author: GRINE, J.,

text:
    Colyer v. National Grange Mutual Insurance Company

      C.P. of Centre County,
    no. 2000-0527.

      James K. Thomas II and Brooks R. Foland, for plaintiffs.

      John W. Heslop Jr. and R. Bruce Morrison, for defendants.
    May 4, 2001
   GRINE, J.,

Presently before the court for consideration are the consolidated motions for post-trial relief pursuant to Pa.R.C.P. 227.1 filed by defendant National Grange Mutual Insurance Company.

PROCEDURAL BACKGROUND

Plaintiffs initiated the instant matter by the filing of a complaint on March 8,2000. On May 1,2000, an affidavit of service was filed and a default judgment was entered against defendant National Grange Mutual Insurance Company. Subsequently, on August 14, 2000, this court held a hearing for the sole purpose of determining the award of damages. In an opinion and order entered on November 15, 2000, this court entered a decision in favor of plaintiff in the amount of $3,685,008 against NGM.

On November 22,2000, plaintiff Ralph Martin Colyer waived his entitlement to attorney’s fees and costs incurred relevant to the instant matter. Thereafter, on November 27, 2000, NGM filed the consolidated motions for post-trial relief presently before this court for consideration. Oral argument was held on April 2, 2001. As both parties have submitted briefs, this matter is now ripe for disposition.

FACTUAL BACKGROUND

The factual background of the instant matter is clearly set forth in this court’s opinion and order dated November 15, 2000. The instant matter involves a bad faith action pursuant to 42 Pa.C.S. §8371. Plaintiff instituted the instant action and alleged NGM breached its respective contract of insurance and engaged in bad faith by failing and/or refusing to defend plaintiff in the underlying action.

DISCUSSION

NGM’s consolidated motions for post-trial relief contain four underlying motions: I — motion for judgment n.o.v.; II — motion for new trial; III — motion for remittitur; and IV — motion for leave to supplement. In its post-trial motions, NGM has raised a cornucopia of issues upon which NGM asserts it is entitled to relief. However, as NGM failed to brief or argue a number of these issues in post-trial proceedings, they are considered waived. See Kraus v. Taylor, 710 A.2d 1142, 1146 (Pa. Super. 1998) (issue raised in post-trial motion is waived unless it is briefed or argued in post-trial proceedings), alloc. granted, 556 Pa. 256, 727 A.2d 1109 (1999), dismissed, 560 Pa. 220, 743 A.2d 451 (2000).

The contentions set forth in NGM’s consolidated motions for post-trial relief may be summarized as follows: (1) this court erred in applying Pennsylvania rather than Virginia law, (2) it is unconstitutional to apply 42 Pa.C.S. §8371 to the instant matter, and (3) this court erred in assessing punitive damages and interest.

A motion for judgment n.o.v. is available to “any party” pursuant to Pa.R.C.P. 227.1. DeFazio v. Labe, 518 Pa. 390, 402, 543 A.2d 540, 546 (1988). There are two bases upon which judgment n.o.v. can be entered: (1) movant is entitled to judgment as a matter of law, and/or (2) the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996). In reviewing a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, with any conflict in evidence being resolved in his favor. Surowiec v. General Motors Corp., 448 Pa. Super. 510, 672 A.2d 333 (1996).

A motion for new trial alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 501 (1997), U.S. cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685. The finder of fact is free to believe all, part or none of the evidence and to determine the credibility of the witnesses. Id. at 701 A.2d at 501. The trial court will award a new trial only when the verdict is so contrary to the evidence so as to shock one’s sense of justice. Commonwealth v. Brown, 538 Pa. 410, 439, 648 A.2d 1177, 1189 (1994).

To begin with, the thrust of NGM’s argument at the April 2, 2000 oral argument was the averment that this court erred in applying Pennsylvania rather than Virginia law. NGM asserts the substantive law of the Commonwealth of Virginia governs all aspects of this case, including the available remedies for bad fath, and this court’s decision is not in accordance with controlling Virginia law.

In support of its contention that NGM is properly raising the issue of choice of law at this point in the proceedings, NGM directs this court to the case of Normann v. Johns-Manville Corp., 406 Pa. Super. 103, 593 A.2d 890 (1991), alloc. denied, 530 Pa. 645, 607 A.2d 255 (1992). In Johns-Manville, the trial court conducted a reverse bifurcated trial and the trial court declared Pennsylvania law would apply to the liability phase of the trial. Id. at 106, 593 A.2d at 892. The first issue before the Pennsylvania Superior Court on appeal was whether the issue of choice of law was properly preserved for appellate review. Id. The Pennsylvania Superior Court found that the choice of law issue was properly before it on the basis that a stipulation the parties entered into was conditioned on the preservation of the appellate rights as to the choice of law issue determination. Id.

Instantly, at no time prior to and/or during the hearing on damages did NGM raise the issue of choice of law determination. Up until the filing of NGM’s filing of its post-trial motions, the parties took the position that Pennsylvania law applies.

The Pennsylvania Rules of Civil Procedure provide that “[a] party waives all defenses and objections which are not presented either by preliminary objections, answer or reply, except a defense which is not required to be pleaded under Rule 1030(b), the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, the objection of failure to state a legal defense to a claim and any other nonwaivable defense or objection.” Pa.R.C.P. 1032. Additionally, the explanatory comment to the rule governing post-trial motions provides:

“Subdivision (b) states two requirements for the granting of post-trial relief. First, the grounds for the relief requested must have been raised in pretrial proceedings or at trial and, second, they must be stated in the motion. ...
“A ground for a new trial or judgment notwithstanding the verdict may not be raised for the first time in the motion for post-trial relief It must be raised timely in pretrial proceedings or during the trial, thus affording the court the opportunity to correct the error ” Pa.R.C.P. 227.1., explanatory comment — 1983. (emphasis added)

As set forth above, a purpose of these rules is to afford the court the opportunity to correct any error. More important in the instant matter, however, is the fact that NGM, by failing to put this court and plaintiff on notice of the instant issue, deprived plaintiff of the opportunity to conduct appropriate discovery and present relevant evidence, and deprived this court of the opportunity to address the issue. Instead, NGM allowed default judgment to be entered against it, whereby the allegations set forth in plaintiff’s complaint were deemed admitted by default, and now improperly attempts to raise issues like a Monday morning quarterback after the game has been decided. Consequently, this court determines NGM, by failing to raise the issue of choice of law determination prior to post-trial motions, has waived said issue.

Also, NGM asserts this court erred in assessing punitive damages and interest. To begin with, NGM argues the conduct in this case does not justify a punitive damages award of $3.35 million. This court cannot agree. While NGM has consistently stated the conduct was simply that of a senior claims representative “dropping the ball,” this court fails to agree such was the case. To the contrary, as set forth in this court’s opinion and order dated November 15, 2000, the conduct exhibited by NGM throughout the underlying proceeding established NGM, inter alia, breached its duty of good faith and fair dealing, elevated its own financial interests above its duties to its insured, consciously disregarded the advice from counsel it hired to render a coverage opinion, and provided incentives for bad faith behavior from NGM’s handlers. Put simply, NGM “shopped” for a favorable coverage opinion, fired coverage counsel who rendered an unfavorable opinion, lied to the insured about the coverage, abandoned the insured without so much as a denial of coverage, and ignored the file for several years.

The degree of conduct exhibited by NGM is exactly the type of reprehensible conduct contemplated by Pennsylvania’s Bad Faith Statute. This court was and is well aware that bad faith conduct must be proven by clear and convincing evidence. See Terletsky v. Prudential Property and Casualty Insurance Co., 437 Pa. Super. 108, 125, 649 A.2d 680, 688 (1994), alloc. denied, 540 Pa. 641, 659 A.2d 560 (1995). Contrary to the vigorous assertions by NGM, this was not a simple case of a claims representative “dropping the ball,” but, instead, was a case of an insurance company consciously neglecting to follow its own internal policies and leaving its insured “hanging out to dry.” The evidence and testimony established management was aware that no coverage position had been taken and the insured had settled the underlying case, yet management’s only action was to close the file without payment or inquiry.

Next, NGM maintains this court was “working backwards” and erred in its computation of punitive damages. Contrary to NGM’s reading of the November 15, 2000 opinion and order, this court did not first determine that using a multiplier of 10 times the compensatory damages was appropriate and “work[s] backwards.”

Punitive damages in Pennsylvania are not intended as compensation to the injured plaintiff, but are a penalty, imposed to punish the defendant and to deter him and others from similar outrageous conduct. Voltz v. General Motor Accceptance Corp., 332 Pa. 141, 2 A.2d 697 (1938); Esmond v. Liscio, 209 Pa. Super. 200, 224 A.2d 793 (1966), alloc. denied. The only limitation on the amount of punitive damages that can be awarded in Pennsylvania is that the award cannot be excessive. BMW v. Gore, 517 U.S. 559, 134 L.Ed.2d 809 (1996).

