author: SAIDIS, Panel Chair,

text:
    Office of Disciplinary Counsel v. James

      Disciplinary Board Docket no. 120 D.B. 2005.
    November 4, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SAIDIS, Panel Chair,

RECOMMENDATION OF THREE-MEMBER PANEL OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

The three-member panel of the Disciplinary Board of the Supreme Court of Pennsylvania, consisting of Board Members Robert C. Saidis, Gary G. Gentile and Smith Barton Gephart has reviewed the joint petition in support of discipline on consent filed in the above-captioned matter on October 17, 2005.

The panel approves the joint petition consenting to an 18-month suspension from the practice of law and required restitution of $ 1,017 to Darlene Price and $950 to Allen B. Diggs within 30 days of the date of the order and recommends to the Supreme Court of Pennsylvania that the attached joint petition be granted.

The panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the petition.

JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER RULE 215(d), Pa.R.D.E.

Petitioner, Office of Disciplinary Counsel, by Paul J. Killion, Chief Disciplinary Counsel, and Cathy Young Thomer, Disciplinary Counsel, and respondent, Janeane Michelle James, by Samuel C. Stretton, Esquire, file this joint petition in support of discipline on consent under Rule 215(d) of the Pennsylvania Rules of Disciplinary Enforcement and respectfully represent that:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania 17101, is vested, pursuant to Pa.R.D.E. 207 with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Janeane Michelle James, was bom on February 17, 1967, and was admitted to practice law in the Commonwealth of Pennsylvania on August 20,1998. According to attorney registration records, respondent’s office is located at 63 Prospect Avenue, Bryn Mawr, Pennsylvania 19010-2604 (Bryn Mawr address), and, therefore, she is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Petitioner filed a petition for discipline against respondent with the Secretary of the Disciplinary Board on August 9, 2005. On August 16, 2005, Robert Rancitelli, Investigator, District I Office, personally served the petition for discipline with notice to plead at the office of Samuel C. Stretton, Esquire, counsel for respondent. On August 26,2005, respondent filed an answer to the petition for discipline with the Secretary’s office.

(4) A Hearing Committee had not yet been appointed by the Secretary’s office.

SPECIFIC FACTUAL ADMISSIONS AND RULES OF PROFESSIONAL CONDUCT VIOLATED

(5) Respondent stipulates that the following facts are true and correct and that she violated the Rule of Professional Conduct and Rules of Disciplinary Enforcement set forth in paragraph 74, infra.

A. Background: Transfer to Inactive Status Pursuant to Pa.R.D.E. 219(a)

(6) By order of the Supreme Court of Pennsylvania, dated November 1, 2002, effective December 1, 2002, respondent was transferred to inactive status for failure to pay her attorney registration fee pursuant to Pa.R.D.E. 219(a).

(7) Between May 15, 2002 and November 1, 2002, the Attorney Registrar and/or Secretary of the Disciplinary Board made not less than four attempts, as detailed in paragraphs 9 through 16, infra, to provide respondent with notice of her attorney registration fee requirements above and beyond the notice provided by Pa.R.D.E. 219 itself.

(8) Before the effective date of respondént’s transfer to inactive status, respondent received actual notice that she was noncompliant with the attorney registration requirements set forth in Pa.R.D.E. 219.

(9) On or about May 15,2002, respondent’s 2002-2003 PA Attorney’s Annual Fee Form was sent to respondent at“1218 Chestnut St., Ste. 1009, Philadelphia, PA 19107” (Philadelphia address).

(10) Respondent received the annual fee form.

(11) On or about August 7,2002, a post card reminder was sent to respondent reminding respondent that she did not pay her attorney registration fee or file her annual fee form for 2002-2003.

(12) Respondent received the post card reminder.

(13) On or about September 1, 2002, a final notice was sent by certified mail return receipt requested to respondent at her Philadelphia address again reminding respondent that she did not pay her attorney registration fee or file her annual fee form for 2002-2003.

(14) Respondent received the final notice.

(15) In and under cover of a letter dated November 1, 2002, addressed to respondent at her Philadelphia address and sent by certified mail return receipt requested, Elaine M. Bixler, Secretary to the Disciplinary Board:

(a) forwarded to respondent a copy of the order transferring her to inactive status;

(b) forwarded to respondent copies of Rule 217 and Rule 219 of the Pennsylvania Rules of Disciplinary Enforcement; subchapter E, Formerly Admitted Attorneys, of the Disciplinary Board Rules; and the Standard Guidance of the Disciplinary Board to Lawyers who have been Transferred to Inactive Status;

(c) forwarded to respondent Form DB-23(i), Nonlitigation notice of transfer to inactive status;

(d) forwarded to respondent Form DB-24(i), Litigation notice of transfer to inactive status;

(e) forwarded to respondent Form DB-25(i), Statement of compliance; and

(f) informed respondent that in order to resume active status, she would be required to comply with the Pennsylvania Rules of Disciplinary Enforcement and Disciplinary Board Rules.

(16) Respondent did not claim the November 1,2002 letter even though the United States Postal Service left not less than three notices.

(17) Respondent failed to pay her attorney annual fee and file her annual fee form.

B. Background: Transfer to Inactive Status Pursuant to Pa.R. C.L.E. 111(b)

(18) By order of the Supreme Court of Pennsylvania, dated November 14,2002, effective December 14,2002, respondent was transferred to inactive status pursuant to Rule 111(b), Pa.R.C.L.E., for failure to satisfy the Con-timing Legal Education (CLE) requirements for her compliance period.

(19) Prior to being transferred to inactive status, the Supreme Court of Pennsylvania Continuing Legal Education Board assigned respondent to Compliance Group 1, whose compliance period runs from May 1 through April 30 of the following year.

(20) Between February 1, 2002 and November 14, 2002, the CLE Board and/or Disciplinary Board Secretary made not less than five attempts, as detailed in paragraphs 22 through 32, infra, to provide respondent with notice of her CLE requirements above and beyond the notice provided by the Pennsylvania Rules for Continuing Legal Education and the Pennsylvania Continuing Legal Education Board Regulations.

(21) Before the effective date of respondent’s transfer to inactive status, respondent received actual notice that she was noncompliant with her CLE requirements.

(22) In and under cover of a letter dated February 1, 2002, addressed to respondent at her Philadelphia address and titled “Preliminary Annual CLE Report,” the CLE Board:

(a) forwarded to respondent a “Supreme Court of Pennsylvania Continuing Legal Education Board Course Attendance Record Preliminary” form that, inter alia, lists one course, “Trial Advocacy-Child Advocates,” course date of 12/11/01, and total credits of “3.OS” (three substantive credit hours) and states that requirements were met for years 04/30/1999, 04/30/2000, and 04/30/2001, and requirements were not met for year 04/30/2002;

(b) represented that this letter/report was sent to respondent “to remind [her] of [her] Pennsylvania Continuing Legal Education (PACLE) requirements, to inform [her] of the status of [her] course attendance record, and to provide [her] ample time to complete [her] requirements if [she has] not already done so”; and

(c) represented that “lawyers who have not completed the requirements for compliance or been granted an approved extension will be considered noncompliant, assessed a $100 late fee, and subject to Pa.RX.L.E. 111.”

(23) Respondent received the CLE Board’s February 1,2002 correspondence and enclosure.

(24) The Supreme Court of Pennsylvania Continuing Legal Education Board Course Attendance Record Preliminary was accurate in all respects including the fact that respondent attended only one CLE course on Trial Advocacy-Child Advocates eligible for three PA CLE credits, which was credited toward respondent’s CLE compliance period ending April 30, 2002.

(25) In and under cover of a letter dated June 21,2002, addressed to respondent at her Philadelphia address, the CLE Board:

(a) represented that “[respondent] did not complete sufficient hours by [her] compliance deadline,” and was “Noncompliant with [her] CLE requirements ” (emphasis and second emphasis in original);

(b) represented that “section 8(B) of the regulations for Pennsylvania CLE provides for a period of 60 days from the date of this notice to complete the required hours or receive an approved exception as well as pay any required fees which have been assessed”;

(c) represented that “[a]fter the expiration of 90 days from the date of this notice, which allows providers an additional 30 days to report courses taken, PACLE will prepare a list of those lawyers who continue to be non-compliant and assess them an additional $100 late fee,” and that “[t]his list will be sent to the Supreme Court of Pennsylvania with the recommendation that those lawyers be involuntarily inactivated for noncompliance”;

(d) forwarded to respondent a Supreme Court of Pennsylvania Continuing Legal Education Board Course Attendance Record-Compliance Year End report, which contained the same information as listed in paragraph 22(a), supra; and

(e) forwarded to respondent an invoice for “Initial Late Fee For Noncompliance.”

(26) Respondent received the June 21,2002 notice and enclosures.

(27) In and under cover of a letter dated October 1, 2002, addressed to respondent at her Philadelphia address, the CLE Board:

(a) forwarded to respondent an invoice for “Initial Late Fee For Noncompliance”;

(b) forwarded to respondent an invoice for “Second Late Fee For Continued Noncompliance”;

(c) represented that the “process of preparing the list of names of noncompliant attorneys for submission to the Pennsylvania Supreme Court is nearing completion” (emphasis in original);

(d) represented that if “[respondent] failfed] to comply with the PACLE Rules and Regulations within the additional time provided, the Supreme Court will enter an order to involuntarily inactivate [respondent’s] license”; and

(e) represented that once “the Supreme Court order is issued, in order to return to an active status, a non-compliant attorney must complete the then current year’s requirement and any unfulfilled requirements from the preceding two compliance years, pay the $100 initial late compliance fee, the $100 second late compliance fee, and the $100 reinstatement fee if not previously paid.”

