author: HANNA, J.,

text:
    Latas v. Latas

      Walter B. Cope Jr., for plaintiff.

      Laurel Diznoff, for defendant.
    September 14, 2007
   HANNA, J.,

This matter comes before the court on defendant’s exceptions to the report and recommendation of the divorce master. For the reasons set forth in this opinion, the court denies the defendant’s exceptions 3, 4, 5, 8, 9, 10, 14, 17 and amended exception 1. The court grants defendant’s exception 14.

FACTUAL AND PROCEDURAL HISTORY

Lewis L. Latas (Husband) and Barbara J. Latas (Wife) were married on March 3, 1990. They separated on March 31,2000. Husband filed for divorce on November 8, 2004. Husband filed a motion for appointment of master on December 6, 2005. A master’s hearing was held on July 25, 2006 before Divorce Master Sharia Coughlin, Esquire. Based on the testimony presented, the master recommended that Wife be awarded limited, non-modifiable alimony in the form of Husband paying for the COBRA coverage of Wife’s health insurance premiums for 36 months (with no obligation to pay any uncovered or unreimbursed expenses).

On November 27, 2006, Wife filed 21 exceptions to the master’s recommendations. Additionally, Wife filed one amended exception on November 28, 2006. The exceptions are:

(1) The master’s recommendations are against the weight of the evidence.

(2) The master erred in failing to recommend that Wife receive modifiable alimony for a period of at least until Wife receives Social Security benefits and thereafter.

(3)The master erred in failing to recommend that Wife receive alimony other than non-modifiable alimony for a period of 36 months and limited to the cost of health insurance for Wife through COBRA.

(4) The master erred in not granting Wife modifiable alimony given Wife’s age, physical condition, income, including without limitation, sources of income, lack of medical insurance and ability to provide for herself, and Wife’s work history, and further given Husband’s age, income, possible future earnings, education, work history and expected work history.

(5) The master erred in considering amounts allegedly paid to Wife since separation, including amounts Husband claims were paid, over and above spousal support, when:

(a)No documentation was presented to substantiate such payment.

(b) Husband never sought to divorce Wife until at least four years following the parties’ separation.

(c) Husband chose to voluntarily provide certain help to Wife, never telling Wife that he planned to seek credit for doing so.

(d) Husband’s own testimony disputed several of those amounts.

(e)Parties had entered into an agreement regarding taxes.

(6)The master erred in finding that Husband allegedly spent monies on Wife “in lieu of getting his own place,” etc. when Husband did not testify that he used his monies on Wife in lieu of doing so.

(7) The master erred in finding that Husband made “numerous” contributions to Wife “above and beyond” the court ordered support.

(8) The master erred in recommending that Wife not receive alimony other than three years of non-modifiable alimony in the amount of COBRA, given Wife’s work history.

(9) The master erred in finding that Wife chose not to work and instead “relied on Husband’s spousal support and gratuitous contributions above that support to live.”

(10) The master erred in finding that Wife has no physical limitations in spite of the master’s own statement that Wife could testify to her condition as it affected her ability to work without the necessity for expert testimony and in spite of the fact that Husband himself acknowledged Wife’s medical conditions, which existed during the marriage.

(11) The master erred in finding that Wife’s daughter from her first marriage resided with Wife at the time of the hearing.

(12) The master erred in finding that Husband and Wife’s attempts at reconciliation and counseling occurred only one week prior to the master’s hearing.

(13) The master erred in finding that Husband spent approximately $4,100 for Wife’s automobile expenses.

(14) The master erred in finding that Husband contributed IRA monies from a 30-year work history prior to the parties’ 10-year marriage and further erred in finding that it was because of Wife that the parties utilized Husband’s IRA monies. The master further erred in finding that Wife mismanaged the parties’ funds and in not crediting Husband with a contribution to any mismanagement of funds when Husband could have handled the funds.

(15) The master erred in finding that Wife refused to work during the course of the marriage, and that she mismanaged the parties’ funds.

(16) The master erred in finding that Husband voluntarily shared tax refunds with Wife for almost seven years post separation.

(17) The master erred in applying Teodor ski v. Teodorski, 857 A.2d 194 (Pa. Super 2004) to the facts in the instant case and in failing to distinguish the instant case from Teodorski.

(18) The master erred in finding that Husband failed to get on with his own life.

(19) The master erred in finding that a 10-year marriage was a marriage of short duration.

(20) The master erred in finding that Wife was not pursuing counsel fees.

(21) The master erred in failing to recommend that Husband pay Wife’s counsel fees.

Amended exception 1: The Master erred in finding Wife to have a full-time earning capacity.

Wife withdrew exceptions 1, 2, 6, 7, 11, 12, 13, 15, 16, 18, 19, 20, and 21 at the argument before this court on July 25, 2007. This withdrawal was confirmed in a letter to the court dated July 26, 2007. For the purpose of consistency and clarity, the court will continue to refer to the remaining exceptions by their original numbers in this opinion.

DISCUSSION AND ANALYSIS

In her brief in support of exceptions, Wife grouped her remaining nine exceptions into four arguments. The court will address each of these arguments in turn.

Amount of Alimony: Exceptions 3, 4, 8, 17

Wife argues that the master improperly relied on the Teodorski case in her alimony determination. She further argues that, based on the statutory alimony factors, the master should have awarded more than 36 months of non-modifiable alimony.

The master found Teodorski to be factually similar to the present case. See 857 A.2d 194 (Pa. Super 2004). In Teodorski, the marriage lasted for six years, and Husband paid spousal support for four years and nine months. Id. at 201. The Superior Court distinguished Teodorski from other cases involving longer marriages and alimony awards. It found no abuse of discretion where the trial court, in its decision to deny alimony, considered the length of the marriage and the number of years that husband had previously paid spousal support. Id. In making this finding, the Teodorski court relied on DeMarco v. DeMarco, a Superior Court case which found that “requiring [a h]usband to pay 20 years’ worth of alimony following a 12-year marriage appears inequitable considering [the h]usband’s payment of alimony and child support over a 17-year period.” See Teodorski at 201 (citing DeMarco v. DeMarco, 787 A.2d 1072, 1081 (Pa. Super 2000)). Further, the parties in Teodorski had no major assets except for Husband’s pension. Id. at 200.

In the present case, as in Teodorski, the parties were married for a relatively short time before separating (10 years), with Husband paying spousal support for almost as long as the marriage was intact (seven years). Additionally, the parties here have no property subject to equitable distribution, putting them in a similar situation to the parties in Teodorski.

In her brief, Wife attempts to distinguish Teodorski from the present case by pointing out that the Teodorski court considered the fact that Husband had custody of the parties’ two children and was responsible for caring for them, while there was no custody issue in the present case. See Teodorski at 202. The Teodorski court did consider many relevant factors, including custody; however, the factors that the court addressed most prominently were the length of marriage and number of years that the husband paid spousal support. See id.

Wife further argues that the master should have followed Ramos v. Ramos instead of Teodorski. Ramos v. Ramos, 80 D.&C.4th 242 (2006). In Ramos, the court focused on the wife’s disability and the gap in the parties’ income in awarding alimony. Id. at 257-59. Because it was “not a long marriage” (six years), the court awarded alimony for only six years. Id. at 258. However, Wife neglected to mention that, in Ramos, there was less than one year between the filing of divorce and the master’s report. See id. at 243. Therefore, assuming the husband in Ramos paid spousal support at all, he paid it for less than one year when the case came before the master. Hence, the facts of Ramos are not comparable to the present case, where seven years passed between separation and the master’s hearing. Further, Ramos is distinguishable from the present case due to the disability factor. The master in Ramos found that the wife in that case was disabled, and used that finding in his decision to award alimony. See Ramos at 257. In the present case, the master found (and this court upholds, as explained below) that Wife is not disabled and does have an earning capacity. Therefore, Ramos is inapplicable to the present case.

The court finds that the master properly relied on Te-odor ski because it was factually similar to the present case. The court further finds that the master properly considered the statutory alimony factors in light of Teodorski.

Based on the master’s report, the court concludes that the master adequately addressed the alimony factors to the extent that information about them was placed on the record. The following is a brief summary of the factors as applied to the present case by the master.

