author: RUEST, J.,

text:
    Walker v. Even

      Karen G. Muir, for plaintiff.

      Laura Robbins, for defendant.
    October 14, 2009
   RUEST, J.,

Presently before the court are a complaint for custody filed by plaintiff Clinton Walker and a petition to relocate filed by defendant Alicia Even. A hearing was held on September 1, 2009. Both parties submitted proposed findings of fact, proposed conclusions of law, and briefs. Upon consideration of the evidence and arguments presented, the court finds as follows:

FINDINGS OF FACT

(1) The parties are the parents of one minor child, Jacey Walker, whose date of birth is June 11, 2007.

(2) Plaintiff Clinton Walker (Father) filed an emergency petition for custody and a custody complaint on July 6, 2009.

(3) Defendant Alicia Even (Mother) filed a petition to relocate on July 30, 2009.

(4) A custody hearing was held on September 1, 2009.

(5) Mother is not originally from Pennsylvania.

(6) Mother and Father resided in Centre County, Pennsylvania, from the time the minor child was born until Mother left and the parties separated in June of 2009.

(7) Mother and F ather were together for a total of three years, and separated twice during that time.

(8) Mother has two children from a previous marriage, Erika Sims, age 18, and Taylor Sims, age 15. Both children lived with Mother, Father, and the minor child in Pennsylvania for three years.

(9) The father of these two children continues to reside in Manteca, California, and continues to be involved in their lives.

(10) Prior to moving to Pennsylvania, Mother lived in California for 28 years.

(11) Mother’s family relocated to Washington State; she relocated there as well at the time.

(12) Mother left Washington to escape an abusive father.

(13) Mother divorced her husband in California and moved to Pennsylvania.

(14) Mother has a job in Pennsylvania. She does not yet have employment in California.

(15) Father frequently drinks, often alone, and has driven drunk while having a passenger in his vehicle.

(16) Father does most of his drinking on weekends, when he does not have work.

(17) Summer is Father’s busiest time for working.

(18)Father works for Glenn O. Flawbaker Inc., from 4:30 p.m. until 4 a.m., Monday through Thursday, and Friday from 4:30 p.m. until 2:30 a.m.

(19)Father also works approximately three Sundays per month, from either 2 p.m. until 12 a.m., or 3 p.m. until 1 a.m.

(20)Father earns one day off for every 250 hours he works.

(21) Father’s take-home pay, after taxes and deductions, is $750 per week. Father also receives benefits.

(22) Father is periodically laid off for several weeks at a time.

(23)Father was most recently laid off in January 2009, and in the winter of 2008.

(24) Father speaks to the minor child, in California, approximately twice a day.

(25) Father’s extended family, including Father’s sister-in-law, Monica Lingle, and the minor child’s paternal grandfather, James Walker, would help provide childcare and supervision for the minor child during any period of Father’s custody.

(26) Father has a bond and a caring relationship with the minor child.

CONCLUSIONS OF LAW

(1) The paramount concern of the court in any custody matter is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992).

(2) A child’s best interest is determined on a case-by-case basis.Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006).

(3) There is no single overriding factor, rather, the court must consider every fact relevant to the physical, emotional, intellectual, moral, and spiritual well-being of the child in determining the best interest of the child. Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995).

(4) “[Siblings should be raised together whenever possible.” Pilon v. Pilon, 342 Pa. Super. 52, 55, 492 A.2d 59, 60 (1985). This applies to half-brothers and half-sisters as well. In re Davis, 502 Pa. 110, 124, 465 A.2d 614, 621 (1983).

(5) In custody relocation matters, “[t]he task of [the] court is to sacrifice the non-custodial parent’s interest as little as possible in the face of competing and often compelling interest of a custodial parent who seeks a better life in another geographical location.” Gruber v. Gruber, 400 Pa. Super. 174, 183-84, 583 A.2d 434, 438 (1990).

(6) The Gruber factors the court is to consider are:

(a) “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;...

(b) “the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it;...

(c) “the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.” Gruber v. Gruber, 400 Pa. Super. 174, 184-85, 583 A.2d 434, 439 (1990).

DISCUSSION

The paramount concern in a child custody case is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). There is no single overriding factor; rather, the court must consider every fact relevant to the physical, emotional, intellectual, moral, and spiritual well-being of a child in determining the best interest of the child. Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995). The parties do not dispute that Mother has been the minor child’s primary caretaker and should have primary physical custody.

There are three factors, set forth in Gruber v. Gruber, 400 Pa. Super. 174, 184-85, 583 A.2d 434, 439 (1990), that the court must consider when deciding a relocation case: (1) 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; ... (2) the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; . . . and (3) the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the noncustodial parent.

Mother has no significant contacts in Pennsylvania. She moved to Pennsylvania to live with someone she met on the internet, and later met Father. Mother spent most of her life in Manteca, California, where most of her friends and the father of her two eldest children reside, or in Washington, where her extended family resides. Mother’s support network, even while living in Pennsylvania, has been based in California and Washington, and available to her only over the telephone and internet. Mother has no permanent residence in Pennsylvania. She has, however, secured a residence with her long-time friend, Kathleen Rainwater, in California. Furthermore, the minor child is only 2 years old and is not yet enrolled in school. Thus, any move will not require the minor child to change schools.

Mother’s motives for her move are to be closer to her support network. Mother testified extensively to Father’s abilities as a parent and to her desire for him to continue to have a relationship with his daughter, and vice versa. She is clearly not seeking to impede or destroy the relationship that already exists.

Alternative arrangements are available for Father to continue to have a regular, continuing, and meaningful relationship with the minor child. The child can travel between Pennsylvania and California, and can spend extended periods of time with Father. Once the child begins school, the parties can revisit where she should reside and what time she should spend where.

Both parties testified to Father’s significant alcohol use. The court questions Father’s personal opinion that he can drive “fine” with a blood alcohol concentration of 0.18 or 0.19. Father was arrested for DUI in 2006 and completed the ARD program at that time. Father’s extended family asserted that if the court were to order Father to abstain from alcohol, they would assist Father in complying with this order. The court intends to take the family up on this offer and to order Father to avoid drinking when he has the minor child.