(28) Respondent received the October 1, 2002 notice and enclosures.

(29) In and under cover of letters dated November 14, 2002, addressed to respondent at her Philadelphia address and Bryn Mawr address, and sent by certified mail return receipt requested, Elaine M. Bixler, Secretary to the Disciplinary Board:

(a) informed respondent that the Supreme Court of Pennsylvania has forwarded to the Disciplinary Board “a certified copy of order of the court dated November 14, 2002 (copy enclosed together with applicable page containing [respondent’s] name, that [she] will be TRANSFERRED TO INACTIVE STATUS EFFECTIVE December 14, 2002, for failure to comply with the Pennsylvania Rules for Continuing Legal Education due April 30,2002 (for Compliance Group 1)” (emphasis and second emphasis in original);

(b) represented that in order to resume active status, respondent will be required to comply with the CLE Board before a request for reinstatement to the Disciplinary Board will be considered; and

(c) forwarded a letter prepared by the CLE Board which provides information regarding compliance with Rule 111(b), Pa.C.L.E.

(30) Respondent received Ms. Bixler’s November 14, 2002 letter and enclosures.

(31) In and under cover of a letter dated November 14, 2002, addressed to respondent at her Philadelphia address, the CLE Board:

(a) forwarded to respondent a copy of the Disciplinary Board’s November 14,2002 letter identified in paragraph 29, supra;

(b) informed respondent that she is to be “transferred to inactive status for failure to comply with the Pennsylvania Rules for Continuing Legal Education”;

(c) forwarded to respondent a Reinstatement Processing Fee invoice;

(d) forwarded to respondent Non-Resident Active Status Compliance Year Ending In 2002 form;

(e) represented that in order for respondent to be “considered in compliance with the Pennsylvania CLE rules and regulations, the following requirements must be completed and submitted to the PACLE office prior to [their] final processing date oí December 12, 2002” (emphasis and second emphasis in original);

(f) represented that the requirements for compliance were to complete any deficiencies in PACLE credits, pay a $100 reinstatement processing fee; pay a $100 initial late compliance fee, and pay a $100 second late compliance fee; and

(g) represented that “[o]nce the order becomes effective, only verified attendance with sufficient hours from approved CLE activities will be accepted for reinstatement.”

(32) Respondent received the November 14, 2002 notice and enclosures.

(33) Respondent failed to take the courses necessary to comply with the CLE Board’s requirements.

(34) Respondent had prior knowledge that the only way that she could cure her non-compliant status was to take the courses necessary to bring her into compliance with the CLE Board’s requirements.

(a) On June 22,2001, the CLE Board notified respondent that she was non-compliant with her CLE requirements for the 2001 compliance year ending April 30, 2001.

(b) On August 21, 2001, respondent cured her noncompliance with the CLE requirements by attending a six-credit CLE course titled Bankruptcy Institute.

(35) By letter to respondent dated January 30, 2004, addressed to respondent at her Bryn Mawr address, the CLE Board represented that PACLE records indicate that respondent’s status for the April 30, 2004 compliance year is “INACTIVE” (emphasis and second emphasis in original).

(36) Respondent received the January 30,2004 letter.

(37) Respondent responded to the CLE Board’s January 30,2004 notice by making a request of the CLE Board that she be reinstated.

(38) By letter dated April 7, 2004, addressed to respondent at her Bryn Mawr address, the CLE Board:

(a) confirmed that the CLE Board was in receipt of respondent’s request for reinstatement;

(b) represented that in order for respondent to certify her compliance to the Disciplinary Board of the Supreme Court, respondent must:

(i) complete the still owing CLE requirements for compliance year 2002, consisting of 1.0 ethics and 8.0 substantive law credits;

(ii) complete the requirements for compliance year 2003, consisting of 1.0 ethics and 11.0 substantive law credits; and

(iii) complete the CLE requirements for compliance year 2004, consisting of 1.0 ethics and 11.0 substantive law credits; and

(iv) pay $300 — initial late, second and reinstatement fees; and

(c) represented that if respondent was not reinstated by April 30, 2004, respondent “must complete the then-current year and past two year’s requirements before the [respondent’s] reinstatement procedure will begin.”

(39) Respondent received the April 7, 2004 notice.

(40) In and under cover of a letter dated July 14,2004, addressed to respondent at her Bryn Mawr address, the CLE Board:

(a) represented that their records “indicate that additional hours have been reported”;

(b) forwarded to respondent a Supreme Court of Pennsylvania Continuing Legal Education Board report showing additional credit hours of 4.0 substantive law credits for a course titled Taking and Defending Depositions, attended on June 17, 2004; and

(c) represented that in order for respondent to certify her compliance to the Disciplinary Board of the Supreme Court, respondent must:

(i) complete the still owing CLE requirements for compliance year 2003, consisting of 1.0 ethics and 4.0 substantive law credits;

(ii) complete the requirements for compliance year 2004, consisting of 1.0 ethics and 11.0 substantive law credits;

(iii) complete the CLE requirements for compliance year 2005, consisting of 1.0 ethics and 11.0 substantive law credits; and

(iv) pay $300 — initial late, second and reinstatement fees.

(41) Respondent received the July 14,2004 notice and enclosure.

(42) Respondent engaged in activities that constituted the unauthorized practice of law by representing four clients in civil and transactional matters while on inactive status, as set forth below, and respondent provided her legal services without being under the direct supervision of a member in good standing of the bar of this Commonwealth, as required by Pa.R.D.E. 217(j)(l).

C. The Horsey Matter (File No. C1-04-29)

(43) In October 2003, Clifton Horsey contacted respondent to handle a civil matter regarding a burglary and the vandalism of his residence.

(44) Respondent failed to inform Mr. Horsey that she was on inactive status and not permitted to practice law.

(45) On October 23, 2003, respondent agreed to represent Mr. Horsey.

(46) Mr. Horsey paid respondent $500 by money order dated November 13, 2003.

(a) Respondent deposited that money order into an account, no. **********^ at PNC Bank.

(47) Respondent drafted a complaint in Mr. Horsey’s matter and advised Mr. Horsey that:

(a) she needed to meet with him to review the complaint; and

(b) she needed to obtain Mr. Horsey’s signature on the verification.

(48) Respondent made an appointment to meet with Mr. Horsey, and Mr. Horsey did not keep the appointment.

(49) Respondent never met with Mr. Horsey; therefore, the complaint was not filed.

(50) Respondent engaged in the unauthorized practice of law during her representation of Mr. Horsey.

(51) Respondent’s practice of law in Pennsylvania was illegal and in contempt of the orders of the Supreme Court of Pennsylvania transferring respondent to inactive status.

D. The Jones Matter (File No. C1-04-218)

(52) In or around July 2003, respondent met with McKay Jones, and Mr. Jones retained respondent to assist him in transferring a deed, updating his will and his wife’s will, and drafting living wills for both him and his wife.

(53) Respondent failed to inform Mr. Jones that she was on inactive status and not permitted to practice law.

(54) Respondent informed Mr. Jones that respondent’s fee to complete the real estate transaction would be $125, and that Mr. Jones would have to pay the filing fee and transfer tax.

(55) Mr. Jones paid to respondent:

(a) $125 by personal check that bore the memo “for deed transfer”; and

(b) $422.32, also by personal check, that bore the memo “for transfer tax on 2814 N. Broad St. and other fees.”

(56) Respondent deposited both checks into an account, no. **********5 at PNC Bank.

(57) Respondent prepared the deed for transfer but did not file the deed.

(58) Respondent revised Mr. Jones’ will and Mrs. Jones’ will, but the wills were not executed.

(59) Respondent prepared living wills for Mr. and Mrs. Jones, but the living wills were not executed.

(60) Respondent engaged in the unauthorized practice of law during her representation of Mr. Jones.

(61) Respondent’s practice of law in Pennsylvania was illegal and in contempt of the orders of the Supreme Court of Pennsylvania transferring respondent to inactive status.

E. The Price Matter (File No. C1-05-819)

(62) In October 2001, Darlene Price contacted respondent regarding drafting and filing articles of incorporation for several businesses.

(63) Ms. Price paid respondent $950 by check dated October 31, 2001.

(a) Respondent deposited that check into an account, no. *************? at First Union National Bank.

(64) Respondent did not draft or file the articles of incorporation for Ms. Price’s businesses.

(65) Ms. Price filed in Philadelphia Municipal Court a small claims complaint against respondent for the $950 unearned fee.

(66) On June 2, 2005, respondent appeared at a mediation hearing, during which respondent signed a mediation judgment by agreement to pay Ms. Price $1,017 no later than June 23, 2005.

(67) Respondent failed to pay Ms. Price $1,017 as agreed.

F. The Diggs Matter (File No. C1-05-920)

(68) In September 2004 (six months after respondent received notice viaDB-7 letter in Cl-04-29 and Cl-04-218 that she was inactive and had engaged in the unauthorized practice of law), Allen B. Diggs contacted respondent regarding various filings to the State of Pennsylvania and the federal government concerning a 501(c)(3) corporation.

