author: FITZPATRICK, J,

text:
    Ruza v. Ruza

      August 9, 2007

      Ronald D. Ashby, for plaintiff.

      James A. Gillin, for defendant.
   FITZPATRICK, J,

On November 1, 2006 this court entered findings of fact, conclusions of law and an equitable distribution order dividing the marital assets and liabilities of Christine A. Haschak Ruza (Wife) and John A. Ruza (Husband). Wife has timely appealed.

The parties were married on June 6, 1987 and are the parents of two children bom in November 1991, and December 1995. The parties share physical and legal custody of their children. The complaint in divorce was filed in 1994. The parties reconciled thereafter and the docket remained dormant until a protection from abuse order was entered by Wife against Husband in June 2000. The parties have lived separate and apart since that date.

This court’s findings of fact, conclusions of law and equitable distribution order of November 1, 2006 is attached hereto and incorporated herein. Part of the record in this proceeding was not available at the time of this court’s trial and still has not been found at the time this opinion is issued. On September 29, 2005 this court ordered that the proceeding shall be bifurcated. As of the date of this opinion, a decree in divorce has not been entered but the parties are cooperating and attempting to recreate the missing parts of the record for entry of the decree.

On April 12, 2004, a divorce hearing officer for the Delaware County Common Pleas Court entered a report and recommendation dividing the parties’ assets and liabilities. Wife timely filed a demand for hearing de novo and the matter was assigned to this court. Trial was scheduled for September 29, 2004 but continued on various occasions until February 3,2006 due to a bankruptcy proceeding for Ftusband and other attachments for counsel.

On February 3, 2006 and May 31, 2006, this court conducted hearing. Both Husband and Wife testified and each entered into the record voluminous documents consisting of tax returns, real estate settlement sheets, appraisals, personal property lists, mortgage documents and other financial forms. Both parties were represented by able counsel.

This court’s findings of fact and conclusions of law detail the economic relationship of the parties. This court, pursuant to section 3502 of the Divorce Code (23 Pa.C.S. §3502), equally divided the marital assets and liabilities but did award to Wife 60 percent of the marital interest in her voluntary investment plan at Boeing, which was the largest valued marital asset.

Wife cites seven complaints on appeal, which will be addressed seriatim.

Initially, Wife complains that this court erred in concluding that the Aldan property has a market value of only $105,000 and that it had a mortgage balance of $60,000. The testimony established that this property was the parties’ first marital residence. After separation, Husband collected a few monthly rental payments from tenants which equaled the mortgage balance. After Husband moved back into the property in the fall of 2000, he exercised exclusive possession of the residence until this court’s hearings. The property was purchased in January 1988 for $70,000. Husband presented bankruptcy appraisals for between $70,000 to $83,000 and testified that due to its condition, a fair market value at hearing was approximately $90,000 to $95,000. Husband noted that an attached twin was in better condition and had sold for $115,000 prior to this court’s hearing.

This court found the value of the residence at $ 105,000 and the mortgage balance to be $60,000. This established an equity of $45,000. Wife in post-trial memorandum suggested an equity value of $50,000 based on a market value of $115,000 minus $65,000 mortgage balance. This court found that mortgage balance at $60,000 pursuant to Husband’s 2005 bankruptcy filings. This court found the value of the home at $105,000 based on Husband’s testimony as to the condition of the property and the condition of the adjacent twin which had sold. This court did not credit Husband for his failure to make mortgage payments during periods of occupancy in the house. Those sums will be paid by Husband through his bankruptcy proceeding.

Wife complains that this court erred in finding that her dissipation of mortgage and taxes on the Wallingford property were equal to Husband’s dissipation at the Aldan property. Wife claims that she missed payments for only one year while Husband missed payments for over six years.

The settlement sheet and the mortgage payoff statement from Bryn Mawr Trust Company for the Walling-ford property establishes the mortgage delinquency at $14,067.91, plus a water bill and certain real estate taxes. The mortgage for the Aldan property was $856 per month and Husband testified to being two years in delinquency for a debt of approximately $20,544. Husband was not delinquent during the entire six-year period as complained by Wife. The 2004/2005 bankruptcy filings indicate a delinquency of approximately $18,000 (2004) and $25,000 (2005). Husband and Wife both were responsible and both, in fact, paid the delinquency on the Wallingford home at settlement. Husband here will pay for the delinquency on the Aldan property through his bankruptcy. The 2005 bankruptcy represents that the mortgage balance in principal is $60,000 and does not include the $25,000 delinquency.

Wife complains that the court failed to award her rental value for the Aldan property because Husband failed to pay the mortgage. This court awarded the Aldan real estate to Husband and charged him $45,000 for its equity. Husband will be required to pay the mortgage delinquency created during his occupancy and no testimony was presented to the court that a difference existed between the rental value and the mortgage payment.

Wife complains that this court erred in setting off her $6,000 marital debt for a swimming pool against Husband’s $9,000 post-separation medical bill. On February 9, 2004, the Honorable Barry C. Dozor, judge of the Court of Common Pleas of Delaware County, ordered that Wife and her employer, the Boeing Company, reinstate medical, vision and dental coverage to Husband. Wife was ordered to specifically perform any and all necessary acts to reinstate Husband on her policy. Husband was ordered to pay Wife monthly any additional costs she incurred for coverage. Husband documented medical bills in the amount of $9,000 due to his lack of insurance coverage. Husband testified that Wife did not secure insurance for him although he admitted that he did not pay Wife for the same. Wife did not testify as to whether she had placed Husband on the policy and/or demanded payment from him. This court attempted to uphold the order of Judge Dozor and instructed Wife to be responsible for the $6,000 pool debt while Husband was to be responsible for his $9,000 medical debt. It should be noted that Wife received the benefit of this offset.

Wife next complains that this court erred in finding that she has $10,217 in her bank accounts at separation and in finding that she received a cash value from a life insurance policy for $5,746.49. Wife suggests in her statement of matters that the life insurance proceeds were deposited into the existing bank accounts and that a double accounting occurred. Wife did not establish this evidence at trial and this court cannot consider this argument. Wife in her post-trial submission acknowledged that the setoff for the insurance funds was equal to the setoff for the child support monies deducted from Husband at the Wallingford real estate settlement.

Wife next complains strongly that this court erred in failing to find that Husband had unreported business income in excess of $300,000 and that these sums were marital assets misappropriated before separation or shortly thereafter. Counsel for Wife introduced documentary evidence for Husband’s financial accounts and his 2000 thru 2003 tax returns. Counsel overwhelmed Husband in cross-examination on his economic activity. Although this court agreed with Wife’s counsel that Husband was not portraying a clear accounting picture for his business efforts, this court did not conclude that Husband had misappropriated and/ or dissipated substantial marital assets from his business financial accounts. Husband, as a general contractor, testified that his business efforts were failing at separation and that he had met with little success since June of 2000. Wife attempted to establish that the schedule “C” amounts on his federal tax returns were inconsistent with his bank record deposits and that the difference would be marital assets which should be divided between the parties. This court’s observation of Husband’s demeanor and testimony led it to the conclusion that Husband did not dissipate or misappropriate any substantial marital assets. Husband’s failed business efforts appeared to meet his failed record-keeping efforts. Husband did purchase a 2000 Ford truck at separation but his 2005 bankruptcy Chapter 13 plan discloses $12,000 still owed as of October 18, 2005. This court, nor Wife, could not discover, ascertain or identify any transfer of assets or purchases by Husband which would establish his ability to have hidden this income.

This court did find that Husband did have some unreported income, but it was not in the amount suggested by Wife. This court concluded that it would be equitable to offset that income against the $10,217 in Wife’s bank accounts at separation.

Finally, Wife complains that this court’s equal division of property failed to consider the statutory instructions in section 3502 of the Divorce Code. Initially, this court notes that it equally divided the parties’ remaining marital assets, but that it awarded Husband only 40 percent of Wife’s voluntary investment plan at Boeing. The marital portion of this asset valued at $125,187.13 was the principal asset and was almost double the value of the parties’ other assets. In awarding Husband only 40 percent of that asset, this court recognized his incarceration for three years during the marriage. This court also reflected on Wife’s employment and contributions during the marriage and the shared custodial obligations of the parents. This court could not award that asset in its entirety to Wife as requested.

This court’s final order has Husband owing to Wife approximately $12,397.18 due to his interest in the house being greater than the financial assets Wife has received to date. Husband is due 40 percent of Wife’s voluntary investment plan, which portion was estimated by this court to be approximately $50,296.28. Wife may deduct from the 401k rollover that sum owed to her by Husband. Wife will enjoy substantial pension and other retirement benefits from her employer in the future. Husband still has over two years remaining on his bankruptcy plan.

This court, herein, attempted to provide the parties with an economic resolution that was consistent with the mandate of section 3502(a) of the Divorce Code. The parties’ financial operation between June 2000 to the date of this court’s hearing was, at times, ambiguous and confusing. This court attempted to identify the parties’ assets and arguments and divide the assets as it found appropriate.

