author: MASCARA, J.,

text:
    Johns v. Maloy
    C.P. of Washington County,
    no. 2005-8684.

      John Paul Lewis, for plaintiff.

      Charles Kurowski, for defendant.
    February 9, 2006
   MASCARA, J.,

Defendant, Michael Maloy, has appealed to the Superior Court of Pennsylvania from this court’s order of December 1, 2005. Plaintiff filed a petition for protection from abuse on November 23, 2005. The petition stated that the defendant, Michael Maloy, was trying to control the plaintiff by telling her not to go through with the child support hearing “or else.” Plaintiff alleged that defendant threatened to withhold the baby until the support case was withdrawn.

As to incidents of past abuse, plaintiff alleged in her petition that the defendant made a threat, in August 2005, to kill her and her family if she didn’t get back together with him. Additionally, plaintiff claimed that the defendant has punched her, thrown her down stairs, and kicked her in the ribs, face and back. Plaintiff explained in her petition that, on one occasion, defendant hit her so hard in the ear that it knocked her out for a couple of seconds. Finally, plaintiff alleged that defendant controlled her and didn’t allow her to go anywhere. Upon review of the petition for protection from abuse, this court signed the temporary order for protection from abuse and set a final hearing date for December 1,2005.

After hearing testimony from plaintiff and defendant on December 1, 2005, and upon review of the record, this court granted plaintiff’s request for a final protection from abuse order. In paragraph five of the final order, the court ordered that custody would be shared on a 3-4/4-3 basis. The parties were granted permission to communicate for purposes of effectuating custody exchanges. Additionally, it was outlined in the order that the exchanges would take place at Frosty Kiss at 7 p.m. In paragraph seven of the order, the court instructed defendant to undergo random monthly drug and alcohol tests through the Washington County Adult Probation Office. It was also noted that defendant’s custody rights would be suspended if he tested positive. The final protection from abuse order was entered for a period of 18 months.

The defendant filed a timely appeal to the Pennsylvania Superior Court in accordance with Pa.R.A.P. 903(a). On December 16, 2005, this court ordered defendant to file a concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(b).

The defendant filed his concise statement on December 29, 2005. At that time, defendant raised five issues. In four of the five issues, defendant alleges that this court abused its discretion and committed an error of law by issuing a PFA against defendant. The final issue complained of is that the plaintiff did not prove any allegations of abuse or imminent harm necessary to meet the preponderance of the evidence standard.

The most recent incident of abuse alleged by plaintiff took place on November 22, 2005. The first witness to testify at the hearing was the plaintiff, Angela Johns. She testified that the defendant called her on November 22, 2005, demanding that she drop the child support action that she had filed “or else.” Defendant also allegedly told plaintiff that since they were going to get back together they didn’t need the child support action. Plaintiff then explained to the court that she asked the defendant, “[o]r else what?” According to the plaintiff’s testimony, the defendant responded, “[o]r else I just won’t give you the baby back; you will never see her until your drop this court hearing.” See N.T., pp. 2-3. Plaintiff admitted that this was the only incident in the month of November, however, she provided testimony regarding an incident in August 2005.

Plaintiff alleged that in mid-August, defendant asked her where her new residence was. Plaintiff continued her testimony by explaining that when she wouldn’t tell the defendant where she lived, he threatened to kill her and her family. Plaintiff then also described an incident in May 2005 when the defendant was demanding money from her and she did not have any money. Plaintiff alleged that defendant stated, “[i]f you don’t have any money, I’m going to start tearing this place from limb to limb.” See N.T., p. 6. Plaintiff indicated that she called 911 at that time and a tape was made in which defendant could be heard trashing the house and screaming at the plaintiff.

As to other incidents of past abuse, plaintiff testified that defendant physically abused her in March 2004. Specifically, plaintiff alleged that defendant pushed her down to the floor. Plaintiff indicated that when she began to defend herself, defendant threw her to the ground continuously, kicked her, and punched her in the face. Plaintiff explained that defendant was arrested that night. When questioned as to whether anything happened with the house during this incident, plaintiff alleged that defendant “totally trashed the house. He put the microwave through the glass table that we had, put a big hole in the wall with the microwave, busted up a couple windows, totally busted up my new bedroom furniture I had to get replaced.” See N.T., p. 9. The plaintiff next testified about an incident in the summer of 2002. She explained to the court that the defendant came to her residence and pushed her down the steps. Plaintiff indicated that the defendant left for awhile and when he came back that same day, “[h]e pushed me up against the car, and I pushed him away, and then when I went to walk away, he like tackled me, threw me down on the ground, and I hit my head off of a big rock that was in the ground.” See N.T., p. 10. Plaintiff continued her testimony by explaining that the defendant was picked up by the police that night because he was out of control. She also indicated that he had to be maced that evening and he spent two nights in jail.

The plaintiff testified that in the summer of 2003, defendant threatened to bum the house down. She stated: “he got a gasoline can out and told me he was going to burn the house down with me in it, and that he was going to tell the police, the fire department, that he thought that I was behind it. . . .” See N.T., p. 11. Plaintiff explained that this comment scared her and she called the police. Plaintiff alleged that the defendant never allowed her to go places when they were together. Additionally, she indicated that he would call her constantly at work.

On cross-examination, plaintiff testified that the defendant did not have visits with the child from August 25 to September 13 because he was in rehab. Plaintiff answered in the affirmative when she was asked if she is afraid that the defendant will threaten her with bodily harm or death. Defendant’s attorney then presented some photographs to the plaintiff. Plaintiff explained that she was not in fear at the time the photos were taken, because defendant’s parents and grandparents were present. When asked by defendant’s attorney if she filed the PFA because it “was the only way [she] could get her baby back,” plaintiff responded, “[w]ithout me getting harmed.” See N.T., p. 18. The issue of defendant spending time in rehab came up once more on cross-examination. The court briefly interrupted plaintiff’s testimony to ask why defendant was in rehab. Defendant admitted that it was for alcohol. Plaintiff then alleged that it was not only for alcohol, but also for crack cocaine and gambling.

Finally, on redirect examination plaintiff’s attorney asked her why she cannot approach defendant to request return of the child. Plaintiff answered, “[b]ecause I wasn’t going there and end up getting hurt, because he told me, do not come there, and I didn’t know what he was going to be doing, considering that he was screaming on the phone with me the day before.” See N.T., p. 20.

The defendant, Michael Maloy, then provided his direct testimony to the court. Defendant admitted again that he had spent 14 days in rehab which began on August 28, 2005. When questioned by the court as to whether the rehab was for alcohol only, defendant answered, “[d]rug and alcohol. I voluntarily went in.” See N.T., p. 23. On cross-examination, defendant explained that he felt that he needed some help with his drug and alcohol problem. Defendant denied making any threats of physical harm to plaintiff or her family. Defendant testified that he was shocked by the filing of the PFA because plaintiff has never indicated that she fears him. Defendant was not questioned on direct or cross-examination as to whether he ever physically abused the plaintiff.

This court believes that the primary purpose of the Protection from Abuse Act is to protect victims of domestic violence and to prevent further acts of domestic violence. Abuse is defined in the Pennsylvania Protection from Abuse Act at section 6102, as: (1) attempting to cause or intentionally, knowingly or recklessly causing bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon, (2) placing another in reasonable fear of imminent serious bodily injury, (3) infliction of false imprisonment, (4) physically or sexually abusing minor children, including such terms as defined in chapter 63 (relating to child protective services), or (5) knowingly engaging in a course of conduct or repeatedly committing acts toward another person including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. 23 Pa.C.S. §6102.

The first, second and fifth issues complained of on appeal are whether the court committed an error of law and a “complete” abuse of discretion when a PFA was granted in this matter. The fourth issue is whether plaintiff provided evidence to the court of abuse or imminent harm which was sufficient to meet the preponderance of the evidence standard. These issues are not concise, but they are related and will be discussed collectively.

This court granted the relief requested by the plaintiff for a number of reasons. While the case may have initially sounded as if it was “custody-based,” as the testimony proceeded, plaintiff clearly met the requisite burden of proof for protection from abuse cases, which requires plaintiff to prove her case by a preponderance of the evidence. Additionally, the court found plaintiff to be a credible witness.

It is well settled that the Pennsylvania Superior Court defers to the credibility determinations of lower courts as to witnesses who appear before it. Miller on Behalf of Walker v. Walker, 445 Pa. Super. 537, 543, 665 A.2d 1252, 1255 (1995). In Miller on Behalf of Walker v. Walker, the plaintiff, Rhonda Miller, filed a protection from abuse action on behalf of her two children against their father, Lawrence Walker. Plaintiff’s petition alleged that defendant had beaten one of the children, Joshua, with a board and had thereby caused bruising. Furthermore, plaintiff contended that the other child, Crystal, had seen and heard her brother being spanked. Plaintiff provided testimony at the hearing regarding incidents of abuse to the children that had taken place six years prior to filing. Plaintiff’s request for a final protection from abuse order was granted and defendant was allowed supervised visitation with the children.

