintiff for several years.

6. Additional defendant Heller formed additional defendant, Heller Aero Service, Inc. (“Heller Aero”), which is a Pennsylvania corporation with its business located at Limerick Airport, RD 3, Airport Road, Pottstown, Pennsylvania. Heller Aero performs airplane maintenance and inspection.

7. Caufman and Heller each had FAA airframe and powerplant certifications (“A&P”). Caufman and Heller also had FAA inspection authorization (“IA”). At various times, Caufman and Heller did maintenance and inspection work for plaintiff on this Cherokee aircraft, “signed off’ the aircraft after their work as “airworthy,” and returned the aircraft to service (“RTS”) as safe to operate under FAA regulations

8. On September 12, 2002, defendant Caufman did maintenance on the engine of this Cherokee aircraft. In the course of doing that, defendant Caufman replaced a tailpipe with a well-used muffler with an overhauled tailpipe. Defendant Caufman certified his work as airworthy and returned the aircraft to service

9. Proper installation of the tailpipe into the muffler on this aircraft requires that the tailpipe be inserted into the exhaust flange of the muffler. At the end of the tailpipe and welded to it is the safety cage. The safety cage consists of two thick, arch-shaped, criss-crossed wires that are designed to prevent materials inside the muffler from blocking or clogging the tailpipe. The blocking or clogging would prevent exhaust from leaving the muffler through the tailpipe. An item known as a baffle is attached inside an operational muffler. It reaches high temperatures when the aircraft is operating. If the baffle should become displaced, the safety cage is designed to prevent it from blocking the exhaust path provided through the tailpipe. In order for the safety cage at the end of the tailpipe to function as intended, it must be inserted in such a way that it is positioned beyond the exhaust flange inside the muffler. If the tailpipe with safety cage is positioned too low in the exhaust flange, items inside the muffler, including a displaced baffle, could block the exhaust path provided by the tailpipe. To assure that the tailpipe is not installed too low in the exhaust flange, installers usually place the tailpipe in such a way that the top of the safety cage touches the baffle. (See exhibit P-7 whereby the cage’s touching the baffle is the procedure adopted by Aircraft Exhaust Systems, Inc.)

10. For the purpose of fastening a tailpipe in the muffler of this make and model of a Cherokee aircraft, a hole must be inserted in the exhaust flange of the muffler. Manufacturers sometimes insert the hole in the exhaust flange. Other times they leave the insertion of this hole to the installer. (See Exhibit P-7 whereby a manufacturer followed the latter practice.) The installer of the tailpipe must then index and drill a corresponding hole in the tailpipe. After the tailpipe is inserted through the exhaust flange into the muffler, the installer must secure the tailpipe into the exhaust flange with an alignment pin which passes through the two holes (the hole in the exhaust flange and the hole in the tailpipe). Proper placement of the two holes and the insertion of the alignment pin determine whether the safety cage is properly positioned between the end of the exhaust flange and the baffle or is placed too low in the exhaust flange.

11. If the original installer of a new or overhauled tailpipe does not know where to drill the indexing hole in the tailpipe, it is required by FAA regulations that the installer contact the aircraft manufacturer or the tailpipe manufacturer for guidance.

12. The tailpipe that was installed in this case on September 12, 2002, by defendant Caufman came from the manufacturer without the indexing hole drilled into the tailpipe.

13. On September 12, 2002, defendant Caufman aligned the pre-existing hole in the exhaust flange with an indexing hole that he created in the tailpipe. He then secured the tailpipe in the exhaust flange.

14. The exhaust flanges manufactured as part of the mufflers for Cherokee aircraft often vary in length. The diameter of these exhaust flanges is identical on each muffler when it comes from the manufacturer. However, with use, the diameter of the exhaust flanges often changes to various extents based upon a number of factors such as removing or smoothing welding deformities, removing oxidation, use of pipe expanders for better fits of tailpipes into the exhaust flanges, and clamping of tail pipes for better fits.