Both parties have an earning capacity, though Wife’s earning capacity is minimal. (Master’s report at 8.) The parties are the same age, and, though Wife testified to certain health issues, neither party seems to have any serious physical, mental or emotional problems. (See master’s report at 3, 6-8.) Husband and Wife are both employed. (Master’s report at 5,8.) Husband is employed full-time and has health insurance. (Master’s report at 5.) Wife is employed part-time. (Master’s report at 8.) Neither party has an immediate expectation of inheritance. (Master’s report at 13.) This was not a relatively long marriage. (Master’s report at 13.) Husband contributed to Wife’s education. (Master’s report at 6.) The parties do not have any minor children. (Master’s report at 3.) Based on the descriptions of two of the residences where the parties resided, the standard of living during the marriage seems to have been modest, though the parties were not thorough in depicting their lifestyle. (Master’s report at 12-13.) Husband has a college degree. Wife has a high school diploma, and has completed some post high school non-credit writing classes. (Master’s report at 3, 6.) The parties have no assets subject to equitable distribution. (Master’s report at 4.) Husband brought $60,000 worth of Merrill Lynch IRAs to the marriage, while Wife brought an old car to the marriage. (Master’s report at 3.) Both parties have financial needs, as Husband’s IRAs were spent during the marriage. (Master’s report at 3.) Each party had complaints about the marriage, but nothing that rose to marital misconduct. (10-11.) Wife is capable of self-support through appropriate employment. (Master’s report at 19.)

It is clear, based on the above summary, that the master properly acknowledged and considered the statutory alimony factors, as well as any other relevant information, in her decision regarding alimony. Therefore, the court upholds the master’s findings on this issue, and denies exceptions 3, 4, 8, 17.

Wife s Earning Capacity: Exceptions 9, 10, and Amended 1

Wife argues that she is unable to work, and that the master erred in finding that she is able to work and has an earning capacity. With regard to the part of exception no. 9 relating to master’s “statement that Wife could testify to her condition as it affected her ability to work without the necessity for expert testimony,” the court reviewed the hearing transcript and found no such statement. The master said that Wife was allowed to testify as to her perception of her problems, but did not claim that expert testimony would be unnecessary. (R. at 77.) Further, in light of the fact that Wife did not have an expert present, the master was permissive by allowing Wife to testify to what her doctors told her. (See hearing transcript, 106.)

Though the master allowed Wife to testify about her medical condition, no expert testimony was introduced. The master noted that she afforded counsel the opportunity to submit a post hearing physician’s disposition regarding Wife’s ability or inability to work full-time. Counsel verbally notified the master that, in lieu of a doctor’s disposition, they would be submitting a stipulated earning capacity for Wife to be used in the master’s deliberations. The master did not receive this stipulation, and therefore the master was restricted to Wife’s testimony in determining Wife’s earning capacity. Wife testified that no doctor had ever told her she could only work part-time. She also testified to currently working 27 hours per week as a telemarketer. The master had “serious doubts” about Wife’s credibility and/or willingness to support herself. (Master’s report at 9.) These doubts stem from a few different areas in Wife’s testimony, including: Wife’s contradictory statements that 27 hours was all that she could work vs. 27 hours was all that she could get; Wife has applied to jobs where she felt she could commit her time, but turned down a job at Bon-Ton because her daughter needed a job at the same time. (See R. at 76, 101-102.) Based on “Wife’s demeanor and testimony at the hearing, and the record as presented,” the master found that Wife is able to work. After reviewing the record, the court finds that there is not sufficient evidence to show that Wife is unable to work, and therefore denies exceptions 9,10, and amended 1.

Voluntary Contributions: Exception 5

At the master’s hearing, Husband testified that he made several post-separation contributions to Wife in addition to spousal support. These contributions include: car insurance; car repairs; car maintenance; health insurance; other medical, dental and chiropractic expenses; paying off a loan that the parties had co-signed; security deposit for rent; and household expenses. (R. at 22-29.) Wife argues that, in determining alimony, the master erred in giving Husband credit for these contributions. Wife cites to Jayne v. Jayne, 443 Pa. Super. 664, 681, 663 A.2d 169, 177 (1995), which states: “Husband was only required to pay spousal support during the period of separation. The voluntary payment of Wife’s expenses from his own resources will not be credited at equitable distribution.” She also cites to Middleton v. Middleton, 812 A.2d 1241, 1247 (Pa. Super. 2002), which similarly states that voluntary payments will not be credited in equitable distribution.

Neither of these cases applies to the present case, as they both deal with voluntary payments in regards to equitable distribution, not alimony. The master herself recognized that if the issue in this case was equitable distribution, she could not consider certain contributions. (R. at 48-49.) The court recognizes that “contributions other than spousal support” is not listed in the alimony factors set out in 23 Pa.C.S. §3701. However, those factors are not an exclusive list. Rather, the court is supposed to consider “all relevant factors.” See 23 Pa.C.S. §3701(b). In the present case, the court finds that Husband’s voluntary contributions to Wife are a relevant factor to be taken into account in determining alimony, and therefore denies exception 5.

IRA Funds and Mismanagement of Finances: Exception 14

Wife argues that the master erred in finding that the parties utilized Husband’s IRA funds during the marriage because Wife mismanaged the parties’ finances, and because the master did not consider Husband’s part in the matter. The court first notes that it is unclear whether the master made this finding at all. The master briefly notes that Husband testified to Wife’s mismanagement offinances. (Master’s report at 12.) The master then states in her legal conclusion/recommendation, “[t]hose retirement monies that Husband brought to this 10-year marriage, some $60,000, were expended during the marriage for bills when allegedly, Wife was mismanaging the couples [sic] finances and refusing to go to work, which this master found insofar as Wife’s not working to be credible.” (emphasis added) It seems to the court that the master found Wife’s refusal to go to work credible, but did not make a finding regarding mismanagement of funds. However, because it is not clear as to whether the master made a finding on Wife’s mismanagement of funds, the court will address the issue.

Assuming the master did mean to include mismanagement of funds in her conclusion, the court finds that the testimony is insufficient to support a finding that the parties used the IRA funds due to Wife’s mismanagement of funds. The court therefore disagrees with the master’s finding of mismanagement of funds.

While a master’s report is entitled to great consideration and should not be lightly disregarded, it is advisory only. Arcure v. Arcure, 219 Pa. Super. 415, 281 A.2d 694 (1971). The reviewing court must consider the evidence de novo. Arcure at 416, 281 A.2d at 695 (citing Rankin v. Rankin, 181 Pa. Super. 414, 124 A.2d 639 (1956)).

Here, Husband testified that he felt that Wife mismanaged the funds, without giving specific details as to how she mismanaged them. (R. at 120-21.) Additionally, when asked why he could not take control of his finances during the marriage, Husband first stated, “Because I’m married to my wife and she wanted to share that and wanted her name on my checking.” (R. at 121.) When asked again why he could not have taken the checkbook and paid the bills himself, Husband responded, “It’s tough.” (R. at 121.) The court finds these answers to be inadequate to show mismanagement of funds. Without more information or explanation in the record other than Husband’s belief that Wife was not “doing a good job,” the court cannot find that Wife mismanaged the parties’ funds. Further, Husband testified that he had to cash in the IRAs to pay bills, some of which were his alone, including child support to a child from a previous marriage and expenses for a protection from abuse hearing. (S ee R. at 14-15.) He also testified that, prior to filing for the master’s hearing, he did not take any initiative to correct Wife’s management of the finances. This indicates that Husband contributed to the need to cash in his IRAs, and this court will not hold Wife responsible for how the finances were handled. Additionally, the court finds that mismanagement of funds and cashing in the IRAs did not affect the master’s recommendations.

Wherefore, the court makes the following order.

ORDER

And now, September 14, 2007, this matter having come before the court on defendant’s exceptions to the report and recommendation of the divorce master and the court having heard argument thereon, it is hereby ordered and directed as follows: The court denies defendant’s exceptions 3, 4, 5, 8, 9, 10, 14, 17 and amended exception 1. The court grants defendant’s exception 14. Exceptions 1, 2, 6, 7, 11, 12, 13, 15, 16, 18, 19, 20 and 21 were withdrawn by defendant’s counsel at argument. The court adopts the recommendations of the master (by separate order).

      . Exceptions 1,2, 6, 7, 11, 12, 13, 15, 16, 18, 19, 20 and 21 were withdrawn, as explained below.

      . These facts were derived from the master’s report, the pleadings and the hearing transcript.


source: Caselaw Access Project

author: KUNSELMAN, P.J.,

license: Public Domain

text:
    Graziani v. OneBeacon Insurance Inc.

      Kelly Tocci and James J. Ross, for plaintiffs.