Also of concern is Father’s work schedule. Because he works such extreme hours, he would have a difficult time supervising the minor child during his periods of custody. Fortunately, the court notes the winter months are often slower times for Father, with frequent periods of layoffs. This period provides an excellent opportunity for Father to have time with the minor child.

It is in the minor child’s best interest to permit Mother to relocate to Manteca, California. Allowing this move will ensure that Mother has a sufficient support network to raise the minor child in an emotionally healthy environment. It will also allow Mother to have a place to live and will allow Mother’s son, Taylor, to continue to live with his younger sibling. Mother’s interest in moving is not motivated by any animus toward Father’s relationship with the minor child or an attempt to interfere with that relationship. Reasonable alternative arrangements can be made for the minor child to have a continuing and healthy relationship with Father.

Accordingly, the following is entered:

ORDER

And now, October 14, 2009, upon consideration of defendant’s petition for relocation, it is hereby ordered that said petition is granted. The attached order sets forth the specific custody schedule and provisions. [Not published herein.]


source: Caselaw Access Project

license: Public Domain

text:
    Koval v. Koval

      Jennifer P. Bierly, for plaintiff.

      Ronald S. McGlaughlin, for defendant.
    October 15, 2009
   LUNSFORD,/.,

Presently before this court is defendant, Donita R. Koval’s (Wife) motion for summary judgment. Defendant is seeking that summary judgment be entered against plaintiff Steven E. Koval (Husband) on his petition to vacate decree in divorce and incorporated postnuptial agreement or, in the alternative, enter partial summary judgment and hold that Husband has no right to any portion of the severance agreement benefits payable to Wife. For the following reasons Wife’s motion for summary judgment is hereby denied.

BACKGROUND

On March 22, 2006, the complaint in divorce including counts for custody, equitable distribution of marital property, alimony, alimony pendente lite and counsel fees and costs was filed. On August 28,2007, the decree in divorce was entered which incorporated the terms of the postnuptial agreement dated August 28, 2007. On February 28,2008, Husband filed a petition to vacate the decree in divorce and the incorporated postnuptial agreement. On March 12,2009, Wife filed an answer denying the averments contained in the petition and asserted new matter to which Husband filed a response. On July 15, 2008, Wife filed a motion for summary judgment and brief in support. Husband filed a brief in opposition to the motion for summary judgment. On May 12, 2009 and September 14, 2009, this court heard argument on the motion for summary judgment. Depositions of the parties, Husband’s former attorney, Claire Kimmel, Esquire, and Daniel Warfel, former chief financial officer, executive vice-president and a member of the Merger Committee of Omega Bank were taken and originals filed with the court.

The basis for the petition to vacate the decree in divorce and the incorporated postnuptial agreement is a claim for intentional misrepresentation. Husband vigorously argues he had continuously requested information throughout the negotiations with Wife regarding the sale of the bank and a potential severance agreement available to Wife if the bank would be sold. At the parties’ final settlement meeting on August 28, 2007, Husband contends that he asked Wife if there were any negotiations which would give rise to the sale of the bank. Tr. dep. of Steven E. Koval, 5/14/2008, p. 54. According to Husband’s memory and notes he took at the meeting, Wife responded that the “bank will not be sold for many years in her opinion.” Tr. dep. of Steven E. Koval, 5/14/2008, p. 94. Following the meeting on August 28, 2007, a postnuptial agreement was executed in which Husband waived, released and relinquished any interest he may have had in Wife’s severance agreement in return for the insertion of paragraph 12(J) into the postnuptial agreement. “[i]n the event of a negotiated termination of Wife’s employment with Omega Bank, N.A., whereby Husband received no benefit from Omega Bank National Association Salary Continuation Plan, Husband shall be entitled to receive 75 percent of any cash benefits payable to Wife in excess of the amount that Wife would normally be entitled to receive pursuant to the terms of her current severance agreement.” On November 9, 2007, Omega announced in a form K-8 filed under the Securities Act of 1933 that it signed a definitive agreement to merge with FNB Corporation, with FNB being the surviving entity.

Wife argues summary judgment should be granted for the following reasons:

(1) Husband cannot establish the elements of intentional misrepresentation;

(2) The alleged fraud is intrinsic in nature and is therefore time-barred;

(3) The severance agreement was post-separation and not a marital asset; and,

(4) Husband is precluded by contract law from receiving proceeds from the severance agreement.

This court will address these arguments in turn.

DISCUSSION

Under the Pennsylvania Rules of Civil Procedure, Rule 1035.2,

“[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.

Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411, 415, 664 A.2d 139, 141 (1995). The court may grant summary judgment only where, examining the record in the light most favorable to the non-moving party, the moving party’s right to it is clear and free from doubt. Id. at 415, 664 A.2d at 141-42.

I. Whether Husband Established a Prima Facie Case for Intentional Misrepresentation

Wife argues Husband cannot establish that she made a misrepresentation because her statement that the bank would not be sold for many years was merely an opinion. She further argues Husband fails to establish the other necessary elements of a claim for intentional misrepresentation.

In order to prevail on a claim for intentional misrepresentation the following elements must be proven: (1) a representation; (2) which was material to the transaction at issue; (3) made falsely, with knowledge of its falsity or recklessness as to whether it was true; (4) with the intent to mislead another into relying on it; (5) justifiable reliance on the misrepresentation; and, (6) resulting injury which was proximately caused by reliance. Bortz v. Noon, 556 Pa. 489, 498, 729 A.2d 555, 560 (1999). In reviewing the facts in the light most favorable to Husband, he has established a prima facie case for misrepresentation.