(69) Respondent failed to inform Mr. Diggs that she was on inactive status and not permitted to practice law.

(70) Mr. Diggs paid respondent $375 by check dated September 20,2004.

(a) Respondent deposited that check into account no. h* h»h*h*^ Bank

(71) Respondent agreed to represent Mr. Diggs and collected a fee.

(72) Respondent did not perform any services for Mr. Diggs.

(73) Respondent did not return to Mr. Diggs the $375 in unearned fees.

(74) Respondent admits that by her conduct as detailed in paragraphs 43 through 73 above, she violated Rule of Professional Conduct 5.5(b) (adopted 10/16/87, revised and renumbered R.P.C. 5.5(a) effective 5/15/04) (a lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction); and Pa.R.D.E. 203(b)(3) (it is grounds for discipline for a lawyer to willfully violate any other provision of the Enforcement Rules) via Pa.R.D.E. 217(j)(2) (the only law-related activities permitted to be conducted by a formerly admitted attorney under the direct supervision of a member in good standing of the bar of this Commonwealth are those set forth in Pa.R.D.E. 217(j)(2)(i)-(iii)).

SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE

(75) Petitioner and respondent jointly recommend that the appropriate discipline for respondent’s admitted misconduct is a suspension from the practice of law for a period of 18 months.

(76) Respondent hereby consents to that discipline being imposed upon her by the Supreme Court of Pennsylvania. Attached to this petition is respondent’s executed affidavit required by Rule 215(d), Pa.R.D.E., stating that she consents to the recommended discipline and including the mandatory acknowledgements contained in Rule 215(d)(1) through (4), Pa.R.D.E.

(77) In support of petitioner and respondent’s joint recommendation, it is respectfully submitted that:

(a) There are several mitigating circumstances:

(i) Respondent has admitted engaging in misconduct and violating the charged Rules of Professional Conduct;

(ii) Respondent has cooperated with petitioner, as is evidenced by respondent’s admissions herein and her consent to receiving a suspension of 18 months;

(iii) Respondent has no prior disciplinary history; and

(iv) Respondent was going through a difficult pregnancy during the time periods that she was transferred to inactive status.

(b) In addition, there are aggravating factors:

(i) Respondent engaged in a pattern of misconduct;

(ii) Respondent undertook the representation in the Diggs matter six months after receiving notice that ODC was investigating charges against her for the unauthorized practice of law; and

(iii) Respondent failed to return unearned fees to Mr. Diggs and to Ms. Price in accordance with the June 2, 2005 mediation judgment by agreement.

(78) In a recent Disciplinary Board report, the Disciplinary Board recognized that the Supreme Court of Pennsylvania has recently established a line of cases indicating that the appropriate sanction for a lawyer practicing while on inactive status is suspension for one year and one day. Office of Disciplinary Counsel v. Goldin-Didinsky, 87 D.B. 2003, D.Bd. Rpt. 8/27/04 p. 13 (S.Ct. order 12/13/04). (citing cases) Just recently, the Pennsylvania Supreme Court suspended, for one year and one day, an attorney who, while on CLE inactive status, engaged in the unauthorized practice of law by filing four matters in the Chester County Court of Common Pleas and two matters in the Eastern District of Pennsylvania while unaware of what effect his inactive status had on his ability to practice law in federal court. Office of Disciplinary Counsel v. Ferleger, Nos. 104 D.B. 2004 and 51 D.B. 2004, 2005 WL 2219317 (Pa. Aug. 3, 2005). Respondent’s pattern of collecting fees and failing to perform any legal work; failing to return unearned fees; and agreeing to represent a client and accepting a fee six months after she was put on notice that ODC was conducting an investigation regarding respondent’s engaging in the unauthorized practice of law, support a suspension of 18 months.

Wherefore, petitioner and respondent respectfully request that:

(a) Pursuant to Rule 215 (e) and 215 (g), Pa.R.D .E., the three-member panel of the Disciplinary Board review and approve the above joint petition in support of discipline on consent and file its recommendation with the Supreme Court of Pennsylvania in which it is recommended the Supreme Court enter an order:

(i) suspending respondent from the practice of law for a period of 18 months;

(ii) directing respondent to make restitution of $ 1,017 to Ms. Price and $950 to Mr. Diggs within 30 days of the date of the order; and

(ii) directing respondent to comply with all of the provisions of Rule 217, Pa.R.D.E.

(b) Pursuant to Rule 215(i), the three-member panel of the Disciplinary Board order respondent to pay the necessary expenses incurred in the investigation of this matter as a condition to the grant of the petition and that all expenses be paid by respondent before the imposition of discipline under Rule 215(g), Pa.RD.E.

VERIFICATION

The statements contained in the foregoing joint petition in support of discipline on consent under Rule 215(d), Pa.R.D.E. are true and correct to the best of our knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.

AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.

Respondent, Janeane Michelle James, hereby states that she consents to the imposition of a suspension from the practice of law for a period of 18 months, as jointly recommended by petitioner, Office of Disciplinary Counsel, and respondent in the joint petition in support of discipline on consent and further states that:

(1) Her consent is freely and voluntarily rendered; she is not being subjected to coercion or duress; she is fully aware of the implications of submitting the consent; and she has consulted with counsel in connection with the decision to consent to discipline;

(2) She is aware that there is presently pending a proceeding involving allegations that she has been guilty of misconduct as set forth in the joint petition;

(3) She acknowledges that the material facts set forth in the joint petition are true; and

(4) She consents because she knows that if the charges pending against her continue to be prosecuted in the pending proceeding, she could not successfully defend against them.

ORDER

And now, January 5, 2006, upon consideration of the recommendation of the three-member panel of the Disciplinary Board dated November 4, 2005, the joint petition in support of discipline on consent is hereby granted in accordance with Rule 215(g), Pa.R.D.E., and it is ordered that Janeane Michelle James is suspended on consent from the bar of this Commonwealth for a period of 18 months, and she shall comply with all provisions of Rule 217, Pa.R.D.E.

Respondent is further directed to make restitution of $1,017 to Darlene Price and $950 to Allen B. Diggs within 30 days from the date of this order.

Former Justice Nigro did not participate in this matter.


source: Caselaw Access Project

author: CHESLOCK, J,

license: Public Domain

text:
    Broeg v. Pivovar

      C.P. of Monroe County,
    no. 9022 CIVIL 2005.
    February 22, 2006

      Jason M. Leon, for plaintiff.

      Kimberly G. Krupka, for defendant Wilkins and Associates.

      Timothy B. Fisher, for defendant Anderson and Associates.

      Peter Pivovar, pro se.
   CHESLOCK, J,

This matter comes before the court on defendant Wilkins and Associates Real Estate Inc.’s preliminary objections to plaintiff James Broeg’s complaint. On November 14, 2005, plaintiff filed a complaint against defendants, Peter Pivovar, Wilkins and Associates Real Estate Inc. and Anderson and Associates LLC, concerning a real estate transaction. Plaintiff alleges that the Seller, Peter Pivovar, was represented by Wilkins at the time of the closing and that a property disclosure statement was completed by Seller on or about November 6, 2003. The plaintiff avers that the Seller failed to answer a question on whether the property sold was located in a flood zone or whether the Seller had any knowledge of flooding or drainage problems affecting the property. Plaintiff purchased property on May 10, 2005, and alleges that he experienced extreme and repeated flooding of the property thereafter. Plaintiff claims damages to material and personal property located on the lower level of the home, and, after experiencing flooding, it became apparent that there were previous problems with flooding and/or drainage for this property. The complaint avers that there was rotted wood, water lines on the foundation and mold, indicating a water problem. The complaint avers that Wilkins was the Seller’s agent and was negligent in its duty to fairly deal with Purchasers and ensure that the Seller fulfilled his duty to disclose material defects in the property. In particular, plaintiff alleges that Wilkins breached its duty by failing to complete the Seller Disclosure Form and submitting it to him unanswered. On December 12,2005, Wilkins filed preliminary objections to plaintiff’s complaint in the nature of a demurrer. The parties filed briefs in support of their respective positions and the matter was heard for oral argument on February 6, 2006. This matter is now ripe for disposition.

Pennsylvania Rule of Civil Procedure 1028(a)(4) states that preliminary objections may be filed by any party to a pleading and are limited to the following grounds:

“(a)(4) legal insufficiency of a pleading (demurrer);

“(b) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading.”

Preliminary objections asserting that a complaint fails to state a cause of action upon which relief can be granted is in the nature of a demurrer. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). It is well established that preliminary objections in the nature of a demurrer admit as true all facts that are well pleaded allegations, including reasonable inferences deducible therefrom. Sweatt v. Department of Corrections, 769 A.2d 574, 576 (Pa. Commw. 2001). (citation omitted) In assessing preliminary objections in the nature of a demurrer, the court should sustain a demurrer and dismiss a complaint only in cases which are free and clear from doubt. Leach v. Hough, 352 Pa. Super. 213, 507 A.2d 848 (1986). (citation omitted) Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Emerich v. Philadelphia Center for Human Development Inc., 554 Pa. 209, 720 A.2d 1032 (1998).