FITZPATRICK, J, November 1, 2006-

FINDINGS OF FACT, CONCLUSIONS OF LAW AND EQUITABLE DISTRIBUTION ORDER

Findings of Fact

(1) Christine A. Haschak Ruza (Wife) and John A. Ruza Jr. (Husband) were married on June 6, 1987.

(2) The parties are the parents of two children, Julianna Ruza, bom on November 26, 1991 and John A. Ruza, bom on December 20, 1995. The parties share physical and legal custody of their children.

(3) The complaint in divorce in this proceeding was filed in 1994. The parties reconciled thereafter and the docket remained dormant.

(4) In June 2000, Wife was granted a protection from abuse order against Husband and the parties separated. The parties have lived separate and apart since that period.

(5) During a portion of the marriage, Husband was incarcerated and a prior PFA had been filed in February 1988.

(6) Wife is age 44 at this time and began working at Boeing-Vertol in Delaware County in June 1984. She began contributing to her retirement plan at her employer before the marriage. Wife is employed as a buyer for Boeing.

(7) Husband is a carpenter by trade and had been self-employed during the marriage in a corporation owned by him.

(8) Husband and Wife each testified before this court. Husband and Wife each presented voluminous documents establishing marital value, liability and claims for offset and credit.

(9) The parties in January 1988 purchased 103 Shisler Avenue, in Aldan, Delaware County, Pennsylvania for $70,000.

(10) The parties purchased a new home at 104 Copples Lane, Wallingford, Delaware County, Pennsylvania in September 1998.

(11) The Aldan property was rented from September 1998 until the parties’ separation in June 2000.

(12) The Wallingford property has been sold and the proceeds have been equally divided. Each party shall keep all monies received from the sale and each is awarded the same.

(13) Husband moved into the Aldan property shortly after separation and continues to remain in the property. The house is owned by both parties.

(14) Husband has had a series of bankruptcies since separation and is currently participating in a reorganization plan, which plan includes delinquent mortgage payments.

(15) This court finds the value of the Aldan property to be $105,000 based on the parties’ testimony and the mortgage balance to be $60,000.

(16) The dissipations by Wife of the mortgage and real estate taxes for the Wallingford property after separation and prior to the sale equals the dissipation by Husband of the Aldan property between the date of separation until the date of this court’s hearing. Neither party shall receive a credit and/or offset for the other’s delinquency.

(17) The rental value for the Aldan property between June of2000 to current is equal to the taxes and mortgage payment due for the property. No rental credit is awarded to Wife.

(18) Husband, during the marriage, acquired tools, mowers, plow blade, computers and related business assets. Husband took possession of those items at separation.

(19) The parties also acquired furniture and other marital personalty but the great majority of those items were claimed by Wife at separation.

(20) Each party herein is awarded those content assets in their possession and no credit is given to either party for any claims for unequal value.

(21) At the settlement for the Wallingford property, the sum of $5,988.96 was intercepted for child support purposes against the proceeds. Wife cashed out a marital life insurance policy for the sum of $5,746.49. Husband and Wife each shall maintain possession of the cash/ credit received herein and no offset is ordered.

(22) Wife had claimed to be responsible for $6,000 in credit card debt from the marriage for a pool at the Wallingford property and other debt. Husband has incurred $9,000 in medical bills because of Wife’s discontinuance of his health insurance prior to entry of a divorce decree. Each party herein shall pay the debt in their name and neither party is awarded credit to these claims.

(23) Wife may have had money in checking and savings accounts at separation in the amount of $10,217. Husband at separation had certain business accounts and income which Wife claims through exhibits constituted unreported income. Each party shall maintain any and all financial assets in each names not otherwise awarded herein.

(24) Wife has three retirement accounts with her employer. They are as follows:

(1) A defined benefit plan valued at the sum of $19,467.25

(2) A voluntary investment program, which had a value of $125,187.13 at separation

(3) Wife also participated in the financial security plan which had a value of $938.15 at separation.

Conclusions of Law

Sections 3502 of the Divorce Code (23 Pa.C.S'. §3502(a)) details the 11 criteria that a court shall consider when dividing marital assets and debts. The court herein has considered the findings of fact entered above, the argument of able counsel for each party, the testimony presented at trial, the documents submitted into evidence, and a review of the record herein and herein enters an equitable distribution order as follows:

(1) The equity for the Aldan property is established at $45,000. Husband is awarded this property, subject to the following conditions. Husband is currently in a reorganization petition in bankruptcy court. Husband herein shall make all payments promptly to the trustee and the mortgage company. Any delinquency in payment shall require the house to be marketed by a realtor selected by Husband at a fair market value. The property should be sold to protect Wife’s credit. Husband is awarded any and all proceeds from the sale. For equitable distribution purposes, Husband is charged $45,000 for the marital interest in this property. Wife’s name shall be removed from the deed as soon as husband can refinance the property.

(2) This court finds that Wife’s defined benefit pension plan at her employment is valued for marital purposes at $19,467.25. Wife is awarded this asset in its entirety.

(3) Wife is also awarded her financial security plan, which has a total value of $938.18.

(4) The final asset is Wife’s voluntary investment plan at Boeing Vertol. This asset is valued at $125,187.13 as of June 1, 2000, but may include some pre-marital contributions. This asset was not given a current value for this court.

(5) This court herein finds Husband and Wife based on their equal earning ability, wages, health, contributions and dissipation conduct are each awarded 50 percent of the marital estate. Husband is charged with receipt of $45,000. Wife is charged with the receipt of $20,405.43.

(6) It appears that Wife’s voluntary investment plan at separation was valued at the sum of $125,187.13. Husband is awarded the sum of 40 percent ($50,296.28) of the marital portion of Wife’s voluntary investment plan as valued on the date of separation. However, Husband and Wife shall each be credited/deducted the appreciation/depreciation on the account from separation up to its date of distribution by Boeing-Vertol based on their respective interest in the account, i.e., (.401/.599). Husband’s and Wife’s counsel shall submit a QDRO within 30 days of the date of this order.

(7) Each party’s claim for the excessive counsel fees accrued in this proceeding are denied.


source: Caselaw Access Project

author: ALLEN, J,

license: Public Domain

text:
    Pollock v. Feinstein

      March 28, 2006

      Michael Pomerantz, for plaintiff.

      Matthew Heilman, for defendants.
   ALLEN, J,

PROCEDURAL HISTORY

Plaintiff commenced this action by writ of summons on September 7, 2005. The complaint was filed on October 31,2005. On January 6,2006, a praecipe for entry of judgment non pros was entered in favor of defendants Michael A. Feinstein M.D. and Timothy F. ShawalM.D. and against plaintiff for failure to file a certificate of merit. On January 10, 2006, plaintiff filed a motion to strike entry of judgment non pros. A timely answer was filed. On February 6, 2006, the court denied plaintiff’s motion. An appeal followed. A statement of matters complained of on appeal was requested and submitted. This opinion is in response to plaintiff’s appeal.

FACTS

Plaintiff alleges that on September 5,2003, Feinstein performed a laparoscopic tubal ligation and IUD removal. According to the complaint, Feinstein failed to provide the plaintiff with material information, such as risks, consequences and alternatives, necessary for her to determine whether to proceed with the surgery. During the surgery, plaintiff received a laceration to her anterior abdominal wall.

DISCUSSION

This court is confronted with the issue of whether a claim for lack of informed consent constitutes a deviation from “an acceptable professional standard” warranting the filing of a certificate of merit pursuant to the rules of civil procedure. Plaintiff asserts that a certificate of merit is not warranted in this instant matter; the defendants assert otherwise. The statute, in relevant part, provides that:

“In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party ....” Pa. R.C.P. §1042.3.

1. Informed Consent

The doctrine of informed consent is grounded upon the theory that a physician is precluded from “administering to, or operating upon, a mentally competent adult patient in non-emergency situations without his consent.” Festa v. Greenberg, 354 Pa. Super. 346, 350, 511 A.2d 1371, 1373 (1986). See also, 40 P.S. §1303.504.

A. Prudent Patient Standard

Prior to 2002, Pennsylvania courts applied the prudent patient standard. Under this standard of care, it “is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.” Id., 354 Pa. Super. at 353, 511 A.2d at 1375. All known risks need not be disclosed. Foflygen v. Allegheny General Hospital, 723 A.2d 705, 712 (Pa. Super. 1999) (“A physician or surgeon need not disclose all known information; however, the physician or surgeon is required to advise the patient of those material facts, risks, complications, and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation”). (quotation marks and citations omitted)

Consent is valid if: “the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s, would deem significant in making a decision to undergo the recommended treatment.. .The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment.” Cooper v. Roberts, 220 Pa. Super. 260, 267-68, 286 A.2d 647, 650 (1971). Expert testimony was warranted only to establish: “the existence of risks in a specific medical procedure, the existence of alternative methods of treatment and the existence of risks attendant with such alternatives. ” Festa, 354 Pa. Super. 356, 511 A.2d at 1376. (emphasis in the original)

B. Professional Standard

Under an alternate theory, the professional standard, “the physician’s duty to disclose in a particular situation is restricted to the disclosure which the reasonable medical practitioner in the community would have made in a similar situation. The determinative factor is the standard of disclosure to which the medical community adheres for the recommended procedure.” Id., 354 Pa. Super. at 351, 511 A.2d at 1374. Consent existed when the physician disclosed facts, risks, complications and alternatives as required by the “community’s standard of disclosure,” Id., 354 Pa. Super. at 354-55, 511 A.2d 1375-76. (citations omitted)

C. MCARE

These two standards were merged and codified under the Medical Care Availability and Reduction of Error (MCARE) Act at 40 P.S. §1303.504(b):

“Consent is informed if the patient has been given a description of a procedure ... and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.”