      Christopher M. Jacobs, for defendants.
    November 21, 2007
   KUNSELMAN, P.J.,

This matter is before the court on a motion to compel discoveiy submitted on behalf of the plaintiff, Tina A. Graziani. The plaintiff, Eric L. Randolph, has joined in the motion. The motion seeks to compel production of the entire claims file of the defendant, One Beacon Insurance Inc. (OneBeacon) which was developed in connection with an underlying claim for damages made by Graziani against Randolph and his employer, Burlington Motor Carrier Inc. OneBeacon has refused to produce portions of its claim file on the basis of attorney-client privilege and/or trial preparation.

A brief factual and procedural background is necessary to a full understanding of the positions of the parties. Graziani was injured in an accident caused by the negligent operation of a tractor-trailer owned by Burlington Motor Carriers and operated by Randolph. Claim was made on her behalf to Burlington’s liability carrier, OneBeacon, with no response. Suit was filed and Burlington and Randolph were served with process. Counsel for Graziani still received no response and secured a judgment by default. After securing the default judgment, counsel for Graziani presented a petition to schedule a non-jury trial to liquidate damages. Susan Roberts, Esquire was retained by OneBeacon to appear on behalf of Burlington and Randolph to oppose the motion. The reason for the opposition was the bankruptcy filing of Burlington in the State of Indiana. We refused to schedule trial because of the automatic bankruptcy stay.

Graziani then secured relief from the stay and once again presented a petition to schedule a non-jury trial. After a series of motions on behalf of Burlington and Randolph, counsel representing OneBeacon, Burlington and Randolph succeeded in opening the default judgment largely for the reason that the judgment against Randolph would also bind his employer, Burlington and Burlington’s bankrupt estate. We then directed Burlington and Randolph to file a responsive pleading. A responsive pleading was filed which, among other things, denied that Randolph was Burlington’s employee.

A non-jury trial was then scheduled to try the issues in the underlying case. However, the parties successfully negotiated a settlement agreement and a praecipe to discontinue was filed on March 9,2007. In the meantime, Graziani and Randolph filed the above entitled action against OneBeacon. Graziani’s claims against OneBeacon are on the basis of fraud, conspiracy and abuse of process, all related to OneBeacon’s conduct during the pendency of the underlying claim. Randolph’s claims are based upon the Bad Faith Statute and the Consumer Protection Law, again related to OneBeacon’s conduct during the pendency of the underlying claims.

Both Graziani and Randolph are seeking to compel the production of the entire claim file compiled by One-Beacon in connection with the underlying action. One-Beacon has produced some, but not all, of its claim file. The portions not produced are claimed by OneBeacon to be protected from discovery by the attorney-client privilege and the work product doctrine. Graziani and Randolph contend that the attorney-client privilege does not apply for several reasons. First, neither Randolph nor Burlington asserted the privilege and Burlington no longer exists because of the bankruptcy. Therefore, One-Beacon no longer shares a common interest with its insured. Moreover, Randolph has specifically waived the privilege. In addition, they contend that the work product doctrine only applies to the underlying litigation and not to the present litigation. OneBeacon contends that it too was a client of Susan Roberts and so it can and does claim the attorney-client privilege. OneBeacon also contends the work product doctrine is still applicable because the underlying claim settled within the policy limits and so its state of mind is not at issue.

ATTORNEY-CLIENT PRIVILEGE

“In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” 42 Pa.C.S. §5928.

This privilege is clearly limited to confidential communications from the client to the attorney and not from the attorney to the client and that has been decided by the courts. Birth Center v. St. Paul Companies Inc., 727 A.2d 1144, 1164 (Pa. Super. 1999). A communication from counsel to the client may be privileged if it reiterates or sets forth the gist of a prior communication from the client to the attorney. Eisenman v. Hornberger, 44 D.&C.2d 128 (Lycoming Cty. 1967). Moreover, the privilege does not bar discovery of all communications. It only bars discovery of confidential communications made by the client to the attorney for the purpose of securing a legal opinion or legal services. Birth Center v. St. Paul Companies Inc., supra at 1164.

The first question we must decide has not been squarely decided by our courts. When an insurance carrier hires an attorney to defend its insured in a third-party action, is the insured the client, or are the insured and the insurance company both clients of the attorney? It is contended by one writer that the better view is the “single client view”. Insurance Coverage in Pennsylvania, Lynette Norton, PBI Press, sections 6.C(1) and 6.C(2). However, a number of cases have at least recognized that both the insurance carrier and the insured are clients of the attorney, at least to the point where a conflict arises at which time both parties must be represented by separate attorneys. See e.g., Perkoski v. Wilson, 371 Pa. 553, 92 A.2d 189 (1952); Seasor v. Covington, 447 Pa. Super. 543, 546 n.2, 670 A.2d 157, 158 n.2 (1996); Nedrow v. Pa. National Mutual Casualty Insurance Co., 31 D.&C.3d456 (Somerset Cty. 1981); Harvey v. Whatley, 2 Phila. 443 (1979); Trzesniowski v. Erie Insurance Exchange, 59 D.&C.2d 44 (Mercer Cty. 1973); and Schultz v. Mount Vernon Fire Insurance Co., 2 D.&C.3d 627 (Lacka. Cty. 1976). We believe that recognition is sound and therefore hold that the insured and the insurance company are both clients of the attorney until such time as a conflict arises.

We further conclude that Randolph is clearly entitled to the entire file of OneBeacon, without any redaction. The rule for years has been that, “if the attorney represented both parties to the transaction,... no communications in relation to the common business are privileged in favor or against either, but only against a common adversary,” Tracy v. Tracy, 377 Pa. 420, 424, 105 A.2d 122, 125 (1954), cited with approval in Loutzenhiser v. Doddo, 436 Pa. 512, 260 A.2d 745 (1970).

We cannot necessarily reach the same conclusion with respect to Graziani. Our holding, that OneBeacon was also a client of Attorney Roberts, effectively dismisses Graziani’s argument that Burlington no longer exists and therefore there is no longer a client to claim the privilege. Nevertheless, Graziani also contends that an exception makes the privilege inapplicable to her. Graziani cites Nationwide Mutual Insurance Company v. Fleming, 924 A.2d 1259 (Pa. Super. 2007), for the proposition that the privilege is lost when advice of counsel is sought in furtherance of the commission of criminal or fraudulent activity. She then points to the allegations in her complaint alleging fraud on the part of OneBeacon.

In addition, the attorney-client privilege exists only to aid in the administration of justice and when it is shown that the interest of justice can only be frustrated by the exercise of the privilege, the court may require the communications be disclosed. Brennan v. Brennan, 281 Pa. Super. 362, 422 A.2d 510 (1980). The record in the third-party litigation establishes that OneBeacon secured the opening of the default judgment by arguing on appeal that the judgment against Randolph, Burlington’s employee, would be binding upon Burlington because of the doctrine of respondeat superior and therefore place its bankruptcy assets at risk. Thereafter, an answer was filed verified by counsel based upon information given counsel by OneBeacon which denied that Randolph was an employee of Burlington.

It is obvious that one of these two assertions was false and both assertions were made solely for the benefit of OneBeacon. When a party or a participant is not candid with the court, then the administration of justice has been frustrated. Therefore, we conclude that Graziani is entitled to discover those communications which may be relevant to the issue of fraud. To determine that matter, it will be necessary to review the correspondence in camera. However, we have neither the time nor the inclination to review as many as 4,000 pages. Consequently, if OneBeacon does not withdraw its privilege claim to a substantial number of the pages, it is our intent to appoint a master to conduct the review in which case, the cost of the master will be assessed against either or both parties, depending upon the results of that review.

TRIAL PREPARATION MATERIALS

The only limitation on the discovery of trial preparation materials is found in the discovery rules.

“Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party, or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include a disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” Pa.R.C.P. 4003.3.

It has been held that this rule’s protections apply only to the litigation of the claims for which the impressions, conclusions, and opinions were made. Little v. Allstate Insurance Company, 16 D.&C.3d 110 (Allegheny Cty. 1980); Mueller v. Nationwide Mutual Insurance Company, 31 D.&C.4th 23 (Allegheny Cty. 1996). We agree with Judge Wettick’s analysis and conclusions and therefore hold that the protection of Rule 4003.3 does not apply to OneBeacon until the present litigation was initiated and that it may apply thereafter. Thus, it will be necessary to review the contents of the claim file after April 7, 2006, the date Graziani and Randolph filed their complaint in this case.

An appropriate order is attached.