In its preliminary objections, Wilkins alleges that plaintiff’s claim for negligent misrepresentation is legally insufficient in that it fails to set forth the necessary elements for a cause of action. In order to successfully allege negligent misrepresentation, the following elements must be satisfied:

“(1) a misrepresentation of a material fact;

“(2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under the circumstances in which he ought to have known of its falsity;

“(3) the representor must intend the representation to induce another to act on it; and

“(4) injury must result to the party acting in justifiable reliance on the misrepresentation.” Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 890 (1994). (citation omitted)

Instantly, Wilkins argues that plaintiff’s claim against it must fail because Wilkins owed no duty to plaintiff and the claim set forth in his complaint is legally insufficient to support the cause of action. In essence, defendant argues that it owed plaintiff no duty in assisting the Seller with the preparation of Seller’s Disclosure Form, it had no duty to deal fairly with Purchasers or to ensure that the Seller had fulfilled his duty to disclose material defects in the property, and, therefore, Wilkins argues that it did not breach any duty by failing to have the Seller complete the Seller’s Disclosure Form. In support of its position, Wilkins cites a case of Bortz v. Noon, 556 Pa. 489,729 A.2d 555 (1999). In Bortz, the purchaser brought an action in equity against the venders, the real estate broker, brokers agent and title company regarding a septic system on the property in question. After closing on the property, the plaintiff experienced a problem with the septic system and later found out that the system had not passed the dye test. On appeal to the Supreme Court of Pennsylvania, the issue before the court was whether the agent had a duty to ascertain whether the septic system had actually passed the dye test and if failure to do so amounted to a misrepresentation to the buyer. In its holding, the Supreme Court held that the real estate broker had no duty to make an independent investigation of contractor’s report where the real estate broker did not have an agency or contractual relationship with the third party.

In opposition, the plaintiff contends that it is well settled that a real estate broker can be held liable to third parties for damages, especially when a third party is a buyer. In the matter of Slaybaugh v. Newman, 330 Pa. Super. 216, 479 A.2d 517 (1984), the Superior Court suggested that real estate brokers and salesmen may be held accountable in damages by third-party purchasers for misrepresentation including failure to disclose material information. The court noted that a broker’s responsibility for “knowingly making any substantial misrepresentation is the same whether they be made to his principal or to any other person, if they are made in an attempt to effect a purchase or sale of real estate for another person.” Id. at 224, 479 A.2d at 521. (citation omitted)

Instantly, plaintiff avers that Wilkins was Seller’s agent and assisted or should have assisted Seller in the preparation of the Seller’s Disclosure Form. The complaint further alleges that Wilkins had a duty to deal fairly with Purchasers and breached this duty by failing to complete the Seller’s Disclosure Form as substantial and material portions of the document remain unanswered. However, in order to aver negligent misrepresentation, the complaint must allege misrepresentation of a material fact; and that Wilkins had knowledge of the misrepresentation or ought to have known of its falsity which representation induced plaintiff to purchase the real property. In reviewing plaintiff’s complaint, we find that the elements necessary to maintain the cause of action of negligent misrepresentation have not been pled by the plaintiff. Plaintiff’s complaint simply alleges that Wilkins owed him a duty to deal fairly and assist Seller in completing the Seller’s Disclosure Form with full answers. The elements of negligent misrepresentation have not been plead by plaintiff. Accordingly, we will sustain defendant’s demurrer. However, we will not withhold the right to amend for we believe there is some reasonable possibility that plaintiff will amend his complaint successfully.

In light of the foregoing, we enter the following order.

ORDER

And now, February 22, 2006, upon consideration of defendant Wilkins and Associates Real Estate Inc.’s preliminary objections and the response thereto, it is hereby ordered that defendant Wilkins and Associates Real Estate Inc.’s preliminary objections in the nature of a demurrer are sustained. It is hereby ordered that plaintiff is granted leave to amend his complaint consistent with this opinion within 20 days from the date of this order.


author: FORNELLI, P.J.,

text:
    Beneficial Consumer Discount Company v. DiGregorio

      C.P. of Mercer County,
    no. 2005-3851.
    April 4, 2006

      Nancy C. Wilkins and Cathy Ann Chromulak, for plaintiff.

      Raymond P Bartholomew, for defendants.
   FORNELLI, P.J.,

This matter is before the court for disposition of defendants’ claims for exemption under 42 Pa.C.S. §8121. Beneficial Consumer Discount Company (plaintiff) obtained a default judgment against Joseph A. DiGregorio and Margie E. DiGregorio (defendants) in the amount of $9,763.15 and began execution procedures. Each defendant seeks to claim the statutory exemption of $300 allowed by the Judicial Code. See 42 Pa.C.S. §8123.

The issue before the court is whether defendants, a married couple, are entitled to claim only one $300 exemption or whether each person is entitled to claim the $300 exemption against their property held as tenants by the entireties. No appellate court in Pennsylvania has addressed this precise issue. Plaintiff has submitted the York County Court of Common Pleas case of Waltz v. Zimmerman, 38 D.&C.3d 211 (1985), wherein the court determined that a tenancy by the entireties is only entitled to one statutory exemption. Defendants submitted a decision of the Lycoming County Court of Common Pleas in which the court ruled that each, the husband and wife, in a tenancy by the entireties is entitled to claim the $300 statutory exemption. Williamsport National Bank v. Allen, 2 D.&C.4th 435 (1989). See also, 13 Standard Pennsylvania Practice 2d §74:12; Mathieu, Debt Collection in Pennsylvania §6.18.

This court holds that a husband and wife may each claim a $300 exemption. Here, plaintiff has obtained a default judgment against both husband and wife. Each defendant is jointly and severally liable for the debt. Thus, the judgment creditor has the option of executing against any property owned by either defendant, as well as any property owned by them jointly.

This court’s holding is consistent with the common-law concept of tenancy by the entireties. A tenancy by the entireties is a unique form of co-ownership of property. It exists when property is held jointly by a husband and wife. The tenancy is based upon the concept of marriage as an indivisible unit. Clingerman v. Sadowski, 335 Pa. Super. 514, 519, 485 A.2d 11, 14 (1984), aff’d, 513 Pa. 179, 519 A.2d 378 (1986). A husband and wife who hold title to property by the entireties are each seized of the whole and not of a divisible part; “per tout et non per my.” Maxwell v. Saylor, 359 Pa. 94, 96, 58 A.2d 355, 356 (1948). It requires two entities, i.e., two people, to constitute the tenancy by the entireties. Each are legally necessary prerequisites to the formation of a tenancy by the entirety and thus each is an entity whose exemption rights should be legally recognized. The exemption of section 8123 is applicable against all property of a judgment debtor. In a tenancy by the entireties, each owns an undivided, indivisible property right in the whole. Each may apply their exemption to that property right.

Since plaintiff has the option of executing against any and all property held by either or both defendants, defendants should each have the right to claim a $300 statutory exemption. To hold otherwise would penalize defendants for being married. If plaintiff obtained a default judgment against two unmarried parties, the parties would each be able to claim the $300 statutory exemption against jointly owned property. There is no reason to deprive each defendant of the right to claim this exemption simply because they are married and hold the property jointly.

Hence, this order.

ORDER

And now, April 4, 2006, the claim for the $300 statutory exemption is granted as to each defendant. The stay entered by this court on March 28, 2006, is lifted.

      . By the whole and not by the half. 7 Black’s Law Dictionary 1165.


author: BERNSTEIN, J.,

text:
    Brendley v. Rohm & Haas Company

      C.P. of Philadelphia County,
    August Term 2005,
    no. 1918.
    March 30, 2006

      Aaron J. Freiwald, for plaintiff.

      Dennis R. Suplee, Ralph G. Wellington, Samuel W. Silver and Jennifer A. Lynch-Battle, for defendant.
   BERNSTEIN, J.,

This is a case of first impression in which plaintiff filed a class action lawsuit for medical monitoring due to an increased risk of deadly brain cancer on behalf of past and present employees of defendant Rohm & Haas who worked at the Spring House Research Facility. Defendant filed preliminary objections claiming this medical monitoring action is barred by the exclusivity provisions of the Workmen’s Compensation Action. No Pennsylvania court has ever ruled on the question of whether a medical monitoring claim must or even may be presented through workmen’s compensation.

The Workmen’s Compensation Act exclusivity provision states: “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employe[e]s.” As per injuries, the Workmen’s Compensation Act says: “Injury and personal injury, as used in this act, shall be construed to mean an injury to an employe[e], regardless óf his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury.” Although the Supreme Court has never directly approached the topic, some cases are informative regarding the definition of what constitutes an “injury” under the Workmen’s Compensation Act. In Creighan v. Firemen’s Relief and Pension Fund Board, 397 Pa 419, 155 A.2d 844 (1959), a fireman filed an action in mandamus against defendant for pension benefits because he contracted tuberculosis as a result of his duties and subsequently became totally disabled. The Supreme Court emphasized that the “word ‘injury,’ in ordinary modem usage, is one of very broad designation” and defined the term “injury” contained in section 411 of the Workmen’s Compensation Act as including “whatever lesion or change in any part of the system produces harm or pain, or a lessened facility of the natural use of any bodily activity or capability.” The Supreme Court in Creighan further elaborated that the word injury’s “common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by anyone.” Quoting the precise language of Creighan, the Supreme Court of Pennsylvania reaffirmed this broad definition of “injury” in Pawlosky v. Workmen’s Compensation Appeal Board, 514 Pa. 450, 525 A.2d 1204 (1987).

