author: ASHWORTH, J.,

text:
    Chen v. Shum

      C.P. of Lancaster County,
    no. CI-07-02798.

      Kirk V. Wiedemer, for plaintiffs.

      Robert W. Hallinger, for defendants.
    January 25, 2011
   ASHWORTH, J.,

Defendants have filed a direct appeal to the Superior Court of Pennsylvania from the molded verdict entered in this case on November 24,2010. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

I. BACKGROUND

The evidence in the non-jury trial established the following facts. On August 15, 2005, plaintiff Hua Ming Chen, defendant Swee Hong Yap, Li Xue Shum, and Kan Ke Shum formed a Pennsylvania business corporation for the purpose of owning and operating a restaurant, to be known as Olive & Jasmine Asian Bistro, Inc. (“Olive & Jasmine”), at 2323 Lincoln Highway, Lancaster, Pennsylvania. (Notes of Testimony (“N.T.”) at 25-29; Joint Exhibit Nos. 1,2 & 3.) Two hundred shares of stock were issued to the original incorporators: Yap was issued a 34 percent share and was named President and Treasurer; Chen was issued a 33 percent share; Li Xue Shum was issued a 28 percent share and was named Secretary; and Li Xue Shum’s ex-father-in-law, Kan Ke Shum, was issued a 5 percent share. (Id. at 18,25-27,29-30, 89, 165; Joint Exhibit Nos. 1, 2 & 5.) Yap received the greater share in the stock because “[h]e was the leader” of the corporation, “the boss” who “handle[d] money matters.” (Id. at 19; see also 289-90.) Kan Ke Shum, who had been in the restaurant business for over 30 years, was made a limited investor because of his good credit history. (Id. at 20, 100-01; see also Wai Hong Shum Deposition at 10-14.) Chen was to be the chef for the restaurant. (Id. at 63.)

The four original shareholders were made members of the board of directors. (N.T. at 25; Joint Exhibit No. 1.) Board meetings were held and minutes generated. (Id.; see also Joint Exhibit Nos. 1 and 5.) Chen, Yap and Li Xue Shum were each expected to contribute between $60,000.00 and $100,000.00 toward the restaurant project, depending on the start-up costs. (Id. at 19, 38, 165, 169.) Kan Ke Shum, on the other hand, made a total investment of just $14,000.00. (Id. at 171, 249.)

In July 2005, prior to the incorporation, three of the four partners, Chen, Yap, and Li Xum Shum entered into a lease agreement for the property at 2323 Lincoln Highway that was to be their restaurant, Olive & Jasmine. (N.T. at 21.) Chen wrote a check on July 22, 2005, in the amount of $11,645.84 for the first two months of rent on the Lincoln Highway property. (Id. at 22-23; Joint Exhibit No. 4.)

Between January and October 2006, Yap and Chen worked full-time remodeling the property at 2323 Lincoln Highway to accommodate the new restaurant. (N.T. at 30-33.) During that time, Yap, Li Xum Shum and Chen were making capital investments in the business to pay for the remodeling and start-up costs. (Id. at 34-41, 165-66, 249-50.) There were no receipts kept by the corporation for these expenses; Yap, however, tracked expenses on monthly spreadsheets. (Id. at 168, 239, 281-82, 286-87; Joint Exhibit No. 13.) According to these records, by September 30, 2006, expenses for the project totaled $262,309.73 (Id. at 245); by October 20, 2006, expenses were $285,703.15. (Id. at 239, 243.)

Between November 2005 and October 5, 2006, Chen invested $88,000.00 in Olive & Jasmine. (N.T. at 36-37, 45-46; Joint Exhibit Nos. 4, 7, & 8.) Chen made contributions by check totaling $43,000.00 as follows:

a. $11,645.84 check, dated 9/22/05;
b. $3,354.16 check, dated 11/23/05;
c. $4,000.00 check, dated 3/6/06;
d. $6,000.00 check, dated 3/6/06;
e. $10,000.00 check, dated 7/20/06; and
f. $8,000.00 check (a third-party check from a stock trading account negotiated over to Yap in July 2006). (Id. at 37-42, 85; joint exhibit Nos. 4 & 8.)

Chen additionally made cash contributions totaling $45,000.00 to Olive & Jasmine as follows:

a. $18,000.00 on November 23, 2005;
b. $10,000.00 on an unspecified date;
c. $6,000.00 on an unspecified date; and
d. $11,000.00 “in small amounts” on unspecified dates, the last of which was sometime in September 2006. (Id. at 42-44.)

Chen received no receipts from the corporation for these cash contributions. (Id. at 76, 297.)

Yap and Li Xue Shum also made large cash contributions to the corporation and have no receipts. (N.T. at 169, 212, 295.) Yap, as treasurer of the corporation, gave no receipts (Id. at 76, 212, 297), and failed to keep accurate records of the cash contributions made by the shareholders. (Id. at 187-88, 281-82,295,297.)

During the remodeling, Yap brought up the idea of obtaining a liquor license for the restaurant as a way to increase business and profits. (N.T. at 32-33.) Yap and the corporation’s attorneys at Russell Krafft & Gruber, LLP, contacted the Pennsylvania Liquor Control Board in an effort to renew the expired liquor license held by shareholder Kan Ke Shum and used at a restaurant previously owned and operated by Kan Ke Shum. (Id. at 34,79,100-01,142-44.) Chen was told by Yap that a non-citizen could not apply for a liquor license. (Id. at 32, 33, 46, 76.) Chen was not a United States citizen, nor did he possess permanent resident alien status in 2006. (Id at 32, 33,46,59,79-80.) Yap, though not a United States citizen, did possess permanent resident alien status in 2006. (Id at 76.) At Yap’s suggestion, the shareholders agreed that Chen would no longer be a corporate shareholder and that an agreement of sale of stock would be drafted wherein Chen would sell his shares to defendant Wai Hong Shum, Li Xum Shum’s ex-husband and the son of shareholder Kan Ke Shum. (Id at 49-50, 59.)

In order to protect his investment in the restaurant, Chen had Yap prepare, on October 4, 2006, a document which confirmed Chen’s $88,000.00 contribution. It was signed by Chen, Yap and Li Xum Shum and notarized on October 5,2006. (N.T. at 45-47,59; Joint Exhibit No. 7.) Paragraph 1 of the document referenced the anticipated liquor license: “Mr. HuaMing Chen...invested US $88,000.00 into Olive & Jasmine Asian Bistro Corp. [sic] in order to exchange for 33 percent of the company stock {But, not including the liquor license, if the company gets it in the near future).” (Joint Exhibit No. 7 (emphasis in original); see also N.T. at 47-48.) It was Chen’s understanding from this language that if a liquor license was obtained, it would belong to defendant Wai Hong Shum. {Id. at 48.)

On October 5, 2006, Chen entered into an “Agreement of Sale of Stock in Olive & Jasmine Asian Bistro, Inc.” in which Chen agreed to sell 66 shares, at a value of $ 1,333.32 per share, to Wai Hong Shum for a total of $88,000.00 — the total capital investment by Chen as reflected in the October 4, 2006, notarized document prepared by Yap. (N.T. at 51-52; Joint Exhibit Nos. 6 & 7.)

The stock sale agreement was drafted at Yap’s request by corporate counsel at Russell, Krafft & Gruber. (N.T. at 52, 103-04, 191, 252.) After the parties signed the agreement, and in the presence of counsel, Wai Hong Shum gave Chen a check in the amount of $88,000.00. (Id. at 53-54, 104; Joint Exhibit Nos. 9 & 9A.) Immediately upon leaving the meeting in the lawyer’s office where the agreement was signed, Chen returned the $88,000.00 check to Wai Hong Shum and never received any payment for his ownership interest in the corporation. (Id. at 56-57, 61-62, 72, 92.)

By agreement of the shareholders, on October 5,2006, Li Xum Shum also sold 12 percent or 24 shares of her stock in the corporation, at a value of $ 1,333.32 per share, to her ex-husband, Wai Hong Shum, for $33,000.00, and her remaining 16 percent or 32 shares to Yap for . $44,000.00, for a total of $77,000.00. (N.T. at 54-55,113-14, 173; Joint Exhibit No. 6.) This represented a windfall for Li Xum Shum as both she and Yap testified that she only invested a total of $57,000.00 in the restaurant. (Id. at 166,210,248.) As a result of this transfer of stock by Li Xum Shum, Wai Hong Shum became a 45 percent owner and Yap became a 50 percent owner of the stock in the restaurant. (Id. at 115-16.)

After the October 5, 2006, meeting, Li Xum Shum returned the $44,000.00 check to Yap. (N.T. at 177,254.) Li Xum Shum also returned the $33,000.00 check to Wai

Hong Shum following the signing of the stock purchase agreement. (Id. at 131,174-76.) On October 5, 2006, Wai Hong Shum had only $20,000.00 in his checking account on which were written the $88,000.00 check to Chen and the $33,000.00 check to Li Xum Shum. (Id. at 105, 126, 128-29.)

When the restaurant opened on October 20,2006, Chen was the chef, Yap was the manager, Li Xue Shum was the hostess, and Wai Hong Shum was a part-time host on the weekends. (N.T. at 63-64, 67, 100; see also Wai Hong Shum Deposition at 24-25.) Chen received no payment for his work as the chef at the restaurant between October 20, 2006, and January 31, 2007, because of an agreement between Yap, Chen and Li Xue Shum that they would not get paid until the restaurant started to make a profit. (Id. at 65-66, 78.) Between October 20,2006, and January 31, 2007, Chen also contributed an additional $7,000.00 in cash to the corporation because the restaurant was losing money. (Id. at 66-67, 87.)

Chen’s wife, Ling Zheng, was hired as a waitress at Olive & Jasmine at a base salary of $600.00 per month, plus tips. (N.T. at 64,90-91.) Ling Zheng worked between October 20, 2006, and January 31, 2007, without ever receiving her base salary; she did earn approximately $5,000.00 in tips. (Id. at 91.) Ling Zheng was fired as a waitress at the restaurant in late January 2007. (Id. at 67-68, 91.) Yap and Li Xum Shum offered four reasons for her termination: (1) Ling Zheng did not work well with the other employees (Id. at 184, 301); (2) she would “urge” customers for tips (Id. at 184, 263, 301); (3) “she did not speak good English” and “could not communicate well with customers” (Id); and (4) she offered to buy the restaurant for $150,000.00, which apparently insulted Yap (Id. at 184, 263-64). Ling Zheng testified, on the other hand, that Yap told her she was fired because her husband was no longer a shareholder in the restaurant. (Id. at 91.)