Presumably under this statute, the medical provider is afforded an alternate defense not available under the prudent person standard. A medical provider complied with the consent requirements if he or she disclosed risks and alternatives in accordance with acceptable medical standards.

Hence, based on the above analysis, a claim of lack of informed consent falls within the boundaries of Pa. R.C.P. § 1042.3(a). As such, a certificate of merit is required. Failing to provide one within the time allocated by the statute permits the entry of judgment of non pros pursuant to Pa.R.C.P. § 1042.6(a):

“The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate.”

CONCLUSION

Because a cause of action for lack of informed consent requires analysis of a professional standard and the deviation therefrom, a certificate of merit, is required, plaintiff’s failure to file one permitted the entry of judgment non pros to stand. As such, the court’s order of February 6, 2006 denying plaintiff’s motion to strike should be affirmed.

      . While it is alleged that Feinstein performed the surgery, the plaintiff seeks to hold Shawal liable as a business partner. Complaint, ¶6.


author: HODGE, J.,

text:
    Slagle v. Slagle

      February 9, 2006

      James M. Goodwin, for plaintiff.

      James W Manolis, for defendant.
   HODGE, J.,

The parties were before the court on several petitions relative to the request of Mother to move from her current residence at 2320 Avalon Drive, Hermitage, Mercer County, Pennsylvania, to a new residence at 118 Skyline Drive, Canfield, Ma-honing County, Ohio, with the parties ’ minor child, [ ], born August 1, 1993.

Presently pending before the court are the following petitions:

(1) Petition to modify court order, filed by the plaintiff on December 19,2005, with a rule returnable for January 30, 2006;

(2) Petition for special relief, filed by the defendant on January 13, 2006, to prevent the plaintiff from moving from the Hermitage, Pennsylvania address to Can-field, Ohio, and seeking to prohibit plaintiff to enroll the child in the Canfield, Ohio, school system, without prior order of court or consent of the defendant;

(3) Petition for modification and custody order filed by the defendant on January 13, 2006;

(4) Petition for civil contempt filed by the defendant on January 17, 2006, whereby a rule was issued upon the plaintiff to show cause why she should not be held in contempt; and

(5) Petition for special relief, filed by the plaintiff, on January 23, 2006, seeking to vacate the order of the Honorable Michael J. Wherry, dated January 13, 2006, which order was inadvertently signed by your undersigned counsel.

This court, by order dated January 24, 2006, vacated the court’s order of January 23, 2006, and directed the parties to maintain the status quo that existed following the entry of the order of Judge Wherry, dated January 13, 2006.

At the hearing held by the court on January 30,2006, the factual background developed was that the parties were married on May 4,1985, that the minor child, [ ], was bom on August 1,1993, and that a divorce complaint was filed on October 31, 2001.

During the pendancy of the litigation, there have been several custody orders entered, with the most recent being August 28, 2003, which provided for shared legal custody of the minor child between the parties, primary physical custody of the minor child to be with the plaintiff/Mother, and with the defendant/Father to have alternate weekends/weekdays and split holidays, depending upon his work schedule.

The record reflects that the parties were divorced by order and divorce decree filed on August 13, 2004.

The essence of this current litigation is the desire of Mother to move with her new husband from the current address and the former marital residence of2320 Avalon Drive, Hermitage, Mercer County, to 118 Skyline Drive, Canfield, Mahoning County, Ohio.

At the hearing, Mother testified that she desired to move with her new husband, Kevin Thomas Crawford, from the Hermitage, Pennsylvania residence to 118 Skyline Drive, Canfield, Ohio. Mother testified that the new home is larger, updated, better insulated, and contains more room for [ ]. In the current home, a three-bedroom home, [ ] has a small bedroom, approximately nine feet by nine feet, whereas the newer home would have a much bigger bedroom for her. In addition, the new neighborhood would be similar to their current neighborhood, and would have lots of children. Other benefits of the move, according to the Mother, would be that if [ ] would get sick, her new in-laws would be much closer and able to watch her, that Canfield, Ohio, is much closer to her new in-laws’ residence, that Canfield has a municipal park two blocks away, where various recreational activities are available, that her husband’s employment is much closer, being 20 minutes away as opposed to 35 minutes away, and that Father would not have to change his visitation times, as the Canfield school system is out for the day at 2:10 p.m., whereas now the Hermitage school system discharges students at 2:45 p.m. Mother also testified that while the current court order provides that Father’s visitation with [ ] is to start at 4 p.m., that she permits an earlier pick-up by Father when his work schedule permits and that she has agreed to change his days of the visitation with [ ] due to her basketball schedule.

Mother testified that there have been problems with school pick-ups by Father, which make adjustments difficult in the Hermitage school system, when, for example, Father’s work schedule requires him to change the visitation days with short notice.

In the Canfield school system, Mother’s father-in-law would be there to get the child off the school bus.

Mother testified that she believes that Father’s reasons for opposing the move were that it would cut down on his week-day visitation with [ ]. In an attempt to alleviate Father’s fears, Mother said she gave a map to the new house to her attorney, to forward to Father.

Mother testified that the distance difference between Father’s residence in New Castle, Pennsylvania and the current residence in Hermitage, Pennsylvania, and New Castle, Pennsylvania and Canfield, Ohio is only an extra 3.3 miles further, and an extra 10 minutes. In addition, Mother testified that from Father’s place of work in Shippingport, Pennsylvania, it is 10 miles less to the new residence.

Mother further testified that she made inquiries relative to the quality of the Canfield schools, and she is satisfied that the caliber of the school district is satisfactory in comparison with the Hermitage, Pennsylvania school system.

On cross-examination, Mother acknowledged that she has communication problems in general with her ex-husband, and as a result, attempts to communicate with him in writing.

Mother acknowledged that she had not spoken with her former husband prior to signing the sales agreement on the Canfield, Ohio property, and didn’t think it was a big problem since the distance differential was somewhat small. Mother further testified that she did not realize the relocation would require a court order or consent of Father, even though she had a copy of the court’s prior order.

Mother testified that she and her current husband signed an agreement of sale to purchase the Canfield, Ohio property on either November 27 or 28 of 2005, whichever day was Sunday, which was subsequently accepted by the seller of the property on either Tuesday or Wednesday of the following week.

Mother testified that [ ] is 12 years old, has attended the Hermitage school system since first grade, and is currently in the sixth grade.

[ ] has performed well academically in the Hermitage school system, has friends there, plays basketball, and is editor of the school newspaper.

Mother further testified that she and [ ] have resided in the current home since the first grade, that she and her current husband looked for homes in the Hermitage, Pennsylvania area, but were not able to find any home that they could afford, whereas they were able to afford the purchase of the Canfield, Ohio home.

Mother further testified that her extended family resides in Shenango Township, Lawrence County, Pennsylvania, and that Father’s family lives in Pulaski, Pennsylvania.

Mother currently attends the Pennsylvania State University-Shenango Valley Campus in Hermitage, Pennsylvania, expecting to graduate in May of this year, and is working part-time on her internship at the Greer House in New Castle, Pennsylvania and the Barkley House in New Castle, Pennsylvania.

Mother further testified that her current husband works in the Boardman, Ohio vicinity, and that his hours are 6 a.m. until 3 p.m., Monday through Friday. The Mercer County residence is approximately 35 minutes from her husband’s place of work, with the Canfield, Ohio residence approximately 20 minutes from his place of work.

When questioned by counsel for Father as to a statement that the plaintiff had made at the time of the divorce about not wanting to uproot [ ], Mother replied that she is now employed and married, the difference being before, she did not want to move in the middle of the divorce.

Mother further testified that Father works various shifts at the First Energy Power Plant in Shippingport, Pennsylvania, and that the current visitation schedule is designed to accommodate his work schedule.

Father testified that he exercises his visitation privileges with the child on a consistent basis, based upon his work schedule.

Father is now remarried to Denise, and has a 10-month old daughter, and [ ] has a good relationship with both her stepmother and half-sister.

Father testified that he had made an experiment relative to the driving time from his home in New Castle, Pennsylvania, to Canfield, Ohio, the driving time being 54 minutes at 5 p.m. on that particular day, traveling by what he knew to be the most direct route and at the appropriate speed limit. The travel time from New Castle, Pennsylvania to the Hermitage residence is 27 minutes.

Father’s concern is that the change in the residence would do away with the nightly visits during the weekdays during school times, and that he couldn’t see the child on every other weekend because of his work schedule.

Father acknowledged that the move would not have impact on the summer visitation schedule, as he would have more time to spend with the child and the driving time would not be so crucial.