Unlike federal law, Pennsylvania does not require a proportionality between the amount of compensatory damages and the amount of punitive damages. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 102, 555 A.2d 800, 802 (1989); Sprague v. Walter, 441 Pa. Super. 1, 656 A.2d 890 (1995), alloc. denied, 543 Pa. 695, 670 A.2d 142, 543 Pa. 730, 673 A.2d 336 (1996). In fact, a mathematical proportionality (under Pennsylvania law) would actually defeat the purpose of punitive damages— to punish tort-feasors or outrageous conduct and deter them from similar conduct. Id. Courts have upheld and endorsed a punitive damages award of $150,000 where the underlying underinsured motorist claim was only $15,000 — a 10 to one ratio and the ratio of around 1 percent of the defendant’s net worth for a punitive damages award. Wood v. Allstate, 1997 U.S. District Lexis 14663 (E.D. Pa. 1997); Dunn v. HOVIC, 1 F.3d 1371, 1383 (3d Cir. 1993), cert. denied, 510 U.S. 1031 (1993).

Instantly, this court’s award of punitive damages was approximately 1.25 percent of NGM’s net worth as of December 31, 1999, a figure representing just over two months of investment income. As set forth in Kirkbride, supra, a mathematical proportionality would defeat the purpose of punitive damages. The United States Supreme Court, in the case of BMW v. Gore, supra, stated:

“Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the inquiry is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, we return to what we said... in Haslip: ‘We need not, and indeed we cannot draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness ... properly enter[s] into the constitutional calculus.’ In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to one, however, the award must surely ‘raise a judicial eyebrow.’ ” BMW, supra, 134 L.Ed.2d at 831. (emphasis added)

This court’s award of punitive damages, based on the actions of NGM, does not shock one’s judicial conscience and is consistent with the guidelines set forth by the United States Supreme Court and Pennsylvania Supreme Court. This court reached its value of punitive damages after taking into careful consideration the character of NGM’s actions, the nature and extent of the harm caused, and the wealth of NGM. This court determined the bad faith exhibited by NGM exceeded that set forth in other Pennsylvania case law and thereby warranted a punitive damages of just over 1.25 percent of NGM’s net worth.

Next, there is no dispute that section 8371 is silent as to how to calculate interest due and as to when the interest begins to run. An award of interest is permitted “on the amount of the claim from the date the claim was made.” 42 Pa.C.S. §8371(1). NGM became aware of plaintiff Colyer’s claim against Ebac as early as June 12, 1995. Plaintiff’s complaint ¶23. As an insurer’s duties and/or obligations under a policy are triggered once an insurer is placed on notice of a claim against its insured, this court began calculating interest on June 12,1995. In deciding to apply compound as opposed to simple interest, this court took into the consideration, inter alia, the purpose of the statute and the fact that had the legislature solely intended the interest to be simple, it could have stated as much. This court, in applying its discretion, elected to use compound interest.

Finally, for the reasons set forth herein and in this court’s opinion and order dated November 15,2000, this court’s verdict was not so contrary to the evidence so as to shock one’s sense of justice. Accordingly, defendant NGM’s consolidated motions for post-trial relief are denied. The court enters the following order:

ORDER

And now, May 4, 2001, after oral argument and upon review of the briefs submitted by counsel, it is ordered and decreed that defendant National Grange Mutual Insurance Company’s consolidated motions for post-trial relief are hereby denied.

It is further ordered that conclusion of law no. 15 of this court’s opinion and order dated November 15,2000, is amended to read as follows:

“(15) Plaintiff is entitled to punitive damages in an amount equivalent to approximately 1.25 percent of NGM’s net worth, which is approximately 10 times the amount of the reimbursement for the underlying settlement and counsel fees incurred, and amount of interest pursuant to section 8371.”

It is further ordered that all other aspects of this court’s November 15, 2000 opinion and order are hereby affirmed.

      . In its brief, NGM noted that two aspects of this court’s November 15,2000 order required brief explanatory comments. The first deals with this court’s entering of “judgment” as opposed to “verdict.” The Pennsylvania Rules of Civil Procedure provide that where a judge sits without a jury, the trial court renders a decision, not a verdict. See Pa.R.C.P. 227.4(l)(a) and (b) and 1038(b) and (c) (which make clear the distinction between decisions and verdicts: verdicts are rendered by a jury, whereas decisions are made by a trial judge). Furthermore, the term “ ‘judgment’ necessarily includes the terms ‘verdict’ or ‘decision of the trial court,’ since a judgment is nothing more than the official entry of a verdict or decision or the trial judge upon the docket. See e.g., Pa.R.C.P. 227.1, 227.4(l)(b), and 1038,42 Pa.C.S.” Sands v. Andino, 404 Pa. Super. 238, 246, 590 A.2d 761, 764 (1991).

      . For example, NGM, in its proposed findings of fact and suggested conclusions of law affirmatively suggest that Pennsylvania law applies. See NGM proposed findings of fact and suggested conclusions of law, ¶¶6 and 8; see also, N.T., pp. 4 and 10-13.

      . NGM has a net worth of in excess of $265 million, liquid assets of approximately $320 million and earns approximately $17 million per year in investment income. N.T., pp. 70 and 72; see also, opinion and order, 11/15/2000, F.F. 51, 52 and 54.

      . As plaintiff correctly states in his brief, several Pennsylvania statutes permit the compounding of interest. See e.g., 15 Pa.C.S. §2556 (corporations); 24 Pa.C.S. §8102 (education); 27 Pa.C.S. §6106 (environmental resources); 71 Pa.C.S. §5907 (state government); 16 PS. §11946 (counties); 32 PS. §2020 (forests, waters and state parks); and 72 P.S. §3946.20 (taxation).


source: Caselaw Access Project

author: SAYLOR, J.,

license: Public Domain

text:
    Residents of Lewis Township v. Keener

      Melissa Lobos, for petitioner.

      Joel Wiest, for defendant.
    May 14, 2003
   SAYLOR, J.,

The important issue presented is whether the provision in the Second Class Township Code, 53 RS. §65503, authorizing a percentage (five percent) of the electors to obtain a court hearing for removal of a township officer for alleged failure to perform duties is violative of Article VI, Section 7 (entitled “Removal of civil officers”), of the Pennsylvania Constitution. Our Supreme Court has struck down recall voting provisions of home rule charters as unconstitutional in light of Article VI, Section 7, that similarly could have resulted in the de facto removal of an elected official. In re Petition to Recall Reese, 542 Pa. 114, 665 A.2d 1162 (1995); Citizens Committee to Recall Rizzo v. Board of Elections of City and County of Philadelphia, 470 Pa. 1, 367 A.2d 232 (1976). The rationale of these decisions is equally applicable to the aforesaid statutory provision in the Second Class Township Code for the removal of a township officer, and thus such a provision is also constitutionally infirm. In fact, the court’s decision in Reese significantly took the necessary step of overruling its prior holding in a 1927 case, Milford Township Supervisors’ Removal, 291 Pa. 46, 139 A. 623 (1927), that previously upheld the constitutionality of the predecessor statutory provision for removal of a township supervisor in a court proceeding for dereliction of duty. Upon review of Reese, it is now clear that the present Second Class Township Code provision for removal of a supervisor must be viewed as invalid.

This matter was brought before the court by a petition brought pro se by a resident of Lewis Township, Joseph Breech, purportedly on behalf of other residents of the township that had signed another petition “for the removal of Charles Keener as Lewis Township Supervisor.” There were 100 signatures thereon, together with their addresses, and dated between November 20, 2002 and February 20, 2003. There was attached to the petition the Northumberland County Registration List for Lewis Township showing 952 voters, thereby demonstrating that there were the required five percent of the electors necessary to bring such a petition before the court under the Second Class Township Code, Act of May 1, 1933, P.L. 103, no. 69, §503, as amended, 53 P.S. §655033. The petition signed by the electors had attached thereto 14 separate allegations of dereliction of duty that formed the basis of the contention that Mr. Keener, as township supervisor, had “fail[ed] to perform the duties of the office.” 53 P.S. §65503, supra. There are indeed some serious allegations that, if true, could be violative of other provisions of the Second Class Township Code, 53 P.S. §65101 et seq., and the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seq.

In response, the named defendant, through counsel, filed preliminary objections challenging this court’s jurisdiction over the matter, and a demurrer, based upon his position that Article VI, Section 7, of the Pennsylvania Constitution provided an exclusive method for any attempt to remove a township supervisor from his elected office, to wit, by the governor, on the address of two-thirds of the senate.

Thereafter, petitioner obtained counsel who filed on his behalf a request to amend the petition, not to add a new cause of action, but to place the original pleading in a form consistent with the rules of civil procedure. The amended pleading, now a complaint, placed the alleged 14 different instances of improprieties into separate counts, as well as making specific references to the different sections of the Second Class Township Code and other statutory provisions allegedly violated.

One significant change in the proposed amended pleading is in the “wherefore clause” wherein the demand for relief has been changed. The original petition was solely filed under section 503 of the Second Class Township Code relating to removal of a township officer, while the proposed complaint states that the court is being requested to determine whether the failure to perform the duties of office result in “misconduct which rises to the level of misbehavior of office allowing this court to remove the respondent from his office under the Pennsylvania State Constitution.”

The amended pleading will be allowed under Pa.R.C.P. 1033 as it does conform the original petition to the evidence being offered in support thereof, and it is beneficial to the court in framing the issues, and no perceived detriment to the defendant in allowing such amendment is present. See also, Pa.R.C.P. 126. At argument, it was indicated by the court, that for the sake of judicial economy, the preliminary objections will be considered in relation to such amended pleading, without the necessity for a refiling of them at this time.

I will now address the constitutional question raised here by the defendant.