ORDER

The motion of Eric L. Randolph to compel production of the entire claim file of OneBeacon which was compiled in connection with the claim of Tina A. Graziani against Burlington Motor Carriers and Eric L. Randolph is granted. OneBeacon shall provide counsel for Eric L. Randolph with a copy of its entire claim file, unredacted. Counsel for Eric L. Randolph shall not disclose the contents of the claim file to any person or entity until the time of trial, except upon leave of court to do so.

The motion of Tina A. Graziani to compel production of the entire claim file is granted in part. Counsel for OneBeacon shall produce those portions of the claim file to counsel for Graziani which are relevant to her claim of fraud and which were created on or before April 7, 2006. Any portion of the file created prior to April 7, 2006 which is not produced and the entire file created after April 7, 2006 shall be delivered to the court for in camera review. At that time, should the review be determined to be too burdensome, the court will appoint a master for that purpose.


author: BUCCI, J.,

text:
    Commonwealth v. Rodriguez

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

      Abby L. Rigdon, for defendant.
    January 22, 2008
   BUCCI, J.,

PROCEDURAL HISTORY

On July 25,2007, appellant was found guilty following a jury trial of two counts of possession with intent to deliver a controlled substance, two counts of possession of a controlled substance, and four related counts of conspiracy. These charges were based on the seizure of a significant quantity of cocaine and marijuana that was found on appellant’s person and on the person of two other defendants at 311 North 10th Street, Reading, PA. On September 26,2007, he was sentenced to an aggregate sentence of nine to 20 years incarceration. Appellant then filed a timely post-sentence motion, which was denied. On October 26, 2007, appellant filed a notice of appeal to the Pennsylvania Superior Court and this court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure 1925(b). Appellant filed a concise statement on November 1, 2007, raising the following issues:

(1) The trial court erred in denying suppression of evidence when it failed to redact misinformation contained within the search warrant probable cause when it was information about a completely different person with the same name as the defendant (a fact that was not contested by the Commonwealth) that if properly redacted would have left the search warrant unsupported by probable cause and therefore invalid.

(2) The trial court erred when sentencing on conspiracy to commit possession with intent to deliver cocaine when it applied an offense gravity score of eight based on the weight of drugs that combined what was found on the defendant’s person with that of a co-defendant (Garcia) despite the specific jury verdict that defendant possessed with intent to deliver only the cocaine found on his person which would have resulted in an offense gravity score of seven and lower standard ranges.

(3) The trial court abused its discretion in sentencing to an extensive sentence that failed to account for the defendant’s personal circumstances and other required sentencing factors and was merely punitive in nature.

DISCUSSION

I. Suppression of Evidence

Appellant first argues that the evidence in this case should have been suppressed because the search warrant contained incorrect information.

In reviewing a decision to admit or suppress evidence, the reviewing court must ascertain whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn from those findings. Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003) (citing Commonwealth v. Johnson, 734 A.2d 864, 869 (Pa. Super. 1999)). It will consider only the evidence of the Commonwealth and any defense evidence which remains uncontradicted when read in the context of the entire record. Id.

Both the United States Constitution and the Pennsylvania Constitution prohibit unreasonable searches and seizures. See U.S. Constitution Amendment IV; Pa. Constitution Article I, Section 8. In determining whether a search and seizure conducted pursuant to a search warrant was unreasonable, the question is whether probable cause existed to issue the search warrant. See Pa.R.Crim.P. 2003(a) (“[n]o search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority”).

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Clark, 412 Pa. Super. 92, 96, 602 A.2d 1323, 1325-26 (1992), appeal denied, Commonwealth v. Clark, 533 Pa. 606, 618 A.2d 398 (1992), cert. denied, Pennsylvania v. Clark, 507 U.S. 1030 (1993).

“In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held a defendant may attack the issuance of a warrant if based on untruthful information. Id. at 171. In requiring a truthful basis for the issuance of a warrant, the court explained, ‘[t]his does not mean “truthful in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily.’ Id. at 165. To succeed in attacking a warrant, a defendant must come forward with ‘allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.’ Id. at 171.” Commonwealth v. Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006).

Stated another way, “[mjisstatements of fact in a search warrant affidavit will invalidate a search and require suppression only if they are deliberate and material.” Commonwealth v. Mickell, 409 Pa. Super. 595, 609, 598 A.2d 1003, 1010 (1991).

Here, in the affidavit of probable cause supporting the search warrant for 311 North 10th Street, Reading, Pennsylvania, Criminal Investigator Edward Heim stated that records kept by the Pennsylvania Department of Transportation listed a Hector Rodriguez, DOB 10/21/84, as an occupant of the residence located at 311 North 10th Street and that a search of police records indicated that six days previously a Hector Rodriguez, DOB 10/21/84, was shot multiple times near that residence and that Mr. Rodriguez had on his person 16 packets of crack cocaine.

It is undisputed that the appellant herein was bom in 1966, not 1984, and that he was not shot multiple times. Accordingly, appellant contends that the paragraph in the affidavit of probable cause regarding Hector Rodriguez, DOB 10/21/84, is misinformation. However, appellant has failed to prove that the PennDOT and police records referenced were false or fabricated or that they did not refer to events that actually occurred. Appellant presented no evidence that a Hector Rodriguez, DOB 10/21/84, did not reside at 311 North 10th Street, even though he was not present when police searched the residence.

Furthermore, even if the information appellant refers to was false, appellant has failed to establish that the misstatement was deliberate or material. Even if this court had redacted the paragraph at issue, there was still sufficient probable cause to support the search warrant. Page four of the affidavit of probable cause details a controlled purchase of crack cocaine by a confidential informant from a resident of 311 North 10th Street within 48 hours of the application for a search warrant. C.I. Heim also observed what he believed to be additional drug sales from the residence while conducting surveillance of that location. Although appellant argues that C.I. Heim failed to establish the reliability of his confidential informant, reading the affidavit of probable cause in a “practical, commonsense” manner, this court finds that the confidential informant whose reliability is described in detail on page three of the affidavit of probable cause is logically the same confidential informant who performed the controlled buy described on page four of that same document. This information standing alone was sufficient to establish probable cause that contraband would be found at 311 North 10th Street.

Thus, for all the above reasons, this court finds that appellant’s first issue is without merit and should be denied.

II. Offense Gravity Score

Appellant next argues that this court erred in sentencing appellant on the charge of conspiracy to commit possession with intent to deliver (cocaine) when it applied an offense gravity score based on the weight of drugs found on the defendant’s person and the weight of the cocaine found on the person of appellant’s co-defendant’s, Joseph Garcia.

On the charge of possession with intent to deliver a controlled substance (cocaine), the jury made a specific finding that appellant possessed with intent to deliver only that cocaine found on his person.

On the charge of conspiracy to commit possession with intent to deliver a controlled substance (cocaine), the jury made a specific finding that appellant conspired with both Joseph Garcia and Treymane Godbolt to sell cocaine. However, the jury also made a specific finding that the cocaine possessed by Godbolt was for personal use only. Garcia entered a guilty plea before this court, admitting to possessing both cocaine and marijuana with the intent to sell them and to conspiring with his co-defendants to do so. Commonwealth v. Garcia, CP-06-CR-0005738-2006.

Appellant argues that because the jury found that he possessed with the intent to sell only that cocaine which he possessed on his own person, this court erred in considering the cocaine possessed by one of appellant’s co-conspirators when sentencing him on the related conspiracy charge. However, this court believes that appellant is confusing the extent of his liability for the possession with intent to deliver (cocaine) conviction with his liability for the conspiracy to commit possession with intent to deliver (cocaine) conviction.

The jury may have found that appellant only possessed the cocaine on his person, that is, that he only exercised control over that specific cocaine. However, the jury also found that appellant conspired with both Garcia and Godbolt to sell cocaine, in other words, that they agreed to assist each other in the common enterprise of dealing drugs and carried out at least one overt act in furtherance of their plan. Accordingly, appellant is liable for the acts of his co-conspirators, as well as his own. See Commonwealth v. Johnson, 920 A.2d 873, 879 (Pa. Super. 2007) (“Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.”). He is liable for any cocaine Garcia possessed with the intent to sell in furtherance of the parties’ conspiracy.

Therefore, this court did not err in considering the amount of cocaine possessed by appellant’s co-conspirator, Joseph Garcia, in determining an appropriate sentence for appellant.

III. Sentencing

Lastly, appellant claims that his sentence is excessive and that this court did not properly consider a number of sentencing factors, including appellant’s personal circumstances.

An appellant has no absolute right to appellate review of his sentence. 42 Pa.C.S. §9781; Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). Rather, the appellant may have his sentence reviewed on appeal only if the Superior Corn! determines that “there is a substantial question that the sentence imposed is not appropriate under the sentencing code.” Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004), appeal denied, 584 Pa. 684, 881 A.2d 818 (2005), cert. denied, Bromley v. Pennsylvania, 126 S.Ct. 1089 (U.S. 2006); Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002).