Wife relies on Warren Savings Bank & Trust Co. v. Foley, 294 Pa. 176, 144 A. 84 (1928), in support of her argument that mere statements of opinion cannot amount to misrepresentations. However, in Foley, the Pennsylvania Supreme Court provided that opinions can be the basis for an action when it is shown that the statement was made with the intention for the other to act upon it to his injury and when the person making the statement of opinion knew it was false or consciously ignored the truth. Id. at 182, 144 A. at 86. Therefore, Foley is not dispositive. Wife also relies on Klerlein v. Werner, 307 Pa. 16, 160 A. 710 (1932), in support of her argument that statements of opinion do not amount to misrepresentation sufficient to justify the opening of a judgment. However, this court does not find Klerlein instructive because the Klerlein court was examining representations under the Sales Act, 69 P.S. §121. The court provided:

“The statements forming the basis of appellant’s action are expressions of opinions or estimates. They are not such statements as would ground an action of deceit. Section 12 ofthe Sales Act [69 P.S. §121] provides: ‘No [affirmation] of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only, shall be construed as a warranty.’ A mere false assertion of value when no warranty is intended is not grounds for relief, because the assertion is a matter of opinion. Especially is this true where the one supposed to rely on-such statement has an equal opportunity to ascertain the facts on which such opinion might be based. Rockafellow v. Baker, 41 Pa. 319, 80 Am. Dec. 624; Geddes’Appeal, 80 Pa. 442; Rothermel v. Phillips, 292 Pa. 371, 377, 141 A. 241 (1928).” Id. at 22, 160 A. at 720. (emphasis added)

The court explained that expressions of opinion are not the basis for relief especially when the parties have equal opportunity to ascertain facts upon which the opinion is based. Id. In the present matter, Husband argues he did not have an equal opportunity to ascertain the facts upon which the opinion was based because Wife, as CEO, had superior knowledge and information.

Regarding the additional elements necessary in an action for intentional misrepresentation, this court determines Husband has sufficiently pled facts to establish a prima facie case for intentional misrepresentation. Wife’s statement that the bank would not be sold for a number of years, as testified to by Husband and Claire Kimmel, Esquire, is clearly material to the transaction at hand as the parties had discussed the severance agreement on multiple occasions during negotiations. Husband and Claire Kimmel, Esquire both testified that the issue of the bank being sold repeatedly came up during the negotiations. Husband also testified that he consistently considered the severance contract to be a marital asset.

Husband has pled sufficient facts regarding Wife’s knowledge that the statement was false or her recklessness as to whether the statement was true. On August 27, 2007, one day prior to the August 28, 2007 settlement conference, Wife believed there was a 70 percent chance the bank would be sold. Wife also knew that on August 8,2007, the executive committee of the bank’s board of directors, of which Wife is a member, held a meeting to discuss strategic alternatives. Wife was also a member of the Merger Committee appointed on August 27,2007 to negotiate with potential acquirers. At the August 27, 2007 meeting, the board of directors authorized KBW to represent the bank in obtaining expressions of interest from potential acquirers. Daniel Warfel who was employed as the bank’s chief financial officer, believed there was a “three out of four” chance the bank would sale after the August 27, 2007 meeting. These facts, if true, are sufficient to establish that Wife was at least reckless as to the truth of her statement that the bank would not be sold for many years.

Husband argues Wife made the statement with the intent to mislead him into giving up the fight over the severance agreement. The above facts if true, would show Wife intentionally withheld information regarding the sale of the bank to mislead Husband in order for him to give up his claims to the severance agreement. See Eigen v. Textron Lycoming Reciprocating Engine Division, 874 A.2d 1179 (Pa. Super. 2005). Husband further argues he was justified in relying on the statement under Porreco v. Porreco, 571 Pa. 61, 811 A.2d 566 (2002). UnderPorrecco, whether reliance on an alleged misrepresentation is justified depends on whether the recipient knew or should have known that the information supplied was false, for purposes of determining whether the agreement can be voided based on a fraudulent misrepresentation. Where the means of obtaining the information in question were not equal, the representations of the person believed to possess superior information may be relied upon. Id. at 70, 811 A.2d at 571. In the present matter, Wife as CEO, member of the board of directors and member of the Merger Committee of the bank clearly had superior knowledge of whether the bank would be sold.

Husband contends he has been injured in waiving his right to his claim to Wife’s severance agreement and to submit the issue of whether the severance agreement was marital property to the court. Husband also argues that he waived his right to obtain a greater percentage of the marital estate based on the factors enumerated in the Divorce Code at 23 Pa.C.S. §3502(a)(3), (5), (6), (8) and (10). This court agrees with Husband, even if the severance agreement is not a marital asset, the value of the severance agreement attributable to Wife as her separate asset would potentially have had an impact on the distribution of the marital estate. Therefore, because a prima facie case of intentional misrepresentation has been established, Wife’s motion for summary judgment is denied.

II. Whether the Alleged Fraud Is Intrinsic or Extrinsic in Nature

Wife argues the alleged fraud is intrinsic in nature and therefore time-barred because an action based on intrinsic fraud must be filed within 30 days. Wife cites Ratarsky v. Ratarsky, 383 Pa. Super. 445, 557 A.2d 23 (1989), in support of her argument. In Ratarsky, wife filed a motion to open the divorce decree pursuant to 23 Pa.S.A. §602, alleging husband had perpetrated extrinsic fraud by concealing the cash surrender value of the insurance policies and thereby precluded a fair settlement. Id. at 448, 557 A.2d at 24. The court noted, “by the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy.” Id. at 450, 557 A.2d at 26. “Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by judgment, unless ... a showing that the jurisdiction of the court has been imposed upon, or that some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial.” Id. at 451, 557 A.2d at 26. The court in Ratarsky determined the husband’s actions did not amount to extrinsic fraud and did not prevent a fair hearing. Id. at 451, 557 A.2d at 26. The court reasoned that counsel for wife conducted year-long negotiations and if counsel wanted to know the value of the policies, all he needed to do was go to the bank and review the policies. Id. The court instructed wife should have specifically inquired concerning the cash surrender value. Id. at 26, 557 A.2d at 452. The Superior Court held the trial court abused its discretion in forcing husband to pay for the oversight of wife’s counsel and because the agreement was clear and entered after extensive negotiations, it must stand. Id. at 27, 557 A.2d at 453.

The facts of the present matter are dissimilar to Ratarsky because, in the matter sub judice, Husband did specifically inquire whether the bank would be sold. There was no failure on the part of Husband’s attorney to investigate the value of assets which information was readily available to both parties as in Rotar sky. This court determines the alleged fraud is such that it would have prevented a fair submission of the controversy, the severance agreement, to the court. The alleged fraud does not relate to matters such as perjury or false testimony, i.e., matters adjudicated by judgment. Therefore, because the alleged fraud is not intrinsic and therefore time-barred, Wife’s motion for summary judgment is denied.

