author: LASH, J.,

text:
    Gotshall v. Stoudt

      Jacqueline R. Mark, for plaintiff.

      Jeffrey J. Howell, for defendant.
    October 10, 2006
   LASH, J.,

The matter before this court is the petition of plaintiff, Cherie L. Drumheller (Mother), to modify an order of custody entered on September 26,2000 and amended October 28,2005. At issue is primary custody of the parties’ younger child, William Robert Stoudt. Trial was held on September 27, 2006. The court enters the following findings:

I. FINDINGS OF FACT

(1) Plaintiff, Cherie M. Gotshall (Mother), is an adult individual who currently resides at 277 Mount Olive Boulevard, Shenandoah, Schuylkill County, Pennsylvania.

(2)Defendant, David J. Stoudt (Father), is an adult individual who currently resides at 401 Grant Avenue, Leesport, Berks County, Pennsylvania.

(3)The parties are the natural parents of two minor children, Jonathan David Stoudt, born July 7,1988, and William Robert Stoudt, bom August 3,1993. William is the subject of the within action.

(4) Mother and Father were married on December 6, 1986 and divorced on February 9, 1998.

(5) The parties separated in fall of 1995, when Mother left the marital residence. At that time, the minor children continued to reside with Father.

(6)Subsequent to the parties’ divorce, Mother married Archie Drumheller in 1998. She has a daughter from Mr. Drumheller, named Samantha, born June 18, 1996.

(7) Mr. Drumheller was physically abusive to Mother and to both Jonathan and William Stoudt.

(8) On October 1, 1997, Mr. Drumheller pled guilty to simple assault, disorderly conduct and harassment based upon an assault upon the paternal grandfather, during a custody exchange at the Hamburg State Police Barracks. Jonathan witnessed the incident.

(9) Mother subsequently separated from Archie Drumheller in 2002, and the couple were eventually divorced.

(10)Mother currently resides with her third husband, William Gotshall, whom she married in March 2004, her daughter, Samantha Drumheller, and Mr. Gotshall’s daughter, Victoria Gotshall, born October 8, 1993.

(11) Mother’s current husband is employed as a correctional officer at the Federal Correctional Institute, Schuylkill County, located in Minersville, Pennsylvania. Flis shift changes four times a year. He applies for a particular shift, and receives same, conditional upon its availability, based on seniority. He is currently working 10 p.m. to 6 a.m., but will shortly switch to a 2 p.m. to 10 p.m. shift. He states he can always get a 6 a.m. to 2 p.m. shift or an 8 a.m. to 4 p.m. shift, if necessary to assist in watching the children in his household.

(12) Father resides with the minor children.

(13) The parties’ child, Jonathan, is estranged from Mother and has been for approximately five years. Jonathan remains angry with his Mother for her part in the physical abuse suffered by her and the boys at the hands of Mr. Drumheller.

(14) Jonathan intends to attend college in South Dakota for ROTC and ranching, eventually looking to a career in the military. As a result, he will likely be moving from Father’s home sometime in the fall of 2007.

(15) The parties are subject to a custody order entered by this court on September 26, 2000, amending a prior order dated August 29, 1997. Under the terms of the September 26, 2000 order, the parties share legal custody, Father has primary physical custody and Mother has partial physical custody three weekends a month from Friday evenings at 6 p.m. to Sunday evenings at 6 p.m. During the summer, the parties share custody on a 50/50 basis.

(16) On October 28, 2005, the court, by agreement of the parties, modified the order of September 26,2000 to provide that Mother would have partial custody of the minor children from Friday at 5 p.m. until Sunday at 5 p.m. This change facilitated Father and William’s participation in Boy Scout meetings on Sunday evenings.

(17) Father resides in the Schuylkill Valley School District, the school district William has attended for his entire education.

(18) The parties reside approximately a 45-minutes to one-hour drive apart.

(19) Mother is currently employed in real estate sales at Webb Realty, Shenandoah, Pennsylvania, maintaining flexible hours.

(20) Father is employed by East Penn Manufacturing Company, working Monday through Friday from 6:30 a.m. until 2:30 p.m., and occasionally on Saturday.

(21) The minor child does not participate in a daycare or latch key program.

(22) The minor child, William, has had difficulties in school recently. His grades have been sub par and he was suspended for fighting.

(23) William enjoys Boy Scouts. Father participates with him as a troop committee person and is involved with the Board of Review.

(24) According to the parties, William generally will obey instructions, but can become defiant and oppositional.

(25) The minor child and his brother, Jonathan, will sometimes get involved in verbal altercations, stemming from Jonathan’s “picking on” William.

(26) At Father’s home, the two boys reside in the same bedroom, although William has a separate room for his dresser and chest of drawers.

(27) Both of the children enjoy spending time at the farm of the paternal grandmother. They assist Father in working the farm, primarily during the summer months, although there are some weekday chores during the school year, as well.

(28) By order of October 21,2005, the parties submitted to a psychological evaluation, performed by Peter H. Thomas Ph.D. and Associates.

(29) Dr. Thomas interviewed the parties, the parties’ children, Mother’s husband, her daughter, Samantha Drumheller, and her stepdaughter, Victoria Gotshall. Dr. Thomas also performed the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). He compiled a written report, dated December 19, 2005.

(30) The parties have agreed to continue a shared custody arrangement on a 50/50 basis during the summer months.

II. DISCUSSION

In determining primary custody, this court considered the testimony of the parties, Mother’s husband, William Gotshall, Mother’s friend, Donna Mulligan, the exhibits submitted, the questionnaires filled out by the parties at the direction of the court and made a part of the court file, and the written evaluation of Dr. Thomas.

Mother presented first. She is seeking primary custody because she believes the minor child wants to live with her. She states that he has told her so several times. He has also advised Dr. Thomas of this during his interview. There have been times when the minor child exhibited depression and even began crying when it was time for him to return to his father’s home. She states that as a young adolescent he “craves attention.”

Mother believes the reasons the minor child wants to move is because he has a poor relationship with his elder brother, Jonathan, who picks on him. She believes that Jonathan may be abusive, primarily verbally, but on occasion physically. Regarding Father, Mother portrays him as inflexible and regimented, not being “connected” with the minor children. Mother believes William wants someone to talk to and has sought Mother out for this purpose on numerous occasions. Father is a person of few words.

Mother believes she can provide a proper household for William. Her husband, William Gotshall, is very invested in William’s care and provides a strong paternal influence for William. Also present in the house is Mother’s daughter from her marriage to Mr. Drumheller and Mr. Gotshall’s daughter, both of whom have a good relationship with William. Mother stresses proper attention to education and accountability for her children. Both of the girls maintain high grades at school. All the children have chores, which they are required to do.

Mother, her family and William participate in a number of activities, including attending football games (the girls are cheerleaders), going out for pizza, attending church, and participating in other family outings.

The parties have very little communication. When they do communicate, it is primarily by correspondence. Mother places the blame for this upon Father. Mother also believes that William has been restricted by Father from calling on the telephone to discuss matters.

Father’s presentation was straightforward. He testified that he has cared for the minor children since the separation and has provided a good household for them. Father states his household is stable and consistent. He maintains rules and a curfew. He and the minor children are very used to their weekly routine.

He and the boys both enjoy working together on the paternal grandmother’s farm. Since his father died, Father has been responsible for the farming activities. He and the boys spend a great deal of time there. Additionally, he and William both enjoy scouting. They attend meetings on Sunday evenings, as well as periodic meetings during the week, and activities during the summer.

According to Father, Mother is unreliable, particularly during her marriage to Mr. Drumheller. Through her bad choices, the minor children were placed at risk for an extended time and both of them, particularly Jonathan, continue to manifest psychological scars.

Father does not believe that William wants to live with Mother. He claims that this issue arose through Mother’s attempting to influence William. Father notes Mother’s extremely poor relationship with Jonathan as a motivation to attempt to pull William toward her and from Father and his stable household.

In essence, Father sees Mother as divisive. It was she who separated from him back in 1995. It was she who exposed the minor children to Mr. Drumheller, resulting in the abuse inflicted upon them and the hard feelings between her and Jonathan. It is now she who is attempting to further divide his household by convincing William that he would be better off living with Mother in Shenandoah.

Father has concerns about the upheaval in William’s life, should there be a custody change. William would have to change schools and start over. He would have to make new friends. His normal weekly routine, including potentially his time at the family farm or at Boy Scouts, would be compromised.

Regarding the relationship between Jonathan and William, Father acknowledges that there is some friction, but believes this is the usual type of competition/camaraderie/hazing that goes on between brothers. He does admit that the arguments can become quite heated, stating that on one occasion an argument between the brothers caused him to emotionally break down.