For a substantial question to exist, appellant must state reasons that create doubt that this court sentenced appellant without appropriately considering the sentencing guidelines or the norms underlying the sentencing process. Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002); see also, Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999).

“An appellant’s contention that the trial court did not adequately consider a mitigating circumstance when imposing sentence does not raise a substantial question sufficient to justify appellate review of the merits of such claim.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006).

Here, this court concludes that there is no substantial question about the appropriateness of appellant’s sentence because this court carefully considered the guidelines, as well as all relevant sentencing factors before imposing a reasonable sentence on appellant that was within the standard range.

However, even assuming, arguendo, that a substantial question has been raised, the judgment of sentence should still be affirmed.

A sentence will not be overturned unless the record shows a manifest abuse of discretion, which is more than mere error in judgment. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004), appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005), quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002). A manifest abuse of discretion may be found only where the record establishes that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).

The decision of the sentencing judge should be given great deference since he is in the best position to view the defendant and evaluate the individual circumstances of the case. See Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). A sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Here, this court did just that.

At the time of sentencing, the sentencing guidelines were placed on the record in accordance with 42 Pa.C.S. §9721(d). Additionally, despite appellant’s assertions to the contrary, this court carefully considered appellant’s extensive prior record; the nature of the crimes; the need to protect the community and deter similar future conduct; the recommendations of the district attorney and defense counsel; and appellant’s personal characteristics and potential to rehabilitate. This court stated:

“I’ve taken into consideration everything that was said today. I have taken into consideration the pre-sentence report. I have taken into consideration, as indicated by the district attorney, the defendant indicated that he has no history of drug abuse, and in light of the fact that the defendant has numerous convictions for possession with intent to sell drugs, and convictions before the court today, I agree with the district attorney that this is a defendant who is in the business of selling drugs to others and he is not doing it to support his own habit as I see often in this court.

“The defendant is 40 years old. I have taken into consideration that the defendant has a serious prior record score going back to 1983. He has had 18 convictions spanning two and a half decades. The defendant is a career criminal. I think that rehab without a lengthy prison sentence is unlikely. I think in order to deter the defendant’s criminal conduct, a long prison sentence is necessary, and I am going to follow the district attorney’s recommendation.” Notes of testimony, sentencing hearing, 9/26/07, at 17-18.

As is noted on the record, this court read appellant’s pre-sentence investigation report and was aware of appellant’s individual rehabilitative needs and mitigating circumstances. However, appellant’s extensive prior record, including 18 convictions, many of them for drug related offenses, indicated that he has failed to take advantage of frequent opportunities to rehabilitate and instead continues to victimize the community. Under these circumstances, this court concluded that appellant was a poor candidate for rehabilitation and that extended incarceration and supervision were necessary to protect the public from further crimes.

Appellant’s sentence was neither unreasonable nor an abuse of discretion, and his claims that his sentence is excessive must be denied.

CONCLUSION

For the reasons stated above, this court respectfully requests that appellant’s allegations of error should be denied and his judgment of sentence affirmed.

      .35P.S. §780-113(a)(30)

      .35P.S. §780-113(a)(16)

      . 18 Pa.C.S. §903(a)(l).

      . Although appellant filed a concise statement on November 1, 2007, transcripts of the relevant proceedings were not completed until January 11,2008 and were not made available to this court until January 17,2008.


author: BROWN JR., S.J.,

text:
    Schall v. Schall

      Julia R. Cronin, for plaintiff.

      LeDon Young, for defendant.
    January 28, 2008
   BROWN JR., S.J.,

Before the court are claims for equitable distribution of the parties’ marital assets, alimony, counsel fees, costs and expenses. Hearings addressing all claims were held on April 23 and June 1,2007. Transcripts were prepared. Both parties submitted proposed findings of fact, conclusions of law and orders.

FINDINGS OF FACT

In accordance with section 3502 of the Divorce Code, the court must consider the factors set out below in determining equitable distribution of property. Upon consideration of evidence presented at hearings and the submissions of the parties, this court finds the following:

(1) Length of marriage: Plaintiff Joseph Schall (Husband) and defendant Cheryl Schall (Wife) were married January 8, 1977. The parties separated on February 26, 2004. They were divorced by decree of this court on May 4, 2006.

(2) Any prior marriage of either party: This was the first marriage for both parties. Subsequent to the divorce, Husband married Diane Lathers, now Diane Schall.

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

(i) Age: At the time of the June 1,2007 equitable distribution hearing, Wife was 49 years of age, having been born on March 22, 1958; Husband was 51 years of age, having been bom on May 22, 1956.

(ii) Health: Wife is in good health, and has no unusual health conditions or concerns that she believes would impact her earning potential. Husband is in good health, but suffers from recurring gout attacks, for which he takes prescribed medication. The gout attacks have not impacted his ability to work.

(Hi) Station: The parties enjoyed a middle class lifestyle during their marriage.

(iv) Amount and sources of income: Wife is currently employed as a certified nursing assistant (CNA) at Foxdale Nursing Home in State College, Centre County, Pennsylvania, earning $21,469.76 per year.

Husband is currently employed by the United States Army maintaining a database on High Mobility Multipurpose Wheeled Vehicles (FIMMWV), and is serving on active duty at Letterkenny Army Depot in Chambers-burg, Pennsylvania, maintaining databases. Husband’s 2007 anticipated gross income is $56,000. Prior to going on active duty with the Army, Husband held several different civilian jobs as a laborer.

(v) Vocational skills; employability: Wife is a high school graduate. She received certified nursing assistant (CNA) training through lecture and clinical courses, and passed the CNA certification exam. She has not looked for jobs outside of the nursing field.

Husband is a high school graduate. He received training while in the Army Reserves in electronics and vehicle mechanics, and he maintains databases in his current position at Letterkenny. He has no opportunity for promotion in the Army, as he is in his 34th year of service; thus, the Army can discharge him at any time and he will have to return to a civilian job.

(vi) Estate: There is no evidence either party expects any significant inheritance or legacy.

(vii) Liabilities and needs ofeach party: There are two mortgages on the marital residence which are joint liabilities of the parties. The first mortgage is with Omega Bank with a payoff amount of $14,114.96. The second mortgage is an installment loan account, also with Omega Bank, with a payoff amount of $2,506.25. Wife is currently residing in the marital residence with adult son Brent and minor son Eric. She has resided there since the time of the separation. Wife is currently paying both mortgages, which amounts to $438.04 per month. Wife’s debts at the time of hearings include a credit card with Omega Bank with a balance of $943.73; a vehicle loan with First Commonwealth Bank with a balance of $786.78, and legal fees of $3,670. $1,200 has been paid. Wife’s monthly expenses amount to $2,771.26, exclusive of legal fees.

Flusband currently resides in a rented townhouse with his wife, who contributes to the payment of the monthly expenses. The monthly payment on the townhouse is $700. Husband’s credit card debts at the time of hearings include: Chase Bank, with a balance of $12,757.21; Discover, with a balance of $2,601.53; and Wachovia, with a balance of $12,225.71. Total monthly payments are approximately $1,000. Husband’s other liabilities include an account with Omega Bank with a balance of $3,372.30, child support and alimony pendente lite obligations of $ 1,354 per month, a vehicle payment of $465 per month, and total legal fees to date of $10,441.25. Husband’s monthly expenses amount to $4,293.50, exclusive of legal fees.

(4) Contribution by one party to education, training, or increased earning power of other party: Wife remained at home and was the primary caretaker of the children when they were young. She did not work outside the home until after the youngest child was born. Husband was working for the Army Reserves and various other jobs to support the family. Husband paid for Wife’s CNA class tuition and certification exam, and supported her during her studies.

(5) Opportunity of each party for future acquisitions of capital assets and income: Husband and his current wife will have more ability to acquire future assets than Wife, due to their combined income and Husband’s current income being substantially more than Wife’s current income. Wife is currently supporting herself and the parties’ youngest son on her paycheck and child support. Husband is in his 34th year of service with the Army. He could be discharged at any time and would then need to return to a civilian job.

(6) Sources of income of both parties, including, but not limited to, medical, retirement, insurance, or other benefits: Wife receives income through her employment as a CNA at Foxdale Nursing Home, and has medical insurance coverage through her employer. Wife participates in a retirement plan through TIAA-CREF. Wife also receives alimony pendente lite and child support.