After Chen’s wife was fired, Yap asked for a meeting with Chen and Li Xue Shum. (N.T. at 68, 78.) Chen, Yap and Li Xue Shum met at a McDonald’s in late January 2007, at which time, Shum and Yap offered Chen $50,000.00 for his 33 percent interest in the restaurant. (Id. at 68.) Chen refused the offer of $50,000.00 since he had invested $95,000.00 in the corporation as of January 2007. (Id. at 68-69.) Also, pursuant to the stock purchase agreement, Chen was supposed to receive $88,000.00 for his shares and he discussed that with Yap and Li Xum Shum at that time. (Id. at 69.) Unable to resolve the matter, Chen resigned as chef at Olive & Jasmine on January 31, 2007. (Id. at 65.)

Less than two months later, a complaint was filed by Chen and Zheng against Wai Hong Shum, Yap and Olive & Jasmine in an effort to recover their capital investment in the restaurant. The March 23,2007 complaint included, inter alia, a claim for breach of the stock purchase agreement, and breach of the oral employment agreement with Ling Zheng. Yap counterclaimed for breach of an alleged oral agreement by Chen to repay Yap for Chen’s pro rata share of the start-up costs advanced by Yap on Chen’s behalf, in the alleged amount of $41,282.00. (See defendants’ answer, new matter and counterclaim at ¶¶ 47-54.)

A two-day, non-jury trial took place on November 21, 2010, and November 23, 2010. Based upon the facts established at trial and set forth above, I concluded as follows: (1) there was a valid written agreement of sale dated October 5, 2006, which obligated Wai Hong Shum to pay $88,000.00 to Chen for the purchase of Chen’s 33percent interest in Olive & Jasmine; (2) Wai Hong Shum failed to pay the $88,000.00 to Chen thereby violating the agreement of sale of stock; and (3) an oral employment agreement existed between Zheng and Olive & Jasmine, which required the corporation to pay $600.00 to Zheng for each of her three months of employment from October 20, 2006 through January 31, 2007.

Accordingly, on October 12,2010,1 issued a verdict in favor of Chen and against Wai Hong Shum for breach of the stock purchase agreement in the amount of $88,000.00, and in favor of Zheng and against Olive & Jasmine for breach of an oral wage agreement in the amount of $1,800.00, plus interest and costs. Defendants filed a timely motion for post-trial relief, which was denied by order dated November 23, 2010.

Pursuant to plaintiffs’ motion to mold bench verdict to include interest and costs, a molded verdict was entered on November 24, 2010, in the amount of $111,855.38 in favor of Chen against Wai Hong Shum, and $4,934.88 in favor of Zheng against defendant Olive & Jasmine. Final judgment was entered on December 13, 2010, and defendants filed their notice of appeal to the Superior Court of Pennsylvania on December 14, 2010.

Pursuant to this court’s directive, defendants filed a concise statement of errors complained of on appeal which raises six issues: (1) whether the court erred in failing to grant Wai Hong Shum’s motion for compulsory nonsuit on the claim for breach of the stock sale agreement; (2) whether the court’s findings of fact are inconsistent with the conclusion of law that the stock sale agreement was a valid agreement; (3) whether the court’s finding that the testimony of Chen was credible is against the weight of the evidence and unsupported by substantial evidence of record; (4) whether the court’s finding that Chen was never paid the sum of $88,000.00 by Wai Hong Shum was against the weight of the evidence; (5) whether the court’s finding that there was no accurate written record of Chen’s contributions to Olive & Jasmine is against the weight of the evidence; and (6) whether the court’s finding that there were no receipts kept by the corporation for the remodeling expenses is against the weight of the evidence.

II. STATNDARD OF REVIEW

Initially, I note that an appellate court’s scope of review is quite limited when examining the decision of a trial court sitting as fact finder. The findings of fact of a trial judge sitting without a jury halve the same weight and effect on appeal as a jury verdict and the appellate court must defer to the factual findings. Alberici v. Safeguard Mutual Insurance Co., 664 A.2d 110, 113 (Pa. Super. 1995); Bethlehem Steel Corp. v. Litton Industries, Inc., 468 A.2d 748, 752 (Pa. Super. 1983). A reviewing court will not disturb the trial judge’s findings of fact unless they are predicated upon an error of law or are unsupported by competent evidence. Green v. Schuylkill County Board of Assessment Appeals, 565 Pa. 185, 195, 772 A.2d 419,426-27(2001); Thatcher’s Drug Store v. Consolidated Supermarkets, 535 Pa. 469, 477, 636 A.2d 156, 160 (1994). It is also clear that in reviewing the findings of the trial judge, the prevailing party is entitled to have the evidence viewed in the light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected. Adamski v. Miller, 545 Pa. 316, 319, 681 A.2d 171, 173 (1996); Bethlehem Steel, 468 A.2d at 752.

In a bench trial it is the duty of the trial judge to judge the credibility of the witnesses and to weigh their testimony. Weir v. Estate of Ciao, 521 Pa. 491, 503, 556 A.2d 819, 824 (1989). Absent an abuse of discretion, the appellate court must defer to the trial court on issues of credibility and weight of the evidence, as that court has had the opportunity to observe the demeanor of the witnesses. Thatcher’s Drug Store, 535 Pa. at 477, 636 A.2d at 160; Walkenstein v. Walkenstein, 663 A.2d 178, 183 (Pa. Super. 1995). Similarly, an appellate court may not reweigh the evidence and substitute its judgment for that of the trial judge. Adamski, 545 Pa. at 319, 681 A.2d at 173; Bethlehem Steel, 468 A.2d at 752.

In the instant matter, I found the testimony of Hua Ming Chen and Ling Zheng to be credible, and discounted as completely unreliable and less than candid the testimony of Wai Hong Shum, Li Xum Shum and Swee Hong Yap.

III. DISCUSSION

A. Motion for Nonsuit

Initially, Wai Hong Shum claims it was error for the court to deny his motion for nonsuit on the claim for the breach of the stock sale agreement. (N.T. at 97.) After plaintiffs rested their case, defendant Shum moved for a nonsuit on the breach of contract claim arguing that plaintiffs had not proven the elements of their cause of action. {Id. at 95-96.)

Three elements are necessary to properly plead and prove a cause of action for breach of contract: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. Omicron Systems Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. 2004). The existence of a contract was never an issue in this case. Wai Hong Shum filed an answer to plaintiffs’ complaint acknowledging that there was an agreement for the sale of Chen’s stock. (See answer to complaint at ¶¶ 10, 11, 24; see also N.T. at 74-75.) Moreover, at the start of trial, defense counsel conceded that there was a contract for the sale of Chen’s shares in the restaurant. (N.T. at 10.)

During plaintiffs’ case, Chen testified that it was his understanding that he was selling his 66 shares to Wai Hong Shum for $88,000.00. (N.T. at 52.) Because Chen did not have the proper legal status to acquire a liquor license, he sold his shares, at Yap’s suggestion, to Wai Hong Shum so his name would be removed as an owner of the restaurant. {Id. at 59.) However, it was Chen’s understanding that he would retain a working interest in the restaurant. {Id. at 59, 65, 78.) Specifically, Chen testified: “[0]n the face value, I transfer -1 sold him my shares. But actually, I was still one of the shareholders.” {Id. at 59.)

From this testimony, defendants argue that Chen viewed the stock purchase agreement as a “sham transaction and not an actual agreement,” and “therefore there can be no breach of contract in these circumstances, as there was never a meeting of the minds.” (Concise Statement at Part I, ¶1^) & (d).) See Yarnall v. Almy, 703 A.2d 535, 539 (Pa. Super. 1997) (“In order to form a contract, there must be an offer, acceptance, and consideration or mutual meeting of the minds.”). The evidence establishes that there was, in fact, a meeting of the minds between Chen and Wai Hong Shum for the transfer of the legal ownership interest in the restaurant.

Under contract law, the objective manifestation of the parties is the governing factor regardless of subjective beliefs and reservations. An “actual” meeting of the minds is not necessary to form a contract. Long v. Brown, 399 Pa. Super. 312, 582 A.2d 359, 363 (1990). Id. citing Ingrassia Construction Co. v. Walsh, 337 Pa. Super. 58, 486 A.2d 478, 482-483(1984).
In Ingrassia, this court stated “In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter.... In the instant case, it matters not whether Walsh truly believed a contract did not exist if his manifested intent reasonably suggested the contrary to Ingrassia.” Ingrassia, supra at 482-483. It follows then that in the case at bar, it does not matter if Greene did not believe there was a contract if his actions suggested the contrary to Berg and Rambo. Rombo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006).

Similarly, in the instant case, it does not matter if Chen did not believe there was an actual transfer of stock if his actions suggested the contrary to Wai Hong Shum and Yap. Chen’s actions apparently did because Shum acknowledged the existence of a contract in his answer to the complaint and testified to its existence at his deposition and at trial.

Even assuming, arguendo, that Chen believed the stock sale was simply a legal formality undertaken solely to facilitate the purchase of a liquor license, the agreement is nonetheless enforceable against Wai Hong Shum. As our Supreme Court noted almost two centuries ago: “The principle that a sham agreement, or fraudulent representation, though absolutely void as to third persons, is nevertheless binding on the parties, is as old as the law itself.” Cook v. Grant, 1827 WL 2695 at *12 (Pa. 1827). Accordingly, this contract, even if a sham and a pretense, is fully “enforceable to the full limit against its crafty deviser.” Fidelity-Philadelphia Trust Co. v. Simpson, 10 Pa. D.&C. 403, 420 (Phila. Co. 1928), modified and affirmed by 293 Pa. 577, 143 A. 202(1928).

There was no error by the court in denying defendants’ motion for nonsuit on the claim for the breach of the stock sale agreement.

B. Findings of Fact

In the remaining five errors complained of on appeal, defendants contend the findings of fact are contrary to the weight of the evidence.

Defendants’ first claim is that the “conclusion that the Stock Purchase Agreement was a valid agreement is inconsistent with plaintiff Chen’s testimony and the findings of fact made by the court... which treat plaintiff Chen as a continuing shareholder, and this inconsistency constitutes clear error and is against the weight of the evidence presented.” (Concise Statement at Part II, ¶ 1.) This court did conclude that there was an agreement by Wai Hong Shum to purchase Chen’s stock in the restaurant for $88,000.00. Until defendant Shum paid Chen the consideration for the stock, Chen remained a one-third owner in the restaurant. There is no inconsistency in these findings. Ultimately, the failure of Shum to pay the money to Chen when he was forced out of the restaurant resulted in this breach of contract action.