Father’s position was that the move was a big deal for the following reasons:

(1) It was six miles longer;

(2) It took twice as long to get there than from New Castle to Hermitage;

(3) Due to the driving time, during school hours, it would be a problem with the week-day visitations; and

(4) That, in his opinion, it would be no improvement in the quality of life for [ ].

Father further testified that he believed there were no alternative make-up times available during the school year.

Upon cross-examination, Father did acknowledge that his work schedule creates problems, but the parties have worked around his work schedule. Father acknowledged that Mother allowed earlier pick-up times and alternate days when the child’s schedule interfered with his work. In addition, Father acknowledged that for summer vacations, he gets first choice each year, and that Mother has not tried to keep the child from him.

The Superior Court of Pennsylvania has established guidelines for the trial court to consider when deciding relocation issues in the case of Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). In order to decide whether the custodial parent and children shall be permitted to relocate at a geographical distance from a noncustodial parent, the trial court must consider the following factors:

(1) The court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children, and is not the result of a momentary whim on the part of the custodial parent. In considering the prospective advantages to the move, a court shall not limit itself solely to enhanced economic opportunities for the custodial parent, but must also assess other possible benefits of the relocation.

(2) The court must establish the integrity and the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it. The court must assure itself that the move is not motivated solely by a desire to frustrate the visitation rights of the noncustodial parent or to impede the development of a healthy, loving relationship between the child and the noncustodial parent. An aspect of this determination is the degree to which the court can be confident that the custodial spouse will comply cooperatively with alternate visitation arrangements which the move may necessitate. Likewise, the court must consider the motives of the noncustodial parent in resisting relocation and decide whether the resistance is inspired by motives other than a legitimate desire to continue and deepen the parent-child relationship.

(3) The court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the parent and the noncustodial parent. We recognize that, in many cases, former weekly visitation may have to give way to an altered schedule which allows for less frequent but more extended contact between parent and child. However, the necessity of shifting visitation arrangements to account for geographical distances will not defeat a move which has been shown to offer real advantages to the custodial parent and child.

Applying these factors to the facts of this case, the court finds that the plaintiff has established significant, positive benefits to the relocation move, such as the increased size of the home, the increased size of the bedroom for the child, its proximity to the plaintiff’s new in-laws and to her husband’s employment, and the proximity to the Canfield area parks.

The court is satisfied that Mother has not tried to frustrate Father’s ability to see the child, and to the contrary, Mother has allowed Father to pick the child up earlier than provided in the existing court order. Mother has allowed Father to have alternate visitation days and first choice for summer vacation. Nothing seems to indicate that Mother is not agreeable to alternate or additional visitation of Father with the child. In addition, the entire visitation schedule of Father with the minor child has been designed around Father’s fluctuating work schedule at his place of employment.

The court is of the opinion that the Gruber, supra, factors apply to this case, notwithstanding the argument by counsel for Mother that we are dealing with a rather small geographical distance, due to the fact that the move would take Mother and her daughter outside the jurisdiction of this court.

In addition, the court finds that the integrity of the custodial parent’s motives in seeking to move, and of the noncustodial parent in seeking to prevent the move, are both made out of the desire to either further the welfare of the child, or on behalf of Father, to spend more time with the child.

The court is of the opinion that realistic, substitute visitation arrangements can be instituted in this case, in order to continue the appropriate, and ongoing relationship by and between Father and the minor child. A limiting factor in developing alternate visitation is not the distance of the new residence from Father’s residence, an additional 3.3 miles and 25 minutes travel time, but Father’s work schedule.

The court concludes that, after analysis of the Gruber factors, permitting Mother and new husband to move with the child from Hermitage, Pennsylvania to Canfield,. Ohio is in the best interest of the minor child. As a result, the court will enter the attached order of court.

The court will give counsel for Mother an opportunity to present a proposed, realistic, substitute visitation arrangement to counsel for Father, and, if the court is not presented with an alternate custody arrangement within 30 days of the date of the accompanying order, the court will schedule a hearing in this regard.

ORDER

And now, February 9, 2006, for the reasons set forth in the accompanying opinion, the court grants the petition of Mother, Carol Rae Cowan-Crawford, to modify the court order dated August 28,2003, so as to allow Mother and the minor child to move from 2320 Avalon Drive, Hennitage, Pennsylvania, to 118 Skyline Drive, Canfield, Ohio.

The order of this court dated January 13,2006, entered by Judge Michael J. Wherry, on the petition for special relief filed by Father, for the purpose of preventing the move and from preventing the child from being enrolled in the Canfield, Ohio school system, without prior written consent of Father or order of court, is here by vacated.

The petition for civil contempt filed by Father, seeking to hold Mother in contempt, is discharged.

Counsel for Mother and counsel for Father shall consult with each other relative to a realistic, substitute visitation arrangement, and, upon failure to arrive at a mutually acceptable substitute visitation agreement within 30 days of the date of this order, either party may file a motion with the court to schedule a conference and/ or hearing for the purpose of establishing appropriate, substitute visitation arrangements by and between the minor child and Father.

The prothonotary shall properly serve notice of this opinion and order upon counsel of record and any party not represented by counsel.


author: LASH, J,

text:
    Sher v. Berks County Board of Assessment Appeals

      September 1, 2006

      Joseph A. O’Keefe, for appellants.

      Edwin L. Stock, for appellee.
   LASH, J,

The appellants, Robert B. Sher and Victoria Sher (Taxpayers), have appealed the decision of the Board of Assessment Appeals of Berks County directing an increase in the preferential use assessment of real property owned by Taxpayers. Taxpayers are enrolled in Berks County’s preferential use assessment program under the Pennsylvania Farmland and Forest Land Assessment Act of 1974 (Act 319), commonly known as the Clean and Green Act, 72 P.S. §5490.1, et seq. The court held a non-jury trial on August 28, 2006.

The court enters the following findings of fact:

I. FINDINGS OF FACT

(1) The appellants, Robert B. Sher and Victoria Sher (Taxpayers), are adult individuals who reside at 325 Mine Lane, Oley, Berks County, Pennsylvania 19547.

(2) The Berks County Board of Assessment Appeals is located at the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.

(3) Taxpayers are the record owners of a property located at 325 Mine Lane, Oley, Berks County, Pennsylvania (property), consisting of approximately 13.03 acres of land, improved with a two-story dwelling and two garages.

(4) The property is located in the Oley Valley School District.

(5) The property is identified by the Berks County Assessment Office by pin number 67-5348-00-63-3065.

(6) On or about May 28,1996, Taxpayers filed an application to enroll the property in the Acts program beginning tax year 1997. The application listed a total of 13 acres, with 10 acres being tillable agricultural use, two acres being forest, and one acre being reserved for a home site.

(7) In 1997, the property was placed in the Clean and Green program, and the property was assessed at $113,700, Clean and Green value.

(8) By notice mailed on October 31, 2005, the board notified Taxpayers that, as a result of Act 156 of 1999 and Act 235 of 2004, a change in the assessed value of the property had been made. The notice set forth the following assessed values:

2006 market — $197,700;

2005 Clean and Green — $ 113,700; and

2006 Clean and Green — $158,500.

(9) Taxpayers appealed this assessment to the board and a hearing was held on December 19, 2005.

(10) During the course of this appeal, the County Mapping Office determined, contrary to the Taxpayers’ application for Clean and Green, that 7.56 acres of the total 13.03 total acres was forest. Subsequent to the board’s hearing in December 2005, the Mapping Office created a new delineation setting forth that 7.23 acres, or 55 percent, of the total acreage was categorized as forest reserve.

(11) Following the hearing, on December 30, 2005, the board issued a final notice to Taxpayers setting forth that the Clean and Green assessment for the property was $158,500, and the market value was $197,700.

(12) On January 27, 2006, Taxpayers appealed the board’s determination to the Court of Common Pleas of Berks County.

II. DISCUSSION

The increase in Taxpayers’ preferential use assessment represents a change in valuation of the farmstead acreage from preferential use assessment to fair market value. This reassessment represents the board’s determination that it can apply the provisions of Act 235 of2004, which amended section 5490.4b of the Clean and Green Act, effective February 7, 2005, to Taxpayers’ property.

Section 5490.4b, as amended by Act 235, states:

“(a) For each application for preferential assessment, the county assessor shall establish a total use value for land in agricultural use, including farmstead land, and for land in agricultural reserve by considering available evidence of the capability of the land for its particular use utilizing the USDA-NRCS Agricultural Land Capability Classification system and other information available from USDA-ERS, the Pennsylvania State University and the Pennsylvania Agricultural Statistics Service. Contributory value of farm buildings shall be used.
“(b) For each application for preferential assessment, the county assessor shall establish a total use value for land in forest reserve by considering available evidence of capability of the land for its particular use. Contributory value of farm buildings shall be used.
“(c) A county assessor may establish use values which are less than the values provided by the department under section 4.1, but lesser values shall be applied uniformly to all land in the county eligible for preferential assessment.
“(d) For purposes of this section:
“(1) Farmstead land located within an area enrolled as agricultural use shall be assessed at agricultural use value.
“(2) Farmstead land located within an area enrolled as agricultural reserve or forest reserve shall be assessed at agricultural use value if either:
“(i) a majority of land in the application for preferential assessment is enrolled as agricultural use land; or
“(h) in the circumstance that noncontiguous tracts of land are enrolled under one application, a majority of land on the tract where the farmstead land is located is enrolled as agricultural use land.” 1974, Dec. 19, P.L. 973, no. 319 §4.2, added 1998, Dec. 21, P.L. 1225, no. 156, §4, imd. effective. Amended 2004, Dec. 8, P.L. 1785, no. 235, §3, effective Feb. 7, 2005.