Husband receives income through his employment with the United States Army and has medical insurance coverage through the military. Husband has retirement benefits through the military, as well as from his prior employment. Husband has been paying alimony pendente lite and child support since March 2004.

(7) Contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker: Both parties contributed to the acquisition, preservation and appreciation of the marital property during marriage. Husband worked during the marriage in both civilian jobs and in the U.S. Army, and continued to find work when job opportunities closed to him due to no fault of his own. Income from his employment was used to pay household bills.

Wife remained at home to care for the children when they were young, so Husband could go on deployment and assignments from the U.S. Army. She contributed where she could by baby-sitting and taking jobs in the neighborhood. When the children were old enough, Wife sought employment at Foxdale and started her CNA training.

(8) Value of property set apart to each party:

(i) Marital residence: The parties purchased their marital residence located at 1087 Spruce Road, Clarence, Centre County, Pennsylvania. The value of the property is $105,000. There are two mortgages on the home through Omega Bank, one with a remaining balance of $14,114.96, and the second with a remaining balance of $2,506.25. The parties have agreed that Wife shall retain the marital residence subject to the mortgage debt. She will refinance the debt to remove Husband’s name from the title.

(ii) Retirement plan: Husband acquired retirement benefits through his employment with the U.S. Army and from his prior civilian employment. Husband’s military retirement system defined benefit pension plan has a current value of $93,934. Husband also retains a Merrill Lynch IRA account with a value of $62,733.85, as well as a life insurance policy through AXA Equitable Life Insurance, with a value of $5,575.92.

Wife participates in a retirement benefit plan through TIAA-CREF, wherein her employer matches her contributions. The current value of the TIAA-CREF account is $8,659.80. Wife also retains a State Farm life insurance policy with a value of $669.33.

The parties agree Husband will retain the AXA Equitable Life Insurance policy, and Wife will retain the TIAA-CREF retirement plan and State Farm life insurance policy.

(iii) Motor vehicles:

(1) The parties purchased a 1992 Toyota pickup truck during their marriage. Husband signed title of this vehicle to Wife with the intention that the parties’ son, Brent, would sell it to purchase a new vehicle. He did so. The parties disagree on which, if either, party should be credited with the proceeds from the sale. Husband contends Wife should be credited with the proceeds from the sale. Wife contends the proceeds should be credited to the parties’ son Brent as a gift.

(2) The parties purchased a 1994 Dodge Dakota truck during their marriage. The current value of the vehicle is $1,980. The parties agree that Husband is to retain this vehicle.

(3) The parties purchased a 2002 Pontiac Grand Am automobile during their marriage. The current value of the vehicle is $3,490, with a remaining balance of $786.78 on the vehicle loan. The parties agree Wife is to retain this vehicle, and she will assume the remaining debt on the vehicle loan.

(iv) Bank accounts: Wife received the Omega Bank Holiday Club account with a value of $500.

(v) Personal property: Wife received $7,368 in household furnishings and personalty upon separation. Husband received $1,890 in household furnishings and personalty. Wife agrees to give Husband the German beer stein, propane stove heater/hand warmer, Tupperware wheeled cabinet with items stored therein, and Coleman lantern, which are in her possession. Wife agrees to give Husband his Christmas boot and stocking (a gift from his mother), but she believes they may have been discarded. Wife agrees to give Husband four single tie-on tire chains, if they can be located.

(vi) Debts: Wife paid for appraisals of personal property by Ron Gilligan ($150) and by Millers Gun Shop ($25). Husband paid for valuation of military retirement to Conrad Siegel ($625) and for appraisal of real property to John Curtin ($525). Husband charged $1,216.32 on the Omega Bank credit account used towards purchase of 1992 Toyota pickup truck and $2,155.98 on the Omega Bank installment loan for household items and bills.

(9) Standard of living during marriage: Parties had a middle class standard of living during the marriage.

(10) Economic circumstances of each party, including federal, state, and local tax ramifications, at the time division of property is to become effective: There are no significant tax consequences from the division of property.

(11) Whether the party will be serving as custodian of any dependent minor children: The parties’ youngest son, Eric (17 years old), lives in the marital home with Wife. Eric has a learning disability, and needs supervision and has to be shown how to do things. Eric does help with household chores and carpentry work, participates in a vocational-technical program, and is employed at a tool shop. It is anticipated that he will continue to live with his mother (Wife) after high school graduation in June 2008.

(12) Marital misconduct: Husband admits he began an adulterous relationship five months before he left the martial home, and that he misled Wife about it. There is no evidence of marital misconduct during the marriage on the part of Wife.

(13) Whether the party seeking alimony lacks sufficient property to provide for the party’s reasonable needs: Wife’s income is less than Husband’s income. Wife does have retirement benefits through TIAA-CREF, but the value of these assets is substantially less than Husband’s retirement benefits. Wife has been residing at the marital residence, and will be assuming the mortgage liability on that residence.

(14) Whether the party seeking alimony is incapable of self support through appropriate employment: Wife has secured appropriate employment. However, her income is substantially less than Husband’s income. Wife is currently receiving both child support and alimony pendente lite. Wife is presently able to meet her financial obligations with her income, in addition to alimony pendente lite.

CONCLUSIONS OF LAW

(1) The trial court has broad discretion in determining equitable distribution of marital property. Twilla v. Twilla, 445 Pa. Super. 86, 89, 664 A.2d 1020, 1022 (1995).

(2) Equitable distribution does not necessarily mean an equal division. Platek v. Platek, 309 Pa. Super. 16, 454 A.2d 1059(1982).

(3) There is a presumption that property acquired by either party during the marriage is marital property. 23 Pa.C.S. §3501(b).

(4) In equitable distribution of marital property, the court must view the parties’ situation in light of the totality of the circumstances and consider all of the relevant factors set forth in the Divorce Code at 23 Pa.C.S. §3501(a). 23 Pa.C.S. §3502.

(5) “The trial court has the authority to divide the marital property as the equities presented in [a] particular case may require.” Teodorski v. Teodorski, 857 A.2d 194, 199 (Pa. Super. 2004). (internal quotation marks omitted)

(6) Marital property must be distributed with reference to value proximate to the date of distribution. Wellner v. Wellner, 699 A.2d 1278, 1283 (Pa. Super. 1997).

(7) The trial court in an equitable distribution matter is entitled to assess the credibility of the evidence presented.

(8) “An award of counsel fees is warranted when it will promote the fair administration of justice by enabling the dependent spouse to maintain or defend the case without being placed at a financial disadvantage.” Miller v. Miller, 744 A.2d 778, 790 (Pa. Super. 1999).

(9) Relevant factors to consider in determining whether to award counsel fees include the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution. Id.

(10) To determine whether alimony is necessary, the court must consider all relevant factors, including those statutorily prescribed at 23 Pa.C.S. §3701(b). Twilla, supra at 90, 664 A.2d at 1022; Nemoto v. Nemoto, 423 Pa. Super. 269, 620 A.2d 1216 (1993).

“The purpose of alimony is ... to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment are met.” Twilla, 445 Pa. Super, at 90, 664 A.2d at 1022.

(11) Alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employment skill. Twilla v. Twilla, 445 Pa. Super. 86, 90, 664 A.2d 1020, 1023 (1995) (citing Nemoto, 423 Pa. Super, at 275-76, 620 A.2d at 1219).

(12) Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay. Twilla v. Twilla, 445 Pa. Super. 86, 90, 664 A.2d 1020, 1023 (1995) (citing Perlberger v. Perlberger, 426 Pa. Super. 245, 277-78, 626 A.2d 1186, 1203 (1993)).

(13) If a spouse uses marital funds to satisfy the parties’ joint obligations, this constitutes a disposition in good faith and that spouse does not have to account for such marital funds. These marital funds are properly excluded from the marital estate. Smith v. Smith, 439 Pa. Super. 283, 305, 653 A.2d 1259, 1270 (1995). See Duff v. Duff, 510 Pa. 251, 507 A.2d 371 (1986).

(14) An award of long term or indefinite alimony is dependent upon the length of time the parties were married. The court may also consider whether previous spousal or child support was already paid in determining the length of time for alimony. If time period requested for alimony inequitably exceeds the length of time the parties were married, it may not be awarded. Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004).

DISCUSSION

Wife proposes a division of marital property that would entitle her to 67 percent of the marital assets, including the entire value of the Merrill Lynch IRA account ($62,733.85), and $11,000 from Husband’s military retirement system defined benefit pension plan (current value: $93,934). Wife also requests alimony in the amount of $1,000 per month for 11 years, as well as counsel fees and costs. Husband requests a 50/50 division of marital property.