Father also acknowledges that William is having some problems in school but does not believe these problems are in any way connected to the custody issues of this case or his lack of communication with his son, but rather is a temporary phase that William is going through. In any event, moving him to a brand new school with a new curriculum would not result in a positive change.

Dr. Thomas provided a good summary of the parties and the minor children. Dr. Thomas described Father as a “fairly intense individual who communicates rather briefly, is rather emotionally closed and has a significant undercurrent of anger to his presentation.” The anger appears, in part, to be directed toward Mother and his perception of her divisive actions and, in part, from his reluctance to be involved in litigation or with a psychologist doing an evaluation. Dr. Thomas also notes a “rigid quality” to Father’s thinking in his approach to life. Because of his personality, Father is not warm or affective, nor emotionally expressive. His personality structure will not promote relationship events or interpersonal bonding. He is stronger when bonding through activity and shared experience. Regarding parenting style or capacity, Father’s interventions tend to be brief, a simple consequence in response to misbehavior. Dr. Thomas would not be surprised if Father would behave in an angry fashion toward his children periodically.

Regarding Mother, Dr. Thomas found that Mother did attempt to present an unrealistically positive picture of herself but he, nevertheless, found her to be emotionally “open and expressive.” Her personality structure provides fairly good abilities for attachment. She emphasizes communication. However, she can be dependent or defensive. She unfortunately minimizes the negative role of Mr. Drumheller and underestimates the impact of that on Jonathan. She can make excuses rather than taking responsibility. She has problems with self esteem. She is not a very powerful person in a relationship. Overall, Dr. Thomas finds the bond between Mother and William to be positive, suffering to some extent by the limited contact and emotional events in Mother’s life.

Regarding her parenting capacity, Mother has a fairly good potential for nurturing and is quite responsive. She will likely do better at accessing outside supports than will Father. However, Dr. Thomas perceives that Mr. Gotshall has a fairly strong personality and may take over and run the household, even in situations involving custody of William.

Regarding the boys, Dr. Thomas states:

“(4) Both these boys are struggling to some degree. Jonathan Stoudt’s emotional distress was readily apparent. Now, many years after the beginning of these family disputes, he remains very angry and very distraught. His relationship with his mother is dysfunctional. A previous evaluator had indicated that Father influenced Jonathan negatively against Mother, behaviors that Jonathan and Father both currently deny. In fact, Jonathan seems very removed from both parents and shows a wish to further withdraw from all of this conflict. This is of great concern. Jonathan is struggling. Jonathan does not have close, successful relationships with either parent to help support him as he completes high school and tries to develop a life program of his own. At age 17, it is appropriate for Jonathan to be the primary individual who determines his course with regard to residence and custodial contacts. He clearly wants to continue in the program that he currently experiences. It would be a disaster to try to force him to live with Mother or to force extended time between Jonathan and Mother. In this setting, they had tremendous difficulty relating, even for a short period of time. Clearly, there is a need for some attempt to repair this relationship and to deal with the long-term effects of this relationship. Mother and son need counseling. It is not, however, appropriate for the court to order this. Jonathan would only resist that. Instead, [Mother] should be fully aware of the need for the ongoing counseling between her and Jonathan. Father should be aware of this need and support it. Mother and Jonathan should continue to negotiate until Jonathan would be ready to accept such a proposal. William also struggles. His grades and school behavior show mild indications of his dysfunction. His anger was evident during these interviews when he was examined. He affirms that he was mistreated by Mr. Drumheller, albeit much less so than Jonathan. I believe that William’s distress is significant. William expresses a wish to live with Mother.”

Dr. Thomas also notes that the driving time between the parties’ households is a significant problem, eliminating opportunity for frequent easy exchange of William. Also of concern is the conflict between Jonathan and William. There appears to be a development of an alliance of Jonathan and Father opposing Mother, while William is, in turn, aligning with Mother. This could result in the boys acting out some of the parental conflict. Dr. Thomas notes that when Jonathan leaves the home, which will likely occur in the fall of 2007, this may be a positive for William.

In recommending that William reside with Mother, Dr. Thomas believes that William’s wish to live with his Mother is sincere, also believing that he is seeking emotional support from Mother. Further, the relationship with Jonathan is highly troubled. On the other hand, moving William would contravene his long-standing establishment in a school system network of friends and interests, including flying, and familiarity with the people in Schuylkill Valley. Further, sometimes his relationship with Jonathan can be positive. Ultimately, Dr. Thomas believes that the most important element is for William to emotionally attach to his Mother and receive a warm and positive emotional experience from her that he cannot receive from his Father. Also it would be a positive for him not to be around Jonathan during the week. Accordingly, Dr. Thomas recommended that William reside primarily with Mother, with Father to have two out of every four weekends, and with the summer program to continue on a 50/50 basis.

The paramount concern in a child custody proceeding is the best interests of the minor child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

This analysis requires a balancing of substantial competing interests. On the one hand, Father has provided continuity and stability for an extended period of time. Routines and schedules have been established. The schedules have been workable and able to accommodate the minor child’s interests, particularly Boy Scouts, even though the parties live a substantial distance apart. The minor child is firmly rooted in the Schuylkill Valley School system with an established network of friends. On the other hand, Mother would be able to provide a more active and engaging family unit. She would be available for emotional support for William.

We are also mindful that a change in custody would impact on the school months only, as the parties have agreed to continue the shared 50/50 custody arrangement in the summer months. Further, to the extent a separation from Jonathan is necessary, a modification would accomplish this during the school week, but conversely there would be more interaction between the brothers during the weekends. Additionally, in subsequent school years, Jonathan will be attending college and will be eventually moving on and starting his own life. The issues Mother raises regarding Jonathan are basically limited to the 2006-2007 school year.

In essence, Mother’s basis for requesting a change in custody are threefold: (1) the negative impact of the relationship of the brothers, (2) that Mother can provide emotional support for William, while Father is constricted, and (3) the child’s stated preference. Upon review of the testimony, we find that, on balance, these concerns do not warrant changing the existing custodial arrangement.

The concerns about Jonathan appear overblown. It is true that Jonathan appears to “pick” on his brother. This, unfortunately, is an all too common byproduct of sibling rivalry, which in this case may be more intensive than usual, but does not rise to the level of abuse. In fact, on many occasions, the boys get along well with each other. Secondly, changing the custody arrangement does not resolve this issue, but merely transfers contact between the brothers from the weekdays to the weekend. Arguably, the boys may spend more time together under Mother’s proposed arrangement. Third, as already stated, the issues involving Jonathan are only pertinent until the end of the 2006-2007 school year. Fourth, a transfer on this basis could unfortunately foster the growing estrangement among the parties and Jonathan, driving the parents and the children into two “camps”.

Mother presents a stronger argument on the issue of William’s emotional needs. As Dr. Thomas points out, openness and communication are two of Mother’s strengths. She is willing and available to assist William in working out any issues he may have. William has responded, and seeks her out for advice. Conversely, Father’s capacity to develop this type of relationship with William is quite limited. The question becomes whether it is necessary to modify the custody arrangement and uproot William from a stable and long-standing environment, in order to address William’s emotional needs.

We believe it is not. William does receive quality time with Mother on weekends. Moreover, access to Mother and communication with her does not have to be limited to person-to-person contact. Telephone calls, or even e-mail, while not optimal, can nevertheless sufficiently address William’s needs on a particular day. We are aware William was prevented from long distance contact with Mother because Father did not permit him to make long distance telephone calls and because there was some type of breakdown with Father’s computer. From this day forward, however, William should have the access he needs to discuss matters with Mother. The parties may want to look into purchasing a cellular telephone for William, with free unlimited minutes after certain times, if long distance telephone calls from the land line are cost prohibitive. The e-mail solution is also helpful, but is the least attractive alternative when William has needs to be addressed, because it does not provide the interactive person-to-person contact. On the other hand, when the contact is for informational purposes, the e-mail will certainly suffice.

The third issue, William’s preference, does not exist independently of the first two issues. Both Mother and Dr. Thomas reported that William has informed them of his desire to reside with Mother. The problems he has with Jonathan is the reason he gave. This court finds that William finds positive reasons for residing in either household. If you remove the interaction between the brothers as a factor, then the evidence does not support Mother’s belief that there is a preference.

After giving the factors raised by Mother appropriate weight, it does not appear, for the reasons set forth, that William’s quality of life would be substantially improved by the move, when you take into account the adverse impact which would occur if the child is moved from the home, the school district and the lifestyle he knows. In custody decisions, the court must consider the importance of continuity in a child’s life and the desirability of development of a stable relationship with established parental figures and a known physical environment. Wiseman v. Wall, 718 A.2d 844, 850 (Pa. Super. 1998). Courts are reluctant to disturb existing custody arrangements which have satisfactorily served the best interests of the child. Wiseman, supra, 718 A.2d at 846. Further, where natural parents are both fit, the court must give positive consideration to the parent who has been the primary caretaker. Fisher v. Fisher, 370 Pa. Super. 87, 91, 535 A.2d 1163, 1165 (1988).