In Reese, the Supreme Court pared away previous distinctions made in the earlier decisions that construed Article Vl, Section 7, of the constitution as not a bar to proceedings, involving a court hearing, to unseat an elected official. These distinctions included whether the office was created in the constitution itself or arose by virtue of an enactment by the legislature, and by construing this article as containing an implied power in the legislature to establish methods for removal. In rejecting these interpretations, the Reese court adopted the view espoused by Justice (former Chief Justice) Nix in his concurring opinion in the Rizzo case. His approach was that Article VI, Section 7, be given its plain, reasonable construction by sole examination of the language itself. The Pennsylvania Constitution Article VI, Section 7, reads as follows:

“All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the governor, lieutenant governor, members of the General Assembly and judges of the courts of record, shall be removed by the governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the senate.”

Justice Nix continued with his analysis in Rizzo that there were three distinct clauses governing the removal of civil officers. “The first clause [or sentence] applies, without limitation, to ‘all civil officers,’ and directs that such officers ‘shall be removed’ on conviction of crime or misbehavior in office.” 470 Pa. at 37, 367 A.2d at 250. This provision, he notes, is well settled as a mandatory one. The second clause (or sentence) as to appointees allows for the discretionary removal, with the possibility that the power of removal be vested in someone other than the governor. The third clause (or sentence) provides by mandatory terms that elected officers are removed “by the governor for reasonable cause ... on the address of two-thirds of the senate.” Id.; Article VI, Section 7. Recognition of the fact that the three are distinct from each other had been previously noted, and also succinctly described in prior cases as follows:

“Under the new constitution there are three kinds of removal, to wit: on conviction of misbehavior or crime, at the pleasure of the appointing power, and for reasonable cause on the address of two-thirds of the senate.” Commonwealth v. Knox, 172 Pa. Super. 510, 522, 94 A.2d 128, 134 (1953). (other cases omitted)

It was concluded by Justice Nix that the three clauses, although having a distinct application, were “clearly interrelated, providing a comprehensive and exclusive mechanism for removal.” Rizzo, 470 Pa. at 38-39, 367 A.2d at 251. In other words, the constitution cannot be interpreted as allowing any legislatively created concurrent or alternative methods for removal. Rather, Article VI, Section 7, is the only means for relief to remove from office an elected official. Reese, supra.

Petitioner contends that the statutory provision, section 503 of the code, nonetheless remains available for a possible judicial ouster from office of an elected township supervisor by virtue of the first clause of Article Vl, Section 7. This first sentence states, in pertinent part that “civil officers . . . shall be removed on conviction of misbehavior in office or of any infamous crime.” He contends that the legislature has properly provided by way of section 503 a vehicle to bring before the court a township supervisor when he or she has failed to perform his or her job duties to the extent that the same rises to “misbehavior in office” warranting a hearing on removal, but may not constitute the commission of an “infamous crime.” It is argued that the first clause of Article VI, Section 7, actually sets forth two categories for removal: (1) conviction for an infamous crime; and (2) misbehavior in office. His position is that Reese, supra, is distinguishable because the recall vote method did not allow for due process, whereas the Second Class Township Code provides for a hearing and due process before the court, in order to effectuate the constitution’s removal for misbehavior in office.

The fallacy in the petitioner’s argument is that it ignores the term “conviction” in clause 1 of Article VI, Section 7, of the constitution, as well as taking the phrase “misbehavior in office” out of its context. It is axiomatic that terms must be given proper effect, by due consideration. Any provision of the constitution must be interpreted in the popular sense, as plain words that are to be given their common or popular meaning. See Breslow v. Baldwin Township School District, 408 Pa. 121, 182 A.2d 501 (1962). A “conviction” clearly means that there has been a prior adjudication of guilt, usually accompanied by sentence. United States v. Jefferson, 88 F.3d 240 (3d Cir. 1966), cert. denied, 117 S.Ct. 536, 519 U.S. 1019, 136 L.Ed.2d 421; see In re Larsen, 655 A.2d 239 (Pa. Ct. Jud. Disc. 1994) (a “conviction” does not occur until sentencing).

Thus, in Commonwealth v. Knox, an elected magistrate was convicted on an indictment that included a charge of malfeasance and misconduct in office, as to which his sentence included the forfeit of his office. This sentence was upheld on appeal as the first clause of Article VI, Section 7, was found to be self-executing. Removal occurs by virtue of a sentence of the court “upon a conviction ‘of misbehavior in office or of any infamous crime.’” Commonwealth v. Knox, supra, 172 Pa. Super. at 523, 94 A.2d at 134. Likewise, in Birdseye v. Driscoll, 111 Pa. Commw. 214, 534 A.2d 548 (1987), a statutory provision for removal of certain public officials that act in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§5701-5727, could not be utilized against an elected district attorney in view of a Article VI, Section 7, of the constitution, even as an alternative method, since the constitutional provision was “exclusive and prohibitory of any other method which the legislature may deem better or more convenient.” 111 Pa. Commw. at 219, 534 A.2d at 550-51, quoting Commonwealth ex rel Specter v. Martin, 426 Pa. 102, 117, 232 A.2d 729, 737 (1967). The first clause of Article VI, Section 7, does not need additional statutory framework; in fact, any such legislative attempt will certainly be stricken as contrary to it.

Moreover, as previously noted by Justice Nix in Rizzo, both the first and third clauses of Article VI, Section 7, are mandatory, admitting of no exceptions. 470 Pa. at 38, 367 A.2d at 250. Petitioner’s argument is not supported by any prior legal authority, and it is also not consistent with the express language that there be a “conviction of misbehavior in office.” Article VI, Section 7. (emphasis added) Section 503 cannot be utilized to obtain a “conviction” as it is not a penal statute. Finally, the provision in the Second Class Township Code, section 503, is operative upon a different standard, failure to perform duties of the office. This obviously does not require a “conviction,” as it could encompass matters that do not constitute a criminal offense. Accordingly, petitioner’s argument of an inter-relationship between section 503 of the Second Class Township Code and the constitutional provision found in clause 1 of Article VI, Section 6, of the Pennsylvania Constitution is untenable.

Accordingly, this court enters the following:

ORDER

And now, May 14,2003, in view of the determination that section 503 of the Second Class Township Code, 53 P.S. §65503, is unconstitutional, the defendant’s preliminary objections are hereby granted, and thus the petition, as amended, is dismissed with prejudice.

      . This statute provides as follows: If any township officer fails to perform the duties of the office, the court of common pleas upon complaint in writing by five percent of the electors of the township may issue a rule upon the officer to show cause why the office should not be declared vacant. The officer shall respond to the rule within 30 days from its date of issue. Upon hearing, the court may declare the office vacant and require the vacancy to be filled under section 407.

      . All township officers are elected officials (supervisors, assessor, auditors, tax collector) under the Second Class Township Code, 53 P.S. §65402, and thus since Article VI, Section 7, applies to each of them, there appears to be no situation in which section 503 of the code, 53 P.S. §65503, could possibly remain in effect as a basis for removal from office.


author: BERNSTEIN, J.,

text:
    Perry-Makowski v. Hospital of the University of Pennsylvania

      John Gallagher, for plaintiff.

      Joseph Mess a Jr., for defendants.
    May 22, 2003
   BERNSTEIN, J.,

This is an appeal from the discovery order entered May 31,2002. The procedural setting is straightforward. Dr. Curtis Slipman, a physician at the Hospital of the University of Pennsylvania, treated plaintiff, Melanie Perry-Makowski, for back pain over a two-year period and referred plaintiff to the defendant doctor, Edward Vresilovic, for orthopedic surgery. Plaintiff sued Dr. Vresilovic and the Hospital of the University of Pennsylvania for malpractice. On May 13, 2002, a discovery deposition was noticed by plaintiff for Dr. Slipman. At this deposition, Dr. Slipman testified that he had spoken with defense counsel for defendants Dr. Vresilovic and the hospital, had received medical materials for review, and had discussed the case in detail with counsel prior to the deposition.

When plaintiff’s counsel questioned Dr. Slipman about the conversations he had with defense counsel before the deposition, Dr. Slipman was instructed not to respond. Defense counsel so instructed the deponent claiming “attorney-client privilege.” Defense counsel contends that because Dr. Slipman is an employee of the hospital, communications with him should be treated the same as communications with the individual defendant, Dr. Vresilovic. Defense counsel further claims that he had a right to discuss the case with Dr. Slipman, that defense counsel’s ex parte communication with Dr. Slipman was not a violation of Pennsylvania Rule of Civil Procedure 4003.6, and indeed, that his conversations and everything surrounding his relationship with Dr. Slipman are protected by the attorney-client privilege. During argument on this motion, defense counsel advised the court that he represented the defendants, Dr. Vresilovic and the hospital, as well as the deponent, Dr. Slipman. Over the course of the deposition, Dr. Slipman was directed not to answer 45 questions.

Plaintiff sought an order requiring answers, contending that these questions were intended to ascertain discoverable admissions as well as bias or interest which could affect the doctor’s testimony concerning his patient, the plaintiff herein. Plaintiff further contends that Dr. Slipman’s relationships with the hospital, Dr. Vresilovic, and with defense counsel in this case, were appropriate areas for inquiry at a discovery disposition.

Plaintiff moved to require answers to these questions at deposition and subsequently moved to disqualify defense counsel as the appropriate sanction for a violation of Rule 4003.6. The court directed that a more formal motion and briefs be filed.