III. Whether the Severance Agreement Is a Marital Asset

This court agrees with Husband, whether Wife’s severance agreement is a marital asset is not an issue before this court in addressing the present motion for summary judgment and therefore will not be considered.

IV. Whether the April 11, 2007 Settlement Agreement Is a Valid Contract

This court agrees with Husband, the integration clause of the postnuptial agreement dated August 28, 2007 at paragraph 25 provides the August 28, 2007 postnuptial agreement superseded any prior agreement reached by the parties. Therefore, whether the April 11,2007 settlement agreement is a valid contract is not properly an issue before this court in considering Wife’s motion for summary judgment and therefore will not be addressed.

Accordingly, the following order is entered:

ORDER

And now, October 15, 2009, upon consideration of defendant, DonitaR. Koval’s motion for summary judgment and the briefs and arguments of the parties, the motion for summary judgment is hereby denied.


author: KISTLER, J,

text:
    American Express Centurion v. Decker

      Frederic I. Weinberg, for plaintiff.

      Laura Robbins, for defendant.
    September 17, 2009
   KISTLER, J,

Presently before this court are preliminary objections filed by Sarah Decker (defendant) on June 29, 2009. A hearing was scheduled for August 27,2009, and briefs were submitted by each party. After consideration of parties’ briefs, defendant’s preliminary objections are sustained.

DISCUSSION

I. Preliminary Objection Raising Failure of a Pleading To Conform to Law or Rule of Court — Pa.R.C.P. 1028(a)(2)

Defendant contends that American Express Centurion’s (plaintiff) pleading fails to conform to law or rule of court pursuant to Pa.R.C.P. 1028(a)(2). In particular, defendant argues that plaintiff has failed to attach a signed written contract between the parties as required by Pa.R.C.P. 1019(h) and (i). This court has held in Capital One Bank v. Spicer (a copy of which is attached to this opinion and order) that it is expected that plaintiff either attach a copy of the signed agreement that it entered into with defendant or provide an explanation as to why the writing is not accessible to the pleader.

A review of the complaint yields no such agreement. Furthermore, there is no statement in the complaint explaining why a copy of the original agreement was not attached to the complaint. Plaintiff, in its brief in opposition to defendant’s motions to dismiss, offers to the court that, due to the silence within the complaint regarding the type of agreement the parties have entered into, the agreement should be considered one of an oral nature therefore removing the requirement that a writing be attached to the complaint. (P. 1-2.) The court cannot believe that in this day and age credit card companies as a matter of business norms and practice enter into a creditor-debtor relationship with customers without the presence of a written agreement.

The agreement between the parties is the basis of the claim, so care must be taken when establishing its authenticity. Plaintiff has failed to provide an explanation of why the original agreement was not attached as required by Pa.R.C.P. 1019(i). Therefore, defendant’s preliminary objection is sustained.

II. Preliminary Objection Raising Insufficient Specificity in a Pleading — Pa.RC.P 1028(a)(3)

Defendant argues that the plaintiff’s complaint fails to conform to Pa.R.C.P 1019(a) in that the material facts of the cause of action are not stated. In particular, defendant asserts that plaintiff must include a breakdown of charges, payments, items purchased and interest such that defendant can formulate a response or assert a counterclaim. (¶5.) This court recently held in Capital One Bank v. Spicer that such a detailed breakdown of charges is not required by law.

The complaint, however, does put the defendant on notice concerning what the plaintiff intends to prove at trial. Paragraph four of the complaint indicates a balance due of $5,498.17 as ofMay 4,2009. Paragraph six indicates that the last date defendant made a payment on the account was January 13, 2009. However, the plaintiff has failed to explicitly indicate the date the account became delinquent. The date at which the account became delinquent is a material fact necessary for defendant to prepare her defense. Defendant’s preliminary objection alleging insufficient specificity of the pleading is sustained.

III. Preliminary Objection Pa.RC.P. 1028(a) for Failure of a Pleading To Conform to Law or Rule of Court

Defendant objects to paragraph six of plaintiff’s complaint asking the court to award attorney’s fees. The Supreme Court of Pennsylvania has held that “[Tjhere can be no recovery for counsel fees from the adverse party to a cause, in the absence of express statutory allowance of the same... or clear agreement by the parties ... or some other established exception ....” Shanks v. Alderson, 399 Pa. Super. 485, 488, 582 A.2d 883, 885 (1990) (citing Corace v. Balint, 418 Pa. 262, 265-67, 210 A.2d 882, 884 (1965)). In section one of this opinion and order, this court determined that plaintiff had failed to attach a copy of the writing that formed the basis of the agreement. As such, this court is constrained to agree with the defendant that there is no agreement presently before this court that would enable recovery of attorney’s fees. Defendant’s preliminary objection for failure of a pleading to conform to law or rule of court is sustained.

Gregg L. Morris, for plaintiff.

Carl Mollica, for defendant.

ORDER

And now, September 17, 2009, defendant’s preliminary objections to plaintiff’s complaint are hereby sustained.

Plaintiff may file an amended complaint within 20 days of the date of this order.

ADDENDUM

Capital One Bank (U.S.A.) N.A., Plaintiff v. James L. Spicer, Defendant

C.P. of Centre County, no. 2009-774.

KISTLER, J, August 6, 2009 — Presently before this court are preliminary objections filed by James L. Spicer (defendant). A hearing was scheduled for July 13,2009, and briefs were submitted by each party. After consideration of parties’ briefs and oral argument, defendant’s preliminary objections are sustained in part, and overruled in part.

I. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY IN A PLEADING — Pa.R.C.P. 1028(a)(3)

Defendant contends that plaintiff’s pleading is insufficient because it does not contain the signed agreement or a statement explaining why the agreement is not accessible to the pleader pursuant to Pa.R.C.P. 1019(i). A review of the amended complaint shows that plaintiff has attached an unsigned and undated copy of a customer agreement form. There is no statement accompanying the complaint explaining why a copy of the original agreement is not attached to the complaint as required by Pa.R.C.P. 1019. In response, plaintiff argues that pursuant to 12 C.F.R. 202.12, applications need only be retained for 25 months and that it is not required to attach an actual copy of the signed agreement to the complaint. This excuse is entirely insufficient considering the requirements of Pa.R.C.P. 1019 which states:

“(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.
“Note: If the agreement is in writing, it must be attached to the pleading. See subdivision (i) of this rule.
“(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.'’'’