One of the primary arguments by the appellant in Miller on Behalf of Walker v. Walker was that the appellee did not establish with “credible” evidence that “bodily injury” had occurred to the minor child as would meet the standards and definitions of the Protection from Abuse Act. Id. at 545, 665 A.2d at 1256. The Court of Common Pleas of Montgomery County in the lower court case of Miller v. Walker found that plaintiff had established the allegations of abuse by a preponderance of the evidence, and furthermore stated that Mr. Walker was not a credible witness. Miller v. Walker, 24 D.&C.4th 259, 262 (1995). The Superior Court found no merit in appellant’s credibility argument and stated, “[t]he trial court... acted properly in assessing the credibility of the witnesses, and the evidence supports- the trial court’s finding.” Miller on Behalf of Walker v. Walker, 445 Pa. Super, at 545, 665 A.2d at 1256(1995).

In the case sub judice, the court found plaintiff, Angela Johns, to be a credible witness. Her demeanor and voice fluctuation indicated that she was truly frightened of the defendant. Defendant, on the other hand, was not credible. For example, the first time that he was questioned about rehab, he simply stated that it was for alcohol. See N.T., p. 19. When questioned further, defendant disclosed that he admitted himself to a facility due to his use of both drugs and alcohol. See N.T., p. 23. When asked by the court if he went to rehab for crack cocaine, defendant did not specifically admit to the use of that drug, but instead maintained the broad statement that he went to rehab for drugs and alcohol. Based on the testimony given and the demeanor of the parties, this court resolved the credibility issue in favor of plaintiff, Angela Johns.

In the case of Counterman v. Shoemaker, 14 D.&C.4th 217 (1992), aff’d, 427 Pa. Super. 648, 625 A.2d 95 (1992), the Pennsylvania Superior Court affirmed the lower court decision that a threat to kill is sufficient basis for issuance of a protection from abuse order. In Counterman, the plaintiff filed a PEA against her former boyfriend. The plaintiff alleged that the defendant had told her over the telephone that he had a gun and he would kill her, her fiance, and other family members. The lower court held that, “the Act which defines abuse, does not require actual or attempted physical violence.” Counterman v. Shoemaker, 14 D.&C.4th at 218 (1992). Additionally, the court opined, “[t]he inquiry centers on plaintiff’s fear and not any actual injury inflicted.” Id. at 219, citing Ickes v. Ickes, 3 D.&C.4th 166 (1989). The lower court in Counterman found that defendant’s threats constituted abuse. The Superior Court subsequently affirmed this decision without opinion.

In this case, the court believes that plaintiff, Angela Johns, met the requisite burden of proof. While defendant alleges in his concise statement that plaintiff filed the PFA only to get her child back, this court does not agree. Plaintiff admitted that the motivating factor in filing the PFA was to get her baby back without the risk of injury to herself, or in her own words, “without getting hurt.” See N.T., pp. 18, 19. She stated that defendant was “screaming” at her on the phone the day before she filed the PFA. See N.T., p. 20. Plaintiff also provided extensive testimony of threats as well as actual physical harm inflicted by the defendant. Plaintiff described in detail these numerous incidents of physical abuse directed at her by the defendant. She provided detailed accounts of events whereby defendant destroyed household items and the police had to be notified. It was clear to the court by the close of plaintiff’s testimony that this action was not rooted in custody, but was based upon plaintiff’s sincere fear of bodily harm from the defendant. This court believes that in accordance with the Superior Court’s decision in Counterman, the recent threat to kill plaintiff and her family would, in and of itself, provide sufficient evidence for the issuance of a PFA. The threats and physical violence testified to by plaintiff in this matter undoubtedly qualify as “abuse” under 23 Pa.C.S. §6102(1) and §6102(2).

In Miller on behalf of Walker v. Walker, another contention made by the defendant was that testimony relating to prior instances of abuse dating back six years was improperly admitted. On this issue, the Superior Court held, “some flexibility must be allowed in the admission of evidence relating to past acts of abuse.” Miller on behalf of Walker v. Walker, 445 Pa. Super. at 552, 665 A.2d at 1259, citing Snyder v. Snyder, 427 Pa. Super. 494, 503-504, 629 A.2d 977, 982 (1993). Furthermore, the court stated, “[d]espite a time period of six years, it was not an abuse of discretion for the trial court to hear evidence related to prior abuse of the children. In light of the protective purposes of the Act, it was within the trial court’s discretion to hear any relevant evidence that would assist it in its obligation to assess the appellee’s entitlement to and need for a protection from abuse order.. . . [p]ast abusive conduct on the appellant’s part was a crucial inquiry necessary for entry of a proper order.” Miller on behalf of Walker v. Walker, 445 Pa. Super, at 552, 665 A.2d at 1259.

Similarly, in the case at hand, this court found plaintiff’s testimony of past abuse to be highly probative and relevant. The incidents of abuse alleged by plaintiff in her testimony dated back to the summer of 2002. This court believes that the frequency and duration of the abuse not only strengthened plaintiff’s case, but also helped to illustrate the necessity of entering a final protection from abuse order in this matter.

In a subsection of the first issue in his concise statement, defendant suggests that the court’s inquiries during plaintiff’s testimony were improper and suggestive. Pennsylvania Rule of Evidence 611(a) governs the court’s control during interrogation and presentation. The rule states:

“The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time and (3) protect witnesses from harassment or undue embarrassment.” Pa.R.E. 611(a).

Accordingly, this court asked questions of the plaintiff during her testimony for purposes of clarity and efficiency. This court was not, in any way, attempting to “lead” the witness. It is the duty of the court to ascertain the truth, and it is necessary at times to clarify statements of a witness in order to reach an impartial decision.

The final issue which must be addressed is found at number three of defendant’s concise statement of matters complained of on appeal wherein the defendant complains that the court committed an error of law and abuse of discretion by requiring defendant to undergo drug testing. Specifically, defendant argues that drug testing was not an issue because defendant had completed outpatient treatment. Defendant also argues that drug testing is not a remedy under the PFA law. Finally, defendant complains that ordering drug testing was a violation of defendant’s rights against self-incrimination. This argument is absurd.

The court is empowered to grant broad relief to bring about cessation of abuse. See Heard v. Heard, 418 Pa. Super. 250, 614 A.2d 255 (1992). The Protection from Abuse Act contains many different alternatives for relief when a protection order is granted. The Act provides, in pertinent part:

“The court may grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children. The order or agreement may include: (10) Granting any other appropriate relief sought by the plaintiff.” 23 Pa.C.S. §6108(a)(10).

In paragraph 25(i) of her petition for protection from abuse, plaintiff requested that the court “[gjrant such other relief as the court deems appropriate.” See plaintiff’s petition for protection from abuse. Given the custody component of the PFA order, the court deemed it necessary to order mandatory drug testing for defendant. Such relief was ordered as a means of eliminating future abuse of the plaintiff and assuring the safety of the child as well. The other related sub-issues argued by defendant in his concise statement have no merit and can be countered by defendant’s own admissions. When the court explained the procedures for mandatory drug testing, defendant responded, “I have no problem with that, your honor. I was going to say whatever it takes to prove that I’m staying clean and sober.” See N.T., p. 29.

After a thorough review of the record, a review of pertinent statutory law and case law, and based upon the testimony of the parties, this court believes that granting a final protection from abuse order was both fundamental and proper.

      . This was a location known to both litigants located at 1910 East National Pike, Scenery Hill, PA 15360.

      . The photographs used by defendant’s attorney were never introduced as exhibits and, therefore, do not accompany this opinion.


source: Caselaw Access Project

author: CHESLOCK, J,

license: Public Domain

text:
    Berardi v. Prestige Homesites Inc.
    C.P. of Monroe County,
    no. 4777 CIVIL 2005.

      Marshall E. Anders, for plaintiff.

      John Hiscott, for defendant.
    February 8,2006
   CHESLOCK, J,

On June 24,2005, plaintiff Michael Berardi commenced this action by filing a praecipe for writ of summons against defendants, Prestige Homesites Inc. and Leonard J. Sturmack. On October 28, 2005, plaintiff filed a complaint which was captioned “Michael Berardi v. Leonard J. Sturmack and Tracy E. Sturmack, his wife, Defendants. ” The allegations contained in the complaint allege that plaintiff and defendant, Leonard J. Sturmack, are each owners of 50 percent of the issued and outstanding shares of stock of Environmental Resources Inc. and Prestige Homesites Inc. The complaint avers that Environmental Resources Inc. and Prestige Homesites Inc. were formed for the sole purpose of acquiring and selling real estate. Plaintiff and defendant, Leonard J. Sturmack, are alleged to be equal shareholders in both corporate entities. Plaintiff alleges that Sturmack, without the corporate authority or knowledge of plaintiff, averted funds of Environmental Resources Inc. to his own use. Further, plaintiff alleges, inter alia, that Sturmack, without corporate authority or corporate action and without the knowledge of plaintiff, converted $8,000 of Prestige Homesites Inc.’s funds to his sole and exclusive use. Additionally, plaintiff’s complaint sets forth a cause of action against Leonard J. Sturmack and Tracy E. Sturmack for civil conspiracy. On November 17, 2005, Tracy E. Sturmack filed preliminary objections to plaintiff’s complaint in the nature of a motion to strike. On November 17,2005, Sturmack filed separate and distinct preliminary objections to plaintiff’s complaint in the nature of a motion to strike and motion for a more specific complaint. On December 1, 2005, plaintiff filed an answer to preliminary objections of Tracy E. Sturmack. On December 1,2005, plaintiff filed preliminary objections to Sturmack’s preliminary objections. We heard oral arguments in this matter on January 3,2006. The parties have filed briefs in support of their respective positions and we are now prepared to dispose of this matter.