Husband proposes alimony payments be reduced to $495/month until June 2008, when minor son Eric turns 18. Husband also requests that Wife’s claim for counsel fees and costs be denied.

(1) Division of Marital Assets

The court determines an equitable division of the marital assets dictates a division such that 55 percent of the parties’ total marital equity is allocated to Wife and 45 percent of the total marital equity is allocated to Husband.

The parties were married for approximately 27 years. Four children were born of the marriage. During the marriage, Husband was employed full-time in either the U.S. Army or in civilian employment, and provided the family with financial support. During the marriage, Wife was not employed while the children were young, but she contributed where she could by baby-sitting and taking jobs in the neighborhood. The parties enjoyed a middle class lifestyle during their marriage.

Husband is 51 years old and Wife is 49 years old. Both parties are in good health, and have no health problems that affect their ability to work. Husband is employed with United States Army with an anticipated gross income of $56,000 in 2007. Wife is employed at Foxdale Nursing Home with an income of $21,469.76 per year. Wife is also receiving spousal support/alimony pendente lite and child support from Husband. Husband’s income is substantially more than Wife’s income.

Husband married again and lives with his wife in a rented townhouse. Husband makes monthly rent payments of$700.

Based upon the factors discussed above, the court determines a division of marital assets such that Wife receives 55 percent of the marital equity and Husband receives 45 percent of the marital assets is appropriate and equitable.

(2) Counsel Fees

Wife has requested Husband pay her counsel fees and costs associated with this matter. In making a determination to award counsel fees, the court must consider the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution. Miller v. Miller, 744 A.2d 778, 790 (Pa. Super. 1999). Wife maintains she has incurred fees of approximately $3,670, of which $1,200 has already been paid. Based upon property and assets Wife is receiving in equitable distribution in this matter, the court determines an award of $500 for counsel fees is warranted.

(3) Alimony

The court may allow alimony, as it deems reasonable, to either party if it finds that alimony is necessary. The legislature sets out 17 factors to be considered in determining the nature, amount, duration and manner of payment of alimony. Most of these factors have been discussed relative to the distribution of property. The factors not previously considered, or not considered in sufficient detail, are set forth below:

“(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under chapter 35 (relative to property rights), to provide for the party’s reasonable needs.”

It is apparent to the court that the equitable distribution of property ordered herein will not be sufficient to provide for Wife. The only viable solution for Wife’s needs is an award of alimony.

The goal of alimony is to effect economic justice between the parties. Williams v. Williams, 373 Pa. Super. 143, 540 A.2d 563 (1988). Prior to 1980, alimony was not a statutory remedy available in divorces. The Divorce Code of 1980 established alimony as a rehabilitative and limited remedy. The requesting party was required to establish his or her inability to support himself or herself with employment or assets. The amendments in 1988 eliminated the threshold requirement of having to establish an inability of self support, changing the nature of alimony to be more flexible in allowing a court to effectuate economic justice. Alimony is no longer just for limited durations; it can be permanent. It can also be awarded even when the requesting spouse is employed.

Alimony is not to be used to reward or punish one party or the other. The goal of alimony is to ensure that the reasonable needs of the party unable to support himself or herself through employment, are met. Twilla v. Twilla, 445 Pa. Super. 86, 90, 664 A.2d 1020, 1022 (1995). Alimony is based on the reasonable needs of the recipient based on the lifestyle and standard of living established by the parties during the marriage, as well as on the payor’s ability to pay. Id. A party may be employed, but still unable to reach the marital standard of living. In such a case, alimony is appropriate. Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003). What the payor can afford to pay is the question, not what he is willing to pay. Karp v. Karp, 455 Pa. Super. 21, 27, 686 A.2d 1325, 1328 (1993).

Wife is barely able to support herself on the $495 per month she currently receives in alimony pendente lite when considered in addition to her income from employment. Her income and expense statement makes a reasonable claim of her monthly needs as $2,771.26. That amount includes Wife’s previous monthly automobile payment of $393.39. The monthly car payment on the Pontiac Grand Am automobile is $260, a difference of $133.39. Wife also receives monthly contributions from her son Brent in the form of $160 for heat (coal) in winter and various amounts for food throughout the year. Wife’s monthly income after taxes and other deductions is approximately $1,100. The court determines Wife’s monthly expenses are $2,577.87. Wife has a shortfall of approximately $982.87 per month.

The court determines an award of alimony to Wife is necessary. The court determines economic justice and Wife’s reasonable needs cannot be achieved solely by equitable distribution of the marital property as outlined below. In the present case, given Husband’s earnings, this court determines economic justice will be served by requiring Husband to pay alimony to Wife.

Evaluation of the factors in the instant case, dictates the marital property be distributed according to the following order:

ORDER

And now, January 28, 2008, after hearing and upon consideration of arguments of counsel, this court enters an order distributing the parties’ marital assets such that 55 percent of the parties’ total marital equity is allocated to Wife, and 45 percent of the total marital equity is allocated to Husband.

Specifically, the marital assets are distributed as follows:

The marital assets are further distributed as follows:

(1) Vehicles

(a) The only vehicle at issue is the 1992 Toyota pickup truck. It shall be treated as having been given, by both parties, to the parties’ son Brent. No value has been allocated for this vehicle in equitable distribution.

(b) The parties shall execute all documents necessary to transfer sole ownership of the 2002 Pontiac Grand Am automobile and the 1994 Dodge Dakota pickup truck into the respective party’s name alone as soon as reasonably possible.

(2) Wife shall return all non-marital personal property belonging to Husband now in Wife’s possession, including but not limited to the German beer stein, propane stove heater/hand warmer, Tupperware wheeled cabinet with items stored therein, and Coleman lantern within 60 days of this order. Within 60 days of this order, Wife shall look for the Christmas boot and stocking and four single tie-on tire chains and, if located, give them to husband.

(3) Husband shall return all non-marital personal property belonging to Wife now in Husband’s possession.

(4) Husband’s Merrill Lynch IRRA, account no. *** *****, shall be divided between Husband and Wife, with Husband to receive a 35.87 percent share and Wife to receive a 64.13 percent share of the benefits that have accrued as of February 26, 2004 (as stipulated by the parties, $62,733.85). This division shall be effective as of February 26,2004, the date of the parties’ separation, and shall include any increase or decrease in Wife’s proportionate share until the date the separate account for Wife has been created and funded. This transfer of IRRA funds is required as part of the property settlement and is intended to be tax-free under Internal Revenue Code section 408(d)(6).

(5) Husband shall be responsible for payment of the balance owed on the following obligations:

(a) The OmegaBankline ofcreditno. OPN-* **********5 with a balance of $1,216.32.

(b) The Omega Bank installment loan n0-***********s with a balance of $2,155.98.

It is further ordered as follows:

Effective January 31, 2008, the payment for alimony pendente lite previously required by this court in its order dated April 28,2006, shall cease. Husband shall now be obligated to make payments of alimony to Wife in the amount of $1,000 per month for a period of 11 years, beginning February 1, 2008, and running through January 31,2019. The payment is due on the first day of each month.

It is further ordered that Husband shall pay the sum of $500 to LeDon Young, Esquire, as the current attorney for Wife.


author: KISTLER, J.,

text:
    Commonwealth v. Ferdinand

      Karen E. Kuebler, for Commonwealth.

      Joseph L. Amendola, for defendant.
    December 17, 2007
   KISTLER, J.,

Presently before this court is the petition for writ of habeas corpus challenging the magisterial district judge’s holding defendant for court filed by Michaelson P. Ferdinand, defendant.

BACKGROUND

On October 8, 2007, defendant was observed talcing items from Macy’s without paying for them by a Macy’s security manager. The security manager confronted the defendant outside the entrance to the store. She identified herself as security personnel and asked him to return to the store to discuss the merchandise he had taken. The defendant replied that he did not know what the security manager was talking about and took out his cell phone. The security manager believed that the defendant may be calling someone to pick him up, and opened her cell phone to call 9-1-1. Defendant then grabbed the security manager’s phone from her hand and ran away. The security manager testified that it happened so fast she had no time to react. The security manager then chased the defendant across the parking lot while another Macy’s employee called 9-1-1.

Officer John R. Wolfe Jr. responded to the call and located the defendant crawling through a field across the street from Macy’s. The defendant was apprehended with $458.70 worth of merchandise from Macy’s in his possession. The security manager’s cell phone was never located. Defendant was subsequently charged with robbery, theft by unlawful taking or disposition, retail theft, criminal mischief, and harassment.