Because Dr. Slipman was an employee of the hospital, the court ruled that there had been no violation of Rule 4003.6. However, the relationship between a deponent, who may appear as a witness before a jury which must evaluate his credibility, and counsel for the defendants in that case, is a relevant and proper area for inquiry at a deposition. Accordingly, on May 31,2002, the court entered an order requiring Dr. Slipman to answer questions regarding his communication with defense counsel in this case and his personal and professional relationships with defendants. Defense counsel appeals the entry of this order.

Dr. Slipman had been directed not to answer questions which inquired into his relationship with defense counsel, the information he received concerning the lawsuit, his conversations with Dr. Vresilovic about the deposition and the incident, whether he had reviewed any expert reports or had been told what the experts had opined, and whether he had discussed the medical treatment with other physicians or Dr. Vresilovic himself.

Dr. Slipman was further instructed not to answer specific questions which were designed to evaluate any interest in the outcome of the lawsuit, including:

(1) Was he being paid a fee by defense counsel?

(2) Was he asked by the defendants or counsel to serve as an expert witness?

(3) Had he served as an expert witness for defense counsel in the past?

(4) Had he ever spoken to experts retained for the defendants in this case?

(5) How often did he socialize with Dr. Vresilovic?

The trial court has broad discretion to take any measures it deems appropriate to insure “prompt and adequate discovery.” In Stenger v. Lehigh Valley Hospital Center, 382 Pa. Super. 75, 554 A.2d 954 (1989), the Superior Court noted: “we wholly embrace the conclusion of the Supreme Court of the United States that ‘the trial court is in the best position to weigh fairly the competing needs and interests of the parties affected by discovery... ,’”

As a general policy, Pennsylvania favors a liberal construction of its civil procedure rules. Discovery is governed by Pa.R.C.P. 4003.1, which permits the discovery of any information that is reasonably calculated to lead to the discovery of admissible evidence. It is not necessary that information sought at discovery be admissible at trial. Likewise, it is proper to inquire about materials which were reviewed or available for review prior to trial or deposition testimony.

In Goodis v. Gimbel Brothers, 420 Pa. 439, 218 A.2d 574 (1966), the Supreme Court expressed the policy that a witness should be required to “lift his visor so that the jury could see who he was, what he represented, and what interest, if any, he had in the results of the trial, so that the jury could appraise his credibility.” It is permissible to impeach a witness by showing any partiality that witness has to a party for whom he or she is testifying. In Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973), the Superior Court held that “[i]t is beyond question that the interest in or bias of a witness towards either side of a lawsuit may be exposed upon cross-examination.” Pursuant to Downey, a personal friendship between a testifying physician and a party or that party’s attorney can, of course, be presented in evidence at trial. It is entirely proper to question an expert witness as to whether he or she will receive a fee for testifying, or whether he or she has a personal friendship with the party calling him or that party’s counsel.

The scope of discovery is limited by privileged matter. The trial judge has broad discretion to evaluate privileged matter sought in discovery. The attorney-client privilege may be asserted during discovery if it relates to confidential communications, made by the client to the attorney, in connection with the attorney’s legal services. As codified in 42 Pa.C.S. §5928, this privilege protects the client from being compelled to disclose communications made between him and his attorney. Once the privilege is properly invoked, the burden shifts to the party seeking disclosure to show that the disclosure of such information will not violate the privilege.

However, not all conversations between an attorney and client are privileged. The privilege only pertains to “confidential communications made during the course of representation” of the client himself. The Superior Court has adopted the following test to determinate when the attorney-client privilege should apply:

(1) the person claiming the privilege is, or intended to become, a client;

(2) the communication was made to a member of the bar or a close subordinate;

(3) the communication is about the subject of legal representation and not intended to aid a crime or tort; and

(4) the privilege has not been waived.

In the present matter, the deposition questions posed by plaintiff’s counsel may not be limited to the extent claimed by defendant. These questions may reveal information that is highly relevant to Dr. Slipman’s bias, prejudice or interest in the case, particularly those inquiries relating to compensation. The fact that this information may be inadmissible at trial is not grounds for objection at deposition. Any information supporting the fact that Dr. Slipman may have a reason to testify in favor of any of the defendants is reasonably calculated to lead to evidence that is in fact admissible at trial. Only when personal and financial relationships are known can a determination be made by plaintiff’s counsel as to whether there is any relevant evidence to present to a jury.

The objected-to questions about conversations between the deponent and Dr. Vresilovic himself may include direct admissions concerning the care rendered to the plaintiff. Such admissions are clearly admissible and may even become critical at trial.

Defense counsel’s claim of attorney-client privilege has been presented in an overly broad manner. The attorney-client privilege is limited to confidential communications relating to counsel’s representation of Dr. Slipman. Dr. Slipman is neither a defendant nor a potential defendant in this particular matter, and counsel’s representation of Dr. Slipman is for this lawsuit’s deposition only. The deposition questions asked are unlikely to in any manner concern defense counsel’s representation of Dr. Slipman. Thus, the scope of any proper privilege is extremely limited. Of course, any questions which explicitly impinge on the attorney-client privilege and specifically relate to matters concerning confidential communications in the representation of Dr. Slipman himself at the deposition need not be answered. However, questions relating to conversations designed to influence his factual testimony, or to attempts to engage Dr. Slipman as an expert or advocate in this very litigation, are not in furtherance of representation of Dr. Slipman at the deposition and may be highly relevant to testimony presented at trial. It would be highly unfair and prejudicial to plaintiff’s case to prevent plaintiff from discerning whether Dr. Slipman had been solicited to testify as an expert at trial, or whether the defendant doctor made admissions.

For the reasons set forth above Dr. Slipman should be required to respond to the specific and limited questions concerning his relationship with the parties and counsel in the matter, the materials that he had available for review prior to the deposition, and his relationship to the litigation and any admissions by parties to the litigation. The discovery order of the court should be affirmed.

      . Rule 4003.6 reads: Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from (1) the attorney’s client, (2) an employee of the attorney’s client, or (3) an ostensible employee of the attorney’s client.

      . Discovery motions in Philadelphia are routinely argued without formal filing and briefing. Typically, in excess of 150 routine discovery motions are thus resolved each day.

      . Iron Worker’s Savings and Loan Association v. IWS Inc., 424 Pa. Super. 255, 274, 622 A.2d 367, 377 (1993).

      . 382 Pa. Super at 88, 554 A.2d at 960.

      . Szarmack v. Welch, 456 Pa. 293, 298, 318 A.2d 707, 710 (1974), citing Pa.R.C.P. 126 — “The rales shall be liberally construed to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable.”

      . Pa.R.C.P. 4003.1(b) provides: “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

      . 420 Pa. at 445, 218 A.2d at 577.

      . Brady v. Ballay, Thornton, Maloney Medical Associates Inc., 704 A.2d 1076, 1083 (Pa. Super. 1997).

      . Downey v. Weston, 451 Pa. 259, 263, 301 A.2d 635, 639 (1973).

      . Id. at 259, 301 A.2d at 639.

      . Spino v. John S. Tilley Ladder Company, 448 Pa. Super. 327, 352, 671 A.2d 726, 738 (1996).

      . George v. Schirra and FBC Inc., 814 A.2d 202, 204 (Pa. Super. 2002).

      . Commonwealth v. DuPont, 730 A.2d 970, 977 (Pa. Super. 1999).

      . In re Subpoena No. 22, 709 A.2d 385, 388 (Pa. Super. 1998).

      . Panko v. Alessi, 362 Pa. Super. 384, 389, 524 A.2d 930, 932 (1987).

      . Commonwealth v. Mrozek, 441 Pa. Super. 425, 657 A.2d 997 (1995).

      . Initially, this court believed that it may represent a conflict of interest for the same counsel to represent the deponent, Dr. Slipman, and the hospital, his employer at the deposition. Upon briefing and consideration this court concluded that it is neither a conflict nor a violation of any ethical obligation of counsel and plaintiff’s motion to disqualify counsel was denied. However, plaintiff’s inquiry could possibly be more clearly restricted if Dr. Slipman were represented by independent counsel. However, having concluded that the same counsel may represent the deponent and the defendants, the choice of counsel is that of Dr. Slipman.


author: SCHAEFFER, S.J.,

text:
    Zeiter v. Christman

      John J. Speicher, for plaintiffs.

      Maryann E. Higgins, for defendant.
    May 6, 2003
   SCHAEFFER, S.J.,

On February 4, 2000, plaintiffs, J. Donald Zeiter and Joan A. Zeiter, and their minor daughter, Sarah, were involved in a motor vehicle accident on Boyertown Pike, S.R. 562, in Amity Township, Berks County, Pennsylvania. The defendant, Ronald Christman, while driving under the influence, crashed his mother’s Chevy Blazer into plaintiffs’ Chevy Cavalier. Plaintiff Joan Zeiter suffered serious injuries. On October 9, 2001, plaintiffs filed their complaint for damages.

A jury was selected on February 4, 2003 and trial began on February 10, 2003. The defendant entered into a stipulation that he was negligent. On February 12,2003, the jury began its deliberations. The morning of February 13,2003, before the jury returned its verdict, the parties settled the case. On that same date, the court issued a rule on the parties to show cause, if any they had, why they should not be made to pay the costs incurred by the County of Berks, pursuant to B.R.C.P. 217.3. The parties filed their responses to the rule and the court heard oral argument.