It is expected that plaintiff either attach a copy of the signed agreement which it entered into with the defendant or provide an explanation as to why the writing is not accessible to the pleader. Pa.R.C.P. 1019 applies to the local dairy farmer who has a dispute with the shipping company he contracted to get his product to the local market, the tenant who disputes a provision of his lease, and yes, even the credit card company which alleges to have not received payment from the card holder who signed a credit card agreement six years ago. The agreement between the parties is the basis of the claim, so great care must be taken when establishing its authenticity. Plaintiff has not provided an explanation of why the agreement was not attached. Therefore, defendant’s preliminary objection raising insufficient specificity of the pleading is sustained.

II. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY IN A PLEADING — Pa.R.C.P. 1028(a)(3)

The defendant claims that the plaintiff’s amended complaint violates Pa.R.C.P. 1019(a) in that the material facts of the cause of action were not stated by the plaintiff. The defendant argues that not all of the credit card statements were provided by plaintiff because the earliest statement provided in the amended complaint shows aprevious balance of $1,368.33. Defendant argues that this previous balance proves that there is material information relating to previous statements missing from the amended complaint.

In order for a complaint to be deemed acceptable it must put the defendant on notice of what the plaintiff intends to prove at trial so that the defendant may prepare to rebut such evidence at trial. Weiss v. Equibank, 313 Pa. Super. 446, 453, 460 A.2d 271, 274-75 (1983). The documents provided in the amended complaint provide the defendant with notice of what the plaintiff intends to prove at trial. There is no requirement of law that plaintiff must attach each and every statement to a complaint.

Upon review of the documents provided in the amended complaint, the court determines that plaintiff has provided defendant with sufficient material facts in which to prepare his defense. Defendant’s preliminary objection raising insufficient specificity in a pleading is overruled.

III. INSUFFICIENT SPECIFICITY IN A PLEADING: Pa.R.C.P. 1019(f)

In determining sufficiency of the pleadings in a complaint, the court will consider “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). Defendant contends that he is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he can contest pursuant to Pa.R.C.P. 1019(f). Pa.R.C.P. 1019(f) states, “Averments of time place and items of special damage shall be specifically pled.” Defendant objects to plaintiff’s amended complaint because it only contains documentation of expenses from 2006 forward and therefore lacks insufficient specificity and fails to comply with Pa.R.C.P. 1019(f).

The court has reviewed the documents attached to the amended complaint and determines that the pleadings are sufficient to place the defendant on notice of the claims upon which he will have to defend. Plaintiff has attached statements going as far back as 2006. It is immaterial, at least at this stage of the litigation, for defendant to have information regarding all his payments dating back to the opening of the account. Furthermore, the court could find no binding case law which would require the detail of specificity defendant seeks to impose upon defendant’s pleading.

Additionally, the court determines that Pa.R.C.P. 1019(f) is an incorrect basis for objection based on the damages alleged in the amended complaint. The damages sought by plaintiff, at least those contained in the missing account statements, are general damages and therefore do not need to be pled with the specificity required by Pa.R.C.P. 1019(f). Moreover, Pa.R.C.P. 1019(f) pertains only to special damages. Special damages are defined as damages which are not usual and ordinary consequences of wrong done, but depend on special circumstances, may not be proved without averring special facts giving rise thereto. Parsons Trading Co. v. Dohan, 312 Pa. 464, 468, 167 A. 310, 312 (1933). Because plaintiff alleges only general damages in the amended complaint, Pa.R.C.P. 1019(f) is inapplicable and therefore the amended complaint is sufficiently specific to survive defendant’s preliminary objection. Defendant’s preliminary objection is therefore overruled.

IV. PRELIMINARY OBJECTION RAISING FAILURE OF A PLEADING TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED— Pa.R.C.P. 1028(a)(4)

Defendant asserts that plaintiff’s claim is not legally sufficient to state a claim upon which relief can be granted. Defendant bases this assertion on the lack of all credit card statements showing the totality of all of the goods alleged to have been sold and delivered. As this court stated above, the amended complaint does not need to have all of the statements for the card and must only put a defendant on notice of what the plaintiff intends to prove at trial to be sufficient. Weiss v. Equibank, 313 Pa. Super. 446, 453, 460 A.2d 271, 274-75 (1983). Plaintiff has done this, and it is clear from the amended complaint that plaintiff seeks repayment of the debt allegedly accumulated by the defendant.

Therefore, defendant’s preliminary objection raising failure of a pleading to state a claim upon which relief may be granted is overruled.

V. FAILURE OF A PLEADING TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED — Pa.R.C.P. 1028(a)(4)

Upon review of preliminary objections in the nature of a demurrer, a court must accept as true all well-pleaded facts that are material and relevant, as well as any reasonable inferences deducible therefrom. Werner v. Plater-Zyberk, 799 A.2d 776 (Pa. Super. 2002). The question presented on demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. Moreover, preliminary objections in the nature of a demurrer which would dismiss a cause of action should only be granted where the case is clear and free from doubt. Id. Finally, any doubt at all must be resolved by refusing to grant the demurrer. Id.

In this instance, defendant avers that plaintiff has failed to properly plead an account stated cause of action, or in the alternative, that an account stated cause of action is impermissible in an action for debt owed on a delinquent credit card account. An account stated has been defined by our Supreme Court as “an account in writing examined and accepted by both parties. And this acceptance need not be express, but may be implied from circumstances.” Leinbach v. Wolle, 211 Pa. 629, 61 A. 248 (1905). Here, the amended complaint states that defendant opened an account with plaintiff and maintains accurate books of all credits and debits. The amended complaint further states that defendant has assented to the correctness of the balance in these accounts by making payments. Based on these facts alleged in the complaint, the court determines that plaintiff has properly pleaded an account stated cause of action.