Previous to the passage of Act 235, agricultural use, agricultural reserve and forest reserve, including farmstead land, were given preferential use assessment. Under Act 235, the farmstead acreage would still receive preferential use if it was located within an area enrolled as agricultural use. Flowever, if the farmstead is located within an area enrolled as either agricultural reserve or forest reserve, the farmstead is to be assessed at fair market value unless, inter alia, the majority of the land in the application for preferential assessment is enrolled as agricultural use land. The board found that approximately 55 percent of the property was forest reserve, and therefore, the farmstead should be assessed at fair market value.

Taxpayers oppose the reassessment, claiming that the action taken constitutes a spot assessment. As there was no change in use, change of ownership or split off, the board exceeded its authority. We agree.

Generally speaking, once a valuation has been established for a taxable property, the valuation cannot be changed unless the change is a result of a county wide reassessment. Spot reassessment, or selective reassessment, is the reassessment of a property or properties that are not conducted as part of a county wide revised reassessment and which creates, sustains or increases disproportionately among the properties assessed value. 72 P.S. §5342.1. Radecke v. York County Board of Assessment, 798 A.2d 265, 267 (Pa. Commw. 2002).

The assessment law does provide authority for changing assessments in certain circumstances. Section 5347.1 of the County Assessment Law, dealing with counties of the second class A and third class, provides that assessors may change the assessed valuation on real property when a parcel of land is divided and conveyed away in smaller parcels or when improvements are made to real property, or existing improvements are removed from real property, or are destroyed. There is no provision, however, permitting a change in the assessment due to a change in the law.

We also cannot find any authority for this action under the Clean and Green Act. The Clean and Green Act does permit a change in preferential use assessment, as well as imposition of rollback taxes, under certain circumstances, which may include a change in use of the land, change in ownership of a portion of the land, or a division or conveyance of the land. The Clean and Green Act, however, does not address the ramifications of a change in the law.

Under section 5490.4b(a), the rights and duties of the landowner are set at the time of the filing of the application. This includes the preferential use rate. Just as in the case of a fair market value assessment, once the preferential use assessment is set, the board cannot increase the preferential assessment, unless one of the triggering events occurs. A change in the law is not a triggering event unless, of course, the legislature specifically intends it to be so.

We also note that section 5490.4(f)(2) of the Clean and Green Act, dealing with amendments to the initial application, states that: Preferential assessment on land which continues to meet the provisions of section 3 shall not lapse and shall continue at the same rate previously established under section 4.2 (5490.4b). This provision appears to state that if a landowner files an amendment to his application, the preferential use established at the time of the initial application shall continue, so long as the land continues to meet the use requirements also established at the time of the application. Thus, it appears the legislature intended to ensure that the filing of an amended application would not, in and of itself, be a basis for penalizing a landowner. The governing rate is the rate at the time of the filing of the original application, not the amendment. There is no exception provided if the law has been changed. Accordingly, it would follow that a landowner who does not seek an amendment and continues to comply with all terms and conditions of the Clean and Green Act should also be able to rely on the continuation of the preferential assessment rate set at time of application, even when there is a change in the law.

We also hold that Act 235 cannot be applied retroactively. The general law regarding retroactive application of a statute is set forth in the case of Moyer v. Berks County Board of Assessment Appeals, 803 A.2d 833, 842 (Pa. Commw. 2002), appeal denied, 571 Pa. 711, 812 A.2d 1232 (2002), where the Commonwealth Court states:

“It is well established that a statute must be construed prospectively unless the legislature intends that it operate retrospectively and expresses this intent so clearly as to preclude any question. R & P Services Inc. v. Commonwealth of Pennsylvania, Department of Revenue, 116 Pa. Commw. 230, 541 A.2d 432 (1988); section 1926 of the Statutory Construction Act of 1972, 1 Pa.C.S. §1926. This rule of construction has also been applied to the regulations of administrative agencies. Jenkins v. Unemployment Compensation Board of Review, 162 Pa. Super. 49, 56 A.2d 686 (1948). On the other hand, procedural statutes and regulations, as opposed to substantive ones, may be applied retroactively. The demarcation between substantive and procedural laws is, however, at times difficult to discern. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982).” (footnotes omitted)

There is no language in the text of Act 235 permitting the Act to be applied retroactively. The provisions are substantive, affecting the rights of the taxpayer to reduction in payment of property tax in exchange for his agreement to restrict the use of the land. Act 235 is prospective, and cannot be applied in determining the assessment of Taxpayers’ property under these facts and circumstances.

We enter the following order:

ORDER

And now, September 1, 2006, upon consideration of the real estate tax assessment appeal of appellants, Robert B. Sher and Victoria Sher, response thereto, and after trial held, the decision of the Berks County Board of Assessment Appeals dated December 30, 2005, preferentially assessing real property owned by appellants and located at 325 Mine Lane, Oley, Berks County, Pennsylvania 19547, pin no. 67-5348-00-63-3065, at $158,500 is reversed. The previous preferential assessment of $113,700 shall be reinstated.

      .72P.S. §5490.4b.

      . 72 P.S. §5490.4a.

      . Taxpayers also claim that even if Act 235 applies, the majority of the land, according to the original application, is enrolled as agricultural use and, therefore, the farmstead can be assessed at agricultural use value. Because we reverse the board on other grounds, this issue is not addressed.

      . 72 P.S. §5347.1.

      . It states as follows:
      “No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. §1926.

      . Substantive laws are those that establish rights that can be protected and will affect the outcome of litigation; procedural laws are those that address the methods by which substantive rights are enforced. Morabito’s Auto Sales v. PennDOT, 552 Pa. 291, 715 A.2d 384 (1998).


author: PICCIONE, J.,

text:
    Pitzer v. PennDOT

      September 14, 2006

      Philip L. Clark Jr., for petitioner.

      Chester Karas, for respondent.
   PICCIONE, J.,

This opinion is issued pursuant to Timothy J. Pitzer’s (petitioner) appeal of the suspension of his driver’s license by the Pennsylvania Department of Transportation (PennDOT) due to a violation of section 1547 of the Pennsylvania Motor Vehicle Code. (See 75 Pa.C.S. §1547.)

Petitioner was involved in a one-car motor vehicle accident sometime late night on February 5, 2006, or early morning February 6,2006. When the police arrived at the scene of the accident, the petitioner was transported to a hospital for an evaluation and a chemical test. However, during transit to the hospital, the petitioner exited the police car and unsuccessfully attempted to flee the officers and, once at the hospital, subsequently refused to consent to a chemical blood test. Petitioner received notice on or about March 20,2006 that his driver’s license was to be suspended on April 24, 2006 for 12 months due to his violation of 75 Pa.C.S. §1547.

Petitioner’s medical expert, Lawrence A. Fazioli M.D. testified that “it was within reason that” the head injury sustained by petitioner in the motor vehicle accident on the night in question “could have — would have led him to not making a choice or affecting his ability to make reasonable choices.” (Fazioli deposition 06-14-2006 p. 12.) Dr. Fazioli based this opinion on several factors and indicated that his opinion was to a reasonable degree of medical certainty. (Fazioli deposition 06-14-2006 p. 12.) One of the considered factors was the fact that petitioner was unable to recall some of the events pertaining to the time around the accident during the February 8, 2006 examination with Dr. Fazioli. (Fazioli deposition 06-14-2006 pp. 6, 7, 14.) Dr. Fazioli stated that, in rendering the opinion he relied upon a conversation with Ram Tata M.D., a neurologist. (Fazioli deposition 06-14-2006 p. 8.) Dr. Fazioli indicated that his conversation with Dr. Tata is typical of one of the methods Dr. Fazioli employs to obtain information that he relies upon in forming a diagnosis and prognosis of his patients. (Fazioli deposition 06-14-2006 p. 8.) The court notes that Dr. Fazioli did not examine the petitioner until February 8,2006, approximately two days after the relevant accident occurred. (Fazioli deposition 06-14-2006 p. 13.) Dr. Fazioli further indicated that petitioner’s attempt to escape from the police on the night in question could have been indicative of petitioner’s ability to make a reasoned decision to flee in order to avoid possible repercussions, or a reflection of petitioner’s confusion as a result of the trauma. (Fazioli deposition 06-14-2006 p. 14.)

Pennsylvania law states that:

“Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood, or the presence of a controlled substance, if a police officer has reasonable grounds to believe the person to have been driving, operating, or in actual physical control of the movement of a vehicle . . .75 Pa.C.S. §1547(a)(2005).