Both plaintiffs and the defendant argue that, in light of the recent decision in Stewart v. Owens-Corning Fiberglas, 806 A.2d 34 (Pa. Super. 2002), this court is without authority under the Pennsylvania Constitution to impose the costs of trial on litigants who have been unable to settle a case prior to trial. Defendant also argues that only the Pennsylvania Supreme Court has the exclusive authority to prescribe, by general rule, standards governing the imposition and taxation of costs.

The Superior Court, in Treu v. Harleysville Insurance Company, 443 Pa. Super. 567, 572, 662 A.2d 1106, 1109 (1995), reversed the order of the trial court which entered sanctions against the plaintiffs in the amount of $17,500, relying upon Philadelphia Court of Common Pleas Local Rule 212.2, which permits a trial judge in certain circumstances to order a non-settling party to pay the costs of conducting a trial. On appeal, the Treus argued that the trial court erred and/or abused its discretion when it entered the sanction in violation of the express provisions of Rule 212.2, failed to consider the factors required by Rule 212.2 prior to imposing sanctions, and by refusing to allow a hearing on sanctions. They further argued that the refusal to allow a hearing regarding the sanctions violated their due process rights by imposing sanctions without observance of the rule’s procedures, and that the rule was an unconstitutional burden on the right to a jury trial. Appellants did not challenge the authority of the trial court to create and enforce such a rule. The Superior Court, nonetheless, stated its concerns with the authority of the Philadelphia Court of Common Pleas to create and enforce Rule 212.2:

“[W]e have serious reservations regarding a rule that gives a trial judge the power to enforce an order that includes monetary sanctions for failure to accept a settlement . . . Article 5, Section 10(c) of the Pennsylvania Constitution gives our [Sjupreme [Cjourt exclusive power to establish rules of procedure for all state courts. While the [Sjupreme [Cjourt can delegate certain supervisory and administrative powers under 42 Pa.C.S. §1721, we have found nothing to support an assertion that it has granted to the common pleas courts the type of power which is manifest in Rule *212.2. We also believe there is a potential for misuse or abuse of power in a rule that permits a trial court to impose sanctions where the money flows directly back to that authority.” Treu, 443 Pa. Super, at 572, 662 A.2d at 1109.

However, in Treu, the Superior Court was foreclosed from deciding issues not before it on appeal and its reservations concerning the local rule were dicta.

This was not the case seven years later in Stewart, supra, where this issue was squarely raised. In Stewart, the appellant was sanctioned pursuant to the same local rule as in Treu, Philadelphia Local Rule 212.2, based upon its refusal to settle. Appellant appealed the order imposing sanctions. Appellant argued that Rule 212.2 is invalid because the Philadelphia Court of Common Pleas was without authority to adopt the rule, and that this rule violated the due process and equal protection clauses of the Pennsylvania and United States Constitutions. The Superior Court agreed, stating:

“While 42 Pa.C.S. §1721 permits the Supreme Court to delegate certain supervisory and administrative powers, 42 Pa.C.S. §323 directs that every court shall have only the power to make rules and orders which are not prescribed by the Supreme Court’s general rules. Section 1726 states that the Supreme Court is the authority authorized to prescribe by general rules the standards governing the imposition and taxation of costs. 42 Pa.C.S. §1726; 42 Pa.C.S. §102 (defining governing authority as the Supreme Court). It further directs that ‘all system and related personnel shall be bound by such general rules.’ 42 Pa.C.S. § 1726(A). In speaking with regard to the imposition of actual costs, section 1726 directs that the Supreme Court be guided by consideration that ‘ [t]he imposition of actual costs or a multiple thereof may be used as a penalty for violation of general rules or rules of court.’ 42 Pa.C.S. § 1726(A)(3). We can find no authority granted to the Philadelphia Court of Common Pleas to create a rule which in certain circumstances, unrelated to a penalty for violation of a particular rule, adds to the taxable cost of the case.” Id. at pp. 38-39.

The Superior Court in Stewart reversed the order that imposed the sanction, stating, “[TJhere is no authority authorized by our Supreme Court to direct the payment of costs of conducting a trial to a litigant who refuses to settle.” Id. at p. 39.

The common pleas court cannot act in an area where the Supreme Court has not acted. To the contrary, the common pleas court can only act where the Supreme Court has acted and has authorized the common pleas court to act.

The Berks County Rule of Civil Procedure at issue, B.R.C.P. 217.3, jury costs on continuance or settlement of a cause of action, states:

“When a continuance is granted upon application of a party or a case is settled, either within three days of the date set for jury selection or after a jury has been impaneled, the court may impose on the party making the application for continuance or on both parties, if the case is settled, the reasonable costs actually incurred by the county and/or the jurors in impaneling said jury.
“When a continuance has been granted or a case has been settled under the circumstances outlined above and costs imposed, the party upon whom such costs have been imposed may not, so long as such costs remain unpaid, take any further step in such or any other suit without prior leave of court.” B.R.C.P. 217.3, effective March 22,1999.

The Pennsylvania Rule of Civil Procedure 217, costs on continuance, provides:

“When a continuance is granted upon application made subsequent to the preliminary call of the trial list, the court may impose on the party making the application the reasonable costs actually incurred by the opposing party which would not have been incurred if the application had been made at or prior to such preliminary call.
“Where a continuance has been so granted and costs imposed, the party upon whom such costs have been imposed may not, so long as such costs remain unpaid, take any further step in such suit without prior leave of court.
“A party upon whom such costs are so imposed and who was at fault in delaying the application for continuance may not recover such costs, if ultimately successful in the action; otherwise such costs shall follow the judgment in the action.” Pa.R.C.P. 217, adopted September 8, 1938, effective March 20, 1939. Amended April 18, 1975, imd. effective; April 12, 1999, effective July 1, 1999. (emphasis added)

In the case at bar, both parties raise the issue of this court’s authority to impose the costs of the trial. Counties possess authority to make rules for the operation of their own court systems. 42 Pa.C.S. §323; Byard F. Brogan Inc. v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983). “Local rules, however, must be consistent with and not in conflict with the Pennsylvania Rules of Civil Procedure.” Dillon by Dillon v. National Railroad Corporation (AMTRAK), 345 Pa. Super. 126, 132, 497 A.2d 1336, 1339 (1985). (citation omitted)

We are constrained to agree with the parties, based on the Superior Court’s decision in Stewart, supra. B.R.C.P. 217.3 adds to the taxable costs, not the costs of trial incurred by the other party, but the costs incurred by the county. This is exactly what Philadelphia Local Rule 212.2 imposed. This expands upon the list of items that can be included as taxable costs to an offending party. The standards for costs, “which include the items which may constitute taxable costs and the litigants who shall bear such costs,” are governed by the Supreme Court. 42 Pa.C.S. § 1726(a). The local Berks County rule, like the Philadelphia local rule, is inconsistent with the Pennsylvania Rule of Civil Procedure because the state rule does not impose costs incurred by someone or some entity other than a party to the action. The costs of providing a jury, including their daily fee, their mileage, their parking and their food, as well as providing tipstaff, were incurred by the County of Berks, who was not a party to this action. We find we are without the authority to impose such costs upon a litigant.

One final issue comes to mind. Can one judge on a multi-judge court rule that a rule of that court is invalid and/or unconstitutional? While it may appear to us that a rule adopted by a multi-judge court cannot be held invalid by a single judge of that court, an appellate court can, obviously, do so.

The Superior Court, in Stewart, supra, has clearly held that Philadelphia Common Pleas Rule no. 212.2 is invalid. Following the reasoning in Stewart, the similar Berks County rule is also invalid.

We will not enforce Berks County Rule of Civil Procedure 217.3, not because we are overruling our colleagues but because we are following the direction of the Superior Court.

Accordingly, we enter the following order:

ORDER

And now, May 6, 2003, in consideration of the briefs filed by the parties, and after hearing argument, and pursuant to Stewart v. Owens-Corning Fiberglas, 806 A.2d 34 (Pa. Super. 2002), it is hereby ordered that the rule issued upon the parties on February 13, 2003 is discharged.

      . Philadelphia Court of Common Pleas Local Rule 212.2, Sanctions for failure to settle, states:

      “(B) In any action tried by a jury in which the sole relief sought is money damages, the trial judge on his or her own motion or on motion of any party may direct the attorneys for the parties to appear for a settlement conference. ...
      “(D) If the trial judge determines that he or she can fairly evaluate the settlement value of the case, he or she shall recommend a settlement amount to the attorneys for the parties, and the recommendation with the parties’ agreement or non-agreement with it shall be recorded and made a part of the case file.
      “(E) If prior to the verdict the defendant has agreed to pay the amount recommended by the trial judge but the plaintiff has not agreed to accept that amount and the final judgment is at least 20 percent less than the trial judge’s recommendation... then the trial judge may, within 10 days after the final judgment, schedule a hearing to determine whether or not any sanctions shall be ordered against the party who refused to settle....
      “(1) In the event the trial judge determines that sanctions shall be ordered against the party who refused to settle, he or she may order the party to pay to the County of Philadelphia all or part of the reasonable costs incurred as a result of the party’s refusal to settle.”

      . Because we have decided this matter based on the issue of the court’s authority to enforce B.R.C.P. 217.3, we will not address the other issues raised.


author: CORBETT, J,

text:
    Sposito v. Fortuner

      James Sposito, pro se.