The Pennsylvania Rules of Civil Procedure provide as follows:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

“(1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form of service of a writ of summons or a complaint;

“(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;

“(3) insufficient specificity in a pleading: ...

“(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.” Pa.R.C.P. 1028(a)(1), (2), (3), (b).

We will now address the preliminary objections filed by Tracy E. Sturmack. In her objections, Ms. Sturmack contends that original process of service has not been made upon her, and therefore the court lacks jurisdiction over her person. In addition, she has filed preliminary objections in the nature of a motion to strike pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2), alleging improper designation or substitution of a party without order of court in violation of Pennsylvania Rules of Civil Procedure 1033. Specifically, she argues that the designation of Tracy E. Sturmack on the caption of the case and assertion of a cause of action against her violates the Pennsylvania Rules of Civil Procedure. In response, the plaintiff filed an answer to the preliminary objections admitting that there has been no service of a complaint or writ of summons on Tracy E. Sturmack. Plaintiff also agrees that he made an improper designation in the caption. Accordingly, since the plaintiff agrees with Tracy E. Sturmack’s preliminary objections, we will sustain her objections and strike her as a defendant in this matter and order that the caption be so amended.

Sturmack has also filed preliminary objections. His first objection is in the nature of a motion to strike due to the improper designation of Tracy E. Sturmack as a defendant on the caption of this case. This objection has been discussed and determined above and is moot. In addition, Sturmack requests this court to strike allegations in plaintiff’s complaint which characterize him in a criminal nature as being scandalous and impertinent. In order to be “scandalous and impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pennsylvania v. Commonwealth of Pennsylvania, 710 A.2d 108, 115 (Pa. Commw. 1998), aff’d, 562 Pa. 632, 757 A.2d 367 (2000). (citation omitted) After review of the complaint we agree that the inclusion of the words “theft” and “criminal nature” in paragraphs 11,14,18 and 21 are immaterial and inappropriate to the proof necessary to the cause of action. Therefore, the inclusion of the words “theft” and “criminal nature” in paragraphs 11,14,18 and 21 should be stricken from the complaint. Accordingly, we will sustain Sturmack’s objection to strike scandalous and impertinent matter from the complaint.

Next, Sturmack has filed preliminary obj ections in the nature of a motion for more specific complaint. It is the function of a pleading to put the opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. See 2 Goodrich-Amram 2d. §1019:2.1 (2001). Pa.R.C.P. 1019(a) requires the content of pleading to set forth material facts on which the cause of action or defense is based in a concise and summary form. “The purpose of (1019(a)) is to require the pleader to disclose the ‘material facts’ sufficient to enable the adverse party to prepare his case.” Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974), citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225, 282 A.2d 335, 339 (1971). The Baker court further stated that “[a]llegations will withstand challenge under 1019(a) if (1) they contain averments of all the facts the plaintiff will eventually have to prove in order to recover... and (2) they are ‘sufficiently specific so as to enable defendant to prepare his defense.’ ” Id. at 350, 324 A.2d at 505-506. (citations omitted)

Sturmack’s objection to the complaint is that it lacks specificity in regards to the agreement between plaintiff and Sturmack, including but not limited to the acquisition of a Poc-Data list for purposes of solicitation of lots to purchase. In reviewing the plaintiff’s complaint, we do not believe it must be a complete narrative of the events between the plaintiff and Sturmack. The complaint discloses sufficient material facts to enable Sturmack to prepare his defense. Many of the matters objected to can be resolved through the discovery process. For example, the material terms of the agreement between the parties or that equal distributions have been made to both Sturmack and plaintiff and that the Poc-Data mailing list was to be the corporate opportunity of both Prestige Homesites Inc. and Environmental Resources Inc. Hence, we will not require plaintiff to amend his complaint to specifically allege details which can be revealed during the discovery process. Accordingly, we will overrule Sturmack’s objection on this issue.

Sturmack has raised an objection alleging that plaintiff failed to attach a copy of the alleged agreement to the complaint as provided for in Pa.R.C.P. 1019(h). Rule 1019(h) provides, in pertinent part, that, “[wjhen a claim or defense is based upon writing, the pleader shall attach a copy of the writing, or material part thereof,....” After a review of the complaint, we do not find where plaintiff indicates that an agreement, oral or written, exists between the parties. If Sturmack possesses a copy of a writing which sets forth the terms of the parties’ agreement, he should attach it to his answer, as provided for in Rule 1019(h). However, we will not require plaintiff to amend his complaint to specifically allege details which can be revealed during the discovery process. Accordingly, we will overrule Sturmack’s objection on this issue.

Next, Sturmack filed preliminary objections in the nature of a motion to strike plaintiff’s request for punitive damages. The assessment of punitive damages is proper “when a person’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.” SHV Coal Inc. vs. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). (citation omitted) Punitive damages are awarded to punish that person for such conduct. Id. In the case of SHV Coal, our Supreme Court adopted section 908(2) of Restatement (Second) of Torts, stated as follows:

“(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of the fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.” (emphasis in original)

In reviewing plaintiff’s complaint, we find that he averred that Sturmack acted with careless and/or reckless and/or wanton and/or willful misconduct in the conversion of corporate funds. We do not believe that the acts alleged by plaintiff rise to the outrageous nature necessary for the award of punitive damages. Here, aside from conclusory statements that Sturmack’s conduct was outrageous and intentional, the plaintiff fails to allege any material facts that demonstrate such conduct was done with an evil motive. Even accepting as true the material allegations in the complaint, we cannot infer that Sturmack’s conduct is outrageous due to any evil motive. Accordingly, we sustain Sturmack’s preliminary objection on this issue.

Sturmack has filed preliminary objections in the nature of a motion to strike plaintiff’s complaint alleging the pendency of a prior action filed in Pike County on June 17,2005. A preliminary objection in the nature of a motion to dismiss/strike based on the pendency of a prior action derives from the ancient maxim “nemo debet bis vexari pro una et eadem cause, ” meaning that “no man shall be twice vexed for the same cause of action.” See Davis Cookie Co. Inc. v. Wasley, 389 Pa. Super. 112, 119, 566 A.2d 870, 873 (1989). (citations omitted) (emphasis in original) Under Pennsylvania law, the question of a pending prior action is “purely a question of law determinable from an inspection of the pleadings.” Davis Cookie Co. v. Wasley, 389 Pa. Super. 112, 121, 566 A.2d 870, 874 (1989). (citation omitted) To sustain a preliminary objection based on a pending prior action, the objecting party must establish to the court that in each case the parties are the same, and the rights asserted and the relief sought is the same. Virginia Mansions Condominium Association v. Lampl, 380 Pa. Super. 452, 456, 552 A.2d 275, 277 (1988). This three-prong test must be strictly adhered to when a party is seeking dismissal under the doctrine of a prior pending action. Norristown Automobile Co. v. Hand, 386 Pa. Super. 269, 562 A.2d 902(1989).

In the instant matter, Sturmack asserts that this action should be dismissed due to the Pike County action involving the same parties and the same issues. We disagree. While it is true that a prior pending action exists between some of the parties, the Pike County matter involves Tracy F. Sturmack, who is not a party in this action. Hence, we cannot conclude that the Pike County action involves identical parties. However, upon review of the Pike County complaint, the legal theories, rights or prayers for relief appear to be identical. Nevertheless, we shall overrule Sturmack’s preliminary objection on this issue.

In addition, plaintiff has filed preliminary objections to Sturmack’s preliminary objections in the nature of motions to strike. Plaintiff objects to Sturmack’s second preliminary objection in the nature of a motion for a more specific complaint because it contains facts which are not of record and inappropriate for determining the objections. Since we have overruled Sturmack’s preliminary objection in the nature of a motion for a more specific complaint, this issue is moot.

Plaintiff’s next three preliminary objections request this court to strike the third, fifth and sixth preliminary objections raised by Sturmack because they are speaking demurrers and are prohibited by the rules of civil procedure. We have disposed of Sturmack’s preliminary objections as set forth above. However, the crux of Sturmack’s third and fifth preliminary objections were argumentative in nature and amount to speaking demurrers. These issues are moot. In regard to Sturmack’s sixth preliminary objection, the issue of the Poc-Data mailing list was not briefed other than to re-iterate the allegation. All issues are considered waived which are not supported by citation to appropriate legal authority. Treasure Lake Property Owners Association v. Meyer, 832 A.2d 477 (Pa. Super. 2003). Therefore, this issue is waived by Sturmack which renders plaintiff’s preliminary objections moot.