Second, defendants charge that the court’s finding that the testimony of Chen was credible is against the weight of the evidence and unsupported by substantial evidence of record. Specifically, defendants argue that Chen signed the verification of the complaint in this matter asserting that there was an agreement of sale of stock entered into between Chen and Wai Hong Shum and that under the terms of that agreement Shum was to pay $88,000.00 to Chen for the stock. (Complaint at ¶¶ 10 & 11.) However, at trial, Chen allegedly testified that the stock sale agreement was a “sham transaction with no intent by the parties to actually transfer the stock.” (Concise statement at Part III, ¶ 3.) In fact, during defense counsel’s cross examination of Chen, he categorically denied that the stock transfer was “pretend or fake.” (N.T. at 75.)

In a bench trial, such as this, the credibility of witnesses and the weight to be accorded their testimony is for the trial judge as the finder of fact. Weir, 521 Pa. at 503, 556 A.2d at 824. The court in a non-jury trial is free to believe some, all or none of the proffered testimony. PSI Upsilon v. University of Pennsylvania, 591 A.2d 755, 761 (Pa. Super. 1991). In this case, which was complicated by the use of an interpreter, I found the testimony of Chen more credible and persuasive than defendants and their witness, Li Xum Shum, and resolved conflicts in the evidence in plaintiffs’ favor.

Chen is a high school graduate who emigrated to the United States with his new bride in 1993. (N.T. at 13-14.) Since his arrival, Chen has worked as a cook at various Chinese and Japanese restaurants. (Id. at 14.) He reads no English and speaks very little English. (Id. at 49.) Yap, on the other hand, is a U.S. — educated, experienced businessman. (Id. at 288.) He holds a master’s degree in computer science and managed his uncle’s multi-billion-dollar company in Thailand shortly before returning to the United States and opening Olive & Jasmine. (Id. at 231, 288.)

After sitting through two days of testimony and observing defendants, it was patently obvious to me, as the finder of fact, that Yap and Wai Hong Shum had engaged in manipulative and self-serving behavior towards Chen and his wife, Ling Zheng. For example, Yap testified that when he asked Chen for the remainder of the start-up money allegedly owed him by Chen, Chen said that his father had suffered a stroke in China and needed the money. (N.T. at 258-59.) Since he could not give him the cash, Chen allegedly offered himself and his wife to Yap and Wai Hong Shum as indentured servants until the debt could be repaid — essentially working for free for 16 to 18 months while living in the Olive & Jasmine apartment. (Id. at 259-60, 301-02.) Such an arrangement would be archaic, although I do not doubt the audacity of Yap to have proposed it to Chen and his wife.

I further found defendants’ testimony regarding the capital contributions by the shareholders to be inconsistent and contrived, rather than genuine and forthright. In his verified answer of May 30, 2008, to plaintiffs’ first set of interrogatories, Yap stated that Chen contributed a total of $53,000.00 to the restaurant. (See Joint Exhibit 12, Interrogatory No. 12.) When specifically asked to identify what form of payment was used by Chen to pay the $53,000.00, Yap responded that the contribution was in the form of cash and check: “a. Allfirst Bank check number 125 in the amount of $11,645.84[;] b. Cash- $41,354.16.” (N.T. at 283-85; see also Joint Exhibit 12, Interrogatory No. 15.)

Yap then testified at his deposition in this matter on February 5, 2009, that Chen contributed a total of $42,000.00 in cash and checks. (N.T. at 283.) At trial, Yap persisted in his story that Chen contributed a total of just $42,000.00: $7,000.00 in cash and $35,000.00 in checks. (Id. at 246,248.) He explained that he “tried to recall from memory” and from the records he maintained exactly what Chen contributed. (Id. at 246.) Joint Exhibit Nos. 4 and 8 confirm contributions by check totaling $35,000.00 for Chen. This undisputed check total plus the testimony of Yap of a $41,354.16 cash contribution results in a total contribution of $76,454.16.

Li Xum Shum’s testimony was equally suspect. She testified at trial that she invested a total of $57,000.00 in the restaurant, and all in cash. (N.T. at 166,169.) However, she then testified that she gave a $28,000.00 check to Yap, which included the $10,000.00 cash she received from Ka Kan Shum and $18,000.00 from her savings. (Id. at 186-87.) At her deposition, Li Xum Shum stated first that she gave Yap $10,000.00 in cash on November 20 or 23, 2005. (Id. at 210-11). Later, she stated she invested the $10,000.00 cash in December 2005. (Id. at 212).

As between the witnesses, I found the testimony of Chen to be most credible and to be supported by substantial evidence of record.

Next, the court’s finding that Chen was never paid the sum of $88,000.00 by Wai Hong Shum is argued by defendants to be against the weight of the evidence because Shum offered into evidence as a receipt for such payment the original check for $88,000.00 payable to Chen. There is absolutely no authority for the proposition that an uncashed check is evidence of receipt of the money. A canceled check is proof of payment but not an uncashed check. If the check in this case had been endorsed by Chen and beneath his signature he had written “paid by cash,” there would be proof of payment. But there is no case law whatsoever to support defendant Shum’s position that a returned check is proof of payment.

The only evidence to support Wai Hong Shum’s assertion that $88,000.00 in cash was tendered to Chen in exchange for his stock is the incredible testimony of Shum and Yap. Shum testified that he delivered to Chen at the restaurant on October 12, 2006, $88,000.00 in cash wrapped in newspaper and a brown paper bag. (N.T. at 108, 131-32, 257-58.) He claims to have gone to his father’s home after the signing of the stock sale agreement on October 5, 2006, and counted out the $88,000.00 from a “big cookie jar” in the basement. (Id. at 107-08, 137, 125.) In exchange for the cash, Chen allegedly returned the $88,000.00 check to Wai Hong Shum. (Id. at 109,258; Joint Exhibit No. 9-A.) Yap also testified that he observed Wai Hong Shum deliver $88,000.00 in cash wrapped in newspaper to Chen in the kitchen at Olive & Jasmine one week after the stock sale agreement was signed. (Id. at 257-58.)

I found this testimony regarding Wai Hong Shum counting out $88,000.00 in cash from a cookie jar in his father’s home to be absurd and little less than an affront to the intelligence of this court. I rejected it as not credible and unpersuasive. In a bench trial, the court is free to believe all, part or none of the evidence presented, to make all credibility determinations, and to resolve any conflicts in the evidence. Hodges v. Rodriguez, 645 A.2d 1340, 1343 (Pa. Super. 1994). As the trier of fact, I weighed the evidence and made findings of fact supported by credible evidence in the record in this case. These findings formed the basis for the conclusions of law which are consistent with the weight of the evidence and the appropriate law of the case. Wai Hong Shum’s complaint that the court did not see the litigation from his perspective is no basis for reversing the verdict.

Fourth, defendants charge the court’s finding that there was no accurate written record of Chen’s contributions to Olive & Jasmine to be against the weight of the evidence. Yap testified that he maintained spreadsheets of the remodeling expenses and start-up costs. (N.T. at 239; see also 187-88.) Defense counsel stipulated to the fact that a spreadsheet setting forth the contributions made by the parties does not exist. (Id. at 281-82.) Defense counsel further stipulated that defendants cannot produce any receipts for or documentation of the contributions made by the parties “other than what’s in the notebook.” (Id. at 297)

This evidence — a spiral-bound, 70-page, school notebook — was produced by defendants, for the first time, at trial, over three and one-half years after the complaint was filed in this action. (N.T. at 273.) Li Xum Shum testified that “important information about the restaurant, including some recipe[s],” was recorded in this notebook and that it was kept with other important documents in the restaurant. (Id. at 188-89.) Li Xum Shum testified that both she and Yap knew where the notebook was and had easy access to it. (Id. at 189.) While Li Xum Shum acknowledged that this was the only record of the contributions by the shareholders, she also stated that there was no discussion between herself and Yap about bringing the notebook to court to prove what funds were invested and to defend themselves against the claims by Chen. (Id. at 189-90.) Upon request of plaintiffs’ counsel, Li Xum Shum agreed to go to the restaurant over the lunch recess on the second day of trial to get the evidence and bring it to court. (Id. at 190.)

When Li Xum Shum returned for the afternoon session of court with the notebook, copies were made for the court and plaintiffs’ counsel and the evidence was introduced as Joint Exhibit No. 10. (N.T. at 205-06.) At that time, Li Xum Shum testified that she had only recently seen the book for the first time since the restaurant had opened in October of 2006. (Id. at 208-09.) Yap also testified that this evidence was found just one week prior to trial but, he also admitted, that its existence was not revealed to plaintiffs or their counsel. (Id. at 276-77.)

During Yap’s deposition on February 5, 2009, he was specifically asked if there existed any record of the contributions made by the shareholders. (N.T. at 278.) Yap referred only to the bank statements and the spreadsheets. (Id.) There was no mention of the spiral-bound notebook. (Id. at 279.) Yap, in fact, claimed at trial to have forgotten about this only “evidence of what [Yap] and Li Xum Shum and Kan Kee Shum and...Mr. Chen contributed to this restaurant.” (Id.) Yap further testified that upon finding the notebook a week prior to trial, he contacted his attorney about it but was advised that it was “too late,” and that “it’s not going to help your case because at that time you didn’t submit it.” (Id. at 277.) Now defendants rely upon the notebook to dispute plaintiffs’ claims.

Based upon a thorough review of the evidence, I found the testimony regarding the contributions made by the parties to be inconsistent with the information set forth in the notebook. Li Xum Shum testified at trial that she made an initial investment of $28,000.00 by check in November 2005. (N.T. at 187.) At her deposition on February 5, 2009, she testified that she made an initial cash payment of $10,000.00 on or about November 20 or 23, 2005. (Id. at 210-11.) The notebook identifies a contribution by Li Xum Shum of $18,500.00 on November 14, 2005, which is inconsistent with both her trial and deposition testimony. (See Joint Exhibit No. 10.)

At her deposition in February 2009, Li Xum Shum testified that she made her next contribution — $ 10,000.00 in cash — in December 2005, although there is no record in the notebook of any contributions by Li Xum Shum between November 14, 2005 and March 6, 2006. (Joint Exhibit No. 10; see also N.T. at 212.) Finally, Li Xum Shum testified at her deposition that her last contribution was $25,000.00 in cash in May 2006. (Id. at 214.) While she explained at trial that the dates were approximate, she did not disavow her previous testimony regarding the amount. (Id.) The notebook, however, lists a payment of just $10,000.00 on May 24, 2006. (See Joint Exhibit No. 10.)