      David B. Hiscox, for defendant.
    March 25, 2003-
   CORBETT, J,

ORDER

And now, March 25, 2003, upon consideration of the plaintiff/counterclaim defendant’s (Sposito or plaintiff) motion for summary judgment filed to defendants/counterclaim plaintiffs (Fortuner or defendants) counterclaim, it is hereby ordered and decreed that Sposito’s motion is denied for the reasons set forth herein.

The facts in this case indicate that the defendants retained plaintiff to represent them to object to the administration and accounting in the estate of Joseph Fortuner Sr. A fee agreement was allegedly signed by the parties on or about August 4, 1996, which read, among other things:

“(1) I, hereby agree to compensate my attorney as follows:
“(a) Should the case be settled without the necessity of litigation, my attorney will be compensated at the rate of $150 perh[ou]r.;
“(b) Should the case be litigated, my attorney shall be compensated by a fee of $1,000 per day; all fees, costs and expenses are to be paid by ourselves separate and apart from any attorney fees or deducted from our settlement to reimburse our attorney for money he may choose to advance;...

Sposito also maintains he forwarded 14 statements to the Fortuners which indicated the amount he was billing and the work he did. A review of the billing statements shows that the first entry was made on June 30, 1996 and the last entry is dated April 27,1998 with each statement listing the client’s name as Michael Fortuner.

On or about June 2,1998, Sposito filed his complaint seeking $26,486.30, interest, costs and attorney fees. On or about July 17, 1998, Fortuners filed what they claim to be an answer along with a new matter and counterclaim. The pleading contains a notice that states:

“We are contesting your actions assumpsit & trespass.”

Thereafter, defendant either admitted or denied all the averments made in Sposito’s complaint, some without explanation or comment. On the pages which followed, the Fortuners averred why they requested an award in the amount of $150,000 in damages from the plaintiff. The Fortuners averred 15 paragraphs of allegations against Mr. Sposito which included claims of negligence. On July 20, 1998, the Fortuners filed an amendment to their July 17 answer.

On or about September 10, 1998, Sposito filed a motion for judgment on the pleadings and motion for summary judgment. On or about January 15, 1999, the date set for argument on the motion, the Honorable Judge Nealon allowed defendants five additional days to file a supplemental memorandum of law since their counsel only entered his appearance on that day. On January 20, 1999, after the response was filed, Judge Nealon denied Sposito’s motion for judgment on the pleadings and motion for summary judgment since genuine issues of material fact remained.

On or about October 17, 2002, Sposito filed preliminary objections to defendants’ answer to complaint and a request for general denials to be deemed admitted. On November 27, 2002, defendant, Michael Fortuner, filed an amended answer with new matter and counterclaim. In the counterclaim, Fortuner alleged legal malpractice against Sposito for his work related to the estate of Joseph Fortuner. On December 10,2002, Sposito filed his answer and new matter to defendants’ counterclaim. On December 11, 2002, Sposito filed this motion for summary judgment to defendants’ counterclaim seeking dismissal of the legal malpractice portion of the counterclaim. On January 2,2003, Sposito filed a supplemental brief. The record shows that Sposito filed a motion for summary judgment and that is what is before this court at this time. While prior to filing the summary judgment, Sposito did file preliminary objections, the record shows that an amended answer, new matter and counterclaim for which Sposito filed an answer and new matter. Upon filing his answer, the preliminary objections were moot and there is no demurrer before this court. This court will treat the supplemental brief as a supplemental brief to the motion for summary judgment. On January 13, 2003, Fortuners filed their brief in opposition. Oral argument on same was held on March 12,2003. This matter is now ripe for decision.

Pennsylvania Rule of Civil Procedure 1035.2 provides two bases for the entry of summary judgment prior to trial. It may be granted while discovery is still pending where “no genuine issue of material fact as to a necessary element of the cause of action or defense” could be established by additional discovery or expert report. Manzetti v. Mercy Hospital of Pittsburgh, 741 A.2d 827, 831 (Pa. Commw. 1999). It may also be granted after the relevant pleadings are closed, but within such time as not to unreasonably delay trial, as a matter of law:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to producce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The party moving for summary judgment has the burden of proving no genuine issue of material fact exists. Laich v. Bracey, 776 A.2d 1022 (Pa. Commw. 2001). In ruling on a motion for summary judgment, the record and any inferences therefrom “must be viewed in the light most favorable to the non-moving party.” Id. at 1024. “[A]ny doubt as to the existence of a genuine issue of material fact must be resolved against the moving party.” Id.

When considering a motion for summary judgment, the court must accept as true all well-pleaded facts of the non-moving party. Goldberg v. Delta Tau Delta, 418 Pa. Super. 207, 613 A.2d 1250 (1992), appeal denied, 534 Pa. 639, 626 A.2d 1158 (1993). It must give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Id. The party seeking to avoid entry of summary judgment may not merely rest on their pleadings. Instead, that party must show that a genuine issue exists which requires a trial. Buckno v. Penn Linen & Uniform Service Inc., 428 Pa. Super. 563, 631 A.2d 674 (1993), appeal denied, 538 Pa. 639, 647 A.2d 895 (1994). Summary judgment may be granted only in those cases where the right to summary judgment is clear and free from doubt. Laich, 776 A.2d at 1024.

Sposito maintains the claim of legal malpractice in the counterclaim “seeks to change a cause of action and circumvent the statute of limitations which is already rough.” (See supplemental brief, pg. 2.) Sposito maintains the legal malpractice claim is beyond the two-year statute of limitations and must be dismissed. Even if that were not so, Sposito maintains that defendants’ legal malpractice claim should be barred since the defendants failed to seek approval to amend their answer under Pa.R.C.P. 1033.

Defendants respond by saying the counterclaim is not an amendment and therefore no court approval was necessary or required. Instead, defendants maintain the counterclaim was originally filed on or about July 17 and 20, 1998, when the defendants, who were acting pro se at the time, provided notice with their answer.

The issue therefore, is whether the Fortuners’ legal malpractice claim was raised within the applicable statute of limitations, namely two years. In order to answer that question, it is necessary to review the answer provided by the Fortuners on July 17 and 20, 1998, which would have been within the statutory period. On the first page of the answer, under the caption it contains the words “Notice — We are contesting your actions assumpsit & trespass.” On page two of their answer, they admit and deny each of the accusations made by Sposito. On page three, defendants write the following:

“Wherefore for all of the reasons above but not limited to such the [sic] defendants Michael & Ruth Fortuner beg the court to deny James A. Sposito any amount and award us $150,000 for pain & suffering.
“(1) Neglected to explore unrecorded deed.
“(2) Neglected to have handwriting expert examine notes of Marie Browns.
“(3) Neglected to question why the rent collected by Joe & Rita in 1991 went from $50,900 to $31,000 collected by A1 & Joe Jr. in 1992 the administrators [sic].
“(4) Neglected to have witnesses that were to testify in court by subpoena namely Marie Brown & Ilean Ferrette.
“(5) Neglected to have expert witnesses testify on our behalf as the fair market value on rental space of A1 Fortuner as Nassar did for A1 Fortuner value per sq[uare] foot $1.25 a sq. foot plus 50 [cents] a sqfuare] foot for heat.”

The Fortuners raise eight other allegations against Mr. Sposito as well.

While the averments within the answer certainly claim negligence against Mr. Sposito, it is clear the answer does not contain the word “counterclaim” anywhere therein. However, our courts have consistently adhered to form over substance. That is, where the elements to a cause of action are adequately set forth, a pro se complainant will not be dismissed just because it is not artfully drafted. Williams v. Syed, 782 A.2d 1090 (Pa. Commw. 2001); Bell v. Horn, 762 A.2d 776 (Pa. Commw. 2000) (Allegations of a pro se complainant are held to a less stringent standard than that applied to pleadings filed by attorneys.); Hill v. Thorne, 544 Pa. 632, 675 A.2d 1249 (1993) (Where the three necessary elements of cause of action for legal malpractice are adequately set forth, pro se complaint will not be dismissed just because it is not artfully drafted.).

An individual may sue his attorney for malpractice under either trespass or assumpsit theory. Fiorentino v. Rapoport, 693 A.2d 208 (Pa. Super. 1997). In order to sustain a legal malpractice action, it must be shown that “(1) the employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that the attorney’s failure to exercise the requisite level of skill and knowledge was the proximate cause of damage to the plaintiff.” Id. at 212.

A review of the Fortuners’ pleadings clearly shows that they averred the elements of a legal malpractice claim against their former counsel, Mr. Sposito. In their July 17, 1998 filing, the Fortuners either specifically or implicitly averred that they employed Mr. Sposito, that he was negligent and/or failed to exercise ordinary skill or knowledge and that they suffered damage as a result of his negligence. Each of these was clearly set out in their pleading. Since the elements of legal malpractice were originally pled in the defendants’ original response, the statute of limitations did not run.

Moreover, because the amendment was not a new cause of action, but instead a clarification of what was previously pled, it was not necessary for the defendants/counterclaim plaintiffs to seek this court’s permission before doing same. For these reasons, plaintiff’s motion for summary judgment is denied.

      . The only answer filed by the Fortuners was that filed on My 19, 1998. Prior to these preliminary objections, no additional answer was filed. These preliminary objections are to address the answer filed some four years ago.

      . Ruth Fortuner died on February 14, 2001.

      . The parties dispute whether the new matter and counterclaim were part of what they stipulated to in lieu of filing a response to the preliminary objections.