We find that continuity and stability are factors which override the factors raised by Mother, in part because Mother’s concerns are either of short duration or can be addressed in another manner, while a change in custody would substantially and permanently affect the child’s welfare.

There is also a legitimate concern, already mentioned, of the increasing estrangement of family members. Mother and Father continue to harbor resentment toward each other. Neither trusts the other. Jonathan does not trust his Mother. William, on the other hand, has a good relationship with both parents. It would be unfortunate, and harmful to William, if he were forced to choose sides.

Modifying custody would also have an adverse impact on William’s activity schedule. Currently, he spends Sunday evenings, and some weekday evenings at Boy Scouts with his father. The current arrangement is that he leaves his mother’s house Sunday evening around 5 p.m. to attend the Boy Scouts meeting. If Mother was the primary custodian, with Father having three weekends of the month, it would require William to travel to Shenandoah at the conclusion of the Boy Scouts meeting. He may not arrive home until 10 p.m. or 10:30 p.m. Another activity he would have to forgo is the time he would spend on his grandmother’s farm during the weekdays.

We advise the parties that the decision in this matter is a close one. The court would have liked the opportunity to increase Mother’s time by awarding her one evening per week, in addition to her three weekends, however, that is not feasible. The distance between the households, and the need for Mother to be available for her husband, her daughter and stepdaughter militates against such an award. The parties’ estrangement is also a countervailing factor. Accordingly, this court will leave the present custody arrangement undisturbed. We enter the following order:

ORDER

And now, October 10, 2006, after trial held, custody of the parties’ minor child, William Robert Stoudt, born August 3, 1993, shall be as follows:

(1) The parties shall share legal custody.

(2) Defendant, David J. Stoudt (Father), shall have primary physical custody of the minor child.

(3) Plaintiff, Cherie M. Gotshall (Mother), shall have partial physical custody three weekends each month from Friday at 5 p.m. until Sunday at 5 p.m., the weekends to continue in accordance with the schedule already established by the parties, pursuant to the orders of court entered September 26, 2000 and October 28, 2005.

(4) All other terms and conditions of the order of September 26, 2000, shall remain in full force and effect.

(5) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1)In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

(2)In the event of any serious illness of the child at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

(3) Neither party shall alienate, nor permit to attempt to alienate, the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

(6) The parties shall, at all times, consider the children/ child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is tiying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7) Neither party shall question the child as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of spy.

(8) The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.

(D) The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation. The parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.


source: Caselaw Access Project

author: GEORGE, J,

license: Public Domain

text:
    Commonwealth v. Gorrell

      Shawn Wagner, for plaintiff.

      Howard Lee Gorrell, pro se.
    October 19, 2006
   GEORGE, J,

On July 19, 2005, Officer Larry Weikert, while patrolling in the Borough of Gettysburg in full uniform and a marked police vehicle, noticed the defendant, Howard Lee Gorrell, traveling in the opposite lane of travel with an expired inspection sticker. Upon effectuating a vehicle stop, it became apparent to Officer Weikert that Gorrell had speech and hearing disabilities. Accordingly, the two communicated via written notes. Following a routine license and registration check, the officer discovered that Gorrell was operating his vehicle with a suspended Maryland license. In addition, Officer Weikert noticed in Gorrell’s open glove compartment the presence of several hearing notices. The officer asked, and Gorrell obliged to produce one such document which revealed that Gorrell was scheduled to appear before Magisterial District Judge Dubbs for a driving under suspension citation. As a result of the above, Officer Weikert issued a citation for driving with an expired inspection, 75 Pa.C.S. 4703, as well as driving with a suspended license, 75 Pa.C.S. 1543(a).

On August 1, 2006, a summary appeal hearing was held and Gorrell was found guilty of driving with a suspended license. In his appeal, Gorrell does not challenge the sufficiency of the evidence. Rather, he alleges several grounds of trial court error in conducting the de novo hearing.

Initially, Gorrell claims that this court committed error in denying the admission of several defense exhibits. During the de novo hearing, Gorrell made reference to, and provided the court copies of, a subpoena, several court cases and a number of federal regulations. However, he never formally moved for admission of those documents. Nevertheless, he currently claims that the court failed to admit the exhibits as evidence. Clearly, trial error cannot exist on a claim that the court erred in failing to admit documents which were never formally moved for admission. See Gilmore by Gilmore v. Dondero, 399 Pa. Super. 599, 604, 582 A.2d 1106, 1108 (1990) (trial court cannot be found in error when not given the opportunity to rule upon the issue).

Moreover, if Gorrell’s actions at trial can somehow be interpreted as a request to introduce exhibits, the exhibits were, nevertheless, inadmissible as irrelevant. As mentioned, the exhibits which Gorrell claimed that the court failed to admit consisted of copies of court opinions, including a settlement agreement in an unrelated matter, and federal regulations. The items sought to be introduced by Gorrell were not exhibits relevant to the proceedings but, rather, legal authority which Gorrell sought to introduce in support of his argument for dismissal. This court properly reviewed and considered those items, however, determined they did not present a meritorious defense. Clearly, this was not error.

The other item which Gorrell complains this court failed to admit was an exhibit consisting of a subpoena to which he claims the Commonwealth did not respond. Apparently, Gorrell was seeking to obtain copies of the written notes exchanged between him and the arresting officer on the date of the incident; the police report completed by the officer at the time of the incident; and the policy of the Gettysburg Borough police in regard to dealing with disabled individuals which Gorrell alleges is required under the American Disabilities Act and related regulations; The cornerstone underlying his request is his belief that because the Gettysburg Borough Police Department has not adopted such a policy, the charges must be dismissed.

Initially, the summary case before the court for a traffic offense is not a “court case” within the meaning of the Pennsylvania Rules of Criminal Procedure, and thus the rules related to pretrial discovery are inapplicable. Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002). Thus, any failure on the part of the Commonwealth to provide responses to Gorrell’s pretrial requests for discovery is not a basis for a preclusion of evidence or dismissal of charges, as Gorrell’s requests were unauthorized. Therefore, as it relates to error in pretrial discovery, Gorrell’s argument is meritless.

Although pretrial discovery in a summary proceeding is not authorized by the Rules of Criminal Procedure, Gorrell does have the right to the compulsory appearance of witnesses and exhibits. Accordingly, had a subpoena to the Commonwealth to produce relevant documentation at hearing not been honored, appropriate relief might follow. However, instantly, the arresting officer brought to the hearing those documents sought by Gorrell which existed and were relevant to the proceedings. In fact, the notes which Gorrell desired were shared with him during the summary trial. Transcript August 1,2006 hearing, p. 15. In regard to the police report, Gorrell was advised that none existed. I am unaware of any authority or statutory law that requires, or even permits, dismissal of criminal charges based upon a police officer’s failure to produce a report which doesn’t exist.

The final item sought by Gorrell through the subpoena was the policy of Gettysburg Borough governing their police department’s interaction with disabled persons. Gorrell alleges that such a policy is required under the American Disabilities Act. Even if Gorrell is correct in his assessment, and presuming that the Gettysburg Borough has not adopted such a policy, there is no basis to grant Gorrell the relief of dismissal which he requests. After thorough review of the American Disabilities Act and related regulations, I have failed to discover any support for Gorrell’s argument that dismissal of criminal charges is appropriate where a violation of the act occurs. Since a violation of the American Disabilities Act is not a basis for the suppression of evidence, the borough’s alleged failure to provide information related to policy developed as a result of this act is not relevant to the criminal proceedings against Gorrell.

GorrelPs reliance on Commonwealth v. Robinson, 834 A.2d 1160 (Pa. Super. 2003), is misplaced as it does not discuss the issue raised by Gorrell. Rather, the Robinson case stands for the proposition that a deaf mute motorist is not entitled to suppression of evidence derived at a DUI checkpoint which lacks the assistance of a certified sign language translator. If anything, the Robinson opinion supports the concept that the dismissal of charges does not automatically flow from a police department’s lack of formal policy in dealing with handicapped defendants.

Therefore, the existence or nonexistence of such a policy by Gettysburg Borough is irrelevant. Assuming, in arguendo, that the police officer failed to produce a written policy adopted by Gettysburg Borough pursuant to the subpoena, there is no prejudice to Gorrell in that the policy is irrelevant.

Since the evidence sought to be introduced by Gorrell was either improper or inadmissible, his claim of trial error by this court in failing to admit the evidence of the subpoena is meritless.