15. The Piper Cherokee Service Manual provides that the Cherokee’s entire exhaust system must be rigidly inspected at each one hundred hour required inspection.

16. Defendant Caufman also performed maintenance on the Cherokee aircraft for a one hundred hour inspection in 2003. He disassembled the muffler system. He found no cracks. He removed the tailpipe he previously installed, re-lubed it with anti-seize and reassembled the muffler system. The same holes with positioning pin were used in reassembling the tailpipe into the muffler. No problems were found. Defendant returned the Cherokee aircraft to service.

17. On December 29, 2003, April 1, 2004, May 21, 2004, December 4, 2004, February 8, 2005, and March 31, 2005, additional defendant, Kent Heller, inspected the aircraft including the muffler system. On each occasion, he disassembled the muffler and took off the header pipes to gain access to the inside of the muffler. He also removed the tailpipe. He looked into the muffler through the various openings in it. All appeared in order. The baffle was in good shape. While the tailpipe was still fastened in the muffler, Mr. Heller inspected it. The safety cage appeared to be properly engaged on the end of the tailpipe inside the muffler. He did not note any defects with the installation of the tailpipe with its safety cage. He performed each of these inspections in the exact same way, saw the same things, and reached the same conclusions.

18. A number of malfunctions may cause the loss of power in a Cherokee aircraft which could result in its crashing. The malfunctions include failure of magnetos which fire the aircraft’s cylinders, carburetor icing, numerous internal engine catastrophic malfunctions, and inadequate insertion of a tailpipe into a muffler.

19. On September 15, 2004, during an inspection, Mr. Heller discovered a few low compression readings on some cylinders (soft cam shaft). As a result, the engine was tom down and repaired. Necessary parts were replaced and the engine was reassembled.

20. Several days before the crash, there was a problem with one of the aircraft’s magnetos. It was replaced. Both magnetos on this aircraft must fail for a catastrophic loss of power.

21. On May 13, 2005, at approximately 11:00 p.m., the Cherokee aircraft experienced engine power loss and crashed into darkness just after take-off from Chandelle E.S.T. Airport, Dover, Delaware, while en route to Lehigh Valley International Airport in Allentown, Pennsylvania. As a result of the collision with terrain, the aircraft was destroyed and rendered into unairworthy salvage. As the plane made its final descent, it went into a nose dive. It then rammed into the ground, with tailpipe protruding from the bottom of the plane and dragging on the ground, before it came to a stop.

22. At the direction of the FAA, Mr. Yialamas had his damaged aircraft, which was in pieces, taken to the property of his father near Kutztown, Pennsylvania. It was stored there in a secure garage. The muffler and tailpipe were part of the wreckage. The aircraft was then taken from Kutztown to defendant Heller’s shop at the direction of FAA. At that shop, it was inspected by an FAA inspector. Among those present for the inspection were Gus Yialamas and Christopher Hilbert who assisted in the retrieval of the damaged aircraft. After the FAA inspector finished his work, the aircraft was released to the exclusive control of Mr. Yialamas. FAA indicated that it had no further use of the aircraft. Parts of the aircraft were removed and used in another plane owned by Mr. Yialamas. What remained of the aircraft, its carcass, was hauled to a salvage yard.

23. Since the time of this litigation, location of the muffler and tailpipe has been unknown. The last time it was seen by anyone connected to this litigation was at the FAA inspection. Mr. Yialamas and others made efforts to locate the muffler and tailpipe, but they were unsuccessful in their efforts. There is no evidence that anyone acted malevolently by discarding or secreting the muffler and tailpipe. Neither defendants, additional defendants, nor anyone on their behalf had the opportunity to inspect the muffler and tailpipe at any point after the plane crash. Plaintiff’s expert, Leonard Boyd, also never examined the muffler and tailpipe.

24. When the damaged aircraft was at defendant Heller’s shop, Mr. Hilbert, with a new camera, took photographs (these were admitted as trial exhibits) of the aircraft and parts at the direction of Mr. Yialamas. When Mr. Hilbert handled the muffler from the aircraft in Heller’s shop at the time of the investigation by the FAA investigator, there was something loose inside it.