The only relevant appellate decision offering the possibility of medical monitoring payments pursuant to the Workmen’s Compensation Act is Jackson Township Volunteer Fire Company v. W.C.A.B. (Wallet), 140 Pa. Commw. 620, 594 A.2d 826 (1991). The plaintiff, an ambulance attendant, was exposed to blood and bodily fluids infected with the AIDS virus and hepatitis B during his employment. At the direction of a physician, the plaintiff had a series of tests to detect for AIDS and hepatitis B and received precautionaiy injections to kill the hepatitis virus. The fire company and its insurer denied his claim for reimbursement for medical costs incurred. The Workers’ Compensation referee required payment. The Commonwealth Court affirmed the referee’s decision, holding that the fire company should pay for the tests and immunizations because “persons exposed to a serious risk of contracting a disease which is commonly known to be highly contagious/infectious and potentially deadly, have been ‘injured’ for the purpose of receiving compensation under the Act.” Id. at 625, 594 A.2d at 828. The court specifically noted that “only those persons exposed to a real and serious risk of contracting highly contagious/infectious and potentially deadly diseases are entitled to compensation.” Id. at 625-26, 594 A.2d at 829.

While not involving either a contagious or infectious disease, the issue concerning the medical monitoring claims presented in the present case can be analyzed by the logic of the Jackson decision. The class members herein claim that exposure to toxic agents in the workplace has made them “at risk for developing brain cancer” and therefore a specific medical regimen they label “medical monitoring” is medically warranted. They claim that an elevated rate of glioblastoma at the Spring House Research Facility has resulted in 12 employees being diagnosed with malignant brain cancer. The plaintiffs’ claims are precisely analogous to the claims in Jackson where occupational exposure to toxic blood made the plaintiff at risk for developing AIDS and hepatitis B. The proactive medical testing and precautionary preventative emergency room care provided to the plaintiff in Jackson was covered by workers’ compensation because it was necessitated by his occupational exposure to diseased blood. Similarly, the medical monitoring and preventative tests that plaintiffs in this case need are exclusively the result of their occupational exposure to toxic agents at the Spring House Research Facility. The Commonwealth Court in Jackson held that such preventative testing, as is needed by the plaintiffs here, is an injury under the Workmen’s Compensation Act.

Thus, as to all former employees, medical monitoring costs to detect and prevent the spread of brain cancer is an injury which is compensable under the Workmen’s Compensation Act.

Accordingly, the defendant’s preliminary objections are sustained with leave by plaintiffs to file a workmen’s compensation claim and the above captioned matter is dismissed.

      .77 P.S. §481.

      . 77 P.S. §411.

      . The court notes that there may be a distinction between present employees, who are continuing to be exposed to the toxic agents, and former employees who are presumably no longer exposed to any substances in the workplace. However, since the two representative plaintiffs are both former employees, this potential distinction is irrelevant. A class action may not proceed without a named plaintiff whose claims are representative of the class claims. Pa. R.C.P. 1702(3).


author: CHERRY, J,

text:
    Sell v. Central Volkswagen Inc.

      C.P. of Clearfield County,
    no. 04-940-CD.
    February 10, 2006

      Richard D. Sell and Linda H. Sell, pro se.

      Brian Shreckengost, for defendant.
   CHERRY, J,

This matter comes before the court upon the filing of a complaint by plaintiffs, Richard D. Sell and Linda H. Sell, in which they assert numerous claims arising out of multiple incidents to the repair of a motor vehicle owned by the plaintiffs. Plaintiffs contend that defendant, Central Volkswagen Inc., made excessive repair charges for the repair of the motor vehicle during the period from approximately June 1998 through October 2002. Plaintiffs plead six causes of action identified as breach of warranty, breach of contract, conversion, unfair or deceptive acts in violation of the Pennsylvania Consumer Protection Law, negligence and common-law fraud. Plaintiffs had previously commenced an action against defendant before the Honorable Patrick N. Ford, Magisterial District Judge, in District no. 46-3-01. In that action, plaintiffs asserted claims against defendant based upon the same facts and circumstances that this court believes give rise to the present lawsuit. In the magisterial district judge’s proceedings, judgment was entered in favor of the plaintiffs in the amount of $890.30. Defendant paid that judgment in full with the plaintiffs endorsing the check paying the judgment amount.

As a result of the present action, defendant filed preliminary objections requesting this court to dismiss plaintiffs’ claims with prejudice. A hearing was scheduled before this court and an argument held on the preliminary objections to plaintiffs’ complaint. This court was satisfied that the plaintiffs were barred by the doctrine of res judicata. As a result, the preliminary objections were sustained by this court and plaintiffs’ complaint was dismissed in its entirety with prejudice. Plaintiffs filed a timely appeal. Plaintiffs did file a concise statement of matters complained of on appeal. Although most of the matters complained of in their statement of matters complained of on appeal deal with procedural issues, this court will attempt to address those matters as well as render an opinion as to this court sustaining the preliminary objections and this court’s dismissal of plaintiffs’ complaint.

Plaintiffs first allege that this court created prejudicial error in denying plaintiffs due process for a fair and full opportunity to amend their complaint to supplement the record and oppose the motion. The motion to amend plaintiffs’ complaint was filed subsequent to argument on the preliminary objections. In addition, plaintiffs were afforded the opportunity for argument on the preliminary objections. Once the decision was handed down by this court on December 2, 2004, dismissing plaintiffs’ complaint, there was no basis to hold a hearing on the motion to amend complaint as the complaint had been dismissed.

Plaintiffs next contend that this court ignored the motion for leave to file amended complaint with an order until the hearing held upon the petition for reconsideration. The court is not quite clear as to what plaintiffs are alleging in this matter. However, the court was satisfied that there was no basis to reconsider its order of December 2, 2004, and grant plaintiffs leave to amend their complaint.

Plaintiffs next alleged this court erred by violating Pennsylvania Rules of Civil Procedure proscription against presumption and thus (1) allowing unproven preliminary objections to stand; (2) preventing the natural, invited and countered reply of plaintiffs to a previous pleading; (3) allowing such reply brief to be valued against plaintiffs and not enter the same in the file or record in denying plaintiffs an opportunity to both express his claims and resolve any controversy pertinent to the issues by use of the courtroom blackboard. This court is unaware how it violated the Pennsylvania Rules of Civil Procedure. Plaintiffs had an opportunity to be fully heard by this court through their argument made during the hearing on the preliminary objections. The court did, in fact, read all briefs filed by both parties prior to rendering a decision in this matter. Plaintiffs did have adequate opportunity to argue their position against the granting of the preliminary objections. Lastly, at no time to this court’s recollection, did plaintiffs ever request to use the courtroom blackboard. Nevertheless, this court does not believe that, even if the use of the blackboard was requested and the same granted, it would have changed this court’s decision.

Plaintiffs next allege that this court exceeded the scope of judgment and authority and that the resulting dismissal of the complaint was an invalid application and presumptuous determination of a future event in which the elements remained yet to be proven. This court does not understand what plaintiffs are alleging in this matter. The allegation is not substantiated by the record and this court shall not address the same.

Next, plaintiffs allege that this court committed an egregious neglect of the known construction and scope of existing law. This court relied upon the doctrine of res judicata in rendering its decision. The doctrine of res judicata “holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super. 225, 232, 464 A.2d 1313, 1316 (1983). “The original cause is ‘barred’ by a judgment for the defendant and ‘merged’ in one for the plaintiff. ” Id. “Res judicata bars not only those issues actually raised, but also those issues which could have been litigated in the first action.” Id. at 236, 464 A.2d at 1318.

For the doctrine of res judicata to prevail there must be a concurrence of four conditions: (1) identity of the issues sued upon; (2) identity of the causes of action; (3) identity of the parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Id. at 232, 464 A.2d at 1317. The court is satisfied that the above conditions were satisfied in this case. First, the two cases filed by plaintiffs are based upon the identical facts and circumstances and are based upon the same alleged acts and omissions of defendant, Central Volkswagen; (2) the parties to both actions are identical; (3) plaintiffs are asserting, in the present action, the same rights as were asserted in the magisterial district judge action; and (4) plaintiffs’ complaint seeks essentially the same relief as they sought and was obtained by plaintiffs in the magisterial district judge’s action.

“[Wjhere the doctrine of res judicata is otherwise applicable, its invocation will not be precluded or impaired because the prior judgment was entered in an action before a district justice.” A. C. Elfman and Sons Inc. v. Clime, 355 Pa. Super. 394, 397, 513 A.2d 488, 490 (1986). Upon review of the record by this court, the court is satisfied that the same claims were pursued by plaintiffs in the proceedings before the magisterial judge as are now being asserted by plaintiffs in this case. This court is satisfied that under the doctrine of res judicata, plaintiffs cannot, in the present case, pursue any part of the claims that were, or that could have been, asserted before the magisterial judge.

Plaintiffs are not permitted to split the causes of action that formed the basis of both the magisterial district judge action and the present action. “The law does not permit the owner of a single or entire cause of action to divide or split that cause so as to make it the subject of several actions.” Kessler v. Old Guard Mutual Insurance Company, 391 Pa. Super. 175, 182, 570 A.2d 569, 573 (1990).

This court is satisfied that plaintiffs have no viable claims to present in this matter. There exists no case or controversy presently existing over which this court might exercise jurisdiction.