Gorrell’s second and third arguments on appeal are adequately addressed by the discussion above. Accordingly, affirmance of sentence is requested.

      . Both Maryland and Pennsylvania are parties to the interstate driver’s license compact. See 75 Pa.C.S. §1581 and Md. Code, Transportation, §16-701 et seq. Accordingly, due to Gorrell’s suspension in Maryland, his operating privileges were also suspended in this Commonwealth.

      . This court takes judicial notice that Magisterial District Judge Dubbs presides in District Court no. 19-1-03 located in Hanover Borough, York County.

      . Gorrell’s appeal was limited to the driving under suspension citation.

      . Undoubtedly, the court must take judicial notice of public statutes and other matters of law. See Commonwealth v. Brown, 428 Pa. Super. 587, 593, 631 A.2d 1014, 1017 (1993) (court must take judicial notice to the contents of the Pennsylvania Bulletin); Jackson v. SEPTA, 129 Pa. Commw. 596, 602, 566 A.2d 638, 641 (1989) (courts will take judicial notice of public statutes).

      . In these remaining arguments, Gorrell alleges: the court committed an error of law in granting “summary judgment” to the Commonwealth though the court acknowledged that plaintiff was not in compliance with federal regulations; and the court committed an error of court rule in failing to “request for a copy of plaintiff’s police report or similar though plaintiff had not such report.”


author: WECHT, J,

text:
    Kokolis v. Kokolis

      David M. Neuhart, for plaintiff.

      Brian C. Vertz and Benjamin E. Orsatti, for defendant.
    July 18, 2006
   WECHT, J,

Theodore P. Kokolis (Husband) has timely appealed from this court’s May 23, 2006 order. That order dismissed Husband’s exceptions to the recommendations of Hearing Officer Patricia G. Miller Esquire. The May 23 order also disposed of the two exceptions filed by Judith C. Kokolis (Wife) by granting one, and dismissing the other.

BACKGROUND

Husband and Wife married on January 5, 1963, separated on July 1, 1999, and divorced on October 3,2001. After evidentiary hearing, this court (per the Honorable Kevin G. Sasinoski, J.) issued an order on April 18,2001 disposing of economic claims. The court awarded Wife 60 percent of the marital assets in equitable distribution, granted Wife $2,000 per month alimony for 60 months, and directed that each party bear his/her own counsel fees. Neither party appealed.

On October 27,2005, Wife filed a petition seeking to modify the alimony award by extending it beyond its May 2006 expiration date. Wife asserted unforeseen reduction in income and earning capacity due to back surgery and related complications. Following evidentiary hearing on February 10, 2006, Hearing Officer Patricia G. Miller Esquire mailed recommendations on February 15, 2006. Hearing Officer Miller recommended that Wife’s petition be granted. The hearing officer found Wife’s and Husband’s net monthly incomes to be $1,855 and $5,064, respectively. Hearing Officer Miller recommended that, effective May 15,2006, Husband be required to pay alimony of $1,370 per month, terminating upon Wife’s attainment of the age of 66 on October 27, 2009.

Wife and Husband both filed exceptions. Following briefing and oral argument, this court disposed of the exceptions by order dated May 23, 2006. This court dismissed Flusband’s exceptions, granted Wife’s exception concerning inclusion of pension annuity income in her monthly income for alimony determination purposes, and dismissed Wife’s exception seeking to impute rental income to Husband. This court ordered that Wife’s net monthly income be set at $1,337, and that, effective May 15,2006, Husband pay alimony of $1,877 permonth until Wife reaches age 66.

Husband filed a notice of appeal on June 22, 2006. Wife has not appealed. By order dated June 23, 2006, this court directed Husband to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Husband timely complied on July 5, 2006.

HUSBAND’S MATTERS COMPLAINED OF ON APPEAL

In his Rule 1925 statement, Husband asserts the following claims:

“(1) The trial court applied the wrong legal standard in deciding this case, using a ‘needs’ standard, instead of the statutory standard of a ‘significant and ongoing’ change of circumstances.

“(2) Once it applied a ‘needs’ standard, the trial court erred in refusing to count toward Wife’s resources her income from Husband’s pension benefit awarded to her in equitable distribution.

“(3) The trial court erred in its determination of Wife’s reasonable needs, and failed to áccount for all possible sources of income to Wife.

“(4) The trial court’s decision in this case amounts to an improper overruling of the order for equitable distribution and alimony originally entered in this case.”

DISCUSSIONAND ANALYSIS

Appeal Issue No. 1: The Standard Applied

Contrary to Husband’s Rule 1925 averment, the court did not “us[e] a ‘needs’ standard, instead of the statutory standard of a ‘significant and ongoing’ change of circumstances.”

Hearing Officer Miller properly determined that Wife demonstrated a significant and ongoing change in circumstances. This court approved the hearing officer’s determination.

Wife credibly testified that her ability to work in her job as a nail and skin care technician has been reduced significantly since she underwent a laminectomy and fusion (with rods and screws) of her L3 through L5 vertebrae on February 9, 2005. (R. at 16-21.) As a result, Wife’s 2005 income from nine months of work was $1,643 per month gross. (Hearing officer explanation, at 1.) The hearing officer annualized that income to calculate a $1,337 per month net income for Wife. By comparison, Wife’s gross earnings for 2003 and 2004 were, respectively, $25,342 and $26,414. (R. at 16 and exhibits 3 and 4.)

The hearing officer properly found a significant and ongoing change in circumstances in light of Wife’s ongoing inability to work full-time. Further, at $722 per month, Wife’s medical expenses are much higher as a result of her condition. Wife also testified that she now has to incur additional home maintenance expenses such as lawn care and shoveling of snow, at $93 per month. (R. at 25.) Wife did not have these expenses in 2001. The back problems developing after 2001 prevented her from doing these tasks herself.

Wife’s testimony established that the 2005 surgery she had did not “cure” her. While it is true that Wife felt compelled to return to work on a part-time basis three months after her surgery, Wife testified credibly that she has been able to work only a limited number of hours and days per week because of the nerve damage she has sustained. (R. at 18-20, 28-29.) Wife has continuing problems with sensation, balance, mobility, and ambulation, because of neuropathy in her foot and because of the rod in her back. (R. at 18-19.)

On the developed record, the hearing officer properly found that Wife’s disability has created a significant and ongoing change in circumstances.

Appeal Issue No. 2: Treatment of Pension

This court correctly found that Hearing Officer Miller erred in including Wife’s pension annuity, which was marital property, as income for alimony purposes. As a matter of black letter law, the hearing officer’s recommendation constituted an impermissible “double dip.” This court accordingly granted Wife’s exception in this regard.

Hearing Officer Miller was correct that the threshold test for whether or not to award alimony pursuant to 23 Pa.C.S. §3701 is whether there is a reasonable need. However, it is impermissible to include income that a party is receiving from a marital asset that was awarded to her in equitable distribution in calculating the amount of alimony that she should receive. See Berry v. Berry, 898 A.2d 1100, 1104 (Pa. Super. 2006); Miller v. Miller, 783 A.2d 832, 835 (Pa. Super. 2001); Rohrer v. Rohrer, 715 A.2d 463, 465 (Pa. Super. 1998).

As Wife noted in briefing the exceptions and cross-exceptions, Hearing Officer Miller herself had astutely and presciently discerned and warned of the double-dip problem even before the Superior Court’s rulings in Berry, Miller and Rohrer. See Patricia G. Miller, “Berrington, Combleth, and the Still-Unanswered Questions, as Well as Other Miscellaneous Related or Useful Pension Tidbits,” at 6 Equitable Distribution and Retirement Planning (PBI 1997) (cited and discussed in Wife’s brief, at 8-9). The essential point is that this court (per Judge Sasinoski) considered that Wife received this marital asset in arriving at the original alimony award of $2,000. Therefore, it would be improper as a matter of law effectively to add the income stream from this asset into Wife’s available monthly income now to determine her alimony award.

Accordingly, Wife’s monthly net income should be set at $1,337, which is her net income from her job. When Wife’s income is subtracted from her reasonable needs of $3,214 per month, there is a shortfall of $1,877. That is the amount of alimony that Husband should pay, and this court so determined.

Appeal Issue No. 3: Wife’s Reasonable Needs and “Possible ” Sources of Income

In addition to the income and expense items already discussed hereinabove, Husband also made additional arguments on exceptions.

Husband asserted that Hearing Officer Miller erred in calculating Wife’s reasonable expenses by failing to deduct an assertedly duplicative $166 per month item listed as “credit card payment” and by, according to Husband, allowing Wife foil credit for amounts spent for maintaining her residence in the former marital home, in spite of evidence that she lives alone in the four-bedroom house with five garages on-site.