DISCUSSION

Defendant contends that he did not use the required force or have the requisite intent to sustain the charge of robbery and, therefore, the Commonwealth has failed to establish a prima facie case.

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, 779A.2d 1177, 1180 (Pa. Super. 2001). The prima facie standard does not require proof beyond a reasonable doubt; rather, the standard requires the existence of evidence for each element of the crime charged. Id.

The defendant is charged with robbery pursuant to 18 Pa.C.S. §3701(a)(l)(v), which provides: “A person is guilty of robbery if, in the course of committing a theft, he physically takes or removes property from the person of another by force however slight.” The degree of force is immaterial, as long as it is sufficient to separate the victim from his property. Commonwealth v. Brown, 506 Pa. 169, 174-75, 484 A.2d 738, 741 (1984). The force may be either actual or constructive. Id.

“Any injury to the victim, or any struggle to obtain the property, or any resistance on his part which requires a greater counterattack to effect the taking is sufficient” to show actual force. Brown, 506 Pa. at 176, 484 A.2d at 741. The security manager testified that she did not try to hold on to her cell phone and that it happened so quickly that she had no time to react. The defendant merely snatched the phone from the security manager’s hand. There was no struggle, resistance or injury during the incident that would prove the use of actual force.

Constructive force is the use of threatening words or gestures, which either frighten or surprise the victim into yielding the property. Id. The security manager testified that the incident happened too quickly for her to react, but that she did chase the defendant across the parking lot. There is no evidence that the defendant used any threatening words or gestures or that the security manager was frightened. She was surprised by the defendant when he took the phone. However, to establish sufficient force, there must be evidence that the victim was aware of the force and, because of the force, feels compelled to part with her property. Commonwealth v. Williams, 379 Pa. Super. 538, 543, 550 A.2d 579, 582 (1988). There is no evidence that the security manager felt compelled to part with her cell phone as the defendant took it from her hand.

The Commonwealth has not shown evidence that the defendant used sufficient force to sustain the charge of robbery. Therefore, it is not necessary to discuss whether the defendant had the requisite intent to commit the crime.

ORDER

And now, December 17,2007, the defendant’s petition for writ of habeas corpus is hereby granted, and the charge of robbery is hereby dismissed.


author: JENKINS, J.,

text:
    Commonwealth v. Pasdon

      Vrcim Nedurian Jr., for Commonwealth.

      Timothy P. Walsh, for defendant.
    November 29, 2007
   JENKINS, J.,

Robert Pasdon contends in this direct appeal that the portion of his sentence requiring lifetime registration under Megan’s Law, 42 Pa.C.S. §9795.1, is illegal. The court concludes that Pasdon has waived all three of his arguments, and that in any event, they are facially devoid of merit. Therefore, his judgment of sentence should be affirmed.

On April 30,2007, Pasdon pled guilty to one count of luring a child into a motor vehicle (18 Pa.C.S. §2910) and one count of corrupting the morals of minors (18 Pa.C.S. §6301). On August 20,2007, the court sentenced him to an aggregate of 23 months intermediate punishment, the first six months being on electronic monitoring and the balance served under probationary supervision, followed by a three-year term of probation.

Pasdon has a 1991 conviction for luring that subjects him to Megan’s Law’s lifetime registration requirements under 42 Pa.C.S. §9795.1. N.T., 8/20/07, p. 13. (Court’s comment that “it’s disturbing that looking back at his record, it dates back to 1991, actually to 1971, offenses of the same nature.”) During the sentencing hearing. Pasdon signed notification forms advising him of his duties under Megan’s Law. Counsel for Pasdon stated: “[A]s a result of this incident. . . [Pasdon’s] going to have a lifelong registration with Megan’s Law.” N.T., 8/20/07, p. 9. Counsel did not raise any challenges to Pasdon’s lifetime registration requirement during the sentencing hearing. Nor did counsel file any post-sentence motions challenging the registration requirement.

On September 18,2007, Pasdon, through new counsel, filed a notice of appeal to the Superior Court. On September 20, 2007, the Court ordered Pasdon to file a concise statement of matters complained of on appeal within the next 21 days. After Pasdon’s attorney requested an extension of time within which to file the concise statement, the court granted Pasdon until October 31, 2007 to file the concise statement.

On October 31,2007, Pasdon filed a concise statement which purported to raise three challenges to his lifetime registration requirement under Megan’s Law. Specifically, Pasdon stated:

“The portion of appellant’s sentence which requires lifetime registration pursuant to 42 Pa.C.S. §9795.1 is illegal in that:
“(A) Appellant’s prior conviction under 18 Pa.C.S. §2910 predated the enactment of Megan’s Law and the lifetime registration requirement, thus it should not be considered a prior conviction for the purposes of the lifetime registration requirement;
“(B) At the time of appellant’s prior conviction under 18 Pa.C.S. §2910, the offense was defined differently than the current version of 18 Pa.C.S. §2910 and should likewise not qualify as a prior conviction for this reason;
“(C) The imposition of a lifetime registration requirement and all that is entailed by this aspect of appellant’s sentence, based on the age of the prior conviction and factual circumstances of appellant’s current conviction, constitutes cruel and unusual punishment in violation of Article I, Section 13 of the Pennsylvania Constitution and the Eighth Amendment of the United States Constitution.”

Pasdon’s prior attorney failed to raise any of these issues at sentencing or in post-sentence motions. To the contrary, at sentencing, Pasdon’s prior attorney stated without qualification that Pasdon was subject to Megan’s Law’s lifetime registration requirements. Accordingly, all three issues have been waived. Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (citing, inter alia, Commonwealth v. Grekis, 411 Pa. Super. 513, 601 A.2d 1284 (1992)).

Even if Pasdon preserved these issues for direct appeal, they have no substance. Megan’s Law’s registration requirements, which came into effect in 2000, provide that an individual with two or more convictions of any type under 42 Pa.C.S. §9795.1(a) is subject to lifetime registration. See42 Pa.C.S. §9795.1(b). In his first argument, Pasdon contends that since his 1991 luring conviction predates the registration requirements, it cannot count as a conviction under section 9795.1(a) or (b). In effect, Pasdon argues that use of his 1991 luring conviction under section 9795.1 violates his constitutional right against ex post facto forms of punishment. The court disagrees.

“[T]he existence of some punitive element is a prerequisite to any determination that a law is ex post facto.” Commonwealth v. Benner, 853 A.2d 1068, 1071 (Pa. Super. 2004). Pennsylvania courts have repeatedly held, however, that Megan’s Law’s registration requirements are not punitive and therefore do not implicate the ex post facto clauses of the federal and state constitutions. Commonwealth v. Williams, 574 Pa. 487, 524, 832 A.2d 962, 984 (2003); Benner, supra, 853 A.2d at 1071; Commonwealth v. Fleming, 801 A.2d 1234, 1238 (Pa. Super. 2002) (citing Commonwealth v. Gaffney, 557 Pa. 327, 328, 733 A.2d 616, 617 (1999)) (“there is no violation of any ex post facto provision in requiring registration when the acts underlying an individual’s conviction occurred prior to the effective date of the registration requirements”).

In his second argument, Pasdon insists that since the language of the luring statute changed between his first luring conviction in 1991 and his present luring conviction, the first conviction cannot count against him under section 9795.1. This appears to be another ex post facto challenge which, of course, fails for the reasons given above.

Even if Pasdon intended to raise a matter of statutory construction instead of a constitutional issue, this argument still fails. Under the plain language of section 9795.1 convictions under both the former and present version of the luring statute count for purposes of the registration requirements. The legislature did not see fit to distinguish between the past and present luring statutes for purposes of the registration requirements, and neither does this court.

In his final argument, Pasdon attacks the registration requirement as violating the constitutional guarantees against cruel and unusual punishment in the Pennsylvania and federal constitutions. Once again, Pasdon’s argument evaporates in the face of decisions that the registration requirement does riot constitute punishment. Howe, supra, 842 A.2d at 446 (Megan’s Law’s registration requirements do not constitute cruel and unusual punishment, because it is “err[or to] equat[e] the registration, notification, and counseling requirements of [Megan’s Law] as punishment”).

For all of the foregoing reasons, the court recommends that Pasdon’s judgment of sentence be affirmed, and that the appellate courts reject his challenges to Megan’s Law’s registration requirements.

      . See also, Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (Alaska’s version of Megan’s Law, which closely resembles Pennsylvania’s version, does not violate ex post facto clause of federal constitution).