Lastly, this court is satisfied that plaintiffs have no standing to pursue the claims that were the subject of the prior judgment and for which plaintiffs received a judgment and satisfaction.

For all the foregoing reasons, this court sustained the preliminary objections and dismissed plaintiffs’ complaint in its entirety with prejudice.


author: KURTZ, J,

text:
    Nationwide Mutual Insurance Company v. Gardner

      C.P. of Huntingdon County,
    no. 05-51.
    January 19, 2006

      Dennis Stofko, for plaintiff.

      Nathan Karn, for defendant.
   KURTZ, J,

In this insurance coverage dispute, plaintiffs (Nationwide) have moved for summary judgment. The motion is appropriate since “[t]he proper construction of an insurance policy is a matter of law that a court may resolve pursuant to a motion for summary judgment.” Harstead v. Diamond State Insurance Company, 555 Pa. 159, 162-63,723 A.2d 179, 180 (1999). The facts that are the backdrop for this case can be succinctly summarized.

BACKGROUND

On July 25,2004,12-year-old Corey Lee Secrest was riding as a passenger on an all-terrain vehicle (ATV) operated by 13-year-old Matthew Gardner. Around 6 p.m., Gardner was traveling on Township Road T501 in Shirley Township, Huntingdon County, when he encountered a tractor-trailer approaching in the opposite direction. Sadly, an accident ensued as a consequence of which Corey Secrest sustained fatal injuries.

A civil action was commenced August 2,2004, by the estate of Corey Lee Secrest against Matthew Gardner and his father, David Gardner. This action was initiated January 19, 2005, since Mr. Gardner was the owner of three separate policies of insurance issued by Nationwide. More specifically, Mr. Gardner owned two homeowner insurance policies as well as a separate umbrella policy which acts as an excess policy for the homeowner policies. All three policies were in effect on the date of the accident.

In its motion for summary judgment, Nationwide set forth that the insurance policies owned by Mr. Gardner “contain valid enforceable exclusions precluding indemnity and a duty to defend from any and all claims arising from Matthew Gardner’s operation of the ATV.” In this regard, the exclusions relied upon were recited.

First, the following provisions from the homeowner policies were set forth:

“Section I.

“Property coverage.

“Coverage C — Personal property.

“Property not covered. We do not cover

“. . . (4) motor vehicles or all other motorized land conveyances including the following,....

“Section II.

“Liability exclusions.

“(1) Coverage E — Personal liability and coverage F— Medical payments to others do not apply to bodily injury or property damage:

“... (g) arising out of the ownership, maintenance or use of, or loading or unloading of; entrustment or the negligent supervision by an insured of; or statutorily imposed liability on an insured related to the use of:

“(1) an aircraft.

“(2) a motor vehicle or all other motorized land conveyance owned by or operated by, or rented or loaned to an insured.'’’’

Next, Nationwide recited from the umbrella policy the provision it asserted precludes coverage:

“Exclusions.

“Excess liability and additional coverages do not apply to:

“. . . (6) An occurrence arising out of the ownership, maintenance, loading or unloading of; entrustment or negligent supervision by an insured of; or statutorily imposed liability of an insured relating to the use of:

“. . . (c) a motorcycle, motor scooter, motorized bicycle, moped or similar type motorized land conveyance unless insurance is provided by a listed underlying policy.

“(d) a land motor vehicle, trailer or semi-trailer unless insurance is provided by a listed underlying policy.”

The conclusion advanced by Nationwide is that the operation of an ATV on a public road falls within the policy exclusions set forth above. Argument on the motion was presented November 21, 2005, and we have had the benefit of outstanding, comprehensive briefs. Based upon our consideration of the briefs and arguments, the motion will be granted.

LEGAL LANDSCAPE

The Supreme Court of Pennsylvania has outlined the standards for interpreting a contract of insurance. In Madison Construction Company v. The Harleysville Mutual Insurance Company, 557 Pa. 595, 735 A.2d 100 (1999), the issue was whether a pollution exclusion clause in a policy of commercial general liability insurance relieved Harleysville of its duty to defend in a personal injury action. The court concluded that it did and provided the following guidance:

“Where an insurer relies on a policy exclusion as the basis for its denial of coverage and refusal to defend, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense. Erie Insurance Exchange v. Transamerica Insurance Co., 516 Pa. 574, 580, 533 A.2d 1363, 1366 (1987) (citing Miller v. Boston Ins. Co., 420 Pa. 566, 570, 218 A.2d 275, 277 (1966)); see also, Armon v. Aetna Cas. & Surety Co., 369 Pa. 465, 469, 87 A.2d 302, 304 (1952). To determine whether Harleysville has met its burden of proof, we rely on well-settled principles of contract interpretation.

“ ‘ [T]he task of interpreting [an insurance] contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.’

“Gene & Harvey Builders v. Pennsylvania Mfrs. Ass’n, 512 Pa. 420, 426, 517 A.2d 910, 913 (1986) (quoting Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-305, 469 A.2d 563, 566 (1983)). (citations omitted) Contractual language is ambiguous ‘if it is reasonably susceptible of different construction and capable of being understood in more than one sensqI Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 201, 519 A.2d 385, 390 (1986). This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. See Gamble Farm, 440 Pa. Super. [501] at 505, 656 A.2d [142] at 144 [(1995)]; Techalloy, 338 Pa. Super. [1] at 7, 487 A.2d [820] at 823 [(1984)]. We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. Stewart v. McChesney, 498 Pa. 45, 53, 444 A.2d 659, 663 (1982).” Madison, at pp. 605-606, 735 A.2d at p. 106.

Our duty in this case is to interpret the Nationwide policies in a manner consistent with the principles outlined above.

ANALYSIS

Nationwide’s flagship argument is straightforward. It asserts that the policy exclusion 1 (g)(2) in the homeowner policies unequivocally proscribes liability coverage arising out of the ownership, maintenance and use of a “motor vehicle or all other motorized land conveyance.” In this regard, it relies on the policy definition of motor vehicle:

“ ‘Motor Vehicle’ means:

“(a) a motorized land vehicle or conveyance, including motorized bicycles or mopeds, designed for travel on public roads or subject to motor vehicle registration.

“(b) a trailer or semi-trailer designed for travel on public roads and subject to motor vehicle registration.

“(c) any vehicle while being towed by or carried on a vehicle defined in 6(a) or 6(b).”

Nationwide argues that a “fair reading of the policy” leads to the conclusion that the exclusion covers not only motor vehicles but also all other varieties of motorized land conveyance including ATVs. This interpretation, it posits, represents the clear intent of the parties as reflected by the language of the policy. In short, Nationwide reasons that if an ATV is not a motor vehicle under the policy, it most certainly is a motorized land conveyance and therefore the exclusion bars coverage.

Defendants’ response to plaintiffs’ argument is in the alternative.

First, they focus on the policy definition of “motor vehicle,” and assert that, to fall within that definition, a motorized land vehicle or conveyance must either be designed for travel on public roads or be subject to motor vehicle registration.

With that parsing, we can find no fault.

Next, defendants assert that ATVs are not designed for public roads and in Pennsylvania are subject to regulation, including registration, under the Snowmobile and All-Terrain Vehicle Law, and not the Vehicle Code. Therefore, they argue that ATVs are not motor vehicles under the definition in the Nationwide policies — a conclusion with which we can find no fault.

As a next step, defendants point out that “motorized land conveyance” is not defined in the policies and that the same words appear in both the definition of motor vehicle and Exclusion 1(g)(2). Therefore, they contend the terms must be read inclusively particularly since no punctuation was used to separate or distinguish “motor vehicle” and “motorized land conveyance.”

In furtherance of this argument, defendants suggest there is evidence within the policies to support their proposition that “motor vehicle” and “motorized land conveyance” are synonyms. They point to the following policy provision:

“Property Not Covered. We do not cover:

“(1) articles separately described and specifically insured in this or any other insurance.

“(2) animals, birds or fish.

“(3) house or travel trailers.

“(4) motor vehicles or all other motorized land conveyances including the following, whether furnished by the manufacturer or an individual:

“(a) their parts or equipment, whether attached to or separated from the motor vehicle or motorized land conveyance; or

“(b) accessory equipment; or

“(c) any device or instrument including accessories or antennas, for the transmitting, receiving, recording or reproduction of sound or picture which can be operated by the power from the electrical system of the motor vehicle or motorized land conveyance. Tapes, discs, reels, cassettes or similar items, including carrying cases for any of these, while in a motorized land vehicle shall not be considered accessory equipment. The most we will pay is $200 in any one loss, regardless of the number of such items. The loss must be caused by a covered peril.”

Defendants’ spin on this provision is that Nationwide combined the terms “motor vehicle” and “motorized land conveyance” to create motorized land vehicle. They point out the verity that in this section of the policy motor vehicle is in bold print which means it is defined. Therefore, defendants declare that a proper interpretation is that a motorized land conveyance is a motor vehicle and that since an ATV is not a motor vehicle, the exclusion does not apply.

The alternative argument is that the meaning of “motorized land vehicle” is ambiguous and therefore the term must be construed in favor of the insured. Gene & Harvey Builders Inc. v. Pennsylvania Manufacturers’ Association Insurance Co., 512 Pa. 420, 426, 517 A.2d 910, 913 (1986).