This court properly dismissed Husband’s claims, which comprised his fourth exception.

As to the credit card payment issue, the hearing officer correctly allowed that item to remain on Wife’s budget. Husband claimed that Wife’s $166 credit card expense might be duplicating other items on Wife’s budget, such as clothing and gasoline. However, Wife clarified on redirect examination that, in adding up her clothing and gas expenses, she was including items that she had paid for in cash or by check. (R. at 41-42.) Therefore, these items would not be duplicated as part of the $ 166 charged on Wife’s credit cards.

As to the garage rental issue, Husband’s counsel merely elicited from Wife that there are five garages on her property that were used by Husband for his business during the marriage. (R. at 44.) Husband’s counsel did not try to establish what the rental income might be if Wife attempted to rent out the five garages. In fact, Wife admitted that she had rented a garage to a friend a year or two ago, but Husband’s counsel did not ask how much Wife charged. (R. at 44.) It would have been error for the hearing officer to speculate as to rental income Wife might receive if she chose to rent out garages. The record is entirely devoid of any competent evidence of record as to what the rental income might be.

Husband also argued that the hearing officer erred in calculating the income of Wife in several ways. This court dismissed this claim (which comprised Husband’s fifth exception) as well.

For example, Husband asserted that the hearing officer underestimated Wife’s earnings from her employment. This exception was properly dismissed. Husband argued that Wife’s testimony that her tips amount to only 3 percent was not credible, and that the fact that Wife’s reported tips are full dollar multiples of five is somehow evidence that Wife is underreporting. Husband offered only speculative argument on this point, rather than any supporting evidence. Wife testified credibly when she stated that most of her clients pay for services with gift certificates, and feel they do not have to tip her at all. (R. at 32.)

Husband also claimed error in the hearing officer’s failure to attribute to Wife any income that Wife is earning from assets which she received by equitable distribution. If the hearing officer considered the assets that Wife was awarded in equitable distribution, then she observed that a large portion of Wife’s award was tied up in the marital residence and in retirement accounts. Further, it is evident from the 2001 order that Judge Sasinoski determined that Wife’s distributive share of the marital estate alone was insufficient to sustain Wife, even when, unlike today, she was able to work full-time.

Appeal Issue No. 4: Husband’s Claim That “This Case Amounts to an Improper Overruling of the Order for Equitable Distribution and Alimony Originally Entered in This Case ”

Husband has sought to characterize Wife’s petition for modification (and this court’s 2006 order on exceptions) as a “collateral attack” on, or an “improper overruling” of, the 2001 distributive order. But Husband errs. Like any recipient, Wife had a right to file a petition for modification under 23 Pa.C.S. §3701 (e.) That is what Wife did. To argue or suggest that Wife is not permitted now to file a petition because she should (in 2001) have somehow anticipated her change of circumstances in 2005 and appealed Judge Sasinoski’s order at that time defies not only logic but also the General Assembly’s authorization of modification petitions in “changed circumstances ... of a substantial and ongoing nature — ” Id.

For the foregoing reasons, this court’s order of May 23, 2006 should be affirmed.

      . Husband’s exceptions averred the following:
      “(1) The learned hearing officer erred in entering an award of additional alimony in this case, generally, and in the particulars set forth below.
      “(2) The learned hearing officer failed to apply the appropriate legal standard that requires a finding of change of circumstances of a ‘significant and ongoing’ nature, or, conversely, applied an incorrect legal standard in entering her award.
      “(3) The hearing officer erred in finding an ongoing diminution in Wife’s earning capacity in the absence of any evidence that such diminution continued beyond several months in 2005.
      “(4) The hearing officer erred in her calculation of Wife’s reasonable expenses in that she:
      “(a) Failed to deduct a duplicative amount of $ 166 per month listed as ‘credit card payment’;

        “(b) Allowed Wife full credit for amounts spent for maintaining her residence in the former marital home, in spite of evidence that she lives alone in the four-bedroom house with five garages on site, indicating that such expenses are not ‘reasonable.’
      “(5) The hearing officer erred in calculating the income of Wife by:
      “(a) Underestimating her earnings from her employment;
      “(b) Not attributing any income which she is earning from assets which she received by equitable distribution;
      “(c) In failing to attribute income to her from the possible rental of the five garages.
      “(6) The hearing officer erred in extending the term of alimony beyond that earlier awarded by the Honorable Kevin Sasinoski of this court without legal justification for doing so.
      “(7) The hearing officer erred in permitting Wife to succeed on an untimely and collateral attack on Judge Sasinoski’s award.”

      . Wife had argued that the hearing officer erred by failing to impute rental income to Husband, who had previously collected $2,500 per month from his business, and who had recently benefited from an arrangement whereby his son’s business paid the mortgage loan encumbering the property which Husband owned. This court dismissed Wife’s exception on this point.
      As Husband suggested in his brief on exceptions, the issue lacked legal significance inasmuch as the hearing officer noted that Husband demonstrated his ability to meet his own needs while paying alimony at a rate even higher than the monthly amount recommended. Under the circumstances, Husband’s income finding was of little consequence. It may be that Wife sought a finding as to a higher figure for Husband’s net monthly income now to buttress any petition Wife might make in futuro for additional modification before age 66. Wife may be anticipating that her disability will worsen, and that she will need more alimony to meet her reasonable needs. If so, development of such “anticipatory evidence” is premature at best. At all events, it would have been speculative for the hearing officer to impute income to Husband for his new business solely based upon income received from his old business.
      Wife did not appeal this court’s dismissal of this exception, so it is moot in any event.

      . Husband also argued that the hearing officer erred in failing to attribute income to Wife from the possible rental of the five garages. This court already has addressed this item hereinabove.

      . In light of the General Assembly’s express authorization of modification, any other result would amount, in the undersigned’s judgment, to judicial nullification of 23 Pa.C.S. §3701 (e). That is something the court may not do. Because an esteemed colleague on this court disagrees, the undersigned respectfully requests the Superior Court’s precedential disposition of the issue.


author: KUNSELMAN, P.J.,

text:
    Baker v. Kindred Healthcare Inc.

      Gary A. Butler, for plaintiff.

      John A. Bass, for defendants.
    June 13, 2007
   KUNSELMAN, P.J.,

In this matter, plaintiff has filed a petition for rule to show cause why judgment of non pros should not be opened. For the following reasons, the petition will be granted and the judgment of non pros will be opened.

The basic facts and procedural history of this matter are as follows. Plaintiff filed a complaint on December 29,2006, alleging one count of negligence, one count of breach of fiduciary duty, one count of violation of the Unfair Trade Practices and Consumer Protection Law, one count of violation of the Neglect of Care-Dependant Person Statute, and one count of negligent misrepresentation. In her complaint, plaintiff alleges that Stella S. Radabaugh received improper care that allegedly resulted in her death while a patient at a nursing home facility. Plaintiff delivered certificates of merit to Federal Express in Philadelphia on February 26, 2007 for overnight service to the Beaver County Prothonotary’s office. The certificates of merit were received by the Beaver County Prothonotary’s office on February 27, 2007. The prothonotary returned the certificates of merit to counsel for the plaintiff because they had not been accompanied by a service fee of $1 per page. The defendants proceeded to enter judgments of non pros pursuant to Pa.R.C.P. 1042.6. Plaintiff filed the certificates electronically on March 1,2007, and then petitioned the court to open the judgment.

In support of her position that the judgment of non pros should be opened, plaintiff argues that the certificates of merit are deemed to be filed when received by the proper officer of the court; that they substantially complied with Pa.R.C.P. 1042.3; that the prothonotary’s office violated Rules 205.1 and 205.2 of the Pennsylvania Rules of Civil Procedure by erroneously rejecting the certificates; and that Beaver County Local Rule 205.4 mandated that the prothonotary’s office upload the certificates into the electronic filing system.

In response, defendants note that in accordance with Pa.R.C.P. 1042.6, plaintiff’s failure to file a timely certificate of merit entitled them to seek judgments of non pros. Further, defendants assert that plaintiff has not set forth a reasonable or justifiable excuse for her delay in filing the certificates of merit pursuant to Pa.R.C.P. 3051(b). Specifically, defendants point out that when plaintiff mailed her certificates to the prothonotary’s office, she failed to include the appropriate filing fee in accordance with Local Rule 205.4(2) and Pa.R.C.P. 205.1. Also, defendants argue that plaintiff did not substantially comply with Pa.R.C.P. 1042.3.

Initially, we note that in accordance with Rule 1042.3, a certificate of merit must be filed within 60 days after the filing of the complaint in a professional liability action. Pa.R.C.P. 1042.3(a). Further, we note:

“Rule 3051. Relieffrom judgment of non pros.