Discussion and Conclusions of Law

Plaintiff’s causes of action for negligence against both defendants are premised on the allegation that defendant Caufman improperly installed the tailpipe on September 12,2002. According to plaintiff, “[t]he hole that was drilled on the tailpipe by the defendants was improperly drilled at the wrong position which prevented the arch shaped standoff (safety cage) from properly functioning as a failsafe and resulted in the destruction of the aircraft” and damages (amended complaint, paragraph 14). Plaintiff has not proven that Caufman drilled the hole at an improper place on the tailpipe or otherwise improperly positioned the tailpipe with its safety cage inside the muffler. Thus, plaintiff has not proven that Caufman breached any duty by improperly installing the tailpipe.

In establishing its claim for negligence against the original defendants, plaintiff must also present evidence of a causal connection between any negligent conduct in the installation of the tailpipe and damages suffered. See Cuthbert v. City of Philadelphia, 417 Pa. 610, 614, 209 A.2d 261, 263 (1965); and Reilly v. Tiergarten, Inc., 633 A.2d 208, 210 (Pa. Super. 1993). The plaintiff must prove that the defendants’ conduct actually caused the plaintiff’s damages. This is referred to as “factual cause.” Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. “An act is a factual cause of an outcome if, in the absence of the act, the outcome would not have occurred.” Gorman v. Costello, 929 A.2d 1208, 1212 (Pa. Super. 2007). Even if plaintiff proved that defendant Caufman improperly inserted the tailpipe so that the safety cage was too low in the muffler, plaintiff has not proven that this failure in any way contributed to blockage of the exhaust outlet in the muffler which resulted in loss of power and the crash. The causation element of the negligence causes of action has not been proven by plaintiff against the original defendants.

In an attempt to establish that defendant Caufman was negligent, that is, that he breached a duty to properly install the tailpipe, plaintiff relied upon a qualified expert, Leonard Boyd. Among other qualifications, Mr. Boyd has an A&P mechanic certification and I.A. certification. The opinions expressed by Mr. Boyd were based on a thin premise and were contradicted by other believable evidence on material points.

It was Mr. Boyd’s opinion that defendant Caufman improperly installed the tailpipe into the exhaust flange in September of 2002. According to Mr. Boyd, Caufman placed the hole in the tailpipe in such a way that, when it was aligned with the exhaust flange hole and fastened with the alignment pin, it caused the tailpipe to be placed too low in the exhaust flange. According to Mr. Boyd, placement of the tailpipe too low meant that the safety cage attached to the tailpipe was also placed too low. As a result, any displaced objects inside the muffler, including a dislodged baffle, could block the exhaust path through the exhaust flange and tailpipe, prevent exhaust escaping from the muffler, and cause a power loss in the aircraft. By placing the tailpipe with its safety cage too low, the safety cage could not perform its intended function of keeping a failed baffle or other objects from clogging the exhaust path.

Mr. Boyd had a difficult task in trying to create this scenario for the court. The review of the case by Mr. Boyd followed the violent destruction of the aircraft during which the tailpipe protruded from the bottom of the aircraft and dragged along the ground during the crash. Also, due to the loss of the muffler and tailpipe before litigation began, Mr. Boyd never examined the actual muffler and tailpipe.

During his testimony, Mr. Boyd made it clear that he relied upon the photographs of the muffler and tailpipe taken by Mr. Hilbert after the crash to determine the precise point of the hole placed in the tailpipe by defendant Caufman. Mr. Boyd was asked, “And were you able to determine that position of the hole in the tailpipe by the photographs alone?” Mr. Boyd responded, “yes.” He indicated that it would have been “nice” to see the original muffler assembly with tailpipe, “[b]ut I didn’t really need it.”