We admire the effort and ingenuity defendants have demonstrated attempting to persuade this court that either “motor vehicle” and “motorized land conveyance” are synonyms or that an ambiguity exists, but we believe the policy, language is clear and unambiguous. While it is true that the policy does not define motorized land conveyance, our common sense suggests it means any motorized vehicle intended for land use except those designed for travel on public roads or those subject to motor vehicle registration, which are defined as motor vehicles under the policy. While we believe Nationwide could have been specific that ATVs were excluded, we can’t twist that opinion into a reason to distort the meaning of the words in order to find coverage. Therefore, we conclude that Exclusion 1(g)(2) applies to ATVs.

Defendants have a fallback position. They assert that ATVs fall within the exception to Exclusion 1(g)(2). The exception found in the homeowner’s policies provides as follows:

“This exclusion 1(g)(2) does not apply to:

“(a) a vehicle owned by an insured and designed for recreation off public roads while on an insured location.”

“Insured” and “insured location” are defined as follows:

“(4) ‘Insured’ means you and the following if residents of your household at the residence premises:

“(a) your relatives.

“(b) any other person under age 21 and in the care of you or your relatives.

“(5) ‘Insured Location’ means:

“(a) the residence premises.

“(b) the part of any other premises, structures, and grounds used by you as a residence and shown in the policy; also any of these acquired by you during the policy period for your use as a residence.

“(c) a premises you use with premises defined in 5(a) or 5(b). (emphasis added)

“(d) a part of a premises, not owned by an insured, where an insured is temporarily living.

“(e) vacant land, other than farm land, owned by or rented to an insured.

“(f) land, other than farm land, owned by or rented to an insured on which a one or two-family dwelling is being built as a residence for an insured.

“(g) cemetery plots or burial vaults of an insured.

“(h) a part of a premises rented on occasion to an insured for purposes other than business.”

Finally, “residence premises” is given this definition:

“(7) ‘Residence Premises’ means the one, two, three or four-family dwelling, other structures and grounds located at the mailing address shown on the Declarations unless otherwise indicated.”

Three arguments have been tendered as to why the exception is applicable to the ATV in this case.

First, and rather esoterically, the absence of a comma is asserted as a basis for the proposition advanced. The argument is premised on the rule of the last antecedent, and a decision by the Honorable Daniel H. Huyett III, in Motorists Mutual Insurance Company v. Kulp, 688 F. Supp. 1033 (E.D. Pa. 1988).

Judge Huyett was confronted with a coverage issue in Motorist Mutual and specifically he was called upon to parse a policy definition of motor vehicle that included the following:

“(c) a motorized golf cart, snowmobile, or other motorized land vehicle owned by any insured and designed for recreational use off public roads, while off an insured location....”

The issue for Judge Huyett was whether an exclusion in Mr. Kulp’s homeowner’s policy for bodily injury arising out of the use of a motor vehicle applied to injuries sustained by him in an accident on a minibike in a field some distance from his residence.

Mr. Kulp argued there was an ambiguity since under the last antecedent phrase rule, the phrase “while off an insured location” modified only the phrase “designed for recreational use off public roads.” He posited that since there was no reason why the minibike could not have been used on an insured location, it was not “designed for recreational use off public roads while off an insured location,” and therefore not within the exclusion.

Judge Huyett rejected the argument, ruling:

“Defendants’ reading of the policy is contrary to the plain meaning of the subsection. Reading the subsection in its entirety, and giving due recognition to the placement of a comma before the limiting phrase, subsection c clearly and unambiguously defines as a ‘motor vehicle’ any recreational vehicle designed for use off public roads while it is being used off an insured location; such vehicles are excluded from the definition if they are being used on an insured location.

“Reading section 5 in its entirety, it is equally clear that the phrase ‘designed for recreational use off public roads’ distinguishes the vehicles described in subsection c from those described in subsection a. Defendants’ argument that ‘while off an insured location’ modifies only ‘designed for recreational use off public roads’ tortures the plain meaning of the subsection.” Motorist Mutual, at p. 1035. (emphasis added)

In this case, defendants have seized upon the fact that no comma separates “while on an insured location” from “designed for recreation off public roads” in the exception to argue that the result should be the opposite of Motorist Mutual. Their conclusion is that “[T]he location of actual use is not contemplated in light of the absence of a comma.”

While we understand the words we do not hear the music. It seems to us that clear language of the exception indicates that it applies (1) to vehicles owned by an insured, (2) that are designed for recreation off public roads, and (3) while being used on an insured location. That interpretation represents the plain meaning of the language in the policy.

Next, defendants argue that the definition of “insured location” is sufficiently broad to encompass the township road neighboring the “residence premises” and heading to the private road that provides access to the “residence premises.” The argument ignores the language of the exception that it was intended to cover vehicles “designed for recreation off public roads.” It also calls upon this court to find coverage for the unlawful use of an ATV. See 75 Pa.C.S. §7721(a). Nonetheless, we have considered the two decisions of the Superior Court of Pennsylvania cited by defendants.

In Uguccioni v. United States Fidelity and Guaranty Company, 408 Pa. Super. 511, 597 A.2d 149 (1991), the facts were not complex. Mr. and Mrs. Uguccioni owned a residence insured by USF&G in a Monroe County development. Sadly, an individual was killed operating an ATV owned by the Uguccionis along a private roadway in the development. The USF&G policy contained an exclusion for the use of a motor vehicle defined as a “motorized land vehicle designed for recreational use off public roads, while off an insured location.” “Insured location” was defined as “the residence premises and any premises used... in connection with the residence premises.”

The Superior Court ruled that the “language used in the policy to define an ‘insured location’ clearly is broad enough to include roads in a private development which are available for use in achieving access to the insured residence.” Uguccioni at 514, 597 A.2d at 150.

In this case, “insured location” means “the residence premises” and “a premise you use ....” That definition would also, we think, be broad enough to include private roads in a development. However, the accident in this case occurred on a public road leading to a private road. Thus, it is a step removed from the facts in Uguccioni. We cannot and will not conclude that the language of the exception is sufficiently broad to encompass public roads, particularly since the legislature has ordained it unlawful to operate an ATV on public roads not designated and posted as an ATV road.

The next case cited and relied upon by defendants in their effort to persuade this court that the exception to Exclusion 1(g)(2) applies is State Farm Fire and Casualty Company v. MacDonald, 850 A.2d 707 (Pa. Super. 2004).

Mr. MacDonald owned a 10-acre parcel of real estate on which he had his residence. He obtained homeowner’s insurance through State Farm.

Mr. MacDonald kept two ATVs on his property, and he and his friends frequently rode the recreational vehicles on the MacDonald property as well as an adjacent field. On this point, evidence adduced at depositions allowed Superior Court to conclude that Mr. MacDonald “repeatedly rode his ATV from his property onto the adjacent field and back.” Id. at 711.

Tragically, a young man who was a guest of Mr. MacDonald was killed when he collided with trees located on the adjacent field.

The policy in issue excluded coverage for motor vehicles defined as a “motorized ... all terrain vehicle ... while off an insured location.” Insured location was defined as the residence premises and “any other premises used by you in connection with the residence premises.”

Superior Court had no difficulty finding coverage since the evidence was clear that MacDonald had used the adjacent field in connection with his residence premises.

In this case, we have no evidence of repeated use of the ATV on the township road where the accident occurred. The case is therefore easily distinguishable.

Our conclusion is that the definition of “insured location” in the policy in this case is not broad enough to include a public road.

As a final argument in support of their contention that the exception to Exclusion 1(g) (2) applies, defendants argue that the underlying negligence that caused the accident occurred on the insured location. This is so, they say, because the theory of liability is based on negligent entrustment.

A similar argument was made and rej ected by both the Superior Court of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania. See Federal Kemper Insurance Company v. Derr, id. at 391, 392; Allstate Insurance Co. v. Drumheller, 285 F. Supp. 2d 605 (E.D. Pa. 2003). We likewise reject the idea that location of the negligence and not the accident is dispositive.

A final issue remains with respect to the umbrella policy owned by Mr. Gardner. Nationwide contends that the exclusions in that policy and set forth on page 153 of this memorandum preclude coverage. It argues that an ATV is a land motor vehicle and therefore excluded from coverage. Also, Nationwide points out that the umbrella policy becomes operative only when there is an excess obligation to the primary policy, i.e., the homeowner’s policies. Since, they argue, there can be no liability on account of the homeowner policy, there can be no liability under the umbrella policy.

Although defendants proffered cursory argument against Nationwide’s assertion, it is clear they cannot and do not seriously contend that the umbrella policy provides coverage unrelated to the homeowner’s policies. Therefore, since our reluctantly reached decision is that there is no coverage under the homeowner’s policies for the accident in this case, there can be no coverage under the umbrella policy.

An order will be entered granting plaintiffs’ motion for summary judgment.

ORDER

And now, Januaiy 19,2006, it is the order of this court that plaintiffs’ motion for summary judgment is granted. Counsel for the plaintiffs shall submit to the court a form of final judgment within 20 days.

      . Pa.R.C.P. 1035.2(1).

      . 75 Pa.C.S. §7701 et seq.

      . 75 Pa.C.S. §101 etseq.

      . The homeowner’s policies say on page A2 that excepting headings, all defined words are in bold print.