Moreover, Li Xum Shum testified that not all of Yap’s contributions were recorded in the notebook. (N.T. at 224.) Yap sometimes paid for things with his credit card and other times paid for things with cash. (Id.) Most significantly, Li Xum Shum testified that the notebook documented only those amounts that were deposited into the restaurant bank account. (Id. at 224-26.)

This testimony calls into question the credibility of the evidence. Thus, the court’s finding that the spiral-bound notebook, containing written notations of contributions made by the shareholders in 2005 and 2006, did not accurately reflect the total amount of money paid into the corporation by each shareholder is supported by the witness testimony and the exhibits. Clearly, the best evidence of the total contributions made by Chen to the corporation is the October 4, 2006, notarized document, signed by Chen, Yap and Li Xum Shum, which confirmed Chen’s $88,000.00 contribution. (N.T. at 45-47, 59; Joint Exhibit No. 7.)

Lastly, defendants claim the court’s finding that there were no receipts kept by the corporation for the restaurant expenses is against the weight of the evidence. Specifically, defendants argue that “since the corporate checking account records include copies of checks for most of the expenditures made by Olive & Jasmine for renovation and remodeling of the restaurant,” sufficient documentary evidence has been produced.

There was absolutely no testimony that Yap, or any other shareholder, retained the receipts for the remodeling and start-up expenses of the restaurant. Rather, the testimony was that Yap prepared spreadsheets that purported to document all of the expenses associated with the restaurant. No documentation was introduced to substantiate the entries on those spreadsheets.

Defendants correctly note that there are, in fact, copies of 96 checks attached to defendants’ Exhibit No. 2. However, Yap’s spreadsheets identify 264 expenditures from August 2005 through October 2006, so the canceled checks represent just over one-third of the total payments. (See Joint Exhibit No. 13.) Moreover, there are some categories on the spreadsheets that, without receipts, are unverifiable: for example, “restaurant miscellineous [sic] expenses” totaling $2,577.45 and “entertainment expenses” totaling $1,730.52.

Accordingly, this finding of fact regarding the lack of receipts for the restaurant expenses accurately reflects the evidence introduced at trial.

In sum, I found both the evidence and the testimony of plaintiffs Chen and Zheng to be far more credible and worthy of belief than that of the defendants. Indeed, as this case progressed, defendants’ “cookie jar” testimony became so bombastic that it became comical.

IV. CONCLUSION

For the reasons set forth above, the appeal of Shum, Yap and Olive & Jasmine should be dismissed.

Accordingly, I enter the following:

ORDER

And now, January 25, 2011, the court hereby submits this opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

      . All parties testified that it was Yap who presented the idea of opening a restaurant to Chen and Li Xum Shum. (N.T. at 17, 86, 185, 233-34.)

      . Section 403(b) of the Liquor Code, 47 P.S. § 4-403(b), requires that an applicant for a retail license who is a natural person must be a United States citizen and a Pennsylvania resident for at least two years preceding his/her application. If the applicant is a corporation, all of its officers, directors, and stockholders must be United States citizens. 47 P.S. § 4-403(c).
      Despite the language of the Liquor Code, however, a 1974 Attorney General opinion stated that requiring an officer of a licensee to be a United States citizen is in violation of federal civil rights laws [42 U.S.C.A. § 1981 etseq.] and the Fourteenth Amendment to the United States Constitution. [1974 Op. Atty. Gen. No. 23], Furthermore, the United States Supreme court case, Bernal v. Fainter, 467 U.S. 216, 104 S.Ct. 2313, 81 L. Ed.2d 175, (1984), held that any discrimination based on alienage would be reviewed under strict scrutiny. Finally, section 1983 of the United States Code [42 U.S.C.A. § 1983] gives a person deprived of any rights, privileges or immunities secured by the United States Constitution and laws by another person operating under color of any state a right of action against the depriving party. As a result of federal law and the aforementioned rulings, [the Liquor Control Board] has consistently held that the citizenship requirements of the Liquor Code may be satisfied by United States citizenship or resident alien status with current and legitimate green cards. Visas granting temporary residency in the United States do not appear to qualify their holders for resident alien status. LCB Advisory opinion No. 03-050 (2003).

      . Li Xum Shum divorced her husband in 2002, though they continue to reside together in the same residence. (N.T. at 115, 162.)

      . Yap testified that there were two reasons for Chen wanting to sell his shares in the restaurant, neither of which involved a liquor license. First, Yap claims Chen received a letter from the Immigration and Naturalization Service (INS) in May 2006 advising him that he had to leave the country in 30 days because his green card application had been denied. (N.T. at 251.) Of course, he did not leave the country and Chen denied ever having received such a deportation letter. {Id. at 80-81.) Also, Yap testified that Chen’s father in China had a stroke in July or August of 2006 and Chen needed to send him money. {Id. at 251.) Chen acknowledged that his father had suffered a stroke and was hospitalized for one week but he denied thathe needed to sell his stock to raise funds for his father’s medical care. (Id at 72.)

      . Chen testified that it was Yap who determined the per share value of $1,333.32 ($88,000.00 divided by 66 shares). (N.T. at 52.)

      . Yap testified that it was Chen who arrived at the purchase price of $88,000.00 for his stock. (N.T. at 291.) He explained that the stock was really worth $94,000.00 but Chen “want[ed] money so desperately,” he was “willing to get a few thousand dollars lost [sic].” (Id.) And, coincidentally, “88,000 in Chinese means good luck for the next buyer,” according to Yap. (Id.) Yap also testified that the expenses for the project through the end of September 2006 totaled $262,309.73, and that Chen’s one-third share of those expenses equaled $88,000.00 at the time of the stock sale on October 5, 2006. (N.T. at 245.) (As an aside, I would note that one-third of $262,309.73 is $86,562.21, not $88,000.00.) Yap also testified that the expenses through the date the restaurant opened, October 20, 2006, totaled $285,703.15. (Id. at 239, 243.) According to Yap, Chen’s one-third share of the total expenses as of that date equaled $94,282.03. (Id. at 244; see also Exhibit D-3.)
      All of this inconsistent and seemingly contrived testimony by Yap is interesting but irrelevant given the fact that on October 4, 2006, Yap prepared and signed a document confirming the total contribution of $88,000.00 by Chen. This document is the best evidence of the value of Chen’s interest in the restaurant.

      . Wai Hong Shum testified that both he and Yap became 50 percent owners of the restaurant. (N.T. at 115-16.) He would only be an equal owner if he assumed control of his father’s 5 percent ownership interest.

      . Li Xum Shum testified that as a 28 percent owner she was expected to cover $80,000.00 in the restaurant start-up costs. (N.T. at 166-67,169, 178.) However, 28 percent of the total expenses as of September 30, 2006, was $73,446.75, not $80,000.00. (Id. at 245.) Li Xum Shum also testified that because she only contributed $57,000.00 towards her purported share of the $80,000.00 in expenses, she “owed” Yap $23,000.00. (Id. at 177-78.) She explained that while she returned a $44,000.00 check for a $23,000.00 debt, Yap later sent $20,000.00 to Li Xum Shum’s brother in China (Id. at-178-79), and gave Shum $1,000.00 in cash. (Id. at 178.) Bank statements, offered as defendants’ Exhibit No. 2, actually show two checks written by Yap to Li Xum Shum totaling $3,500.00: $2,000.00 on July 21, 2006, and $1,500.00 on October 14, 2006 (the week following the stock sale).
      Yap testified that he repaid Li Xum Shum the $21,000.00 he owed her by selling a house he owned in Malaysia to his cousin and transferring the money to Li Xum Shum’s brother in China. (N.T. at 254-55.) No documentation exists, however, to support Yap’s purported payment to Li Xum Shum’s brother. (Id. at 215.)

      . Li Xum Shum testified that she returned the $33,000.00 check to her ex-husband, Wai Hong Shum, because she owed his father $25,000.00. (N.T. at 174-76.) As for the $8,000.00 overpayment, Li Xum Shum claimed to have received $10,000.00 in cash from her ex-husband sometime in the middle of October 2006 for her stock. (Id. at 175, 177.)
      However, according to Wai Hong Shum, the $33,000.00 check was returned to him because Li Xum Shum owed him $15,000.00 and his father, Kan Ke Shum, $18,000.00. (N.T. at 131.) There was no testimony by Wai Hong Shum regarding a later cash payment of $10,000.00 to Li Xum Shum for the stock. To further add to this confusing and conflicting testimony, at his deposition on December 18, 2008, Wai Hong Shum stated that on October 5,2006, he gave his ex-wife a check for $ 15,000.00 for her shares (as opposed to the $33,000.00 check testified to at trial) and that she presented the check for payment and deposited the funds a “few months after October 5, 2006.” (See Wai Hong Shum Deposition at 103-05.)

      . Wai Hong Sum testified that he did not actually have the money to purchase the stock in Olive & Jasmine (N.T. at 102), and that it was always his intention to borrow the money from his father. (Id. at 102,107.)

      . Yap testified, contrary to the testimony of Chen and Wai Hong Shum, that Wai Hong Shum did not start work in the restaurant until after January 1,2007. (N.T. at 261.)

      . Both Li Xum Shum and Yap testified that after Li Xum Shum and Chen divested themselves of their shares in the restaurant, Li Xum Shum and Chen entered into a new “agreement” with Yap, at Chen’s suggestion, to run the restaurant for three months to “[s]ee if we can make money from the business.” (N.T. at 181, 261.) Yap testified that this was the reason Wai Hong Shum did not assume his ownership interest in the restaurant until January 1,2007. (Id. at 261.) Li Xum Shum testified that she worked for one year, from October 20, 2006, through October 2007, without getting paid because the restaurant was not making a profit. (Id. at 181-82.) Wai Hong Shum testified at his deposition on December 18, 2008, that he had not been paid for the previous two years because the restaurant was still not making a profit. (Wai Hong Shum Deposition at 25.)

      . This is an interesting reason for Ling Zheng’s termination given the fact that both Li Xum Shum and Wai Hong Shum, who host in the restaurant, needed interpreters during the trial of this matter.

      . It was further ordered that judgment was entered in favor of Chen and against Yap on Yap’s counterclaim for breach of the alleged shareholders’ oral agreement to pay additional start-up costs in the amount of $41,282.00.

      . There was confusing testimony regarding the nature of this transaction because of the use of the interpreter. Initially, the interpreter translated Chen’s statement as “I sold my shares to Mr. Shum just nominally.” (N-T. at 57.) The interpreter then stated that the word “nominally” was his word and not Chen’s. (Id at 58.) The interpreter explained that Chen meant the “action was just in form” or “[j]ust for the show,” but then clarified that these were also his words and not Chen’s. (Id.)