Mr. Boyd used the diameter of the exhaust flange as shown in the photographs after the crash to calculate where defendant Caufman placed the hole on the tailpipe for the alignment. As Mr. Boyd stated in response to the question “and the reference point that you used, sir, is what?” Mr. Boyd’s answer was, “The diameter, which is a known, with no variable and it established the scale of the picture.” Reliance on exhaust flanges that always have the same diameter and scale of one item to another as shown in the photographs were crucial to Mr. Boyd in formulating his opinions.

Mr. Yialamas, the owner of the aircraft, made calculations based on the photographs. Mr. Boyd, the expert, adopted those calculations to conclude that defendant Caufman placed the hole on the tailpipe at a point which caused improper installation of the tailpipe. There are problems with this approach by Mr. Boyd.

Under the evidence, the diameter of exhaust flanges is not uniform on mufflers that have been in use. They can be altered, albeit slightly, through a variety of factors such as smoothing weld deformities, removing oxidation, and use of pipe expanders and clamping. Although these create slight variations in the diameter of the flanges, Mr. Boyd’s assumption was that these diameters are always the same. He used that assumption to determine scale in the photographs. Determination of scale was critical to Mr. Boyd’s opinions about improper placement of the hole.

According to Mr. Yialamas, Mr. Hilbert was using his new camera for these photographs. Photographs can be deceiving in terms of the placement of objects. There was no demonstration that precautions were in place to assure that there was no distortion of objects for the precise calculations for which the photos were used. As Mr. Yialamas testified, he had no idea as to the use that would be made in this litigation of the photographs when they were taken by an apparently casual photographer with a new camera.

Mr. Boyd’s conclusions were also undermined by persuasive evidence.

Defendant Caufman described in detail how he installed the tailpipe in 2002. He had specific recall of what he did to get the tailpipe into the exhaust flange. He described the placement of the pipe with its safety cage. Within a year of his first installation, he removed the tailpipe, inspected it, and reinstalled it. From this evidence, I, as fact-finder, cannot say definitively that the tailpipe was installed properly on these two occasions. Nevertheless, it appears Caufman took the proper precautions with the hole alignment and fastening.

The parties acknowledged that additional defendant Heller was an excellent maintenance person for aircraft. Mr. Heller performed several inspections on the aircraft covering the period of late 2003 to March of 2005. These inspections included disassembly of the muffler system. While he probably could not determine the exact placement of the safety cage inside the muffler, he reached the conclusion on each of these inspections that the tailpipe was properly installed into the muffler system from all that he had seen.

There were no occurrences of loss of power in the aircraft caused by the muffler system from the point of the initial installation of this tailpipe in 2002 until the crash in 2005. There were problems with the magneto just days before the crash. There also was the problem with the soft cam shaft in September of 2004 which required some tearing down of the engine and replacing of parts.

Under all of these circumstances, there is insufficient evidence to conclude that defendant Caufman improperly installed the tailpipe in accord with the theory advanced by plaintiff through Mr. Boyd. More convincing is the evidence that he properly installed it based upon his own testimony, the inspections by Mr. Heller, and the performance of the aircraft since the original installation in 2002.

Even if plaintiff proved that defendant Caufman improperly inserted the tailpipe so that the safety cage was too low in the exhaust flange, plaintiff has not proven that this failure contributed to a blockage of the exhaust path resulting in loss of power and the crash. While the baffle inside the muffler was displaced at some point before or during the crash, the proof is insufficient that it was displaced before the crash or to such an extent that it blocked the exhaust path to cause this crash. There is insufficient evidence to prove that the tailpipe was obstructed at all before the crash.

In view of the fact that plaintiff has not demonstrated improper installation of the tailpipe, the statute of limitations is not an issue. Further, without proof of improper installation, the breach of warranty claims fail. The court does not impose any sanctions upon plaintiff for the spoliation of the muffler and tailpipe. However, production of these would have been instructive for me in my role as fact-finder. Plaintiff has not met its burden of proof on any of its causes of action stated in the amended complaint.

Sadly, there was a plane crash in which people were injured. Unfortunately, plaintiff also suffered financial losses as a result of the destruction of the aircraft. Even after consideration of the evidence from this trial, the cause of this crash remains a mystery.