Based upon the foregoing, we enter the following order:

ORDER

And now, February 8, 2006, after oral argument and upon consideration of Tracy E. Sturmack’s, not a party, preliminary objections to plaintiff’s complaint and defendant Leonard J. Sturmack’s preliminary objections, it is hereby ordered that the preliminary objections are overruled in part and sustained in part, as follows:

Tracy E. Sturmack’s preliminary objections are sustained, and it is ordered that she is stricken as a defendant in this matter and that the caption shall be amended to remove the designation of Tracy E. Sturmack as defendant.

Defendant Leonard J. Sturmack’s preliminary objection in the nature of a motion to strike the improper designation of Tracy E. Sturmack as a defendant in this matter is moot.

Defendant Leonard J. Sturmack’s preliminary objection in the nature of a motion to strike scandalous and impertinent matter is sustained and it is ordered that the words “theft” and “criminal nature” shall be stricken from the complaint in paragraphs 11, 14, 18, and 21.

Defendant Leonard J. Sturmack’s preliminary objection in the nature of a motion for a more specific complaint is hereby overruled.

Defendant Leonard J. Sturmack’s preliminary objection to plaintiff Michael Berardi’s failure to attach writing to his complaint is overruled.

Defendant Leonard J. Sturmack’s preliminary objection in the nature of a motion to strike plaintiff’s request for punitive damages is sustained.

Defendant Leonard J. Sturmack’s preliminary objection in the nature of a motion to strike due to the pendency of a prior action filed in Pike County is overruled.

It is further ordered that Plaintiff Michael Berardi’s preliminary objections in the nature of motions to strike are overruled.


text:
    Reed v. Advanced Radiology Services
    C.P. of Monroe County,
    no. 5168 CIVIL 2005.

      James J. Conaboy, for plaintiffs.

      Chris J. Carling, for defendants.
    May 2, 2006
   CHESLOCK, J,

This matter is before the court on defendant Charles Kempf M.D.’s preliminary objections to plaintiffs’ complaint. On July 6,2005, plaintiffs, Marie R. Reed and Stephen J. Reed, her husband, commenced this action by filing a praecipe for writ of summons. Thereafter, on January 30,2006, plaintiffs filed their complaint. The complaint alleges, inter alia, that Kempf was negligent in performing an examination of the left medial lateral oblique position of plaintiff, Marie R. Reed’s left breast. On July 18, 2003, Kempf performed a mammogram on the left breast of Marie. Plaintiffs alleged that Kempf released Marie from Advanced Radiology Services and the Center for Women’s Well-Being without performing any further testing or ruling out the potential for cancer. Plaintiffs allege that approximately one year later on May 20, 2004, Marie, during a normal examination, was informed that she did have cancer in her left breast. Kempf filed preliminary objections to plaintiffs’ complaint on January 30, 2006, alleging that paragraph 14(e) of Count I is insufficient as a matter of law. Paragraph 14(e) alleged that Kempf was negligent in his failure “to disclose all of the risks associated with his care and treatment of plaintiffs.” Kempf argues that this language may permit plaintiffs to assert a theory of battery or lack of informed consent. This matter was scheduled for argument; however, the parties waived oral argument and the matter was submitted to the court on briefs. We are now prepared to dispose of this matter.

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 (Pa. Commw. 2001). 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). 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, 554 Pa. 209, 720 A.2d 1032(1998).

It is the function of a pleading to put the opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. See 2 Goodrich-Amram 2d, §1019:2.1 (2001). Pa.R.C.P. 1019(a) requires the content of pleadings to set forth material facts on which the cause of action or defense is based in a concise and summary form. “The purpose of [1019(a)] is to require the pleader to disclose the ‘material facts’ sufficient to enable the adverse party to prepare his case.” Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974), citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225, 282 A.2d 335, 339 (1971). The Baker court further stated that “[a]llegations will withstand challenge under 1019(a) if (1) they contain averments of all the facts the plaintiff will eventually have to prove in order to recover . . . and (2) they are ‘sufficiently specific so as to enable defendant to prepare his defense.’ ” Id. at 350, 324 A.2d at 505-506. (citations omitted) “Pa.R.C.P. 1019(a) has been construed to mean that a complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim.” Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 235, 622 A.2d 355, 357 (1993). (citation omitted)

Instantly, Kempf alleges that paragraph 14(e) of plaintiffs’ complaint fails to sufficiently plead a claim for battery/lack of informed consent and as such the court must strike this paragraph so as to avoid future prejudice to him. In order to determine Kempf’s preliminary objections, we must make an inquiry as to the law concerning battery/informed consent.

The case law in Pennsylvania is somewhat nebulous regarding the area of lack of informed consent. It has been held that the doctrine of informed consent applies only to surgeons who perform operations without first securing the informed consent of the patient. Kelly v. Methodist Hospital, 444 Pa. Super. 427, 431, 664 A.2d 148, 149 (1995). In the matter of Kelly, the Superior Court was asked to review the grant of preliminary objections in the nature of a demurrer asserting that the hospital owed no duty to a patient regarding informed consent. In determining whether the consent was informed, the court reviewed whether the physician disclosed to the patient all the facts, risks and alternatives which a reasonable person would deem significant in making a decision to undergo the recommended procedure. Id. The Kelly court determined that the hospital owed no duty to obtain a patient’s informed consent by means of adopting regulations requiring a physician to obtain such consent. In essence, the court held that plaintiff’s negligence-based informed consent claim against the hospital was not viable. However, in reviewing the case, we find that the court determined that the doctrine of informed consent applied only to surgeons performing operations.

In the matter of Morgan v. McPhail, 449 Pa. Super. 71, 672 A.2d 1359 (1996), the court was asked to review preliminary objections of the doctor regarding informed consent. In that case, the court determined that the current state of the law in Pennsylvania on the doctrine of informed consent is applicable only where the patient is subject to a surgical or operative procedure. Id. (citation omitted) The court determined that informed consent has been consistently limited to a battery theory and declined to adopt a negligent theory.

Instantly, plaintiffs, in their brief, cite cases which establish the standard for lack of informed consent/battery actions. Throughout their brief, the plaintiffs cite cases in which the physician failed to advise patients of material facts, risks, complications and alternatives to surgery. Plaintiffs argue that we should extend the lack of informed consent in a situation where a physician does not discuss all the known risks with their patient. However, we are not willing to extend the doctrine of informed consent to situations where surgery is not pled within the complaint. A review of the plaintiffs’ complaint indicates that the procedure for which Marie complains of is a mammogram and not a surgical procedure. Inasmuch as the complaint does not allege a surgical procedure, we find that plaintiffs have failed to set forth a proper cause of action sounding in battery/lack of informed consent.

Based upon the foregoing, we enter the following order:

ORDER

And now, May 2, 2006, upon consideration of defendant Charles Kempf M.D.’s preliminary objections and the plaintiffs’, Marie R. Reed and Stephen J. Reed, her husband, response thereto, it is hereby ordered that paragraph 14(e) of plaintiffs’ complaint is stricken.


author: QUIÑONES ALEJANDRO, J.,

text:
    Carlson v. Janney Montgomery Scott LLC

      C.P. of Philadelphia County,
    August Term 2005,
    no. 0468.

      Barry R. Elson, for plaintiff/appellee.

      Michael L. Banks, for defendant/appellant.
    April 5, 2006
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

On August 3, 2005, Denis Carlson (plaintiff) filed a civil action against his employer, Janney Montgomery Scott LLC (defendant), averring inter alia counts of breach of fiduciary duty, conflict of interest, defamation, conversion, violation of the Pennsylvania Wage Payment and Collection Law, unjust enrichment, and tortious interference with prospective economic advantage.

On August 25, 2005, defendant filed a pleading entitled preliminary objections and a petition to compel arbitration, to which plaintiff filed a response. By order dated November 8, 2005, this motion judge overruled defendant’s preliminary objections and denied the petition to compel arbitration.

On November 22, 2005, defendant filed the instant appeal.

RELEVANT FACTUAL AND PROCEDURAL HISTORIES

After a careful review of the pleadings filed, this motion judge considered the following:

Defendant is a brokerage company registered with the New York Stock Exchange and the National Association of Securities Dealers (NASD). In turn, NASD is a private not-for-profit corporation organized under the laws of the State of Delaware and is a self-regulating organization (SRO) registered with the Securities and Exchange Commission (SEC), as a national securities association. Pursuant to rules promulgated by SEC, NASD adopted mandatory procedures and safeguards relating to the handling of securities matters and the services of registered representatives. These procedures include, inter alia, a requirement that an employee handling publicly traded securities register at the commencement of his/her employment with NASD by using “Form U4 Uniform application for securities industry registration or transfer” (Form U4). This form also registers the employee with the New York Stock Exchange (NYSE) and the American Stock Exchange (AMEX). Another of NASD’s safeguards (Rule 1140(c)(1)) requires that every initial and transferred electronic filing of Form U4 shall be based on a signed Form U4, which must be retained and made available promptly upon regulatory request.