      . In response to questioning by defense counsel, Chen specifically denied that the stock transfer was “pretend or fake,” insisting that Yap said it was necessary for purposes of acquiring the liquor license (N.T. at 75.)

      .1 must also note that, while asking the court to rule that no sale of stock took place because of Chen’s alleged testimony regarding a “sham agreement,” Wai Hong Shum nonetheless denied that Chen is still a shareholder. (N.T. at 96-97.) I cautioned defendant Shum that either Chen sold his stock and is no longer a shareholder in the restaurant, or there was no valid stock purchase agreement and Chen remains a one-third owner in the restaurant, but defendant Shum could not have it both ways. (Id. at 97.)

      . Chen claims to have also negotiated over to Yap a third-party check from a stock trading account in the amount of $8,000.00. (N.T. at 41-42.)

      . The bank statements introduced by defendants show deposits totaling $128,565.47. (See defendants’ Exhibit No. 2.) Yet the notebook shows total contributions from Chen, Li Xum Shum and Kan Ke Shum of $113,000.00, and contributions by Yap of $62,065.47, for a total of $175,065.47. (Joint Exhibit No. 10.) Clearly, all the contributions documented in the notebook were not deposited, just as all the contributions to the restaurant were not written in the notebook.

      . Of the 96 checks, at least 52 had nothing to do with the remodeling of the restaurant:
      14 were rent checks for the restaurant property; 9 were rent checks for the Olive & Jasmine apartment in which Yap and Chen lived; 23 were utility payments (UGI, PP&L, and East Lampeter Sewer Fund); and 6 were for insurance. Another nine checks totaling $14,600.00 were written to Yap, two checks totaling $3,500.00 were written to Li Xum Shum, and one check was written for $1,000.00 cash. (See defendants’ Exhibit No. 2.) Therefore, fully two-thirds of the checks produced by defendants do not substantiate the renovation and remodeling expenses of the restaurant, as claimed by defendants.


source: Caselaw Access Project

author: LACHMAN, J.,

license: Public Domain

text:
    Brown v. Sloane

      Blake L. Berenbaum and Jacob N. Snyder, for plaintiffs.

      Robert E. Dillon and Kathleen M. Kramer, for defendants.
    February 17, 2011
   LACHMAN, J.,

Meaningful appellate review in this case is impossible because there is no record for the Superior Court to review. The appellant, Gregory Brown, refuses to pay the fee of the court reporters for the transcription and certification of the notes of testimony of this five day trial. This appeal should be dismissed sua sponte by the Superior Court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant-plaintiff Gregory Brown was diagnosed with prostate cancer on March 14,2006. His primary care physician referred him to defendant Bruce B. Sloane, M.D., a urologist. Dr. Sloane performed radical perineal prostatectomy surgery at defendant Penn Presbyterian Medical Center on June 12, 2006. When Dr. Sloane dissected the prostate from the rectum, there was a rectal tear. Dr. Sloane completed the prostatectomy and the rectal tear was repaired by Dr. David Marón.

Plaintiff claimed that he was rendered impotent as a result of the surgical negligence of Dr. Sloane. On June 9, 2008, plaintiff filed this medical malpractice action against Dr. Sloane and his practice group, Philadelphia Urology Associates, P.C.; and against Penn Presbyterian Medical Center and its parent the University of Pennsylvania Health System.

After a five-day trial beginning on September 13,2010, the jury returned verdicts in favor of all of the defendants on September 17, 2010. The jury answered special interrogatories and specifically found that Dr. Sloane was not negligent in the performance of the surgery and that he did not fail to obtain the informed consent of the plaintiff before performing the prostatectomy. The jury never reached the issues of causation or whether Dr. Sloane was an ostensible agent of Penn Presbyterian Medical Center.

Plaintiff timely filed a post-trial motion on September 27, 2010, seeking a judgment notwithstanding the verdict or a new trial. After briefing by the parties, the court heard oral argument on the motion on December 10,2010. None of the issues raised by the plaintiff had merit and the court denied the motion and entered judgment in an order dated December 14, 2010.

FAILURE TO PAY FOR THE NOTES OF TESTIMONY

Jacob Snyder, Esquire, and the law firm of Richman, Berenbaum & Associates, PC, represented Mr. Brown at trial and continues to represent him on appeal. On the first day of trial, September 13,2010, Mr. Snyder signed a transcript order form requesting “daily (next day)” copies of the notes of testimony from the court reporter, Douglas J. Zweizig, R.D.R., C.R.R.

To meet the extra burden of producing daily copy, an additional court reporter, Shannan Gagliardi, R.P.R., C.R.R., was assigned to the case. Mr. Zweizig produced the transcript of the morning sessions of the trial and Ms. Gagliardi produced the transcript of the afternoon sessions. Mr. Zweizig and Ms. Gagliardi will be referred to collectively as “the court reporters.”

Pursuant to the contract with Mr. Snyder, the court reporters gave to Mr. Snyder daily copy of the notes of testimony ofthe morning and afternoon sessions for the first four days ofthe trial, September 13-16, 2010. Mr. Snyder did not request a copy of the last day of trial, September 17, 2010, which is the day the charging conference was completed, the jury was charged and rendered its verdict.

The court reporters sent separate invoices to Mr. Snyder on September 22,2010, each of which demanded payment within two weeks of $3,328, or a total due of $6,656. Mr. Snyder and his firm continually failed and refused to pay the court reporters for their transcription of the notes of testimony despite repeated demands for payment.

Despite not having paid for the notes of testimony, Mr. Snyder extensively made use of them and referred to them in his brief supporting his post-trial motions. At the oral argument of the post-trial motions on December 10,2010, the trial court warned Mr. Snyder that if he failed to pay the court reporters for their work, a certified copy of the transcript would not be sent to the appellate court in the event of an appeal. A copy of the colloquy between the court and Mr. Snyder is attached hereto as Exhibit “A.”

After Mr. Snyder filed the appeal in this case, the trial court entered an order pursuant to Pa.R.A.P. 1925(b), requesting a statement of the errors that were to be raised in the appeal. In addition, the order required Mr. Snyder to certify whether “the court reporters have or have not been paid on behalf of plaintiff/appellant Brown for the trial notes of testimony ordered on behalf of plaintiff/appellant Brown.”

Mr. Snyder served his 1925(b) statement upon the trial court on February 9, 2011. Attached to the statement was a certification by Mr. Snyder that “the court reporters have not been paid for the trial Notes of Testimony ordered on behalf of plaintiff/appellant Brown.” The many citations to the notes of testimony in Mr. Snyder’s 1925(b) statement are to the daily copy which is not part of the certified record on appeal.

On December 28, 2010, the court reporters sued Mr. Snyder and his law firm in Philadelphia Municipal Court at No. SC-10-12-28-6152, seeking $6,656 plus $105.50 in court costs. On February 11, 2011, the court reporters obtained judgments by default against Mr. Snyder and his law firm in the amount of $6,761.50, when they failed to appear at the trial of that case.

As of the date of this opinion, Mr. Snyder and his law firm have not paid the court reporters for their transcription of the notes of testimony. Consequently, the certified record on appeal transmitted to the Superior Court in this case will not contain the notes of testimony of the trial.

DISCUSSION

Rule 1911 of the Pennsylvania Rules of Appellate Procedure provides in relevant part as follows:

Rule 1911. Request for transcript
(a) General rule. The appellant shall request any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania Rules of Judicial Administration (court reporters).
(d) Effect of failure to comply. If the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript, the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal.
Note:...It is the responsibility of the appellant to contact the court reporter to ascertain whether a deposit will be required and the amount thereof, and to make the deposit. The court reporter is under no obligation to proceed in the absence of a required deposit, and under Pa.RJ.A. 5000.11(b) is under no obligation to certify and file the transcript in the absence of full payment or adequate security therefor. While delay in payment, and any resulting delay in certification and filing of the transcript, does not automatically affect the validity of the appeal, under subdivision (d) the appellate court may impose other sanctions in an appropriate case. Compare Rule 902 (manner of taking appeal) and Rule 2101 (conformance with requirements). Pa.R.A.P. 1911 (emphasis added).

Absent a transcript of the trial, the Superior Court is without an adequate record to decide whether any of the issues raised in appellant’s Pa.R.A.P. 1925(b) statement have merit. Cf., Ferrante v. Ferrante, 791 A.2d 399, 403 (Pa. Super. 2002) (“appellant’s failure to provide the transcripts as required, prevents both the trial court and this court from addressing the merits of appellant’s exceptions.”).

Consequently, all of appellant’s issues are waived for the purposes of this appeal. See, Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super. 2008) (since the plaintiff did not provide the Superior Court with a transcription of the charging conference, the Superior Court had no basis upon which to review plaintiff’s objection to a jury instruction and the issue was waived); Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007 ) (appellant’s claim was deemed waived by his failure to ensure that his trial testimony was transcribed and made a part of the certified record); General Equip. Mfrs. v. Westfield Ins. Co., 635 A.2d 173, 183 (Pa. Super. 1993) (“Instantly, Westfield has neither furnished a transcript of the oral argument of its motion to compel production of documents before Judge McGowan nor attempted to reconstruct these proceedings in accordance withPa.R.A.pp.R. [sic] 1923. Thus, this court is without a clue as to what transpired at the oral argument or upon what basis Judge McGowan denied Westfield’s motion to compel the production of documents”); Kaplan v. O’Kane, 835 A.2d 735, 742 (Pa. Super. 2003) (“we have no evidence of appellant’s request for a continuance, any argument he made with regard thereto, or Judge Tereshko’s reasons for denying appellant’s request, appellant has not provided this court with a transcript from any argument which may have occurred before Judge Tereshko, he did not file an affidavit as was suggested by Judge Snite, and, in fact, the certified record does not even contain a motion for a continuance. As it is an appellant’s duty to ensure that the certified record is complete for review, we find appellant’s final issue to be waived.”); Gustison v. Ted Smith Floor Prods., 679 A.2d 1304, 1308 (Pa. Super. 1996) (“The docket reveals that a pre-trial conference was held on Februaiy 23, 1993, when, we may surmise, the evidentiary matters now complained of were resolved. However, there is no transcript of that hearing in the official record. It is appellants’ burden to provide a sufficient record to guide the appellate court in its examination of the issues raised, appellants’ failure to provide such a record and argument for the instant claim substantially hinders our ability to address this issue, which is, accordingly, waived.”); School District of the Borough of Aliquippa v. Maryland Casualty Co., 587 A.2d 765, 769 (Pa. Super. 1991) (all claims concerning trial court’s allowance of the late filing of an answer to the joinder complaint were waived because appellants failed to furnish the court with a transcript of the hearing at which the trial court granted the additional defendant’s motion to file the late answer); Smith v. Smith, 637 A.2d 622, 623-624 (Pa. Super. 1993) (appellant’s failure to ensure that the record contains the transcript of a support hearing “constitutes a waiver of the issue(s) sought to be examined”).