The remaining issue is whether an account stated cause of action is legally permissible in an action to recover unpaid credit card debt. The court has reviewed the bulk of appellate court decisions addressing an account stated cause of action and determines that there is no binding authority which carves out an exception to this cause of action merely because the account at issue derives from a credit card. Indeed, this issue has only been addressed in a handful of court of common pleas decisions which are divided on this very issue, including this county’s own court of common pleas. See Capital One Bank (USA) NA v. Clevenstine, 2009 WL 1245043 (Pa. Com. Pl. 2009) (Holding that an account stated theory is inappropriate in a credit card case where acquiescence is based on silence); Citibank (South Dakota) N.A. v. King, 2007 WL 4967502 (Pa. Com. Pl. 2007) (Holding that a credit card company could plead an account stated when the debtor assents to the account by failing to object to the credit card statement).

In this instance the court is mindful that in order to succeed on preliminary objections in the form of a demurrer, the case must be clear from doubt. A review of pertinent case law on the issue reveals no support for the idea that credit card cases are exempt from an account stated cause of action. Much of the argument in favor of precluding this cause of action from credit card cases focus on the complexity of the terms of the credit agreement and the level of sophistication accompanying the average credit card user. The court believes that these arguments are issues of fact pertaining to the basic elements of this cause of action and therefore should be left to the fact-finder and therefore not applicable to preliminary objections. As such, the court overrules defendant’s preliminary objection.

ORDER

And now, August 6, 2009, the following shall be the order of the court:

(I) Defendant’s first preliminary objection for failure to comply with Pa.R.C.P. 1019(i) is hereby sustained.

(II) Defendant’s second preliminary objection for failure to comply with Pa.R.C.P. 1019(a) is hereby overruled.

(III) Defendant’s third preliminary objection for failure to comply with Pa.R.C.P. 1019(f) is hereby overruled.

(IV) Defendant’s fourth preliminary objection for failure of a pleading to state a claim upon which relief may be granted pursuant to Pa.R.C.P. 1028(a)(4) is hereby overruled.

(V) Defendant’s fifth preliminary objection for failure of a pleading to state a claim upon which relief may be granted pursuant to Pa.R.C.P. 1028(a)(4) is hereby overruled.

Plaintiff shall file an amended complaint within 20 days of the date of this order.

      . The defendant in both its preliminary objections and brief in support of said objections cites to Pa.R.C.P. 1029(a). However, the associated language cited refers identically to Pa.R.C.P. 1019(a). The court, sua sponte, will consider this a typographical error and consider defendant’s objections in light of Pa.R.C.P. 1019(a).

      . The only date contained in the agreement which might provide an indication of the time frame in which this agreement was used is the copyright date contained in the bottom right hand corner of the second page.


text:
    Nevin Stitzer Contracting Inc. v. DFS Co. Inc.

      Terry J. Williams, for plaintiff.

      Donald K. Zagurskie, for defendant.
    September 21, 2009
   KISTLER, J,

Presently before this court are the preliminary objections filed by defendant, DFS Co. Inc. on June 22, 2009. DFS’ preliminary objections included a motion to strike pleading due to lack of conformity to law or rule of court, a demurrer as to splitting the cause of action, a claim of insufficient specificity of the complaint, and a general demurrer as to the complaint as a whole. A hearing regarding these preliminary objections was held on August 27, 2009.

STANDARD OF REVIEW

The standard of review is as follows:

“Dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. The test on preliminary objections is whether it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. To determine whether preliminary objections have been properly sustained, this court must consider as true all of the well-pleaded material facts set forth in [plaintiff’s] complaint and all reasonable inferences that may be drawn from those facts.” Bourke v. Kazaras, 746 A.2d 642, 643 (Pa. Super. 2000) (citing Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992)).

Strictly with regard to this court’s analysis, the following well-pleaded material facts presented in the following section are taken as true for purposes of this demurrer. This is not an exhaustive description of material facts, but is meant to merely provide assistance in rendering this opinion.

WELL-PLEADED FACTS

Plaintiff, Nevin Stitzer Contracting Inc. and DFS entered into a contract, “Staples contract”, on February 19, 2007. DFS provided the steel required for a construction project where Stitzer performed the construction erection services. The contracted amount for the erection of the steel was $36,000. In addition to the basic contract work, additional work was required in order to complete the erection of the steel. (Complaint ¶6.) The additional work required was completed at the request of the general contractor, with no input or objection made from DFS. (Complaint ¶¶10-14.) During this process, Stitzer sent invoices detailing the charges associated with the additional work. The dates of these invoices range from April 18, 2007 to May 10,2007.

On March 6, 2008, Stitzer, in an action separate from that immediately at bar, sought to recover from DFS the “past due balance” on the contract. On, April 29, 2008, that complaint, CV-0000097-08, was adjudicated in favor of Stitzer in the amount of $4,600, plus costs. DFS paid the judgment on May 7, 2008.

On February 12,2009, Stitzer filed the current action seeking payment for the “additional work” that was required to finish the contracted job. On April 13, 2009, the complaint CV-0000061-09 was adjudicated in favor of Stitzer in the amount of $6,413.71, plus costs. DFS filed this appeal to this court on April 30, 2009.

DISCUSSION

DFS has filed four preliminary objections. All of which, save for one, if sustained by this court cease this action.

As was laid out in the facts above, the instant action originates from the Staples contract. As a result of the Staples contract, which for all intents and purposes ranged from February 19, 2007 to May 10, 2007, two separate actions were brought against DFS in relation to this singular contractual event.

Upon review of the complaint, the court determines that Stitzer was aware that the additional work for which it now seeks compensation was necessary to complete the original contracted-for work. (Complaint ¶¶10-14.) The exhibits presented within Stitzer’s complaint detail the invoices for the additional work performed; those invoice dates ranged from April 18, 2007 to May 10, 2007. All of the Staples contract invoices predate the filing date of the first action, and thus could have been included in the initial suit to collect the outstanding balance of the contract. Furthermore, the absence of an addendum to the original Staples contract, or the existence of a secondary, separate contract for the additional work, leads the court to believe all of the work performed by both parties was pursuant to the Staples contract.