That section goes on to state:

“If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted, but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:
“Except as set forth in subparagraph (ii), for a period of 12 months.” Id. at section 1547(b)(l)(i).

In order for a suspension to be upheld, the Commonwealth must establish that the driver: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to chemical testing; (3) refused to submit to the requested chemical testing; and, (4) was specifically warned that refusal would result in the revocation of their driver’s license. See PennDOT v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). When the Commonwealth is able to satisfy its burden for each of the aforementioned elements, the burden of proof is shifted to the licensee, who must attempt to establish that he was not capable of making a conscious refusal to submit to chemical testing. For instance, in the instant case, the petitioner must present competent medical evidence to support his claim that he was incapable of making a knowing and conscious refusal to submit to chemical testing. Ostermeyer v. PennDOT, 703 A.2d 1075 (Pa. Commw. 1997). However, the trial court must affirm a factual finding that the licensee possessed the capability to make a conscious refusal if there is sufficient evidence supporting that position within the record. Sqq Barbour v. PennDOT, 557 Pa. 189, 732 A.2d 1157 (1999). The applicable standard for medical testimony in license suspension appeals is the standard of a “reasonable degree of medical certainty.” See id. Pursuant to the laws of this Commonwealth, the fact-finder is free to accept or reject the credibility of both lay and expert witnesses. Gunn v. Grossman, 748 A.2d 1235, 1240 (Pa. Super. 2000), citing Gaydos v. Gaydos, 693 A.2d 1368 (Pa. Super. 1997).

The determination of whether an expert witness’ testimony is credible was enunciated by this Commonwealth’s Supreme Court, which stated:

“The employment of testimony of an expert rises from necessity, a necessity bom of the fact that the subject matter of the inquiry is one involving special skills and training beyond the ken of the ordinary layman: [citations omitted] . . . The qualifications of this witness and the competency of his testimony, to a considerable extent, were matters within the discretion of the court below.” Reardon v. Meehan, 424 Pa. 460, 465-66, 227 A.2d 667, 670-71 (1967); see Cooper v. Metropolitan Life Insurance Co., 323 Pa. 295, 301, 186 A. 125 (1936); Stevenson v. East Deer Township, 379 Pa. 103, 106, 108 A.2d 815, 816 (1954).

“In a subsequent opinion, the Pennsylvania Supreme Court held that expert witnesses in their testimony could properly rely upon information whose sources could not be proved in court:

“[T]he opinion[s] of expert witnesses must invariably rest, at least in part, upon sources that can never be proven in court. An expert’s opinion is derived not only from records and data, but from education and a lifetime of experience. Thus, when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.” Commonwealth v. Daniels, 480 Pa. 340, 347-48, 390 A.2d 172, 176 (1978) (quoting United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971) (en banc), cert. denied, 405 U.S. 594, 92 S.Ct. 1168, 31 L.Ed.2d 231 (1972)).

The outstanding issues for disposition in this matter is whether the testimony presented by petitioner’s expert that petitioner’s refusal was not knowing and conscious was admissible and, if admissible, whether such testimony was credible. Specifically, Dr. Fazioli testified in his deposition that he relied upon statements made to him in a conversation with Dr. Tata that enabled Dr. Fazioli to form the opinion that petitioner was incapable of rendering a knowing and intelligent refusal of the proposed chemical test on February 6, 2006. (See Fazioli deposition 06-14-2006 p. 8.) The court notes that the record indicates Dr. Tata had examined the petitioner prior to the conversation between Dr. Tata and Dr. Fazioli. (See Fazioli deposition 06-14-2006 p. 7.) The court finds that Dr. Fazioli relied upon the statements made by Dr. Tata in Dr. Fazioli’s diagnosis of petitioner and his expert opinion that the petitioner’s refusal to submit to a blood test was not knowing and conscious. (See Fazioli deposition 06-14-2006 p. 8.) Therefore, this court finds that it was proper for Dr. Fazioli to use the information obtained via his discussion with Dr. Tata as a component of his expert opinion. See Daniels, 480 Pa. at 347-48, 390 A.2d at 176.

The court finds that the Commonwealth met its initial burden establishing all of the elements necessaiy to make a prima facia case that the petitioner was arrested for driving under the influence of alcohol; was asked to submit to chemical testing; refused to submit to the requested chemical testing; and, was specifically warned that refusal would result in the revocation of their driver’s license, thereby shifting the burden to petitioner to establish that his refusal was not knowing and conscious. See Ingram, 538 Pa. 236, 648 A.2d 285. The court further finds that testimony given by petitioner’s medical expert witness is within the requisite standard of a reasonable degree of medical certainty. See Barbour, 557 Pa. 189, 732 A.2d 1157. This court further accepts Dr. Fazioli’s testimony as credible. See Reardon, 424 Pa. at 465-66, 227 A.2d at 670-71; see also, Cooper at 301; Stevenson at 106. Therefore, this court finds that the defendant has met his burden and established that his refusal to submit to chemical testing was not knowing or intelligent. See Ostermeyer, 703 A.2d 1075. The court finds that the Commonwealth has not presented evidence that effectively contradicts the opinion rendered by petitioner’s medical expert. Accordingly, the court finds that the Commonwealth has not presented sufficient evidence to establish that the petitioner possessed the capability to make a conscious refusal to submit to a blood test. See Barbour, 557 Pa. 189, 732 A.2d 1157. Therefore, petitioner’s petition for appeal from order of PennDOT suspending operator’s license is granted.

ORDER

And now, September 14,2006, the court, having held a hearing June 29,2006 on petitioner’s appeal from order of PennDOT suspending operator’s license, with Phillip L. Clark Jr., Esquire, appearing and representing the petitioner, and Chester Karas, Esquire, appearing and representing the respondent, the court hereby orders and decrees as follows:

(1) Pursuant to the attached opinion, petitioner’s petition for appeal from order of PennDOT suspending operator’s license is granted.

(2) The prothonotary shall serve notice of this order upon PennDOT and 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.


author: CARRAFIELLO, J,

text:
    Education Resources Institute Inc. v. Berry

      Ron Z. Opher, for plaintiff.

      Simon J. Rosen, for defendant.

      March 13, 2006
   CARRAFIELLO, J,

Plaintiff below, The Education Resources Institute Inc. (appellant), appeals from the January 9,2006 order of the Philadelphia Court of Common Pleas whereby their motion to strike discontinuance was denied.

FACTUAL AND PROCEDURAL HISTORY

Appellant initiated this action against appellee, Wayne Berry, seeking repayment of the unpaid balance on an educational student loan. On May 10, 2001, the date of arbitration, the parties entered into a verbal settlement agreement and informed the court the matter had settled and this court entered the appropriate order on the docket marking the case “discontinued”. Other than on May 6, 2003, when appellant’s current counsel entered his appearance, there was no docket activity and on June 15, 2005 the record was destroyed in accordance with proper procedure.

On September 8, 2005, more than four years later, appellant filed a motion to strike discontinuance. After review of the uncontested motion this court granted said request and reinstated the matter to active status. On November 11, 2005, appellee filed a motion for reconsideration, alleging, inter alia, that appellant had failed to send a copy of the motion to strike to appellee’s counsel’s current address. This court granted reconsideration and vacated the October 4, 2005 order, allowing appellant 15 days thereafter to respond.

Appellant timely responded to appellee’s averments and after consideration of the filings, this court denied appellant’s motion to strike the discontinuance. This timely appeal followed.

LEGAL DISCUSSION

Appellant timely filed a 1925(b) concise statement of matters complained of on appeal in which it is alleged the court erred in denying the motion to strike for substantive reasons relating to the 2001 settlement.

Appellant moved to strike the discontinuance under Pa.R.C.P. 299 which provides “the court... may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense or prejudice.” The prerequisite to such action by the court is that the party seeking to have a discontinuance stricken must show that he has been deprived of a substantial right or will be prejudiced by the discontinuance.

Appellant has offered no explanation for the delay and offered no account of their efforts to complete settlement other than a June 1, 2001 letter to appellee requesting his signature on the settlement papers. Appellant has made the assertion that it would suffer prejudice by allowing the discontinuance to stand because appellee “has failed to sign the settlement papers and has failed to comply with the terms of the settlement.” And while appellee concedes he did not sign the settlement agreement because the agreement did not memorialize the agreed upon terms, this court failed to find any evidence that appellant would now suffer any prejudice as it was appellant’s decision to allow over such time to pass before acting to collect on the alleged monies owed.

Appellant could have filed any number of timely motions to place this matter back on active status but failed to protect their interest. The parties were given explicit instructions in our May 10, 2001 order as to the method by which the case could be returned to active status.

Appellant, at the first indication that appellee had failed to sign the settlement agreement, had the opportunity to petition the court to re-open the case; this appellant failed to do, for four years. Case law has noted where there is no docket activity for over two years there is a presumption of prejudice against the party whose litigation rights were being extinguished. Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992).

Because a petition to strike is an appeal to the equitable side of the court, the moving party must be found not to have engaged in any behavior which may have prejudiced the adverse party. In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). We must also consider the impact on appellee’s ability to defend and whether allowing the action to proceed after it had been discontinued will put appellee at any significant disadvantage. In that regard, we found activating this case after such a long hiatus would be prejudicial, as this matter has long been considered ended; the court has destroyed the record and appellee has disposed of his records and relocated out-of-state.