      . In Black’s, we find this definition of the rule of the last antecedent. “An interpretative principle by which a court determines that qualifying words or phrases modify the words or phrases immediately preceding them and not words or phrases more remote, unless the extension is necessary from the context or the spirit of the entire writing.” Black’s Law Dictionary, seventh edition 1999 atp. 1334.


author: PICCIONE, J,

text:
    Bacon v. Morrison

      C.P. of Lawrence County,
    no. 10797 of 2005, C.A.
    December 28, 2005

      Philip W. Berezniak, for plaintiff Roebuck.

      Ryan C. Long, for defendant-petitioner Morrison.

      Michael A. Frisk Jr., for plaintiff-defendant Bacon.
   PICCIONE, J,

Before the court for disposition is Mariana Morrison’s (Mother) petition to relocate. Mother is requesting permission to relocate with the minor child, [ ], bom [ ], to Goose Creek, South Carolina.

The existing custody order, dated August 17, 2005, awards primary physical custody of the minor child to the Mother, subject to the partial custody rights of Mark Bacon (Father) and Lori Roebuck (Maternal Grandmother). The Father currently enjoys partial custody of the minor child on each Monday and Wednesday from 5 p.m. to 8 p.m. and on alternating Sundays from 1 p.m. to 6 p.m. Mother and Father share legal custody of the minor child. Mother is permitting the Maternal Grandmother to have some contact with the minor child; however, the relationship between Mother and Grandmother has significantly deteriorated since Mother decided to attempt relocation.

Mother and Father, parties to the instant action, conceived a child, [ ], out of wedlock. Mother and Father finally separated August 2004 after a history of separations and reunions. Throughout the minor child’s life, the Maternal Grandmother, also a party to this action, has been instrumental in raising her.

Mother and Father are and continue to be Lawrence County residents. Additionally, both Mother and Father have many family members that reside in the Lawrence County area including the minor child’s Maternal and Paternal Grandparents. Mother filed a petition to relocate on July 27,2005, upon her engagement to Benjamin Nye. At the time of the hearing she was approximately three months pregnant with their child. (N.T. 09/14/05 p. 63.)

Mother’s fiance, Benjamin Nye, is a former Lawrence County resident who has obtained employment in the Goose Creek, South Carolina area. (N.T. 09/14/05 p. 152.) Mr. Nye has relatives and friends in the Goose Creek area. (N.T. 09/14/05 p. 40.)

Mother met Mr. Nye sometime in November of 2004 and began dating him approximately one month later. (N.T. 09/14/05 p. 34.)

The testimony of the parties revealed that Mr. Nye was addicted to Oxycodone and sought treatment for that addiction. (N.T. 09/14/05 p. 83.) The Mother provided copies of Mr. Nye’s certificates of completion from the Residential Addiction Treatment Program at the Ellen O’Brien Gaiser Addiction Center on May 28,2004, and from the Moffet House on August 30, 2004. Mr. Nye presented himself to the court as recovered and capable of meeting the demands of beginning a new family.

Mother currently has a high school degree and works around 20 hours per week as a waitress, earning $5.85 per hour plus tips. (N.T. 09/14/05 p. 8.) Mother has testified that she has obtained near full-time employment in Goose Creek at the rate of $15 per hour. (N.T. 09/14/05 p. 60.)

Mr. Nye and Mother have signed the lease for a townhouse at 30 Crystal Springs Dr., Goose Creek, South Carolina. (N.T. 09/14/05 p. 48). They have also chosen a pediatrician for the minor child and located St. James Park as a nearby location for the minor child to play. (N.T. 09/14/05 pp. 53-54.) If Mother were permitted to relocate, the minor child would attend school at Goose Creek Primary. (N.T. 09/14/05 p. 55.) Additionally, Mother and Mr. Nye have provided photographs depicting these locations to the court.

Father is also a high school graduate. Although Father admitted to his previous shortcomings as a parent, he is improving his relationship with the minor child and appears to be improving his life as a whole.

The court finds the standards enumerated in Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 440 (1990), apply to this case in disposing of the relocation issue presented by Mother. The Gruber court set forth three factors a trial court must consider in determining whether a custodial parent may relocate a distance from the non-custodial parent:

“(1) The potential advantages of the proposed move, economic and otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the child and is not the result of a momentary whim on the part of the custodial parent;

“(2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it;

“(3) The availability of a realistic substitute visitation arrangement, which will foster adequately an ongoing relationship between the child and the non-custodial parent.” Gruber, 400 Pa. Super. at 186, 583 A.2d at 440; Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002).

These three factors must be included in the ultimate consideration of the court, which is the child’s best interest. Thomas v. Thomas, 739 A.2d 206 (Pa. Super. 1999). Due to the fact that a custody order currently exists, the burden of proof is on the custodial parent requesting relocation. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003); Tripathi v. Tripathi, 787 A.2d 436 (Pa. Super. 2001).

A determination of a child’s best interest must be premised upon all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. McAlister v. McAlister, 7A7 A.2d 390 (Pa. Super. 2000).

The court finds that Mother will potentially improve her quality of life by moving to Goose Creek, South Carolina. She is currently engaged to Benjamin Nye and now would be approximately six months pregnant with their child. Mr. Nye has stated that he has secured good employment in Goose Creek, South Carolina. They have obtained a home to rent and Mother has also stated that she has found near full-time employment for around $ 15 per hour.

Mother has researched the school system, the recreational facilities available to the minor child and has chosen a pediatrician in Goose Creek, South Carolina. Mother will also potentially be able to provide the minor child with a stable immediate family unit. Most of Mr. Nye’s family is located near Goose Creek, South Carolina and Mr. Nye’s mother is purported to be moving to Goose Creek as well. (N.T. 09/14/05 p. 61.) However, the court also finds that, until Mr. Nye and Mother are married, Mr. Nye has no legal economic obligation towards her or the minor child. The court also notes Mother’s testimony that, in the event the relationship between her and Mr. Nye dissolved for any reason, she would likely move back to Lawrence County, Pennsylvania. (N.T. 09/14/05 p. 82.) In other words, notwithstanding the other potential advantages of relocating, Mother is attempting to relocate solely because of her relationship with Mr. Nye.

The court finds that, although the proposed relocation purports a prima facie improvement of Mother and minor child’s quality of life, the first prong of the Gruber analysis has not yet been satisfied. Although Mother is beginning a new life with Mr. Nye and, given their employment opportunities, Goose Creek, South Carolina appears to be the best location for them, these benefits are somewhat speculative due to the fact that Mr. Nye and Mother are not yet married, and Mr. Nye has no legal obligation to support Mother or the minor child. The proposed relocation could also benefit the minor child in that it could serve to provide a stable family unit for the child; however, at this point the court finds any such benefit too speculative to satisfy Gruber and its progeny.

The next Gruber factor calls for the court to inquire into the integrity of the parties’ motives. Gruber, 400 Pa. Super. at 186, 583 A.2d at 440. Mother’s motive in requesting the move is to be with her fiance, Benjamin Nye. Mother is pregnant with their child and is seeking to start a new life in South Carolina. Father’s motive in seeking to prevent the move appears to reflect his desire to continue his improving relationship with the minor child. Accordingly, the court finds that the motives of the parties are pure, which satisfies the second Gruber prong.

The final prong of the Gruber analysis examines the availability of a realistic substitute visitation arrangement which will foster adequately an ongoing relationship between the child and the non-custodial parent. Id. Currently, the minor child spends time with her Father and Maternal Grandmother pursuant to the order of court dated August 17,2005. The Father admitted that he leaves much to be desired as a parent; however, he has stated that he is striving to become a better parent. Fie also indicated that there are times when Mother withholds the minor child from him. Additionally, Maternal Grandmother has been an integral part of raising the minor child. She has also stated that Mother has recently withheld the child from her.

Mother has stated that she would make the minor child available to Maternal Grandmother during the Christmas holiday and for a period of time over the summer. (N.T. 09/14/05 p. 62.) Father would be able to visit the minor child during these times. Id.

Although Mother has proposed an alternative custody arrangement, any such arrangement would dramatically curtail the amount of time the minor child spends with Father. At this time, the court is not convinced that the involved parties are able to effectively communicate in such a manner that would promote growth or continuation of the minor child’s relationship with Father and other immediate family in Lawrence County. Accordingly, the court finds that Mother is unable to satisfy the third prong of the Gruber analysis.

Considering all relevant factors, and the minor child’s best interest, the court concludes Mother has not satisfied the standard set forth in Gruber; specifically, the court finds that any benefits to Mother and minor child that could result from the proposed relocation are too speculative at present to conclude with a sufficient degree of confidence that those benefits to Mother and minor child will be forthcoming. The court further finds that the relationship between Mother and Maternal Grandmother has deteriorated to the extent that, at this time, without improvement, it is unlikely for Mother and Maternal Grandmother to reach a custody arrangement that would allow the minor child to continue the established relationship with Maternal Grandmother in the event relocation were to occur. Furthermore, there is not a suitable alternative custody arrangement available that would serve to adequately foster the ongoing and still-developing relationship between the minor child and her Father. For these reasons, Mother’s petition to relocate is denied.

ORDER

And now, December 28,2005, for the reasons set forth in the accompanying opinion of even date herewith, it is hereby ordered, adjudged, and decreed that Mother’s petition to relocate is denied.

The prothonotary shall serve notice of this order upon counsel of record for the parties, and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.