Under Pennsylvania Rules of Civil Procedure 1020(d) (1) and (4) a plaintiff is required “to join in one action all causes of action which arise from the same transaction or occurrence, regardless of the nature of the claim. Failure to join a cause of action as required by Rule 1020(d)(1) results in waiver of that claim.” Hineline v. Stroudsburg Electric Supply Company Inc., 402 Pa. Super. 178, 181, 586 A.2d 455, 456 (1991). (citation omitted) In addition to notions of judicial economy, “[t]he purpose of [the rule] is to avoid multiplicity of suits, thereby ensuring the prompt disposition of all rights and liabilities of the parties in a single suit.” Id. at 182, 586 A.2d at 456.

Stitzer asks this court to distinguish between the two complaints, as one seeks the balance of the contract and the other seeks compensation for the additional work that was required. The court, however, views the situation differently as the purpose of each suit was to collect money owed to Stitzer under one single contract. Stitzer chose to first seek the “balance due of the contract” when it could have, and should have, sought all outstanding monies DFS owed. Stitzer, with the belief that DFS owed plaintiff $11,013.71, essentially the “total balance due” of the contract, only sought $4,600. By seeking to recover the money owed to Stitzer into two separate actions, Stitzer split the cause of action against DFS. This is disallowed under Pennsylvania law. See Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968).

ORDER

And now, September 21, 2009, defendant, DFS Co. Inc.’s, preliminary objections are hereby sustained, and the action is dismissed with prejudice.


author: FARINA, P.J.,

text:
    Commonwealth v. Calamese

      Todd E. Brown, assistant district attorney, for Commonwealth.

      Jay M. Whittington, for defendant.
    October 15, 2009
   FARINA, P.J.,

On May 12,2009, the defendant, Kyle Calamese, pled guilty to robbery, criminal conspiracy, and burglary, all felonies of the first degree, for his involvement in a home break-in occurring December 27,2007. The court delayed sentencing until the conclusion of a presentence investigation. At the guilty plea hearing, the defendant challenged the amount of restitution owed and the applicability of the deadly weapon enhancement to any sentence imposed. This court heard testimony regarding these issues on July 20, 2009. After hearing such testimony, the court sentenced defendant to an aggregate sentence of seven to 14 years imprisonment, plus restitution in the amount of $6,513 and costs. The defendant filed a motion to modify sentence with this court on July 30, 2009, which the court denied on August 5, 2009. The defendant filed a timely appeal to the Pennsylvania Superior Court on September 4, 2009.

The defendant lists two complaints in his statement of matters complained of on appeal: (1) that the court erred in applying the deadly weapon enhancement to defendant’s sentence; and (2) that the court erred in denying defendant’s motion to modify/reduce sentence.

Defendant first complains that the court erred in applying the deadly weapon enhancement to his sentence, as he contends that he possessed only a small bat and the Commonwealth presented no evidence to indicate he intended to use the knife or gun possessed by his co-defendants during the commission of the offense. The court finds no merit to this argument, finding that the Commonwealth presented evidence demonstrating that the defendant both possessed and actually used a deadly weapon in commission of the offense.

Pennsylvania law defines a “deadly weapon” as any “firearm, loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” 18 Pa. C.S. §2301.

If a court determines that a defendant utilized a deadly weapon in the commission of an offense, the court must apply the deadly weapon enhancement to the defendant’s sentence; the court has no discretion to disregard the enhancement. 204 Pa. Code 303.4, 303.9; Commonwealth v. Peer, 454 Pa. Super. 109, 124, 684 A.2d 1077, 1084 (1996). Items not normally considered deadly weapons can take on such status on the basis of their use under the circumstances. See Commonwealth v. Scullin, 414 Pa. Super. 442, 607 A.2d 750 (1992).

The Commonwealth presented sufficient evidence to demonstrate that the defendant possessed a “device designed as a weapon” that has the capability “to produce death or serious bodily injury,” and that the defendant used or intended to use the weapon in a manner “calculated or likely to produce death or serious bodily injury.” The victim’s testimony demonstrated that, when he opened his front door, he found the co-defendant holding a gun and the defendant yielding a 12- to 18-inch long wooden bat in his hand. (Notes of testimony, PCRA hearing, N.T.P., 10-11, 24.) The defendant immediately used this bat to strike the victim in the head. (N.T.P. 10-11,24.) Defendant also repeatedly threatened the victim with the instrument to ensure the victim’s cooperation throughout the commission of the offense. (N.T.P. 12, 14.) This evidence adequately supports the court’s finding that the deadly weapon enhancement was appropriately applied to the defendant’s sentence.

The victim’s testimony also demonstrated that, during the robbery, the defendant stood within arm’s reach of the knife and gun possessed by his co-defendants and could easily access them. (N.T.P. 15-16.) This evidence sufficiently supports the court’s finding that the deadly weapon enhancement also applied based on the defendant’s accessibility to the deadly weapons his co-defendants possessed during the commission of the offense.

Defendant secondly complains that the court erred in denying the defendant’s motion to modify/reduce sentence. The court finds no merit in this argument, as the court properly applied the deadly weapon enhancement and imposed a sentence within the standard range of sentencing guidelines and did not exceed the statutory maximum.

Accordingly, defendant’s sentence should be upheld and his appeal should be dismissed.

      .204 Pa. Code §303.18.


author: LASH, J.,

text:
    Hunter v. Erb

      Jeffrey R. Boyd, for plaintiff.

      David S. Kaplan, for defendant.
    October 22, 2009
   LASH, J.,

Presently before the court is a petition to modify a child custody order, styled as a “complaint for custody,” and an emergency petition for special relief filed by plaintiff, Travis C. Hunter (Father). The defendant, Bree F. Erb (Mother), has filed preliminary objections, alleging that Pennsylvania has no jurisdiction to decide these petitions. On October 7, 2009, this court held a hearing, limited in scope to receiving evidence on the issue of jurisdiction. For reasons set forth herein, we sustain Mother’s objections and dismiss Father’s petitions.

The parties are the natural parents of a child, Tru Hunter (minor child), bom March 22,1997. The parties, who were previously married, separated in May of 1999 and divorced in January 2002. At the time, they were residents of California.