      . Specifically, what Sposito filed was a “supplemental (sic) brief in support of plaintiff’s motion to dismiss counterclaim filed by original defendant.” In the body of same, Mr. Sposito states:
      “The moving party now comes forward and files a supplemental brief to support his motion to dismiss and demurrer based on defendant’s failure to make effective service and get leave of court to amend a complaint, and failure of the defendant to file a claim within the statutory two years as required by statute.”

      . The alleged fee agreement was entered into in August 1996. The negligence claim was filed less than two years later and, according to the plaintiff’s billing sheets, only a few months after their relationship was terminated.


author: NANOVIC, J.,

text:
    Petrole v. Petrole

      Thomas Carlyon, for plaintiff.

      Cynthia A. Dyrda-Hatton, for defendant.
    March 20, 2003
   NANOVIC, J.,

Nicholas J. Petrole Sr. (Father) has appealed our dismissal of his exceptions to the hearing officer’s custody report. The hearing officer recommended extending Maureen S. Petrole’s (Mother) periods of partial physical custody to include overnight visits during the weeks Father works the swing shift, from 3:30 p.m. until midnight (12 a.m.).

FACTS

On October 14, 1998, Father filed a complaint in divorce against Mother containing a claim for custody of the parties’ minor children. The custody count was severed from the divorce proceedings. A decree of divorce was entered on August 8, 2001.

Mother and Father are the natural parents of five minor children: Nicholas J. Petrole Jr. (D.O.B. 11/12/87), Jonathan Petrole (D.O.B. 01/18/89), Albert Petrole, (D.O.B. 05/02/92), Michael Petrole (D.O.B. 05/31/94), and Anthony Petrole (D.O.B. 01/10/98). A custody order, docketed to no. 99-0451, was entered on October 20, 1999, granting Father primary physical custody and Mother partial physical custody on alternate weekends, holidays and special occasions.

On January 14,2000, Mother filed a petition to modify the custody order. A hearing was held before the hearing officer, following which a custody order, docketed to no. 00-0096, was entered on May 5, 2000. This order, in combination with the October 20, 1999 order, granted Mother additional periods of physical custody during the week on an alternating weekly basis corresponding with the Father’s rotating weekly work schedule as follows:

“(1) During the first week when Father works the swing shift (i.e., 3:30 p.m. until midnight), Mother was granted partial physical custody on Monday and Friday from 3 p.m. until 8 p.m., and from Tuesday at 3 p.m. until Thursday morning with Mother responsible for arranging the school-age children’s attendance at school and return of the younger children to Father’s residence; and
“(2) During the following week when Father works the day shift (i.e., 7 a.m. until 3:30 p.m.), Mother was granted partial physical custody from Tuesday at 3 p.m. until Wednesday morning with Mother responsible for arranging the school-age children’s attendance at school and return of the younger children to Father’s residence, Wednesday from 3:30 p.m. to 8 p.m., and Friday from 5 p.m. until Sunday at 6 p.m.”

On September 14, 2001, Mother filed a complaint to modify the custody order, wherein Mother requested primary physical custody of the parties’ minor children. On October 22, 2001, during a conciliation conference before the hearing officer, Mother conceded that her request should be limited to a modification of her periods of partial physical custody and that she was not requesting a change of primary physical custody. Nevertheless, Father, by petition filed on January 9, 2002, requested that the hearing be held before the court.

Following an opportunity for hearing on Father’s petition and based upon Mother’s assurances that she was not requesting a change of primary physical custody, the court denied Father’s petition for a hearing before the court, remanded Mother’s custody petition to the hearing officer to conduct a hearing, and ordered that any “relief requested [by Mother], and any relief granted, shall be limited and confined to a request for modification of Mother’s periods of partial physical custody” and not a request for a change in primary physical custody. (Order of court dated February 20, 2002.) The only issue presented to the hearing officer was whether Mother’s periods of partial physical custody should be enlarged during the week Father worked swing shift. The testimony presented to the hearing officer focused on this issue and was not a full-blown custody hearing.

Upon conclusion of the proceeding before the hearing officer, the officer submitted a report, recommendation, and proposed order to the court which recommended that Mother’s periods of physical custody include custody of the children from Monday at 3 p.m. until Friday at 5 p.m. during the week Father works swing shift. Father filed timely exceptions to the report, recommendation, and proposed order of the hearing officer.

After briefs and oral argument thereon, this court denied and dismissed the Father’s exceptions and entered a custody order, dated December 30,2002, which adopted the recommendation of the hearing officer. The same order integrated the prior custody orders of October 20, 1999 and May 5, 2000.

On January 28, 2003, Father filed an appeal of our decision to the Superior Court. In response to our Rule 1925(b) order requesting Father to file a concise statement of matters complained of on appeal, Mother filed a statement on February 11, 2003, listing 25 matters ostensibly complained of.

DISCUSSION

We decline to address the merits of those issues numbered 16, 19 and 20 which merely present bare assertions and lack fully developed arguments. Commonwealth v. Drew, 353 Pa. Super. 632, 634, 510 A.2d 1244, 1245 (1986) (“When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.”).

The remaining issues present a modicum of legal argument and support. Underneath these seemingly diverse claims lays one assertion, that the hearing officer, in various aspects, abused his discretion. Father’s allegations of abuse fall into two broad categories: one, by failing to permit Father to elicit various testimony, the hearing officer failed to conduct a full hearing (issues 1,7,10,14, 17 and 22); and, two, in recommending the Mother be awarded partial physical custody from 3 p.m. on Monday until 5 p.m. on Friday during the week Father works swing shift, the hearing officer acted contrary to the best interests of the children. (Issues 2-6, 8, 9, 11, 12, 13, 15, 18, 21 and 23-25.)

Allegation That Custody Hearing Officer Failed To Conduct a Full Hearing

Father asserts that the hearing officer abused his discretion by limiting the testimony Father desired to present regarding: Mother’s child support arrears (issue 1); Mother’s credibility and motive for seeking the requested modification, and the appropriateness of Mother’s chosen caregiver (issue 10); Mother’s alleged refusal to cooperate with Father (issue 14); and Father’s work schedule. (Issue 22.) In consequence, Father claims he was prohibited from developing a complete record. (Issues 7 and 17.)

Father asserts, repeatedly, that the fact-finder must consider all facts, circumstances, and relevant factors prior to rendering a decision that affects the child custody arrangement. McAlister v. McAlister, 747 A.2d 390, 391 (Pa. Super. 2000). Despite these repetitious assertions (see issues 1,7,10,14,17 and 22), Father fails to cite to the record or state explicitly which facts, circumstances and relevant factors he was denied the opportunity to present, and how, if given the chance to present the information, such testimony would alter the fact-finder’s assessment that the best interests of the children will be promoted by permitting Mother to serve as partial physical custodian during the nights Father works swing shift.

In further reference to issues 1 and 14, when objections were sustained to the Father’s questions directed to eliciting evidence of the amount of support arrears owed by the Mother and a previous finding of contempt against the Mother, the hearing officer, without objection from either party, indicated that he would take judicial notice of those proceedings. (N.T., pp. 38-39 and 54-55.) Father has not suggested that this did not occur, nor did Father present any offer of proof as to what evidence he intended to present. (N.T., pp. 38-39, 54-55, 62-63, 94.) Romeo v. Manuel, 703 A.2d 530, 533 (Pa. Super. 1997) (“In order to preserve an objection to the exclusion of testimony the party seeking to have the testimony admitted must make an offer as to what the testimony is going to establish.”).

Insofar as the maternal grandmother serving as Mother’s surrogate caregiver (issue 10), no offer of proof was made with respect to excluded testimony. (N.T., p. 95.) The record demonstrates that the maternal grandmother has served as caregiver for the parties’ minor children, as needed, from the commencement of the initial custody order. (N.T., p. 95.) Prior to Mother’s present modification petition, Father did not object to the maternal grandmother functioning as a surrogate caregiver.

Moreover, the record demonstrates that the maternal grandmother’s role as surrogate caregiver is minimal and occurs, primarily, during the brief lapse in time between Mother’s departure for work and children’s departure for school. (N.T., pp. 23-24, 55.) The eldest child was 14 years of age on the date of the hearing and is, presumably, able to assist the maternal grandmother during the minimal time period in which she is the caregiver.

Father’s challenge concerning the credibility and motive of Mother (issue 10), is dubious given the parties’ mutual litigious history against one another and casts aspersions upon Father’s own motive and credibility. (See custody report, findings 3 through 7 and Discussion, page 42 (“Father was disingenuous relative to his work schedule.”); see also, discussion below regarding credibility determinations by the hearing officer.)

With respect to issue 22, governing Father’s work schedule, the record contains documentation from Father’s employer that Father works a rotating shift schedule and will continue to do so, despite Father’s attempt to be placed, permanently, on the day schedule, that is from 7 a.m. until 3:30 p.m. (Exhibit P-1.) Again, the record is devoid of any offer of proof on this matter.

“[A] parent’s ability to care for a child must be determined as of the time of the custody hearing, not as of an earlier time.” Wiseman v. Wall, 718 A.2d 844, 847 (Pa. Super. 1998). Accordingly, the hearing officer did not abuse his discretion or commit an error of law in centering the scope of the relevant inquiry upon the appropriateness, at the time of the hearing, of Mother maintaining physical custody during the week Father works swing shift.