For the reasons stated, this court’s order of January 9, 2006 should be affirmed.


author: STOREY, Member,

text:
    Office of Disciplinary Counsel v. Davis

      November 3, 2006
   STOREY, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On May 13,2005, the Supreme Court of Pennsylvania entered an order placing Reed James Davis, respondent, on temporary suspension from the practice of law and referring the matter to the Disciplinary Board. Office of Disciplinary Counsel filed a petition for discipline against respondent on May 26, 2005. The petition charged respondent with professional misconduct arising from his conviction of the crimes of delivery of a controlled substance, possession with intent to deliver a controlled substance and possession of a controlled substance. Respondent filed an answer to petition for discipline on June 24, 2005.

A disciplinary hearing was held onNovember 9,2005, before a District IV Hearing Committee comprised of Chair David A. Regoli, Esquire, and Members Marie Milie Jones, Esquire, and Thomas S. Talarico, Esquire. Respondent was represented by John E. Quinn, Esquire.

Following the submission of briefs by the parties, the hearing committee filed a report on March 21,2006 and recommended that respondent be suspended for a period of one year retroactive to May 13, 2005 with two years of probation.

Petitioner filed a brief on exceptions on April 12, 2006.

Respondent filed a brief opposing exceptions on April 28, 2006.

This matter was adjudicated by the disciplinary board at the meeting on July 15, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, Office of Disciplinary Counsel, whose office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and 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 Rules of Disciplinary Enforcement.

(2) Respondent, Reed James Davis, was bom in 1964 and was admitted to the practice of law in the Commonwealth of Pennsylvania in 1992. He maintains an office for the practice of law at 393 Vanadium Road, Suite 300, Pittsburgh PA 15243. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has no prior record of discipline.

(4) On January 20,2000, pursuant to an investigation initiated by the Monroeville Police Department, respondent delivered 56.5 grams of cocaine to a confidential informant. On February 3, 2000, respondent delivered 29.5 grams of cocaine to the same informant. On March 15,2000, respondent delivered 57.9 grams of cocaine to the same informant. An affidavit of probable cause issued and on August 24, 2000 criminal charges were filed against respondent for possession, possession with intent to deliver and delivery of a controlled substance, namely, cocaine.

(5) On December 6, 2003, respondent entered a plea of guilty to the charges. On June 9,2004, respondent was sentenced to prison for one year to three years followed by two years probation.

(6) Following his graduation from law school and admission to the bar in 1992, respondent practiced law with his father, Reed J. Davis Sr.

(7) Respondent first used cocaine and marijuana in college. He continued to use cocaine in law school as well, but his use was on an infrequent basis.

(8) In the spring or summer of 1996 respondent met an individual named John Sallo. Mr. Sallo was in a motorcycle accident and was given respondent’s name in connection with his personal injury case.

(9) Respondent met with Mr. Sallo to discuss the case but did not formally undertake representation of Mr. Sallo until September of 1996.

(10) When respondent initially met Mr. Sallo, he asked respondent if he used cocaine and, on several occasions during the summer of 1996, Mr. Sallo gave respondent cocaine without charging him for it.

(11) After respondent began formal representation of Mr. Sallo, cocaine was still offered to respondent but Mr. Sallo told respondent he would have to pay for it. Respondent could not afford to pay for it and stopped using it. Mr. Sallo’s case settled in the third week of April 1997.

(12) In the summer of 1997 respondent was contacted by a college friend, James Ardolino, who asked respondent if he knew where to obtain cocaine.

(13) Respondent contacted Mr. Sallo who agreed to provide cocaine to respondent, who would then hand it over to Mr. Ardolino minus a gram or two for respondent’s use.

(14) This pattern occurred once or twice a month from the summer of 1997 through respondent’s arrest in March 2000.

(15) Respondent was aware that his conduct was illegal.

(16) During the time frame summer of 1997 through spring of2000 respondent gradually became addicted to cocaine.

(17) Respondent tried to remove himself from the situation but could not do so.

(18) After he was apprehended in March of 2000, respondent stopped using cocaine.

(19) On May 10, 2000 respondent was admitted to Gateway Greentree’s intensive outpatient program where he attended three meetings each week until his discharge on June 12, 2000. Respondent learned about addiction as a disease and learned to acknowledge and accept his addiction.

(20) On June 20, 2000 respondent was admitted to Gateway Greentree’s early recovery group program where he met once per week from June 20,2000 through March 18, 2003. Respondent participated in group sessions wherein recovering addicts discussed their experiences, the disease and its impact on their lives.

(21) Shortly after respondent began treatment with Gateway Greentree he attended a meeting of Lawyers Concerned for Lawyers. Except for the period of his incarceration, respondent has dutifully attended Lawyers Concerned for Lawyers meetings every week.

(22) On August 16,2004, respondent commenced his prison term. He was confined to Camp Hill for four months, and then transferred to SCI Fayette until his discharge on August 16,2005. While in prison respondent regularly attended Alcoholics Anonymous meetings once per week.

(23) On May 13,2005 the Supreme Court of Pennsylvania placed respondent on temporary suspension.

(24) Respondent was paroled on August 16, 2005 after serving one year in prison. He remains on parole for two years, until approximately August 2007, after which he will commence a two-year probation period. He will be under the jurisdiction of the criminal courts through June of 2009. Respondent is prohibited from entering establishments which serve alcohol. He is subject to random urine sampling. His movements are restricted to a six county radius of Allegheny County.

(25) Following his discharge from prison respondent returned to his father’s law firm. He has worked solely in the collections department with telemarketers. He has not practiced law since he was incarcerated on August 16, 2004.

(26) Dr. John D. Massella is the Regional Program Director of Gateway Greentree and evaluated respondent for his addiction to cocaine. By letter of August 29,2005, to Cynthia Hudson, respondent’s probation officer, Dr. Massella relayed his diagnosis of respondent as cocaine dependence in full remission, based on respondent’s reported pathological history of cocaine use from which he has remained abstinent since March 2000. Dr. Massella recommended continued involvement in 12 step meetings and attendance at Lawyers Concerned for Lawyers.

(27) There is no evidence that respondent’s addiction adversely impacted his law practice or injured a client.

(28) Numerous witnesses testified on respondent’s behalf.

(29) Theodore Blair, Esquire, is a Pittsburgh attorney and recovering alcoholic. He is active in Lawyers Concerned for Lawyers and is respondent’s sobriety monitor. Mr. Blair confirmed respondent’s abstinence from drugs and verified that respondent has actively participated in LCL and has a good attitude regarding his sobriety.

(30) Mark F. Flaherty, Esquire, is a practicing attorney and recovering alcoholic. He has been a member of the Board of Directors for Lawyers Concerned for Lawyers for the past 10 years and is a member of the Lawyers Assistance Committee of the Pennsylvania Bar Association.

(31) Mr. Flaherty verified that respondent regularly attends LCL meetings and has maintained his sobriety.

(32) James Ehrman, Esquire, is a practicing attorney and recovering alcoholic. He has had consistent contact with respondent for the past four years and believes that respondent has honestly and genuinely engaged in the LCL program.

(33) Dan Hall is a recovering alcoholic and first met respondent in June 2000 at the early recovery program at Gateway Greentree. Mr. Hall became respondent’s sponsor charged with the responsibility of guiding respondent through the 12 steps to recovery. According to Mr. Hall, respondent’s participation was “solid.” Respondent worked through the steps and showed a positive outlook.

(34) Mr. Hall sees respondent twice weekly and communicates three or four times weekly about maintaining sobriety.

(35) David Kern has been a personal friend of respondent since college. He described respondent’s reputation in the community as good for being a good person and family man, as well as a good businessman.

(36) Alex Demczak utilized respondent’s legal services while Mr. Demczak was employed by several banks in the 1990s. He described respondent’s work as excellent and of good quality.

(37) Reed J. Davis Sr., Esquire, is respondent’s father. He has practiced law since 1959. He first learned of respondent’s addiction to cocaine when respondent told him in April or May of2000. Mr. Davis did not view any falling off in respondent’s work pattern or work product prior to respondent’s arrest.

(38) Respondent expressed remorse for his criminal misconduct.

III. CONCLUSIONS OF LAW

(1) The crimes of delivery of a controlled substance, possession with intent to deliver a controlled substance, and possession of a controlled substance are crimes punishable by more than one year in prison and are serious crimes as defined by Pa.R.D.E. 214(i).

(2) Respondent’s conviction constitutes an independent basis for discipline, pursuant to Pa.R.D.E. 203(b)(1).

(3) Respondent has met his burden of proof by clear and convincing evidence that he was addicted to cocaine and this addiction caused him to engage in criminal misconduct.

(4) Respondent is entitled to mitigation pursuant to Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989).