From February 2002 until July 1, 2004, plaintiff was employed by defendant as a senior vice-president and director of public finance in a branch located in Philadelphia, Pennsylvania. Plaintiff supervised as many as 10 individuals, including five investment bankers and two analysts, who engaged in investment banking and/ or securities business on behalf of defendant.

Defendant contends that on February of 2002, it registered plaintiff with NASD by electronically filing a Form U4. Plaintiff denies this assertion and proclaims that at no time during his employment was he asked to sign a Form U4, nor was he provided with a written notice of the arbitration provision contained in Form U4 and/or its scope. Defendant does not dispute that it cannot produce a Form U4 signed by plaintiff.

In its relevant section, Form U4 provides:

“I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the SROs indicated in Item 11 as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.”

On October 17, 2003, during a Federal Bureau of Investigation (FBI) inquiry of the “pay to play” alleged corruption of the Philadelphia government, plaintiff was interviewed at his place of employment by the FBI. During the interview, Howard B. Scherer, Esquire, a senior vice-president and corporate counsel of defendant in the Philadelphia office, was present. According to plaintiff, although he did not speak to Attorney Scherer, he assumed that Attorney Scherer was present to protect his [plaintiff’s] legal interest since plaintiff was never advised by Attorney Scherer to the contrary and/or that he should obtain his own counsel. After the interview, defendant provided plaintiff with counsel from a law firm that often represented defendant.

On June 29,2004, plaintiff was indicted for providing the FBI with false information. While being processed, plaintiff tested positive for cocaine. After he was indicted, defendant informed plaintiff that it would no longer pay for his legal counsel.

On July 1,2004, defendant terminated plaintiff’s employment based on the indictment and for testing positive for cocaine use.

On July 30,2004, defendant filed with the SEC a “US-Uniform termination notice for security industry registration” (Form U5) without, according to plaintiff, conducting its own internal investigation relevant to the October 17,2003 interview. This Form U5, which is a publicly accessible document, indicated that plaintiff was under investigation for a breach of industry standards and that he was terminated for drug use while under federal indictment and on leave of absence.

On February 1,2005, plaintiff was acquitted by a jury of all charges in the federal indictment. Sometime in June 2005, defendant amended the Form U5 to reflect plaintiff’s acquittal. Plaintiff contends that this delay is contrary to a NASD rule that requires that amendments to termination notices be made within 30 days. In his complaint, plaintiff further contends that defendant refused to amend the form relating to other details, and that defendant is unlawfully in possession and control of approximately $50,000 which he had earned in the year 2003.

Procedurally, the following events are pertinent to this analysis:

From the official record (dockets), it appears that on August 3, 2005, plaintiff commenced this civil action against defendant. On August 24,2005, defendant filed preliminary objections, and plaintiff filed a response thereto on September 8,2005.

After a stipulation for extension of time to file a motion to determine preliminary objections, defendant, on September 30,2005, filed a pleading entitled “motion to determine preliminary objections and petition to compel arbitration,” and essentially argued that an arbitration agreement existed which encompassed the claims asserted in plaintiff’s complaint and, therefore, required that the matter be arbitrated. On October 20,2004, plaintiff filed a response challenging the existence of such an agreement. These pleadings were assigned to this motion judge after October 25, 2004.

As stated, by order dated November 8,2005, this motion judge overruled defendant’s preliminary objections and denied the petition to compel arbitration, and further ordered defendant to respond to plaintiff’s complaint within 20 days.

Defendant did not file a motion to reconsider but instead filed this appeal on November 22, 2005.

ISSUES

In response to an order issued on November 30,2005, in accordance with Pa.R.A.P. 1925(b), defendant on December 13,2005, filed of record and served unto this motion judge a statement of matters complained of on appeal and essentially argued that this motion judge erred in overruling the preliminary objections and in denying the request to compel arbitration.

LAW AND DISCUSSION

Chapter 3 of Pa.R.A.P. governs the process for orders from which appeals may be taken; to wit: interlocutory orders where appeals are either as of right or by permission, collateral orders, and final orders. Generally, an order overruling preliminary objections (not involving eminent domain matters) is an interlocutory order which does not fall within one of the enumerated circumstances of Pa.R.A.P. 311 and is, therefore, not appealable. Callan v. Oxford Land Development Inc., 858 A.2d 1229, 1232 (Pa. Super. 2004), citing Shadduck v. Christopher J. Kaclik Inc., 713 A.2d 635, 636 (Pa. Super. 1998). There is, however, a narrow exception to this rule for cases in which the appeal is taken from an order denying a petition to compel arbitration. Id. Specifically, Rule 311(a)(8) provides that an interlocutory appeal may be taken as of right from any order which is appealable by statute or general rule. The Uniform Arbitration Act, 42 Pa.C.S. §7320 et seq., provides that an appeal taken from an order denying a petition or application to compel arbitration is appealable. See 42 Pa.C.S. §§7320(a)(l) and 7342(a). As stated, the instant matter involves an appeal from an order denying a petition to compel arbitration and, therefore, in this motion judge’s opinion, is properly before the appellate court for review.

This motion judge acknowledges that Pennsylvania courts strongly favor the resolution of legal disputes by arbitration. Ross Development Co. v. Advanced Building Development Inc., 803 A.2d 194, 196 (Pa. Super. 2002). The procedure for a court to compel arbitration is provided in 42 Pa.C.S. §7304, which essentially allows that upon application/petition to compel arbitration made by a party showing an agreement to arbitrate and a showing that the opposing party refused to arbitrate, the court shall order the parties to proceed to arbitration, unless the opposing party denies the existence of the arbitration agreement. In a proceeding to stay or to compel arbitration, the question of whether the parties agreed to arbitrate, commonly referred to as “substantive arbitrability,” is generally one for the court and not for the arbitrators. Ross Development Co., 803 A.2d at 196. Where a party to a civil action seeks to compel arbitration, judicial inquiry is limited to the questions of (1) whether an agreement to arbitrate was entered into by the parties and (2) if such an agreement exists, whether the dispute falls within the ambit of the arbitration provision. Callan, 858 A.2d at 1233. See also, Rocca v. Pennsylvania General Insurance Company, 358 Pa. Super. 67, 70, 516 A.2d 772, 773 (1986), allocatur denied, 517 Pa. 594, 535 A.2d 83 (1987); McNulty v. H&R Block Inc., 843 A.2d 1267 (Pa. Super. 2004); Quiles v. Financial Exchange Co., 879 A.2d 281, 283 (Pa. Super. 2005). If a valid agreement exists between the parties and the plaintiff’s claim is within the scope of the agreement, the controversy must be submitted to arbitration. Highmark Inc. v. Hospital Service Association of Northeastern Pennsylvania, 785 A.2d 93, 98 (Pa. Super. 2001), appeal denied, 568 Pa. 720, 797 A.2d 914 (2002).

As to the first prong of this judicial inquiry, it is important to note that there is a dispute over the existence and/or validity of an arbitration agreement. Defendant contends that a valid agreement to arbitrate existed between the parties as provided in Plaintiff’s employment contract. In support of this contention, Defendant argues that membership with NASD is mandatory, and that pursuant to the registration with NASD, defendant and its employees were required to abide by all rules and regulations promulgated to police securities brokers in the United States. Defendant further argues that NASD’s official procedures require that all securities dealers complete and sign a Form U4 at the commencement of employment with a security firm and/or transfer from one firm to another. Defendant further contends that Form U4 contains a standard arbitration clause by which registered representatives agree “to arbitrate any dispute, claim or controversy that may arise between them and their firm . . . that is required to be arbitrated under the rules, constitutions, or by-laws of the NASD.” Finally, defendant argues that Form U4 is an integral part of all NASD members’ employment agreements and, therefore, this matter should be arbitrated.

Plaintiff rebuts defendant’s contentions. Plaintiff acknowledges that although it is mandatory to register with NASD, he denies ever signing Form U4, and relies on the fact that defendant has not been able to produce an original or a copy of any Form U4 signed by him. Even the electronically filed Form U4, purported to be plaintiff’s, does not contain plaintiff’s signature. Plaintiff argues that defendant failed to meet and/or fulfill the requirement set forth in NASD Rules 1140 and 3 0 80 which require that the electronic filing be of a signed Form U4 and that the registered representative receive a copy of a written statement whenever a new and/or amended Form U4 is submitted. Since this did not occur in plaintiff’s case, plaintiff reasons that there is no proof that he agreed to arbitrate.

If a valid arbitration agreement exists between the parties and plaintiff’s claim is within the scope of the agreement, defendant would be correct in its contentions and this controversy must be submitted to arbitration. See Quiles, supra at 283. Under the law, a written agreement to submit any controversy between parties to arbitration is valid, enforceable and irrevocable, “save upon such grounds as exist at law or equity relating to the validity, enforceability or revocation of any contract.” 42 Pa.C.S. §7303. The duty to arbitrate is a contractual obligation controlled by the parties’ intentions. When the parties’ employment agreement has incorporated an arbitration clause by reference, the arbitration clause may be enforced. Todd v. Venwest Yacht Inc., 111 P.3d 282, 284 (2005).