The Hearing Officer Did Not Fail To Properly Consider Father’s Status As Primary Physical Custodian or the Stability of the Existing Arrangement

Father’s remaining issues aver that the hearing officer failed to properly consider Father’s status as primary physical custodian and improperly recommended Mother be provided custodial privileges each weeknight on which Father works the swing shift. (See issues 2-6, 8, 9, 11, 12, 13, 15, 18, 21 and 23-25.)

Preliminarily, it should be noted that the hearing officer did not exceed his authority. The officer was directed, by order of court, to confine relief, if any, to a modification of Mother’s periods of partial physical custody. (Order of court dated February 20, 2002.)

Father’s claim that despite nomenclature, the real effect of the hearing officer’s recommendation is to transfer primary physical custody of the children to the Mother is mistaken. (Issue 13, 15, 24 and 25.) Unfortunately, Father reaches this conclusion without any reference to the record or analysis of the facts.

To begin, Father claims that during a two-week period, Mother has the children overnight for eight days. (Issue 13.) This is incorrect. During a two-week period, Mother has seven overnights with the children: four during Father’s week on swing shift, one during his day shift week, and two during Mother’s weekend period of partial custody. It should also be noted that Father fails to provide any legal authority to support his apparent proposition that primary physical custody is determined by the number of overnight visits.

Neither the Child Custody Act nor the Rules of Civil Procedure define primary physical custody. See 23 Pa.C.S. §5302; Pa.R.C.P. 1915.1(b). Assuming that the primary physical custodian is the person awarded physical custody of a child for more than 50 percent of the time, then, both in fact and in name, Father continues to be the primary physical custodian. During a 14-day schedule, according to our calculations, Mother’s period of partial physical custody with the children will be less than 50 percent of the total time. The majority of this time, Father continues as the custodian of the children and is specifically identified in the custody order as being the primary physical custodian. (Order of court dated December 30, 2002, paragraph 1.)

Before addressing Father’s remaining issues, we note that when a custody proceeding is heard before a hearing officer, with argument on exceptions before a judge, “[although advisory, the hearing officer’s report and recommendations are given the fullest consideration particularly on the issue of credibility of witnesses, which the trial court is not empowered to second- guess.” T.B. v. L.R.M., 753 A.2d 873, 881 (Pa. Super. 2000) (enbanc), aff’d, 567 Pa. 222, 786 A.2d 913 (2001). The function of the trial court is to make an independent review of the record to determine whether the hearing officer’s findings and recommendations are appropriate. Id. at 881. In custody proceedings, as in trial proceedings generally, the officer before whom the record hearing is held is in the best position to observe the proceedings and the demeanor of the witnesses and, therefore, to determine the credibility and motive of each party. Swope v. Swope, 455 Pa. Super. 587, 590, 689 A.2d 264, 265 (1997).

The issue the hearing officer was asked to address in this case was extremely narrow. The previous order provided that when Father worked the swing shift, from 3:30 p.m. until 12 a.m., Mother would return the children to his home by 8 p.m. on Monday. During this same week, Mother also had custody from Tuesday at 3 p.m., the end of the school day, until the start of school on Thursday, and then, again, after school on Friday until 8 p.m. Because this schedule interrupted the children’s extracurricular activities and homework while they were in Mother’s care, and required their return to the Father’s home at a time when he was not present and would not be returning until after the children were in bed, Mother requested that the order be revised to permit the children to spend these evenings with her. Father argued that his position as primary caretaker and the development of a stable, continuous and strong relationship between him and the children dictated against providing the Mother with additional time during the week Father works the swing shift.

While both of these factors merit positive consideration from the fact-finder, the paramount concern in any custody proceeding is the best interests of the children. Moore v. Moore, 535 Pa. 18, 30, 634 A.2d 163, 169 (1993). “[T]he concept of a child’s best interests is a legal concept. . . .” T.B. v. L.R.M., supra at 889. Father does not contest the standard, he challenges that the best interests do not lie with Mother retaining physical custody in preference to returning the children to Father’s residence and the care of his girlfriend. (N.T., pp. 77-78, 82, 100-102, 115.)

Both parents love and have a strong relationship with their children and exhibit, commendably, a desire to maximize the time that each is able to spend with their sons. The record also demonstrates that each parent, during their respective periods of custody, can sufficiently meet the “physical, intellectual, moral and spiritual well-being” of the children. Tripathi v. Tripathi, 787 A.2d 436, 442 (Pa. Super. 2001) (noting that a best interests analysis includes a consideration of factors that affect a child’s whole well-being).

The very narrow issue in this case was whether expanding the Mother’s period of partial physical custody to provide overnight stays during the week Father worked the swing shift would be in the best interests of the children. On this issue, Mother presented credible evidence that returning the children to Father’s residence by the time mandated in the custody order, and into the custody of a surrogate caregiver, often disrupted the children’s participation in extracurricular activities and denied Mother the opportunity of engaging in evening nurturing with her sons, the younger children especially, such as preparation for bed — baths and story reading. (N.T., pp. 15-20, 34.)

Jonathan Petrole, the second eldest son, stated that difficulty arose when it was necessary to leave an activity to return timely into Father’s custody. (N.T., p. 122.) The older children, Nicholas Jr. and Jonathan, ages 14 and 13 on the date of the hearing, did not oppose the suggestion that they spend the evenings with their Mother during the week Father works the swing shift. (N.T., pp. 117, 122-24.)

Under the former order of shared custody, both parents were active in the children’s lives and this will continue under the new order. (N.T., p. 26.) The parties themselves live approximately two miles from one another. (N.T., p. 68.) Frequent and continuing physical contact with both parents is the hallmark of a shared custody order. Indeed, “it is the public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents ... and the sharing of the rights and responsibilities of child rearing by both parents____” Child Custody Act, Declaration of Policy, 23 Pa.C.S. §5301.

The continuity in the children’s lives has been the sharing of the rights and responsibilities of parenthood between both parents. The revised order continues this history of parental participation and involvement established by the order of October 20,1999, as revised by the order of May 5, 2000.

Significantly, the primary caretaker doctrine upon which the Father relies heavily is, most importantly, concerned with “the quality and quantity of care actually given to the child by the parent as opposed to the supervisory care by others while in the parent’s custody.” Wiseman v. Wall, supra at 847. Both parents work. Although there is some amount of time during each parent’s periods of physical custody when the children must be under the care of a surrogate provider, the time during Mother’s periods of custody is minimal relative to the hours of surrogate care the children receive when Father works the swing shift. This factor, coupled with the testimony of the children and the present ability of Mother to provide parental nurturing and care during the nights Father works the swing shift, supports the report and recommendation of the hearing officer.

CONCLUSION

Absent a determination that one parent is unfit, it is generally within the best interests of the parties’ children to assure reasonable and continuing contact between the children and both parents, and the sharing of the rights and responsibilities of child rearing by both parents. The strength and stability of the relationship between parents and their children is of the utmost importance. Clap per v. Clapper, 396 Pa. Super. 49, 54, 578 A.2d 17, 19 (1990). What custodial arrangement will best serve this goal is dynamic, depending in part on the growth and development of the children, as well as the circumstances of their parent’s lives.

Here, the circumstances favor the Mother’s request. For this reason, we accepted and adopted the recommendation of the hearing officer and permitted the Mother to have overnight visits with her children during the week Father works the swing shift. In doing so, our focus has been the best interests of the children and not the respective rights of the contesting parties. T.B. v. L.R.M., supra at 890.

      . The first 23 matters listed correspond with the 23 exceptions Father filed to the hearing officer’s report. An additional two issues numbered as 24 and 25 were added to the Father’s list.
      In requesting the Father to set forth in a concise statement the matters he intended to pursue on appeal, it was hoped that the Father would narrow and focus on those issues which the Father believes are most meritorious, In this respect, our Supreme Court has stated on a number of occasions that the hallmark of effective appellate advocacy is the winnowing of issues and the ability to select and focus on dispositive issues. See Commonwealth v. Lambert, 568 Pa. 346, 797 A.2d 232, 244 (2001) (plurality opinion).

      . Additionally, issues 19 and 20 were addressed in the custody order. See order of court dated December 30, 2002, paragraph 4(a). Issue 16 challenges the court’s decision to divide the costs of the proceedings between the parties on an equal basis.

      . Although waived, because not preserved by exception, issues 24 and 25 identified in Father’s precise statements of matters complained of, overlap with issues 13 and 15, the prior subject of exceptions, and will be addressed.

      . In the context of this discussion, we note that the court does not have the authority to sua sponte take judicial notice of proceedings in cases other than those at bar and that the parties must be provided an opportunity to deny the existence and conclusive effect of the record of other proceedings. “[A] court may not ordinarily take judicial notice in one case of the records of another case, whether in another court or its own, even though the contents of those records may be known to the court.” 220 Partnership v. Philadelphia Electric Co., 437 Pa. Super. 650, 656, 650 A.2d 1094, 1097 (1994). (citations and quotations omitted).

      . On this issue, Father may be confusing the allocation of child support obligations with a custody proceeding. See Pa.R.C.P. 1910.16-4(c) (substantial or shared physical custody) (“For purposes of this provision, the time spent with the children shall be determined by the number of overnights they spend during the year with obligor.”).

      . “The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” Swope v. Swope, 455 Pa. Super. 587, 591, 689 A.2d 264, 265 (1997). All other considerations are subordinate. Clapper v. Clapper, 396 Pa. Super. 49, 54, 578 A.2d 17, 20 (1990).