“(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.

“(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that

“(1) the petition is timely filed,

“(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and

“(3) there is a meritorious cause of action.” Pa.R.C.P. 3051.

In Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006), our Supreme Court considered whether a plaintiff in a medical malpractice action was entitled to have a judgment of non pros opened after the plaintiff failed to timely file a certificate of merit. In Womer, the plaintiff did not file a certificate of merit within 60 days of the filing of the complaint, and did not file a motion to extend the time for the filing of a certificate. In his motion to open judgment of non pros, the plaintiff asserted that he had served the defendant with an expert report within 60 days of the filing of the complaint and therefore substantially complied with Rule 1042.3. The trial court denied the plaintiff’s motion; the Superior Court reversed, remanding the case back to the trial court. The Supreme Court reversed the Superior Court, concluding that the plaintiff failed to take any action to comply with Rule 1042.3(a) in a timely manner. 589 Pa. at 274, 908 A.2d at 280. The court stated:

“In our view, Hilliker’s position is the correct one, since Womer took no steps to comply with Pa.R.C.P. 1042.3. Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiff’s claim must be filed in the official record in a document called a ‘certificate of merit’ at the time the complaint is filed or within 60 days thereafter. Pa.R.C.P. 1042.3(a). Pa.R.C.P. 1042.8 provides that ‘the certificate required for filing by Rule 1042.3(a) shall be substantially in the following fonn .. .and displays a sample COM that shows precisely what Rule 1042.3 requires. Moreover, Pa.R.C.R 1042.3(d), which allows for the filing and granting upon good cause shown of a motion to extend the time for filing a COM, sets forth the one and only step that a plaintiff is to take if he finds himself unable to secure a COM and desires to avoid the consequences of not satisfying Rule 1042.3(a)’s COM filing requirement in a timely fashion. Womer, however, did nothing of the sort. Rather, he served discovery materials on Hilliker, which included an expert report. In our view, this was no procedural misstep within the meaning of Pa.R.C.P. 126. It was instead, a wholesale failure to take any of the actions that one of our rules requires, of the type that we have heretofore refused to overlook under Rule 126. See Sahutsky, 782 A.2d at 1001.” Womer, 589 Pa. at 271, 908 A.2d at 278.

The court further stated: “[tjherefore, we conclude that Womer did not substantially comply with Pa.R.C.P. 1042.3 for purposes of Pa.R.C.P. 126’s application, and hold that the Superior Court erred in including Pa.R.C.P. 126 as a factor in its analysis as to whether the trial court correctly denied Womer’s request that the judgment of non pros be opened.” Id. Moreover, the Supreme Court noted that pursuant to Pa.R.C.P. 3051, “a plaintiff has the opportunity to demonstrate that his failure to follow Pa.R.C.P. 1042.3 should be excused.” 589 Pa. at 272, 908 A.2d at 279. The court determined that the trial court was within its discretion to hold that the plaintiff had not set forth a reasonable excuse in accordance with Pa.R.C.P. 3051 for not filing a certificate of merit. Id. at 278, 908 A.2d at 280.

However, the factual scenario of the case before this court is distinguishable from the facts presented in Womer. On November 6,2006, this court issued an order adopting a local rule to provide for the implementation of an electronic filing system. The relevant portions of Beaver County Local Rule 205.4 are as follows:

“(2) All legal papers must be filed electronically in accordance with the schedule hereinafter set forth. For all cases pending on the effective date for electronic filing for that category of cases, the filing party shall also provide the prothonotary with a hard copy of each legal paper filed electronically. Filing parties must register with Lexis-Nexis File and Serve at the website set forth in subpart 1, unless the filer is not represented by an attorney. Should any party or attorney deliver a legal paper to the prothonotary in hard copy for filing, the prothonotary shall electronically upload the legal paper to Lexis-Nexis File and Serve and may assess a filing fee and service fee for the same. All filing parties shall also file a written request for notice of the entry of an order or judgment by electronic means.

“(a) In addition to all other applicable fees, the prothonotary is authorized to collect an automation fee of $5 for each initial filing and the sum of $1 per page for each page of a legal paper which is not presented in electronic format. The prothonotary shall not accept a legal paper for filing prior to payment of or the satisfactory arrangements for payment of the required fees. The prothonotary may delegate the collection and disbursement of fees to Lexis-Nexis File and Serve.” L.R. 205.4(2)(a).

Based upon this local rule, the prothonotary may charge an automation fee of $5 for an initial filing and a fee of $1 per page for a document not presented to the office in electronic format. Further, the prothonotary’s office is directed to refuse to accept a legal paper not presented in electronic format before either payment or an arrangement for payment has been made by the filing party.

In this matter, there is no dispute that the 60-day window for filing of the certificates of merit in accordance with Pa.R.C.P. 1042.3(a) expired on February 27,2007. There is also no dispute that Denise Bergen, paralegal for plaintiff’s counsel, sent the certificates to the Beaver County Prothonotary’s office overnight via Federal Express on February 26, 2007. Further, there is no dispute that the certificates were received by Patricia Spickerman, an employee at the Beaver County Prothonotary’s office, on February 27,2007. Further, there is no dispute that the certificates were rejected because they were not accompanied by a fee for the purpose of uploading the documents to the Lexis-Nexis filing system.

Defendants’ argument that the certificates of merit in question were not timely filed because the appropriate filing fee was not included with the documents when they were received by the prothonotary’s office is without merit. Contrary to defendants’ assertion, the fee of $ 1 per page is not a filing fee. Defendants argue that Rule 205.2, which governs the filing of legal papers with the prothonotary’s office, clarifies that in order for the provisions of the rule overriding the prothonotary’s decision to reject a document to take effect, the filing must comply with the Pennsylvania Rules of Civil Procedure. Rule 205.2 states:

“Rule 205.2. Filing legal papers with the prothonotary.

“No pleading or other legal paper that complies with the Pennsylvania Rules of Civil Procedure shall be refused for filing by the prothonotary based on a requirement of a local rule of civil procedure or judicial administration, including local Rules 205.2(a) and 205.2(b).” Pa.R.C.P. 205.2.

The rule specifically states that “no . . . legal paper that complies with the Pennsylvania Rules of Civil Procedure shall be refused ... based on a requirement of a local rule of civil procedure. ...” The requirement of an inclusion of a fee to upload a legal paper is a requirement based upon our local rule, not the state rule. Therefore, pursuant to Rule 205.2, the certificates of merit in question should not have been refused by the prothonotary.

Moreover, we note that Rule 205.1 provides:

“Rule 205.1. Filing legal papers. Mailing. Personal presentation by attorney not necessary.

“Any legal paper not requiring the signature of, or action by, a judge prior to filing may be delivered or mailed to the prothonotary, sheriff or other appropriate officer accompanied by the filing fee, if any. Neither the party nor the party’s attorney need appear personally and present such paper to the officer. The signature of an attorney on a paper constitutes a certification of authorization to file it. The endorsement of an address where papers may be served in the manner provided by Rule 440(a) shall constitute a sufficient registration of address. The notation on the paper of the attorney’s current Supreme Court identification number issued by the Court Administrator of Pennsylvania shall constitute proof of the right to practice in the Commonwealth. A paper sent by mail shall not be deemed filed until received by the appropriate officer.” Pa.R.C.P. 205.1.

Thus, because the certificates of merit in question did not require a signature by a judge prior to mailing, they were able to be mailed to the prothonotary’s office along with the correct filing fee. As noted supra, the fee to upload a document is not a filing fee. Thus, the fact that the certificates of merit in question were not accompanied by the fee to upload the certificates into the electronic filing system is not fatal to them having been filed on the date of their receipt by the appropriate officer.

Further, in Griffin v. Central Sprinkler Corporation, 823 A.2d 191 (Pa. Super. 2003), the plaintiff’s praecipe for writ of summons actually arrived in the prothonotary’s office prior to the expiration of the statute of limitations period, but the prothonotary did not time-stamp it until after the statute of limitations period had expired. The Superior Court held that documents mailed to the prothonotary’s office are deemed to be filed when received by the proper officer. 823 A.2d at 197. Further, the Superior Court noted: “[t]he time-stamping of the document is nothing more than a ministerial act following the actual filing of the document.” Id. at 198.

Here, according to the deposition of Patricia Spiclcerman, an employee of the prothonotary’s office, a package was received from plaintiff’s counsel at 9:47 a.m. on February 27,2007. There is no dispute that the certificates of merit were received by the prothonotary on the sixtieth day after the filing of the complaint. Thus, plaintiff substantially complied with Rule 1042.3(a). Therefore, although plaintiff violated the local rule by not enclosing a service fee with the mailed documents, Plaintiff did not violate any state rule. Thus, we find that plaintiff establishes a reasonable explanation or legitimate excuse for the “delay” in filing the certificates under Rule 3051(b)(2). We deem the certificates of merit to have been filed on February 27, 2007. Since the petition to open was timely filed and the averments in the complaint establish a meritorious cause of action, the petition shall be granted and the judgment of non pros shall be opened.