At first glance, case law supports in part defendant’s contentions that membership in NASD is required of all securities dealers; that this membership is achieved by the execution of Form U4; and that Form U4 is an integral part of all NASD member’s employment agreement. Todd, 111 P.3d at 283. It does not support in total defendant’s argument. This motion judge is unable to grant defendant’s request absent proof that plaintiff did in fact agree to arbitrate disputes occurring during his employment or that he signed Form U4, albeit a prerequisite for employment as a financial consultant or registered representative. Without proof of the original or even a copy of a signed Form U4, this motion judge cannot find that a valid arbitration agreement existed between the parties. More so, when it appears that NASD (might have) decided (or did decide) to eliminate the mandatory arbitration provision contained in Form U4 on August 7,1997, according to a footnote in Desiderio, 2 F. Supp.2d at 519. A careful review of NASD’s rules does not confirm or dispel whether said elimination is still currently in effect. NASD’s rules provide for an arbitration procedure, but do not specify whether arbitration is mandatory. Only Form U4 mandates arbitration.

Further, pursuant to section 7304(a) of the Uniform Arbitration Act, it is defendant’s assigned burden to demonstrate that a valid agreement exists between the parties and, in this motion judge’s opinion, it has not. Defendant supplied, as an exhibit to an affidavit of an employee of defendant, [who attested to a responsibility of ensuring that forms required by NASD are filed], a computer printout of an unsigned Form U4 (relicense) purportedly filed on behalf of plaintiff. However, where the signature line and the “type or print name of applicant” line are (page 9 of 13), there is no name or identifying information of anyone, let alone plaintiff’s identifying information or plaintiff’s signature.

In light of the diagonally opposing positions of the parties, the omissions contained in the Form U4 attached as an exhibit, the non-existence of a signed Form U4, and the uncontroverted allegation by plaintiff that defendant never provided him with written notice of the Form U4 arbitration provision, this motion judge must rule in light most favorable to plaintiff. This motion judge cannot extend an agreement to arbitrate by implication because defendant says an agreement exists when plaintiff denies its existence, and there is no documentary evidence to support it.

Consistent with this motion judge’s finding that an arbitration agreement does not exist, there is no need to discuss whether plaintiff’s complaint falls within the ambit of an arbitration clause.

CONCLUSION

Based upon the above-cited analysis and case law, this motion judge is of the opinion that no error was committed when overruling defendant’s preliminary objections and denying the petition to compel arbitration. This motion judge respectfully requests that plaintiff’s appeal be dismissed and that the orders dated November 30,2005, be affirmed.

      . Defendant’s preliminary objections, memorandum of law, page one.

      . See Desiderio v. National Association of Securities Dealers Inc., 2 F. Supp.2d 516 (1998).

      . Defendant’s preliminary objections, memorandum of law, page one.

      . See 17C.F.R. §240.15b7-l.

      . Plaintiff’s response to motion, memorandum of law, page four.

      . Defendant’s preliminary objections, ¶1; plaintiff’s complaint, ¶5.

      . Defendant’s preliminary objections, memorandum of law, page two.

      . Plaintiff’s response to motion, page three.

      . Plaintiff’s response to motion, page five.

      . Defendant’s preliminary objections, ¶5.

      . Plaintiff’s complaint, ¶9.

      . Id. at ¶12, ¶13.

      . Id. attl3, ¶14.

      . Id. at ¶16.

      . Id. at ¶18.

      . Id. at ¶19.

      . Defendant’s preliminary objections, memorandum of law, page one.

      . Plaintiff’s complaint, ¶20.

      . Id. a^35.

      . Plaintiff’s complaint, ¶22.

      . Id. at ¶42.

      . Id. at ¶40.

      . Id. at ¶47.

      . Rule 1140 (c) (1) states:
      “Every initial and transfer electronic Form U4 filing shall be based on a signed Form U4 provided to the member or applicant for membership by the person on whose behalf the Form U4 is being filed

      . Rule 3080 states:
      “A member shall provide an associated person with the following written statement whenever the associated person is asked to sign a new or amended Form U4 ....”


author: ZULICK, J.,

text:
    Ramos v. Ramos

      C.P. of Monroe County,
    no. 1021 DR 2004, no. 479 CV 2005.

      Michael Mancuso, for plaintiff.

      Eduardo Ramos, pro se.
    March 24, 2006
   ZULICK, J.,

These are exceptions filed by Husband and Wife from a master’s report and recommendation in divorce. Eduardo L. Ramos (Husband) and Maribel Ramos (Wife) were married on August 11,2001, and separated on September 4,2004. They raised two children, Megan Rose Ramos, bom on May 23,1994, and Nikita Ramos, bom on October 28,1996, both of whom are in Wife’s primary physical custody, although Husband now contests paternity of Megan.

Wife filed a complaint for divorce on January 21,2005. A master’s hearing was held by Robert C. Lear, Esquire, divorce master, on September 29,2005. The master filed his report and recommendations on November 22,2005. Both Wife and Husband filed timely exceptions. Oral argument was heard on January 3, 2005.

When evaluating the merit of Wife’s exceptions to the master’s recommendation, the court must first examine the master’s report. In Pennsylvania, “a master’s report and recommendation, although only advisory, is to be given the fullest consideration particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003), citing Simeone v. Simeone, 380 Pa Super. 37, 50, 551 A.2d 219, 225 (1988). However, “[i]t is advisory only,... and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome.”Rothrick v. Rothrick, 765 A.2d 400, 404 (Pa. Super. 2000), citing Arcure v. Arcure, 219 Pa. Super. 415, 416, 281 A.2d 694, 695 (1971).

“ [A] 1 though the master’s report is entitled to great weight, it is the responsibility of the court to make the final equitable distribution.” Trembach v. Trembach, 419 Pa. Super. 80, 84, 615 A.2d 33, 35 (1992), citing Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986). In addition, the court must keep in mind the legislature’s intent “to effectuate economic justice between the parties.” Perlberger v. Perlberger, 426 Pa. Super. 245, 259, 626 A.2d 1186, 1196 (1993), citing 23 Pa.C.S. §3102(a)(6).

Wife filed one exception to the master’s recommendation and Husband filed 14 exceptions. The parties combined some of these exceptions in their briefs filed in support of their exceptions. I will first address Husband’s exceptions to the master’s recommendations, since they were filed first in time.

I. HUSBAND’S EXCEPTIONS

1. Husband Contends That the Divorce Complaint Was Not Properly Served Upon Him

Wife filed the divorce complaint in this case on January 21, 2005. An affidavit of service of the complaint was filed on February 9,2005, showing that the complaint was personally served upon Husband on February 7,2005, by a process server in the Monroe County Courthouse.

Husband filed a responsive pleading entitled “Answer, preliminary objections and counterclaims” on February 17,2005. In this pleading, he answered the paragraphs of the complaint, then added a paragraph entitled “First Preliminary Objection,” and there stated that he had not been properly served with process. He also filed a counterclaim.

Husband, representing himself, failed to follow the applicable rules of civil procedure when he filed this hybrid pleading. The failure to raise the issue of lack of personal jurisdiction by preliminary obj ection to the complaint constituted a waiver of that defense. Encelewski v. Associated-East Mortgage Co., 262 Pa. Super. 205, 208, 396 A.2d 717, 718 (1978). Here, Husband did not file a separate preliminary objection as required by Pa.R.C.P. 1028(a)(1). He did not praecipe his preliminary objection for argument as required by Monroe County Local Rule 43 J.D.R.C.P. 1028(c), which provides as follows:

“Ride 1028(c) — Preliminary objections

“(1) Preliminary obj ections shall be filed with the prothonotary. At the time of filing preliminary objections with the prothonotary, the moving party shall also file a praecipe pursuant to Local Rule 208.3(a)(5) to place the matter on the first argument list occurring more than 30 days following the date of filing the preliminary objections.

“(2) Failure to comply with this provision may be sufficient basis for the court to deny the preliminary objections.”

I find that Husband’s failure to follow state and local rules of procedure resulted in the waiver of his objection to this court’s jurisdiction over his person. Husband never brought his objection to the attention of the court for disposition before trial. He fully participated in the litigation, filing an answer and a counterclaim, and attended and participated in the trial before the master.

Even if Husband had properly raised his objection to our court’s jurisdiction, his objection was not well-taken. Husband concedes that he was personally served with a copy of the divorce complaint on February 7,2005. Husband states in his brief that he was ordered out of the marital home by a protection from abuse order on September 13, 2004. This order caused him to move out of Pennsylvania to a residence in New Jersey. He returned to Pennsylvania on February 7, 2005, for a hearing on a petition for contempt filed in that protection from abuse case.

The petition for contempt charged Husband with indirect criminal contempt. “[A]s with those accused [of] other crimes, one charged with indirect criminal contempt is to be provided the safeguards which statute and criminal procedures afford.” Commonwealth v. Baker, 722 A.2d 718, 720 (Pa. Super. 1998) (en banc).