It was the responsibility of the appellant, not the trial court, to order and pay for the transcription of the notes of testimony. Commonwealth v. Steward, 775 A.2d 819, 833 (Pa. Super. 200.1) See, Smith v. Smith, 637 A.2d at 624 n.6 (quashing appeal because appellant failed to include the hearing transcript in the record; “This nonfeasance is not to be condoned, nor is it to be remedied by Superior Court taking the initiative to secure the record below and to guarantee that all needed documents have been made a part of the official record.”).

CONCLUSION

Because the trial court and the Superior Court “have been presented with no evidence of record to support the relief requested by the appellant, the course to pursue is well-marked and directs that, where the appellant is remiss in fulfilling the duty to provide a record which is sufficient to permit meaningful appellate review as is the case here, the appeal must be quashed.” Smith v. Smith, 637 A.2d at 624 (emphasis in the original, internal quotation marks, brackets, and case citations omitted).

For the foregoing reasons, it is respectfully submitted that the Superior Court should dismiss the appeal of Gregory A. Brown because meaningful appellate review is impossible due to his failure to pay for the notes of testimony of the trial and to ensure that the transcripts are part of the certified record on appeal.

Exhibit “A”

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF. PENNS YLVANIA CIVIL-TRIAL DIVISION

GREGORY A. BROWN, JUNE TERM, 2008

Plaintiff )

vs. )

BRUCE B. SLOANE, M.D.; ) NO. 1323

PHILADELPHIA UROLOGY ASSOC,)

P.C.; PHILADELPHIA UROLOGY, )

UNIVERSITY OF PENNSYLVANIA )

HEALTH SYSTEM, Individually, ) and d/b/a PENN PRESBYTERIAN )

MEDICAL CENTER; and )

PENN PRESBYTERIAN MEDICAL )

CENTER, )

Defendants )

December 10, 2010 Excerpt from Post-Trial Motion Hearing

Courtroom 682 City Hall Philadelphia, PA

BEFORE: HONORABLE MARLENE F. LACHMAN REPORTED BY: CATRINA G. MULLER, RPR, CRR

APPEARANCES:

JACOB N. SNYDER, ESQUIRE

BLAKE BERENBAUM, ESQUIRE

Richman, Berenbaum & Associates, P.C.

Two Penn Center

1500 JFK Boulevard

Catrina G. Huller, RPR, CRR 215.683.8035 - fx. 215.683.8005

Suite 411

Philadelphia, PA 19102 Counsel for the Plaintiff

ROBERT E. DILLON, ESQUIRE

Naulty, Scaricamazza & McDevitt, LLC

One Penn Center at Suburban Station

1617 JFK Boulevard

Suite 750

Philadelphia, PA 19103

Counsel for the Defendants Bruce B. Sloane, M.D. & Philadelphia Urology Assoc., P.C.

CHRISTINE T. MCMILLAN, ESQUIRE

Marshall, Dennehey, Warner, Coleman & Goggin

1845 Walnut Street

Philadelphia, PA 19103

Counsel for the Defendants University of Pennsylvania Health System, Individually, and d/b/a Penn Presbyterian Medical Center and Penn Medical Center

2 THE COURT: Good afternoon, Ladies

3 and Gentlemen.

4 We’re here for post-trial motions

5 in the matter of Gregory A. Brown versus

6 Bruce B. Sloane, m.D.; Philadelphia Urology

7 Associates, PC; Philadelphia Urology;

8 University of Pennsylvania Health System,

9 individually and doing business as Penn

10 Presbyterian Medical Center; and Penn

11 Presbyterian Medical Center.

12 Mr. Snyder, you made a request in

13 your post-trial motion for leave to amend

14 your motion once you receive the certified

Catrina G. Hulier, RPR, CRR 215.683.8035 - fx. 215.683.8005

have you?

You have not received that yet;

transcript from the Court Reporter.

MR. SNYDER: No, Your Honor.

THE COURT: Normally, I am very

generous on that issue and grant such

motions. In your case, I will not grant it,

because, A, there were — you requested

daily copy, and you received daily copy, and

the copy, according to my court reporters,

has not been paid for.

COLLOQUY

And the reason that a certified

copy has not been issued to you is because

it has not been paid for; and according to

Mr. Zweizig, there has been — and he has

sent me copies of — numerous e-mails

addressed to you seeking payment, the most

recent having been December 3rd, in which he

had indicated that he expected payment no

later than December 8th.

Our court reporters work very

hard, and daily copy is extremely strenuous. CN r*H

In many cases, it means they work through CO

the night. They are entitled to be paid both .£=.

by rule of Court and just common decency. C/i

MR. SNYDER: I don’t disagree, 0\

Your Honor. o

THE COURT: I will point out to oo

you that it is my understanding that our C7\

court reporters consider the failure — the o

Catrina G. Huller, RPR, CRR 215.683.8035 -fx. 215.683.8005

use of a transcript without payment for it M i — 1

to be theft of services; and, furthermore, bo

if for some reason you find it necessary to to to

take an appeal, there will not be a -c*.

certified copy to send up to the appellate to C/i

COLLOQUY

court unless the court reporters are paid,

because they are, according to the rules,

not required to provide a certified copy

until that issue has been resolved.

I take it there is no need for me

to say further on the subject?

MR. SNYDER: No, Your Honor.

THE COURT: And just so that we’re

clear, there are two court reporters

involved in this. Since daily copy was

requested, there was a morning and an

afternoon court reporter.

I believe there was one day that

dally copy was not requested, and that was

also a part of your request for a certified

transcript.

MR. SNYDER: That’s correct, Your

Honor.

(End of Excerpt.) to

to

to

to

to

to

Catrina G. Huller, RPR, CRR 215.683.8035 -fx. 215.683.8005

CERTIFICATION

I, CATRINA G. MULLER, Registered Professional Reporter, Certified Realtime Reporter, in and for the Commonwealth of Pennsylvania, do hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same.

I FURTHER CERTIFY that I am neither attorney nor counsel for, nor related to or employed by any of the parties to the action in which this trial was taken, and further that I am not a relative or employee of any attorney or counsel employed in this action, nor am I financially interested in this case.

The foregoing certification of this transcript does not apply to any reproduction of the same by any means, unless under the direct control and/or direction of the certifying Court Reporter.

Catrina G. Muller, RPR, CRR

      . The colloquy was transcribed at the request of the trial court. It was produced by a third court reporter and not by Mr. Zweizig or Ms. Gagliardi.

      . The certified record also will not contain the transcript of the argument on post-trial motions because appellant never ordered the transcription of the argument.


author: FORD, J.,

text:
    In re A.G.A.W.

      C.P. of Lehigh County,
    no. [ AXXXX-XXXX ].

      Lisa Bartera, for Children and Youth Services..

      Shannon Tiergallini Smith, for father.

      William E. Doyle, for mother.
    February 28, 2011
   FORD, J.,

On February 26, 2010, the Lehigh County Office of Children and Youth Services (OCYS) filed a petition for involuntary termination of the parental rights of M.S. to her biological child, A.G.A.W.. On the same date, OCYS filed a petition for involuntary termination of the parental rights of A.W., the biological father of A.G.A.W. In the petitions, OCYS alleged various acts and omissions by the parents that constitute grounds for involuntary termination of parental rights under 23 Pa.C.S. § 2511(a)(1) and § 2511(a)(2). OCYS also made allegations in the petition under 23 Pa.C.S. § 2511(b) that the termination of the biological parents’ rights would serve A.G.A.W.’s best interests.

The court conducted hearings on these petitions on September 2, September 3, and November 12, 2010. The parents were represented by counsel at the hearings. The parents participated in the hearings and testified. All counsel submitted written closing arguments following the hearings.

After consideration of the evidence and the applicable law, I conclude that the grounds for involuntary termination of parental rights of M.S. and A.W. have been established by clear and convincing evidence. Further, the evidence demonstrates that termination of the parental rights of the biological parents would best serve the needs and welfare of the minor child, A.G.A.W..

In this opinion, I explain the reasons for these conclusions. I begin by explaining what happened in this case.

FINDINGS OF FACT

1. A.G.A.W. is the subject of these proceedings. A.G.A.W. is four years old. He was bom on June 27, 2006.

2. A.G.A.W.’s biological mother is M.S.. M.S. was 28 years old when she testified in these proceedings on November 12,2010. M.S. has an eleventh grade education. M.S. gave birth to A.G.A.W. while serving imprisonment in the Lehigh County Prison on a parole violation.

3. Before A.G.A.W.’s birth, A.W., the biological father, lost his home “because the bank sold the house that [he] was living in, and [he] had to move.” A.W. moved in with a friend. Then OCYS secured a place for him at the Sixth Street Shelter. A.W. brought A.G.A.W. from the hospital after he was bom to the Sixth Street Shelter to live with him. They stayed there from June of 2006 until October 16, 2006, when A.W. moved with A.G.A.W. to 840 Kieffer Street, Fountain Hill, Lehigh County. A.W. lived in Fountain Hill with A.G.A.W., an 18-year-old daughter and another daughter who was younger.

4. M.S. joined A.W. and A.G.A.W. at the Kieffer Street home in September of 2007. M.S. was on parole at that point and was attending out-patient drug and alcohol treatment. After completion of the treatment in November of 2007, she relapsed into drug use. These were the only two months in A.G.A.W.’s life when M.S. provided care for him during which she was not using illegal dmgs.

5. On December 17, 2007, A.W. and M.S. had a loud argument at their Fountain Hill home. A.W. then struck M.S. on the side of her head with a sharp metal object that resembled a pick while M.S. was holding 17-month-old A.G.A.W. M.S. was admitted to Hahnemann Hospital in Philadelphia to repair damage to her eye caused by the attack. A.W. was charged with offenses related to the attack and was committed to the Lehigh County Prison on December 18,2007. December 17,2007, was the last date on which A.W. provided care for A.G.A.W. The charges filed against A.W. included aggravated assault for what he did to M.S. and endangering the welfare of A.G.A.W. because he was lying on M.S.’s chest at the time of the attack. Based on this incident, A.W. was also charged with having violated an earlier probation. After an investigation, OCYS did its report assigning A.W. an “indicated” status as perpetrator of abuse because he created an imminent risk of serious physical injury to A.G.A.W.