Accordingly, we enter the following order:

ORDER

And now, based upon the foregoing opinion, the rule is made absolute, the petition for relief from judgment of non pros is granted and the judgment of non pros is opened.

      . Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996 (2001).


author: LUNSFORD, J,

text:
    Bailey v. Ketrow

      Lawrence L. Newton, for plaintiffs.

      Allan J. Wertz, for defendant Ketrow.

      Edwin A. D. Schwartz, for defendants Goldstein.

      Dennis J. Yonkin, for defendant Millville.

      May 1, 2007
   LUNSFORD, J,

This case arises from a fire loss at a rental property owned by plaintiffs Raife R Bailey and Melissa David-Bailey. When plaintiffs sought to recover pursuant to a fire insurance policy issued by defendant Millville Insurance Company, they were informed that the damaged property was not insured by the policy and that the loss would not be covered. Plaintiffs thereafter filed this action against defendant Millville as well as defendants Donald Ketrow, t/d/b/a Ketrow Insurance Agency; Terry M. Gold-stein, Esquire; and Goldstein, Heslop, Steele, Clapper & Oswalt, asserting claims for breach of contract, negligence, and breach of fiduciary duty. Defendants’ preliminary objections to the amended complaint are now before the court.

BACKGROUND

It is alleged in the complaint as follows. In early January 2005, plaintiffs contacted defendant Ketrow to secure fire insurance for a rental property they were purchasing at 907 North 4th Avenue, Altoona, Pennsylvania. Defendant Ketrow placed the insurance with defendant Millville, but erroneously identified the address of the insured property as 907 North 7th Avenue, Altoona, Pennsylvania. Also in early January 2005, plaintiffs hired the Goldstein defendants to represent them at the real estate closing for the 907 North 4th Avenue property. The Goldstein defendants received a copy of the insurance binder before the closing but did not notice that the wrong property was insured. On January 7,2005, the closing took place, and defendant Millville thereafter accepted plaintiffs’ premium payment.

On October 22,2005, the 907 North 4th Avenue property was damaged by fire. Plaintiffs reported the loss to defendant Ketrow, and was informed of the mistake regarding the property address. Defendant Millville denied coverage.

On October 18, 2006, plaintiffs filed their complaint, seeking to hold defendants responsible for paying for the fire loss. After initial preliminary objections were filed, plaintiffs amended their complaint. The amended complaint asserts breach of contract and negligence claims against each defendant, and breach of fiduciary duty claims against defendant Ketrow and the Goldstein defendants. Defendants filed preliminary objections to the amended complaint in the forms of demurrers and/or motions to strike, and all the parties have submitted briefs for the court’s consideration. Each set of preliminary objections will be addressed in turn.

DISCUSSION

A. Standard of Review

A demurrer tests the legal sufficiency of a pleading. See Pa.R.C.P. 1028(a)(4). In considering a demurrer, the question is whether, accepting as true all well-pleaded allegations that are material and relevant, the law will not permit recovery. Sullivan v. Chartwell Investment Partners LP, 873 A.2d 710, 714 (Pa. Super. 2005). The question must be decided solely on the basis of the pleadings, and a demurrer should be overruled unless it is clear from the face of the complaint that the claims cannot be sustained. Id. In case of any doubt, a demurrer should be overruled. Id.

A motion to strike may be granted when a pleading lacks sufficient specificity; that is, when it does not contain sufficient material facts to enable the adverse party to prepare a response. Pa.R.C.P. 1019(a); see also, Smith v. Wagner, 403 Pa. Super. 316, 319, 588 A.2d 1308, 1310 (1991).

B. Defendant Ketrow s Demurrer or Motion To Strike

Defendant Ketrow objects to Count I of the amended complaint (breach of contract) on the ground that it fails to allege a contract between plaintiffs and defendant Ketrow.

A defendant cannot be liable for breach of contract unless it was a party to the contract. Electron Energy Corporation v. Short, 408 Pa. Super. 563, 567, 597 A.2d 175, 177 (1991). To establish a contract, three elements must be alleged: (1) the parties reached a mutual understanding; (2) they exchanged consideration; and (3) they determined the terms of their agreement with sufficient clarity. See Weavertown Transport Leasing Inc. v. Moran, 834 A.2d 1169, 1172 (Pa. Super. 2003).

Two of the elements required to establish a contract between plaintiffs and defendant Ketrow are pled in the amended complaint. In paragraphs 7 through 13 of the amended complaint, plaintiffs allege a mutual understanding and sufficiently clear terms. Specifically, they allege that plaintiff Raife Bailey contacted defendant Ketrow by phone and spoke with its employee, Jean Basignano, about obtaining fire loss coverage for the 907 North 4th Avenue property. They further allege that after discussing the property in more detail, Ms. Basignano agreed that defendant Ketrow would procure the insurance and that plaintiff Raife Bailey would pay the premium to the insurer selected by defendant Ketrow. In paragraphs 26 through 31 and 34 through 36, plaintiffs allege additional details concerning the terms of the agreement and how it was breached. Accordingly, plaintiffs have alleged two elements of a contract.

However, the third element, consideration, is not sufficiently pled. While plaintiffs allege a benefit to themselves (fire insurance for their property) and to defendant Millville (premium payment), they have not specified what benefit or other consideration, if any, flowed to defendant Ketrow. Therefore, Count I is dismissed, with leave to re-plead, if plaintiffs are able to sufficiently plead consideration.

The court notes that the Allegheny County cases cited by defendant Ketrow for the proposition that no contract existed between plaintiffs and defendant Ketrow do not require dismissal of Count I. While the courts in those cases dismissed breach of contract claims against insurance agents, the courts’ reasoning is unknown because opinions were not provided. However, this court does not agree with defendant Ketrow that “the only possible contract in this matter is the policy of insurance between the plaintiffs and [defendant Millville].” Specifically, under the facts alleged, plaintiffs and defendant Ketrow may have entered into an enforceable contract to procure insurance. See Mahramas v. The Guardian Insurance & Annuity Co., no. 95-5430, 1996 WL 932770 (C.C.P. July 17, 1996); Consolidated Sun Ray Inc. v. Lea, 401 F.2d 650, 656 (3d Cir. 1968) (applying Pennsylvania law).

C. Defendant Millville;s Demurrer

Defendant Millville objects to Count VII of the amended complaint (breach of contract) for failure to allege any contract between plaintiffs and defendant Millville relating to the damaged property.

While the amended complaint does not allege breach of the policy defendant Millville actually issued to plaintiffs, it does allege a basis for contract liability on an agency theory. Paragraph 7 of the amended complaint alleges that at all relevant times defendant Ketrow was acting as the authorized representative of defendant Mill-ville. Taking the agency allegation as true, defendant Millville may be liable on the policy as it should have been written. See Line Lexington Lumber & Millwork Co. v. Pennsylvania Publishing Corp., 451 Pa. 154, 301 A.2d 684 (1973) (in an action seeking reformation of fire insurance policies based on insurance agent’s mistake, insurers were potentially liable on an agency theoiy). Therefore, defendant Millville’s demurrer to Count VII is overruled.

D. Goldstein Defendants’ Motion To Strike

The Goldstein defendants seek to have paragraphs 16, 48, 53, and 57 of plaintiffs’ amended complaint stricken as vague and insufficiently specific, in violation of Rule 1019(a). Those paragraphs provide:

“(16) Ms. Altman-Shofer verbally agreed to provide the legal services to the plaintiff including a title search, preparation of a bond and mortgage, HUD settlement statement, closing and the like.

“(48) As a result of the defendants’ obligations pursuant to the aforesaid agreement, the defendants have impliedly agreed, among other things, to provide legal counsel in a competent and professional manner.

“(53) Defendants failed to exercise reasonable care, skill and diligence in representing plaintiffs, including but not limited to:

“(a) in failing to adequately and appropriately represent plaintiffs;

“(b) in failing to adequately and appropriately protect the plaintiffs with respect to the purchase of certain real estate situate at 907 N. 4th Avenue, Altoona, Pennsylvania;

“(c) in failing to examine the insurance binder of the Millville Insurance Company in order to make certain that the binder covered the property that was being purchased by the plaintiffs at 907 N. 4th Avenue, Altoona, Pennsylvania.