Husband cites the case of Crusco v. Strunk Steel Co., 365 Pa. 326, 74 A.2d 142 (1950) for the proposition that criminal process may not be used to obtain service upon a defendant in a civil matter. While that was the result reached in the Crusco decision, the case does not support Husband’s position. In Crusco, the plaintiff filed a civil action in Philadelphia County and 12 days later filed a criminal action against the defendant, who resided in Montgomery County. The court found that the plaintiff fraudulently filed the criminal charges for the sole purpose of bringing the defendant to Philadelphia to obtain personal service there. Under these circumstances, the Crusco court voided the civil service of process. Before it reached that result, however, the court stated the general rule that persons appearing in court on criminal charges are not immune from service of civil process:

“The question of the legality of service of civil process on a nonresident defendant brought into a county on criminal warrant issued on the information of the same party who had instituted a civil action against that defendant was considered by this court in Wood v. Boyle, 177 Pa. 620, 35 A. 853 [55 Am.St.Rep. 747], There we said [in 177 Pa. at page 632, 35 A. at page 854]: ‘... the great preponderance of authority is that the defendant in a criminal case is not privileged from arrest on civil process while attending court, to answer a criminal charge .... In the case of Key v. Jetto, 1 Pittsb.R. 117, Judge Woodward, sitting at nisi prius in 1854, held that the privilege did not extend to defendants in criminal cases. . . .’” Crusco v. Strunk Steel Co., 365 Pa. 326, 327-28, 74 A.2d 142, 143 (1950).

Here there was no suggestion that the Commonwealth’s petition for contempt filed against Husband was based upon a fraudulent report, nor was there testimony or evidence as to when the report was filed or who made the report. There was no testimony about the result of the criminal contempt prosecution. Under these circumstances, I find that Mr. Ramos was properly served with the divorce complaint.

2. Husband Contends That the Master Improperly Found That the Parties Have Two Minor Children

Husband objects to the master’s finding that the parties have two children. The master found that “[tjhere were two children bom to the relationship, namely Megan Rose Ramos bom May 23,1994, and Nikita Ramos bom October 28,1996.” Master’s report, p. 2. Husband’s objection to this finding of the master is not specific as to which child (or both) that he refers to. The children both used Mr. Ramos’ last name, and he took them as exemptions on his tax return, listing each of them as “child.” Plaintiff’s exhibit 4.

Neither party presented any testimony as to what children were bom of the parties’ union or what the children’s birth dates were. Wife testified twice that she met Husband in 1996 (NT 37, 63), which was after the date the master found for Megan Ramos’ birth. Husband testified that he challenged Megan’s paternity when Wife sought support for Megan Rose in a New Jersey support action. (NT 120.) Wife admitted that she committed fraud in New Jersey when she brought Nikita to Megan’s paternity test rather than Megan. (NT 121.) The discovery of this misrepresentation led to Wife dropping her action against Husband for Megan’s support. (NT 121.)

There was no question however, that both Megan and Nikita were Mother’s children. (NT 120.) There also was no question that both girls lived in the parties’ home at all times during the marriage, and while the parties lived together, they were dependents of both parties. After the parties separated, the minor children continued to live with Mother, and Mother provided their parental care.

Husband’s exception to the master’s finding about Megan’s parentage has little relevance to this court’s decision. The fact that a parent has dependent children to care for is a factor considered for equitable distribution under the Divorce Code:

“Section 3502. Equitable distribution ofmarital property.

“(a) General rule. — ... Factors which are relevant to the equitable distribution of marital property include the following: ...

“(11) Whether the party will be serving as the custodian of any dependent minor children.” 23 Pa.C.S. §3502.

Husband’s parentage of Megan is not critical to my findings because Wife is her parent, and Wife, not Husband, has custody of her now, and for the foreseeable future I find that Wife will be serving as the custodian of her two dependent minor children for equitable distribution purposes.

Custody of minor children is also relevant for purposes of an alimony award:

“Section 3701. Alimony

“(b) Factors relevant. — In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including: ...

“(7) the extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.” 23 Pa.C.S. §3701.

I find that Wife’s earning power, expenses and financial obligations will be affected by reason of serving as the custodian of Megan and Nikita. 1 farther find that due to Husband’s challenge of paternity of Megan Rose Ramos, Wife has no child support for her. Husband’s exceptions to this finding of the master are denied as not being relevant to equitable distribution or alimony under the Divorce Code.

3. Husband Contends the Master Erred in Awarding Wife the Proceeds of the Sale of the Home and Adjacent Lot

Husband purchased a house and lot (lot 75) in A Pocono Country Place Coolbaugh Township on February 7,2000, before the parties were married, for $61,000. Plaintiff’s exhibit 12. He purchased an adjacent vacant lot, lot 74, after the parties’ marriage for $5,000 on June 25, 2002. Plaintiff’s exhibit 10. The parties had a first mortgage on the property, which was in foreclosure at the time of the master’s hearing. Plaintiff’s exhibit 14. They also had a second mortgage from the Pennsylvania Housing Finance Agency, plaintiff’s exhibit 15, and owed delinquent property owners’ association dues.

The parties sold the properties after the master’s hearing, and submitted a HUD-1 statement to the master showing the net proceeds of sale to be $10,139.80. The master awarded this money to Wife, and awarded the marital component of Husband’s pension plan with the Bakery and Confectionary Union and the marital component of the TIPS Savings Plan with Kraft Foods to Husband.

The parties’ agreement of sale for the properties established a sale price of $96,000. Plaintiff’s exhibit 17. They owed more than the original purchase price of lot 75 on the first and second mortgages, the homeowners dues and tax liens Therefore, the master correctly determined that the net proceeds of sale were the marital increase in value of lot 75 and the marital proceeds of lot 74.

The Divorce Code provides that the increase in value of nonmarital property is marital:

“3501. Definitions

“(a) General rule. — As used in this chapter, “marital property” means all property acquired by either party during the marriage and the increase in value of any nonmarital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.l). However, marital property does not include:

“(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage....

“(a.l) Measuring and determining the increase in value of nonmarital property. — The increase in value of any nonmarital property acquired pursuant to subsection (a)(1) and (3) shall be measured from the date of marriage or later acquisition date to either the date of final separation or the date as close to the hearing on equitable distribution as possible, whichever date results in a lesser increase. Any decrease in value of the nonmarital property of a party shall be offset against any increase in value of the nonmarital property of that party. However, a decrease in value of the nonmarital property of a party shall not be offset against any increase in value of the nonmarital property of the other party or against any other marital property subject to equitable division.

“(b) Presumption. — All real or personal property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a).”

Husband did not present the court with any evidence to support a different determination about the increase in value of the house. I find no error in the master’s award.

4. Husband Contends That the Master Erred in Finding That the 1998 Ford Ranger Truck Was Worth $3,175

The master found the value of the 1998 Ford Ranger truck to be $3,175 and awarded it to Husband. The master based his valuation on a Kelley Blue Book valuation in that amount submitted by Wife. (NT 81.) Husband objected to the valuation because he said it was flawed. He claimed his truck was a six cylinder, not a four cylinder and had 118,000 miles, not 75,000 as the valuation

indicated. The master stated he would take Husband’s points into consideration. (NT 81.) Husband gave very brief testimony about the vehicle, stating that it had higher mileage and had been in an accident. (NT 145.) Husband gave the master no evidence or opinion of a different valuation of the vehicle.

The master based his finding of value for the truck from the best evidence he had available to him. Had Husband introduced a different value, the master may have considered it. Husband may not now complain that the master should have made a different finding, because there was no other evidence of value available to the master. Husband’s exception is denied.

5. Husband s Exception to the Master s Findings That “Plaintiff Was Unable To Present Expert Witness Testimony Concerning a Specific Marital Component in Regards to the Plans ” or As to the Real Estate

The master found that Husband had a pension from the Bakery and Confectionary Union “in possible pay status” of approximately $495 per month and a TIP plan from Kraft Foods with a value on March 31, 2005, of approximately $24,997.65. Master’s report, p. 9. The master stated that “a portion of each one of these is marital, though, due to limited resources and total lack of cooperation from the defendant (Husband), plaintiff (Wife) was unable to present expert witness testimony concerning a specific marital component.” Master’s report, p. 9. The master made a similar finding as to Wife’s inability to present evidence as to the parties’ contributions to the purchase and improvement of the real property.

No evidence was presented to the master by either party about what portion of Husband’s pension or TIP investment was marital and what was non-marital. The master’s comment in the report was an appropriate one, because the retirement investments were Husband’s. He could have produced evidence to show the valuation of these assets at the time the parties married and at the time they separated. He did not, and Wife had no access to this information. The master awarded these assets to Husband, who now gets the benefit of both the marital and the non-marital components of these assets, whatever they may be.

The master correctly reported the same thing about the valuation of the parties’ real property. Lot 75 was purchased before marriage, but had increased in value. Without valuation testimony from a party, the master was unable to make specific findings about the value of the real estate at the time of marriage and at the time of separation. Lot 75 was purchased on February 7, 2000, and the parties were married on August 11,2001. The master was aware of the purchase price, the date of separation and the sale of the property, which took place after the last master’s hearing. The sale price under the parties’ agreement of sale was $96,000. (NT 101.) Using this information, which was all that he had received from Husband and Wife, he divided the marital components of the properties. I find that he achieved economic justice given the information he had to work with. Husband’s exception is dismissed.