6. When A. W. was taken to prison for assaulting M.S., M.S. also was not available to care for A.G.A.W. She was being treated for the injury to her eye and she was actively using drugs. As a result, this court entered an emergency order addressing custody (Lehigh County case number 1157-J of 2007). M.S. assisted in placing A.G.A.W. with Amy Gross. After some time, Ms. Gross tried to place A.G.A.W. with Wendy Honzo-Vassa because Ms. Gross' was being evicted from her home. When M.S. told OCYS that she did not know Ms. Honzo-Vassa, this resulted in an order dated May 14, 2008, placing A.G.A.W. in foster care. Both M.S. and A.W. were incarcerated at the time of this order.

7. After A.G.A.W.’s placement with Ms. Gross starting in December of 2007, A.G.A.W. has remained in the custody of OCYS from May, 2008, through the hearings in the present proceedings. Thus, A.G.A.W. has not lived with either biological parent for more than 36 months of his young life. Abbade was declared dependent (Lehigh County case number 1157J-2007) on June 2, 2008, and committed to the care of OCYS. There were emergency orders entered before this date.

8. M.S. was last released from prison on May 4,2010. She went from the prison to a 28-day drug rehabilitation program in Altoona, Pennsylvania. She successfully completed that program and settled in her present two bedroom apartment at 230 East Church Street, Slatington, Lehigh County, where she still lives. Since her release from prison in May, M.S. continues on parole under the supervision of the Lehigh County Probation Department.

9. M. S. is part of a group that provides her support in a number of ways. David Arispe is part of that group. He has given M.S. part-time employment in his landscaping and painting business. The members of the group also assist M.S. in getting her to various appointments because M.S. does not drive. The group provides her with emotional support and assists her in maintaining sobriety.

10. M.S. has been addicted to crack cocaine since the age of 19. However, she has not used illegal drugs since the start of her last incarceration in late summer or early fall of 2009 (presumably) until her release from a rehabilitation program in May, 2010. She has not used illegal drugs from completion of that program through the last hearing on November 12,2010.

11. What follows is M.S.’s significant criminal record:

A. In Lehigh County case number_, M. S. pled guilty to facilitating escape, a felony, 18 Pa.C.S. § 5121(b) on May 25, 2004. She was sentenced to imprisonment for a period of not less than 6 months to not more than 12 months. She was paroled on August 11, 2005. She violated her parole on June 12,2006 and was remanded to prison to serve the balance of her sentence.
B. In Lehigh County case number_, M.S. pled guilty to prostitution, a misdemeanor, 18 Pa.C.S. § 5902. On May 25, 2004, she was sentenced to imprisonment of not less than three months to not more than 12 months. That sentence was ordered to be run concurrently with the sentence in case number.
C. In Lehigh County case number_, M.S. pled guilty to another prostitution offense, 18 Pa.C.S. §5902, a misdemeanor. On December 23, 2005, she was sentenced to Lehigh County Prison for a period of not less than 52 days to not more than 23 months. She was granted immediate parole. On July 17, 2006, defendant’s parole was revoked and she was remanded to prison to serve the balance of her sentence. On August 16, 2006, she was granted another parole. Then, on November 13,2006, she was found to have violated this second parole. She was remanded to the prison to serve the balance of the sentence. The sentencing judge gave her another parole on September 6, 2007. Her parole was revoked on July 7, 2008. She was again remanded to the prison to serve the balance of her sentence. The sentencing judge included in the order remanding her to the prison that she shall not be granted a re-parole.
D. In Lehigh County case number_, M.S. entered a guilty plea on May 22, 2008, to false identification to law enforcement authorities, 18 Pa.C.S. § 4914(a), and to simple assault, 18 Pa.C.S. §2701(a)(l), both misdemeanors. On the same date, M.S. was sentenced to a term of imprisonment for one year but she was granted immediate parole. On February 18, 2009, M.S. was found to have violated her parole. She was remanded to the prison to serve the balance of her sentence. She was paroled on June 4, 2009. The court again found her in violation of that parole and remanded her to the prison to serve the balance of the sentence on September 9, 2009.
E. In Lehigh County case number_, M.S. entered a guilty plea to possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). She was sentenced to probation on the same day as her guilty plea. On September 9, 2009, M.S. was found in violation of her probation and was sentenced to imprisonment of not less than three months to not more than 12 months.
F. In Lehigh County case number_, M.S. entered a guilty plea to false identification to law enforcement authorities, 18 Pa.C.S. § 4914(a). On the same date that M.S. entered the guilty plea, she received a prison sentence for the period of time that she had served to that date.

12. As to her present parole, M.S. has had some difficulties in complying with requirements; however, they are related to her inability to obtain transportation to places required by her parole officer.

13. M.S. is presently pregnant with twins. She conceived them during the summer of 2010.

14. At the time of A.W.’s testimony at the hearing on November 12, 2010, he was 56 years old. He has an eleventh grade education. Including A.G.A.W., A.W. has 11 children, two of whom are minors.

15. In Lehigh County case number_, A.W. was convicted of false reports to law enforcement authorities (falsely incriminating another), 18 Pa.C.S. § 4906(a), on September 11, 2007. The magistrate district judge sentenced the defendant to five days in prison followed by 12 months of probation. On October 15, 2008, A.W. was found to have violated his supervision. He wás remanded to the Lehigh County Prison, but he was granted immediate parole to his state sentence identified in the following finding of fact.

16. In Lehigh County case number_, A.W. entered a guilty plea to aggravated assault, a felony, 18 Pa.C.S. § 2702(a)(4), on August 26, 2008. On the same date, he entered a guilty plea to endangering welfare of children, a misdemeanor, 18 Pa.C.S. § 4304(a)(1). On September 30, 2008, the defendant received a state confinement sentence of not less than two years to not more than 10 years for the aggravated assault and a concurrent confinement sentence of not less than one year to not more than three years for the endangering charge. An appeal to the Superior Court was later quashed. Defendant’s petitions under Pennsylvania’s Post-Conviction Relief Act were dismissed because the defendant failed to appear for hearing on the petitions. (He was on parole at the time.)

17. The aggravated assault and endangering convictions stemmed from A.W.’s attack on M.S. while M.S. was holding A.G.A.W. A.W. remained incarcerated on these offenses from his arrest in December, 2007, until he was paroled to Adapt Halfway House on South Fourth Street in Allentown. When he was released from Adapt, he went to an apartment at 2427 South Fourth Street, Allentown. He lived there with Tyler Roman. After living in that apartment for approximately one month, the defendant secured his own apartment at 230 Church Street, Slatington, Lehigh County. While defendant was serving his parole, he also secured employment through David Arispe who was good to M.S. and A.W.

18. In August, 2010, A.W. was confined for violating his state parole by having unauthorized contact with M.S., the victim of the aggravated assault. A.W. was sent to Mahanoy State Correctional Institution. He remained there for several months until he was sent to the Coleman Center in Philadelphia where he was a confined resident. A.W. was still confined at Coleman Center at the time of the November 12, 2010, hearing.

19. As part of the OCYS plan for A.W. to reunite with A.G.A.W. in A.G.A.W.’s dependency case, A.W. was required to undergo a violent offender evaluation and to complete any recommended violent offender treatment. Further, the court, in sentencing A.W. on the aggravated assault and endangerment charges, required that he undergo the evaluation and therapy recommended by his parole officer. The parole office required the same evaluation and treatment as OCYS.

20. When A.W. was in prison, he completed programs such as violence prevention, money smart, parenting, and victims’ awareness. When A.W. underwent a violence assessment evaluation by Doris Stabp, a licensed social worker who has worked evaluating and treating offenders, A.W. claimed his innocence of the aggravated assault and endangering charges even though he had previously pled guilty to those offenses. While Ms. Stabp completed her evaluation of A.W., she discontinued treatment with him shortly after it began. Among the reasons for discontinuing the treatment was that A.W. was not forthcoming about the offenses that he committed against M.S. and A.G.A.W. A.W. has not adequately addressed through therapy his issues with violence. The prison programs were not deep-rooted therapy to address his issues. Violence prevention therapy was not possible with A.W. while he denied committing the violent offenses that he had previously admitted.

21. At various times since A.G.A.W. has come into the care of OCYS, both M.S. and A.W., separately, have had supervised visits with him, one or two hours per visit, one or two times per week. After obvious discomfort by A.G.A.W. with M.S. in initial visits, A.G.A.W. has warmed up to M.S. and the majority of the visits have gone well. With only minor problems, A.W.’s visits with A.G.A.W. have proceeded smoothly with A.G.A.W.’s enjoying them and feeling at ease with A.W. There have been interruptions in the visiting routine for both biological parents because of OCYS caseloads, M.S.’s frequent changes among prison, rehab, and private residence, and A.W.’s transfers within the prison system and his parole violation.

22. There was a special condition entered by the sentencing judge on November 30, 2008, and later the parole officer, directing A.W. to have no contact, direct or indirect, with M.S. and A.G.A.W. because they were the victims of his crimes. In addition to A.W.’s violating this condition by meeting M.S. at the mall, he also had sex with her during his parole supervision which may have led to M.S.’s pregnancy with the twins. A.W. insisted in his testimony that he is the father of the twins. M.S. testified that it is possible that A.W. is the father.

23. M.S. was aware that defendant was prohibited by court order and by the parole officer from having contact with her. Despite that, she had the meeting with him at the mall and had sexual intercourse with him.

24. A.W. attempted to mislead the court in the present proceedings by trying to have the court believe that the only unauthorized contact that he had with M.S. was a meeting at a mall for which his parole was violated. He argued, unconvincingly, that even this contact was not unauthorized because it came from conflicting instructions from the juvenile court master and the parole officer.

25. Mother completed a rehab at Duncanville and has been at Step-by-Step for the month and one half before the November 12 hearing. Step-by-Step is a dual diagnosis program which treats addiction and mental illness.

26. In addition to knowingly assisting A.W. in violating his parole by having contact with him at a mall and by having sex with him, M.S. was asked questions at the November 12 hearing that gave her the opportunity to clear up the misconception that A.W. created that his only contact with M.S. while he was on parole was at the mall. She did not explain that she also had sex with him in violation of his sentencing order and his parole. Later in the hearing it became clear that A.W. and M.S. were having sex during A.W.’s parole.