“(57) The defendants failed to exercise reasonable care, skill and diligence in representing the plaintiffs including, but not limited to, failing to closely examine the insurance binder from the Millville Insurance Company in order to make certain that the property the plaintiffs were purchasing at 907 N. 4th Avenue, Altoona, Pennsylvania was properly insured.”

The Goldstein defendants contend they cannot prepare an answer because they are unaware what conduct plaintiffs are alluding to by their vague, boilerplate phrases “and the like,” “among other things,” and “including, but not limited to.” They are concerned that the phrases are broad enough to permit plaintiffs to later “amplify” their claims with new factual allegations without violating the applicable statutes of limitations. See Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).

Setting aside the boilerplate phrases, the challenged paragraphs state the material facts upon which plaintiffs’ claims against the Goldstein defendants are based in a concise and summary form, as required by Rule 1019(a); see also, Ammlung v. City of Chester, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973). Those paragraphs allege the Goldstein defendants had contractual and professional duties to represent plaintiffs and protect their legal interests at the closing for the 907 N. 4th Avenue Altoona, Pennsylvania property. They further allege that the Goldstein defendants breached those duties by failing to closely examine closing documents, specifically the insurance binder, resulting in loss when the uninsured property was damaged by fire. Accordingly, those paragraphs will not be stricken in their totality. However, the boilerplate phrases will be stricken, with leave to plaintiffs to file a more specific pleading that avers other factual bases, if any, for their claims against the Goldstein defendants.

ORDER

And now, May 1, 2007, upon consideration of the preliminary objections filed by defendants Donald Ketrow, t/d/b/a Ketrow Insurance Agency; Terry M. Gold-stein, Esquire; Goldstein, Heslop, Steele, Clapper & Oswalt; and Millville Insurance Company to the amended complaint filed by plaintiffs Raife P. Bailey and Melissa David-Bailey, the court orders as follows:

(a) The objections of defendant Ketrow are sustained;

(b) The objections of defendant Millville are overruled;

(c) The objections of the Goldstein defendants are overruled in part and sustained in part.

Plaintiffs are granted leave to file a second amended complaint in accordance with the court’s opinion within 30 days of the date of this order.


author: CHESLOCK, J,

text:
    DiPaulo v. MacGregor

      William H. Robinson Jr., for plaintiff.

      David Andrew Tornetta, for defendant.
    April 18, 2007
   CHESLOCK, J,

Plaintiff, Susan DiPaulo, commenced this action on October 31, 2005 by filing a complaint against defendant, Norman MacGregor, seeking equitable relief in the nature of partition of a property jointly owned by plaintiff and defendant. This matter was scheduled for a hearing and the hearing was held before this court on July 19, 2006. After the court had recessed for a lunch break during the scheduled hearing, the parties advised the court that they had reached a settlement in this matter. The parties placed the settlement on the record as follows:

“Mr. Tometta: I believe we’ve reached a settlement, your honor.

“The Court: I was wondering why it couldn’t get settled before today, but go ahead.

“Mr. Tometta: Jeff.

“Mr. Worthington: Your honor, for final settlement of this action, the defendant, Norman MacGregor, will make payment to plaintiff in the amount of $44,000.

“The Court: $44,000?

“Mr. Worthington: $44,000, in exchange for sole title to the premises, settlement to be within 90 days of today?

“The Court: Anything else?

“Mr. Tometta: Yes, your honor. If the settlement is not made within the 90-day period or the money is not transferred to plaintiff, then there will be a 50/50 split of the property. And the house in the rear lot will be deeded to Susan DiPaulo, and the other two side lots will be deeded to Norman MacGregor. Now, also, plaintiff— we’ve agreed that certain personal belongings and furnishings in the house would be available to Mrs. DiPaulo for her to take out of the property- We just would like to have a list of those things on the record. This way there will be no dispute later on down the road.

“Mr. Worthington: Which list we have not had a chance to make. The furnishings, not the fixtures, in the living room, dining room, bathrooms and kitchen.

“Mr. Tometta: Can they submit a list later, your honor? We have no objection to it. I’m just trying to ease the pain here.

“Mr. Worthington: It might be easier if we make up an itemized list and submit it as part of an exhibit for settlement.

“The Court: All right. And the settlement hopefully is to occur within the next 90 days?

“Mr. Worthington: Yes.

“The Court: If it doesn’t occur, somebody will have to petition the court for further action if something doesn’t go according to the plan.

“Mr. Worthington: Well, if the settlement doesn’t occur within 90 days—

“The Court: Then the 50/50 is a lock.

“Mr. Worthington: Yes. Either party will petition the court to enforce the—

“The Court: And at some point, someone will have to mark the case settled and discontinued.

“Mr. Tornetta: Yes, sir.

“Mr. Worthington: Yes.

“The Court: Well, I’m glad the parties were able to come to a settlement on their own before we started. There were different possibilities, and it could have been that the final decision in this matter wouldn’t have been good for either or both parties. So to fashion your own settlement is a lot better than what the court would do or either party wanted to happen. We’ll end it there.

“Mr. Tornetta: May I be excused, your honor?

“The Court: Yes.

“(Proceedings concluded.)”

On November 20,2006, the defendant filed a petition to enforce settlement agreement. On February 20,2007, the defendant filed a motion for hearing on his petition to enforce settlement agreement. We held a hearing on April 4, 2007, and we are now prepared to dispose of this matter.

Under Pennsylvania law, it is well established that “enforceability of settlement agreements is [determined according to the] principles of contract law.” Mazzella v. Koken, 559 Pa. 216, 224, 739 A.2d 531, 536 (1999). To be enforceable, a settlement agreement must contain all the necessary elements of a contract. Id When all of the material terms are agreed upon, Pennsylvania courts will enforce the settlement. Id. at 225, 739 A.2d at 537. Furthermore, a settlement agreement “will be considered sufficiently definite and enforceable if the parties intended to make a contract and there is a reasonably certain basis upon which the court can grant a proper remedy.” Miller v. Clay Township, 124 Pa. Commw. 252, 256, 555 A.2d 972, 974 (1989). (citations omitted) Additionally, it is essential to the enforceability of a contract if the minds of the parties meet upon all the terms of the agreement. Mazzella, supra at 224, 739 A.2d at 536. Furthermore, since the agreement was placed upon the record in an oral manner, we must determine whether there is an oral agreement regarding settlement in this matter. To establish the existence of an oral contract, (1) one must show once that both parties have manifested an intent to be bound by the terms of the agreement; (2) the terms of the agreement are sufficiently definite to be enforced; and (3) there is mutuality of consideration. Reddick v. Kraft Inc., 745 F. Supp. 296 (E.D. Pa. 1990). (citation omitted) The existence of the terms of an oral contract must be established by clear and precise evidence. Id.

Instantly, we find that both parties manifested an intent to be bound by the terms of the agreement which was read in open court. Because the parties set forth their settlement in open court, we find that it is unnecessary to evaluate the settlement agreement to determine if all the necessary elements of a contract are present. We make this finding because the parties in open court set forth the terms of the settlement to the court which were agreed to by the parties. Therefore, relying on both the plaintiff’s and defendant’s acceptance of the terms of the settlement agreement, we conclude that a valid and enforceable agreement exists between the parties and should be enforced. Pursuant to the terms of the settlement reached between the parties on July 19, 2006, the defendant agreed to make payment to plaintiff in the amount of $44,000 in exchange for sole title to the premises, settlement to be within 90 days of that date. Although the parties argue over who did not comply with the terms of the agreement, the agreement itself is clear that if settlement is not made within the 90-day period or money is not transferred to the plaintiff, then there will be 50/50 split of the property. According to the terms of the settlement agreement, we determined that the house and the rear lot will be deeded to the plaintiff and the other two side lots will be deeded to the defendant. Furthermore, the personal belongings and furnishings within the house will be the property of plaintiff, including the ATV to which plaintiff testified. Thus, we conclude that a valid, enforceable and binding agreement existed between the parties and, therefore, we shall grant the defendant’s petition to enforce settlement agreement.

Accordingly, we enter the following order:

ORDER

And now, April 18, 2007, defendant Norman MacGregor’s petition to enforce settlement agreement is hereby granted. The house and the lot containing the house shall be deeded to the plaintiff and the two remaining lots shall be deeded to the defendant. The parties are hereby directed and ordered to prepare and sign the necessary documents to accomplish this transfer within 45 days of the date of this order. It is further ordered that the ATV be returned to plaintiff.

      . The necessary elements of a contract are (1) whether both parties have manifested an intent to be bound by the terms of the agreement; (2) whether the terms are sufficiently definite; and (3) whether consideration exists. Johnston the Florist Inc. v. Tedco Construction Corporation, 441 Pa. Super. 281, 291, 657 A.2d 511, 516 (1995).