IV. DISCUSSION

Respondent was convicted of three counts each of delivery of a controlled substance, possession with intent to deliver a controlled substance, and possession of a controlled substánce. The maximum incarceration for these crimes is 10 years for each count of delivery of a controlled substance and possession with intent to deliver controlled substance, and one year for each count of possession of a controlled substance. Since these crimes are punishable by incarceration of one year or more, each is a “serious crime”. Rule 214(i), Pa.R.D.E. Respondent’s conviction is thus a basis for the imposition of discipline. Rule 203(b)(1), Pa.R.D.E. The sole issue to be determined in a criminal conviction matter is the extent of final discipline to be imposed. All relevant aggravating and mitigating factors must be considered and evaluated. Office of Disciplinary Counsel v. Chung, 548 Pa. 108, 695 A.2d 405 (1997).

Respondent provided credible evidence of his drug use, his gradual addiction to cocaine, and his ultimate rehabilitation from that addiction. Respondent used cocaine sporadically until approximately 1997, when he became involved as a type of middleman between a college friend who was buying cocaine from respondent’s former client. During the three-year time frame that respondent acted as a middleman he used more and more cocaine until he realized that he did not like using it anymore but could not stop using it. He was unable to remove himself from the situation, and ultimately arrested, convicted, and incarcerated for a period of a year. In addition to respondent’s testimony, evidence was admitted of respondent’s diagnosis of cocaine dependence in full remission, provided by Dr. John D. Massella of Gateway Greentree.

Respondent introduced numerous witnesses, including his sobriety monitors and sponsors, who credibly testified as to respondent’s continued sobriety since 2000 and his positive attitude and efforts toward maintaining his sobriety. Respondent’s evidence of rehabilitation is particularly strong and impressive. Immediately after his arrest in March of 2000, he pursued recovery through Gateway Greentree’s intensive outpatient program and for three years thereafter, he diligently participated in Gateway Greentree’s group recovery program. While incarcerated respondent attended Alcoholics Anonymous every week. Respondent is an active member of Lawyers Concerned for Lawyers, a well-established support group. The evidence supports respondent’s assertion that he has abstained from using drugs since he began his recoveiy in May of 2000.

Respondent has no history of discipline or prior criminal activity, and no clients were involved in the instant criminal activities. Of note is that during the time frame of respondent’s formal representation of Mr. Sallo, the individual who provided the cocaine, respondent did not take or buy cocaine from Mr. Sallo. Respondent’s drug consumption occurred prior to the formal representation and after the representation had concluded, but not during the representation, because, as respondent explained, he could not afford to buy cocaine from Mr. Sallo at that time. Respondent was not motivated to turn a profit from his middleman activities; in his mind he was essentially helping a friend and participated in order to get one or two grams of cocaine for his own use. Respondent admits that he knew he was engaging in illegal activity. He has expressed sincere remorse and regret as well as a determination to control his addiction and remain sober.

The Hearing Committee found that “respondent’s misconduct was induced in part by his addiction, that is to say, respondent’s addiction was a causal factor of his criminal conduct.” Report, p. 14. The record is not clear that respondent was addicted to cocaine when he initially took part in the middleman scheme. Respondent himself admits that he stopped using cocaine at a point prior to the summer of 1997 because he could not afford to buy it, and was not addicted to cocaine when he began acting as a middleman. However, it is certainly fair to conclude that respondent became addicted to cocaine during the pendency of his criminal activities and the addiction caused his continued criminal misconduct. The totality of the evidence supports the conclusion that respondent met the Braun standard for mitigation. Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989).

Petitioner and respondent have differing positions on the appropriate sanction to address the misconduct and have advanced their arguments to the board in briefs on exceptions. While respondent agrees with the Hearing Committee’s recommendation of a one-year suspension and two years probation, petitioner argues that no less than a two and a half year suspension is adequate to fulfill the goals of the disciplinary system. Petitioner bases this argument on the seriousness of the criminal conviction, pointing out that in the past, conviction of delivery of a controlled substance has warranted disbarment. Office of Disciplinary Counsel v. Simon, 510 Pa. 312, 507 A.2d 1215 (1986) (respondent-attorney was charged in a federal indictment with possession and intent to distribute and conspiracy; refused to cooperate with law enforcement officials; testified he found criminal life exciting and an escape from life’s stressors). See also, In re Anonymous No. 3 D.B. 89, 18 D.&C. 4th 490 (1993) (respondent-attorney pleaded guilty to one count of distribution of drugs; indictment contained 113 counts; respondent one of 28 defendants involved in drug conspiracy; six years incarceration with parole of five years; respondent addicted to cocaine; suspended for five years retroactive to temporary suspension). The board’s examination of these cases indicates that they are distinguishable or explainable on the particular facts.

Petitioner’s theory of its proposed sanction also rests on the perception that respondent must go through the reinstatement process to prove he is fit to practice law. Realistically, the Hearing Committee and the board have already had ample opportunity to review respondent’s fitness to practice law. The type of evidence that would be presented at a reinstatement hearing in a case of this nature is similar to that already presented, i.e., efforts at rehabilitation and maintenance of sobriety. Respondent has already been consistently sober for more than five years and no evidence was presented that suggests he is at risk for recidivist behavior.

Following a review of the committee’s recommendation, as well as the respective positions of the parties, the board concurs with the committee and is persuaded that a one-year suspension, retroactive to the date of the temporary suspension, followed by two years of probation with a sobriety monitor, is the appropriate discipline to address respondent’s misconduct. Respondent’s crime was egregious, but he currently represents no danger to the public. He gained significant insight into his addiction and is committed to his continued sobriety.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Reed James Davis, be suspended from the practice of law for a period of one year retroactive to May 13, 2005 and be placed on probation for two years, subject to the following conditions:

(1) Respondent shall abstain from using alcohol or any other mind altering chemical;
(2) Respondent shall regularly attend Alcoholics Anonymous meetings on a weekly basis;
(3) Respondent shall obtain a sponsor in Alcoholics Anonymous and maintain weekly contact with that sponsor;
(4) A sobriety monitor shall be appointed to monitor respondent in accordance with Disciplinary Board Rule 89.293(c);
(5) Respondent shall furnish his sobriety monitor with his Alcoholics Anonymous sponsor’s name, address and telephone number;
(6) Respondent shall establish his weekly attendance at Alcoholics Anonymous meetings by providing written verification to the board on a board-approved fonn;
(7) Respondent shall undergo any counseling, outpatient or in-patient treatment, prescribed by a physician or alcohol counselor;
(8) Respondent shall file with the secretary of the board quarterly written reports;
(9) With the sobriety monitor, respondent shall:
(a) meet at least twice a month;
(b) maintain weekly telephone contact;
(c) provide the necessary properly executed written authorizations to verify his compliance with the required substance abuse treatment; and
(d) cooperate fully.
(10) The appointed sobriety monitor shall:
(a) monitor respondent’s compliance with the terms and conditions of the order imposing probation;
(b) assist respondent in arranging any necessary professional or substance abuse treatment;
(c) meet with respondent at least twice a month, and maintain weekly telephone contact with respondent;
(d) maintain direct monthly contact with the Alcoholics Anonymous chapter attended by the respondent;
(e) file with the secretary of the board quarterly written reports; and
(f) immediately report to the secretary of the board any violations by the respondent of the terms and conditions of the probation.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Newman did not participate in the adjudication.

Board Members Teti, Brown and Gephart dissented for suspension the length of time while respondent is on parole and probation.

Board Member O’Connor dissented for a one-year and one-day suspension.

DISSENTING OPINION

O’CONNOR, Member, November 3, 2006—

DISCUSSION

The recommendation of the Disciplinary Board is that respondent be suspended for one year retroactive to May 13,2005 and be placed on probation for two years. I am writing in dissent.

I disagree with the majority determination that respondent’s misconduct warrants a one-year suspension, which sanction would relieve him of the obligation to file a petition for reinstatement to the Supreme Court and prove his fitness to practice law. It is my respectful opinion that respondent’s criminal conviction of delivery of a controlled substance, possession with intent to deliver a controlled substance and possession of a controlled substance, namely cocaine, constitutes misconduct that is serious enough to raise questions as to his fitness to practice. Respondent knowingly committed criminal acts and thus cast doubt upon his character and respect for the law. These questions can only be answered to the satisfaction of the board and the Supreme Court by requiring respondent to engage in the reinstatement process and assure the court that he does not pose a danger to the public and a detriment to the profession.

Furthermore, respondent has not fully completed his criminal sentence. He was paroled in August of 2005 after serving one year in prison. He remains on parole until approximately August 2007, after which time he will commence a two-year probation period. He will be under the jurisdiction of the courts through June of2009. In my respectful opinion, it would be a highly inappropriate situation for an attorney who is still on parole and even one still on probation to be permitted to represent clients in the court system.

The facts of this case support a suspension of at least one year and one day.

ORDER

And now, January 18,2007, upon consideration of the report and recommendations of the Disciplinary Board and dissenting opinion dated November 3, 2006, it is hereby ordered that Reed James Davis be and he is suspended from the bar of this Commonwealth for a period of one year and one day retroactive to May 13,2006, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

      . Respondent remains on criminal parole until 2007 followed by probation until 2009. The impact of the criminal sentence was not discussed in any detail by the committee or the parties and did not appear to influence the respective recommendations to the board.