27. A.G.A.W. has been in seven different placements since he was placed in the custody of OCYS. A.G.A.W. has been in foster care for 29 months and before that he was voluntarily placed with Ms. Gross for several months. A.G.A.W. has not lived with either biological parent for more than half of his life. He is happy, comfortable, and safe in his present home.

DISCUSSION AND CONCLUSIONS OF LAW

There are two distinct aspects to a termination of parental rights proceeding. First, the grounds for the involuntary termination of parental rights must be established by clear and convincing evidence. In re Adoption of C.L.G., 956 A.2d 999, 1004 (Pa.Super. 2008). If the grounds for termination are established, the court must determine whether termination would serve the needs and welfare of the minor. Id.

In each petition filed by OCYS against M.S. and A.W., OCYS has alleged grounds for involuntary termination of their parental rights under 23 Pa.C.S. § 2511(a)(1) and (2).

That statute reads:

Grounds for involuntary termination
(a) General rule. - The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent. 23 Pa.C.S. §2511(a)(1) and (2).

Pertinent to the ground for involuntary termination alleged by OCYS under 23 Pa.C.S. §2511(a)(1) is the following provision: “With respect to any petition filed pursuant to subsection (a)(1)..., the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S. § 2511(b).

Pennsylvania’s appellate courts have often commented on parents’ crucial role in the lives of their children. “[WJhile parents have broad discretionary authority over their children’s lives, they also have serious concomitant responsibilities which the Commonwealth has a right and duty to enforce.” In re J. W., 578 A.2d 952, 958 (Pa. Super. 1990). The language of 23 Pa.C.S. § 2511(a)(2) “denotes certain irreducible minimum requirements to which all children are entitled from their parents, including adequate housing, clothing, food, love, and supervision.” In re J.W., 578 A.2d at 958. The performance of parental duties is an affirmative obligation. It requires constant demonstrations of “parental love, protection, and concern.... [A] parent must exert himself to take and maintain a place of importance in the children’s life.” In re Adoption of M.J.H, 501 A.2d 648, 652 (Pa. Super. 1985) (citations omitted).

In considering the totality of the circumstances presented through the evidence in this case, In re E.S.M., 622 A.2d 388, 392 (Pa. Super. 1993), the evidence demonstrates that M.S. has refused or failed to perform parental duties as to A.G.A.W. for a period in excess of six months immediately preceding the filing of that petition (the petition filed on February 26, 2010) so the ground under 23 Pa.C.S. § 2511 (a)( 1) has been established as to M.S.

She gave birth to A.G.A.W. while she was a prisoner. From that point until the filing of the present petition, she was living under one of two circumstances. First, she was a prisoner due to her criminal conduct or parole violations or, second, except for two months, she was on parole actively using illegal drugs to feed her addiction. She did not comply with significant and reasonable directives from OCYS for the return of her child from foster care. Thus, she has refused or failed to perform her parental duties for more than six months preceding the petition.

From A.G.A.W. ’s birth through the summer of 2010, M.S. has refused to provide A.G.A.W. with essential parental “care, control, and subsistence” necessary for his “physical and mental well-being.” This has occurred from the combination of drug usage, imprisonment and connivance with A.W. As to A.W., she spent intimate time with him, the man who has not addressed through therapy his abuse of her and his endangerment of their child. She spent this time with him in violation of court directives. She did these things knowing they would jeopardize A.G.A.W.’s return to her. Thus, the refusal will not be altered by M.S. The second ground, 23 Pa.C.S. § 2511(a)(2), for termination of her parental rights has been established.

OCYS has proven the grounds for termination of A.W.’s parental rights under 23 Pa.C.S. §2511(a)(1). Except for A.W.’s caring for A.G.A.W. for the first 18 months of his life and the supervised visits arranged since A.W.’s confinement beginning in December of 2007, A.W. has been absent from A.G.A.W.’s life. This is because of his criminal conduct, namely, the aggravated assault upon M.S. and the endangering of A.G.A.W. which led to pretrial incarceration, a state confinement sentence, and then further confinement after a violation of parole.

As to the second basis for termination, the appellate courts have held that parental incapacity under §2511 (a) (2) cannot be based solely on incarceration. See In re Jones, 449 Pa. 543, 297 A.2d 117 (1972); and Bartasavich v. Mitchell, 270, 471 A.2d 833 (Pa. Super. 1984). A.W.’s unavailability for A.G.A.W. due to confinement is a significant factor in this case but it does not stand alone. There are other significant factors.

At the time that A.W. entered the guilty pleas to aggravated assault and endangering the welfare of a child, A.W. admitted under oath that he assaulted M.S. and endangered A.G.A.W. by the use of the pick-like device. (See Lehigh County criminal case number, N.T., 8/26/08, p.25.) A.W. is bound by these admissions that he made under oath at the time of his guilty plea. See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.Super. 2002); and Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996). At his sentencing hearing on September 30, 2008, A.W., again under oath, gave a different version of what happened to M.S. On this occasion, about a month after admitting the assault on M.S., he stated:

In between this time we (A.W. and M.S.) were going to the store one night to get cigarettes when all this took place. A car pulled up. Two Spanish guys got out. They called her (M.S.) by her name.
I knew what it was already because it happened again in the past. She (M.S.) stole some drugs from them and they wanted their drugs. And one thing led to another and that’s how she got hurt and hit. (Lehigh County criminal case number_, N.T., 9/30/08, pp. 14-15.)

The entire docket in this criminal case was received into evidence as Exhibit P-3 at the September 2, 2010, hearing. The notes of testimony from the guilty plea and sentencing hearings are referenced in the docket and the notes of testimony are part of the record in that case.

The use of a device by A.W. on M.S. with the child close by demonstrates deep-seated issues with A.W. that must be identified and then treated before he can be an appropriate care giver for a child. It does not take a social science expert to lead me, as fact-finder, to this conclusion. This conclusion was made by the sentencing judge when he directed, as part of the sentence, that A.W. undergo “anger management evaluation, counseling, treatment, and therapy, including in-patient and out-patient treatment, as recommended by the parole agent.” (Case number_, N.T., 9/30/08, pp. 19-20.) However, A.W. has made routing out his issues an impossibility. He has done this by denying his own responsibility for the assault and then shifting it to others after first admitting his offenses. He began the disingenuous denial process with his statement at the sentencing hearing. He continued the denials with Ms. Doris Stabf, the licensed social worker, who was attempting to do the evaluation and treatment. There is not an inkling in this record that A.W. has in the recent past or will in the future acknowledge his felonious criminal conduct. By his unwillingness to be straightforward and to work to address his issues, there will always be a concern about care-giving by him and violent propensities toward women in his life and toward A.G.A.W.

OCYS, through Ms. Stabf, tried to present to the court Ms. Stabf’s opinion that A.W. is at high risk to engage in assaultive conduct like that committed against M.S. The court rejects her opinion on that topic because of the factors that she used to reach that conclusion. These included allegations that A.W. sexually assaulted a minor step-daughter over a considerable period of time. That allegedly occurred in 1991 and early 1992. OCYS conducted an investigation whichresulted in an “indicated” status naming A.W. as the perpetrator of the sexual abuse. There is no evidence that this ever led to an adjudication or criminal conviction. There were other factors mentioned by Ms. Stabf that the court rejects as bases for the conclusion that she reached. On the other hand, the testimony of Ms. Stabf was revealing in demonstrating A.W. refusal to acknowledge and confront his violence issues.

The court can place no faith in the promises of prospective good parenting by him. He is an incredible witness. As stated, he first admitted under oath in his criminal case that he assaulted M.S.. He then denied the assault a month later. A.W. was placed under oath at both of those hearings. Moreover, after trying to create the impression that he, himself, was victimized by conflicting court directives which resulted in his meeting M.S. at a mall, he was caught in lies at the November 12 hearing after which he admitted that he had sex with M.S. when he was not even allowed near her.

Because the statutory requirements for an involuntary termination have been proven as to both parents, I now examine whether termination would best serve the needs and welfare of A.G.A.W. as required by 23 Pa.C.S. S 2511(b).

In examining the needs and welfare of A.G.A.W., I have considered the physical, but I also took into account intangible factors such as love, comfort, security, and closeness. In re Adoption of B.J.R., 579 A.2d 906, 914 (Pa. Super. 1990). I considered the nature of any parental bonds that have developed. I considered whether terminating parental rights would destroy something in existence between A.G.A.W. and his biological parents that is necessary and beneficial for A.G.A.W. In re Matstock, 611 A.2d 737, 747 (Pa. Super. 1992). A realistic determination is needed because “the state should not ‘seek to preserve in law a relationship which no longer exists in fact, with the result that the child is consigned indefinitely to the limbo of foster care of the impersonal care of institutions.”’ In re Adoption of B.J.R., 579 A.2d at 915 (citations omitted).

In the hearings, M. S. has focused on events since May of 2010. After completing the rehab program that May, M.S. has generally complied with her parole conditions. While she missed mandated drug treatment meetings and some sessions with her parole officer, the parole officer attributed all of those to M.S.’s transportation difficulties. M.S. kept in contact by telephone with the appropriate person every time she missed an appointment. There is no evidence that M.S. has used drugs since she was last incarcerated. Despite initial aloofness by A.G.A.W., M.S.’s visits with him have gone well. A.G.A.W. has gradually warmed to M.S. to the point where the visits are enjoyable for both. I have considered these positive circumstances but they do not alter the fact that the grounds for termination have been proven, particularly that M.S. refuses to do what is necessary to be a responsible parent available to A.G.A.W. While she was supposedly changing her ways, she was undermining A.W.’s sentencing orders and the efforts of the parole officer and OCYS by her unauthorized contact with A.W.

A.W. has exercised all visitation given to him (and he has sought more) during his imprisonment and A.G.A.W.’s dependency. He also appears to have been a capable and active parent during A.G.A.W. ’s first 18 months. However, he has stubbornly refused to address his domestic violence issues. He has been deceptive with the court, his parole agent and OCYS about his contacts with M.S. He has been caught in that deception.

Any bonding that M.S. and A.W. have done with A.G.A.W. has been superficial. It is based on deception. It has not been beneficial to the child.

Under the uncontroverted testimony in this case from the CASA, Ms. Christina Breitfeller-Hill, A.G.A.W. is very happy, safe, and comfortable with his present foster family where he has lived since April 22, 2010. A.G.A.W. is doing well in the foster home. For all of these reasons, the grounds for termination have been proven by clear and convincing evidence as to both biological parents. It is in A.G.A.W.’s best interests that the parental rights of M.S. and A.W. be terminated.