6. Husband Contends That the Master Erred in Finding That “Husband, During the Course of the Proceedings, Expressed No Interest in Reclaiming Anything That Was in the Residence Prior to Sale ”

The master found that Husband did not express an interest in reclaiming any personal property that was in the parties’ residence before it was sold. As a result, he determined that whatever personal property is now in the possession of Wife shall be hers, and whatever personal property is now in the possession of Husband shall be his.

Husband now raises the fact that in his pretrial memorandum he asked for tools, a computer and garden equipment. Requesting items of property in a pretrial memorandum is one thing and presenting testimony at trial is another. The master and this court must deal with testimony and exhibits in the record of the trial. Here Husband made no mention of this property during his testimony at trial. The master properly distributed this personal property to the party that possessed it in the absence of more particular direction from the evidence presented.

7. Husband Objects That the Master Did Not Allocate a Sewer Pump Debt

Husband contends that the master did not allocate an outstanding sewer pump debt. Wife testified that the parties owed money to Koberlein Septic for installation of a grinder pump in their home in 2005. She thought the amount owed was under $3,000. She testified that she did not sign a work order for the pump, and she did not believe Husband had either. (NT 108.) To the extent this debt exists, Husband’s exception is sustained, and the responsibility for payment of the bill is allocated 60 percent to Husband and 40 percent to Wife. The party that pays the bill may seek contribution from the other for repayment of the other party’s percentage share of the bill.

8. Husband’s Objection to the Award of Permanent Alimony to Wife

Husband has filed an exception to the master’s recommendation that he pay alimony in the amount of $800 per month to Wife for the rest of her life. “The purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.” Twilla v. Twilla, 445 Pa. Super. 86, 90, 664 A.2d 1020, 1022 (1995). (quotation omitted) In determining the nature, amount, duration and manner of payment of alimony, the court must consider all relevant factors, including those statutorily prescribed for at 23 Pa.C.S. §3701, alimony, (b) relevant factors (1)-(17). “ ‘Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay. ’ Twilla, supra, 445 Pa. Super, at 90, 664 A.2d at 1022, quoting Perlberger v. Perlberger, 426 Pa. Super. 245, 277-78, 626 A.2d 1186, 1203 (1993), appeal denied, 536 Pa. 628, 637 A.2d 289 (1993).”Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003).

The purpose of alimony in Pennsylvania is to “effectuate economic justice between the parties.” See 23 Pa.C.S. 3102(a)(6), Legislative findings and intent. Anderson v. Anderson, 822 A.2d 824, 831 (Pa. Super. 2003). See also, Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. 2004) (alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill).

The master reviewed the Divorce Code factors and recommended that Wife receive permanent alimony after divorce at the rate of $800 per month. The master found that Wife was totally disabled and unable to be employed because she suffered from multiple sclerosis. Neither party presented any medical testimony or medical records, but Wife established that she was receiving Social Security disability benefits due to her illness. The master found that her Social Security disability benefit totaled $756 per month, or $9,072 per year, and that Husband’s gross income was $50,000 per year. Wife was 43 years of age at the time of the hearing and Husband was 53 years of age. Wife’s symptoms were numbness in various parts of her body and inability to walk more than a few feet. She used a motorized wheelchair to move around and was unable to drive due to loss of peripheral vision. The master found that she was unable to work.

Although a period of alimony is appropriate in this case, I do not choose to follow the master’s recommendation to require lifetime alimony for Wife. Rather, I find that economic justice is served by an award of alimony for six years in the amount of $600 per month. In ordering this alimony award, I rely on the factors considered important by the master, but also put weight on factors he did not rely upon.

The master appropriately focused on Wife’s disability and the gap between her disability payments and Husband’s income. In addition to the subsections of section 3701(b) that deal with these facts, I have also considered other subsections, including section 3701(b)(5), (6) and (8). This was not a long marriage; the parties married on August 11,2001 and separated on September 6, 2004. Neither party contributed to the other’s education, training or increased earning power. The parties’ standard of living during the marriage was a modest one, and they were frequently in arrears in basic household bills.

Although Husband is healthy and has a much better income than Wife’s, he does not have a large discretionary income. The master found that he grossed $50,000 per year, so he probably receives between $36,000 and $42,000 in net income per year. Assuming that the net income figure is $39,000, he receives $3,250 net per month. He is paying child support for a son by a previous marriage in the amount of $728 per month. (NT 83.) Wife sought child support for both girls in New Jersey, but withdrew her claim for some or all of that support. Should this claim be renewed, Husband will pay Wife this child support in addition to the alimony. Given these obligations, Husband will be on a tight budget in meeting his own living expenses.

This case may be distinguished from other cases where permanent alimony was awarded. The Superior Court approved a permanent alimony award in Dyer v. Dyer, 370 Pa. Super. 377, 536 A.2d 453 (1988), where the parties were married for less than two years before they separated, and enjoyed a modest standard of living during the marriage. Wife was disabled and received Social Security disability benefits. However, Mr. Dyer won $2.8 million in the Pennsylvania lottery, which he received in annual installments of approximately $110,000 each. Here, Husband does not have a large income in relation to his expenses.

Other cases awarding permanent alimony may be distinguished because they involved long marriages. Geyer v. Geyer, 310 Pa. Super. 456, 456 A.2d 1025 (1983) (42 years); Schneeman v. Schneeman, 420 Pa. Super. 65, 615 A.2d 1369 (1992) (22 years); Verdile v. Verdile, 370 Pa. Super. 475, 536 A.2d 1364 (1988) (28 years); Teribery v. Teribery, 357 Pa. Super. 384, 516 A.2d 33 (1986) (31 years); Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986) (29 years); Miller v. Miller, 352 Pa. Super. 432, 508 A.2d 550 (1986) (30 years); Pacella v. Pacella, 342 Pa. Super. 178, 492 A.2d 707 (1985) (15 years).

In Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. 2004), a wife who was completely disabled and receiving Social Security disability payments was denied alimony. This case also involved a shorter marriage lasting six years. Mr. Teodorski had paid spousal support for almost five years before the divorce.

Based upon my consideration of all the relevant factors, I find that alimony in this case is necessary, but I will adjust the master’s recommendation to a shorter period and lower amount.

II. WIFE’S EXCEPTIONS

1. Wife Objects to the Master s Distribution of the Water and Electric Service Debt to Her

The master recommended that Wife be responsible to pay a water bill in the amount of $1,300 and an electric bill in the amount of $3,500 for the house she lived in. He assigned an unpaid income tax obligation on Husband’s 2003 federal income tax return in the amount of $1,113 to Husband. Wife has objected to having to pay the entire water and electric debt.

These bills were incurred by the parties during their life together as a married couple. Wife’s exception is well-taken and these obligations shall be apportioned on the same basis as the sewer pump debt, 60 percent to be paid by Husband and 40 percent to be paid by Wife. However, since Husband is paying the 2003 federal income tax debt of $ 1,113 by himself, he will get a credit toward these bills in the amount of 40 percent of the tax debt, or $445.

CONCLUSIONS OF LAW

(1) Wife is entitled to a divorce on indignities grounds, pursuant to 23 Pa.C.S §3301(a)(6).

(2) Husband’s eighth and ninth exceptions to the master’s recommendations are sustained.

(3) Wife’s exception to the master’s report is sustained.

(4) In all other respects, the report and recommendations of the master are approved and any other exceptions are denied.

DECREE

And now, March 24, 2006, it is ordered and decreed that Maribel Ramos, plaintiff, and Eduardo L. Ramos, defendant, are divorced from the bonds of matrimony.

The recommendations of the master for equitable distribution of the parties’ marital property and for alimony are approved and made a part of this decree, with the following amendments:

(1) Husband’s eighth exception to the master’s report is sustained. The debt to Koberlein Septic shall be considered a marital debt. The responsibility for payment of the bill is allocated 60 percent to Husband and 40 percent to Wife. The party that pays the bill may seek contribution from the other for repayment of the other party’s percentage share of the bill.

(2) Husband’s ninth exception to the master’s report is sustained. Husband shall pay alimony to Wife in the amount of $600 per month for six years.

(3) Wife’s exception is sustained. The PPL Electric Utilities bill of $3,519.63 and the Pennsylvania American Water bill of $ 1,344 shall be apportioned on the same basis as the Koberlein Septic debt, 60 percent to be paid by Husband and 40 percent to be paid by Wife. However, since Husband is paying the 2003 federal income tax debt of $ 1,113 by himself, he will get a credit toward his share of these bills in the amount of 40 percent of the tax debt, or $445, which Wife will pay in addition to her 40 percent of the bills.

The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered.

Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending.

      . The parties did not file income and expense statements and the master did not receive any evidence as to Husband’s net income.

      . Wife testified that she sued Husband for child support for both daughters in New Jersey. Husband raised a paternity issue as to Megan. On the day Wife was to bring Megan to the testing location, she fraudulently attempted to have Nikita pose as Megan for the test. This was apparently discovered because Wife withdrew her claim for support. The record was not clear as to whether she withdrew her support claim for both girls or just for Megan. (NT 121.)