When the parties separated, Mother assumed primaiy custody responsibilities for the minor child at her residence in San Diego, California. At the time of the divorce, a custody order was entered in the Superior Court of California, County of San Diego, awarding Mother primary custody. Subsequently, other orders governing custody were entered, with the most recent order being entered on February 2, 2005. That order provided for shared legal custody, with Mother to retain primary physical custody and Father to have partial custody, Father’s schedule being contingent on whether he was residing in California or in another state. This order remains in full force and effect.

Later in 2005, Father moved to Boyertown, Pennsylvania, and has resided there since that time. Mother remained in San Diego, California, with the minor child. The minor child visited with Father periodically, pursuant to the terms of the California order, and at such other times as agreed by the parties.

The arrangement continued without incident until February 2009. At that time, according to Mother, she became a victim of identity theft. She believed that her second husband was involved and was determined to create further problems for her. Mother alleges that these difficulties caused her to contact Father to temporarily assume custody of the minor child for an extended period, until the difficulties were resolved. Father agreed to assume custody, and on February 1, 2009, the minor child flew to Father’s home in Pennsylvania. Father then enrolled the minor child in the Boyertown School District where the minor child completed the 2008-2009 school year. In the meantime, on February 13, 2009, Mother moved from her residence to her parent’s residence in Arizona, where she continues to reside. Shortly, thereafter, the problems became more severe, as her condominium was vandalized, suffering significant damage.

The vandalism and accompanying safety concerns delayed Mother’s return to San Diego. However, Mother intends to resume her residence in San Diego on or before Thanksgiving 2009, although she is still not certain, for safety reasons, whether she will move back to the same residence or find suitable other lodging.

Father’s position is that the transfer of custody on February 1, 2009 was intended to be permanent. He testified that this was his understanding based on conversations he had with Mother, whom he claims was motivated to relinquish custody because of difficulties with the minor child. Father states that there was no discussion about Mother’s issues with her second husband until after Father had assumed custody of the minor child and that those issues were not a basis for the transfer of custody.

During the summer of2009, the parties made arrangements for the minor child to fly to Mother’s home in Arizona, which took place on July 31, 2009. According to Father, the minor child was sent to Arizona to visit with Mother in accordance with the new unwritten agreement, with the understanding that Mother was to return the minor child in time for the minor child to resume school in Boyertown, Pennsylvania. However, Mother never returned the minor child. Accordingly, Father filed the within emergency petition on August 28, 2009, requesting the court order Mother to return the minor child immediately. Mother’s preliminary objections followed, contending that Pennsylvania has no jurisdiction and that the State of California is the proper court to hear these matters.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 23 Pa.C.S. §§5401-5457, governs disposition of the within jurisdictional issue. Because California had exercised jurisdiction and issued a custody order which remains in full force and effect, the threshold question is whether this court has authority to modify the California order. Section 5423 of the UCCJEA provides:

“Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth may not modify a child custody determination made by a court of another state unless a court of this Commonwealth has jurisdiction to make an initial determination under section 5421(a)(1) or (2) (relating to initial child custody jurisdiction) and:
“(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 5422 (relating to exclusive, continuing jurisdiction) or that a court of this Commonwealth would be a more convenient forum under section 5427 (relating to inconvenient forum); or
“(2) a court of this Commonwealth or a court of the other state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the other state.”

No evidence was presented that the California court has taken any action on this jurisdictional issue. Accordingly, it is incumbent upon this court to first address section 5423(2) and determine whether the minor child and the parties “do not presently reside” in California.

Father has not been a resident of California since 2005. Mother contends that both she and the minor child remain domiciled in California, that her separation from California is temporary, and that she will return to California permanently on or before Thanksgiving 2009. It is also clear, however, that Mother and the minor child have not physically resided in California since Februaiy 2009, a period of over six months at the time Father filed the within petitions in Pennsylvania.

The phrase “do not presently reside” appearing in section 5423(2) is explained in the Uniform Law Comment to section 5422 of the UCCJEA, companion section to section 5423, to mean that the parties and the child are not physically residing in that state and is not used in the sense of a technical domicile. As noted by the Pennsylvania Superior Court in a similar case, Wagner v. Wagner, 887 A.2d 282, 286-87 (Pa. Super. 2005) (citation omitted), construing the term “residence” in section 5422, the court stated: “The classic legal definition of the term ‘residence’ in this Commonwealth is ‘living in a particular place, requiring only physical presence.’” As stated, neither of the parties, nor the minor child, had resided in California for over six months. The fact that Mother has a continuing interest in her condominium and has expressed the intention to return to California in the near future is not sufficient to establish present residence under section 5423(2).

The record having satisfied the threshold requirement of section 5423(2), we turn to whether the Commonwealth would have jurisdiction to make an initial determination under §5 421(a)(1) or(2), if Pennsylvania were the initial child custody jurisdiction. Section 5421 sets forth:

“(a) General rule. — Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:
“(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;
“(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and:
“(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and
“(ii) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training and personal relationships;
“(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or
“(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).
“(b) Exclusive jurisdictional basis. — Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.
“(c) Physical presence and personal jurisdiction unnecessary. — Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.”

Home state is defined in section 5402 of the UCCJEA as follows:

“ ‘Home state.’ The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child six months of age or younger, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.”

In her preliminary objections, Mother argues that Pennsylvania was never established as the home state of the minor child because the minor child did not reside in Pennsylvania for at least six consecutive months prior to the filing of the within petitions. It is undisputed that the minor child was physically present in Pennsylvania from February 1, 2009 through July 31, 2009.

Computation of months is governed by the Statutory Construction Act of 1972, specifically section 1910, which states:

“Whenever in any statute the lapse of a number of months after or before a certain day is required, such number of months shall be computed by counting the months from such day, excluding the calendar month in which such day occurs, and shall include the day of the month in the last month so counted having the same numerical order as the day of the month from which the computation is made, unless there be not so many days in the last month so counted, in which case the period computed shall expire with the last day of such month.”

Accordingly, for the minor child to have resided in Pennsylvania for at least six consecutive months, commencing February 1, 2009, he would have had to have been physically present in Pennsylvania at least through August 1, 2009. This was not the case.

Additionally, the minor child’s residency in Pennsylvania cannot be argued to extend beyond July 31, 2009. If the parties did indeed enter into an agreement to transfer primary custody to Father, as Father suggests, and that agreement were enforceable, then the minor child’s absence from Pennsylvania commencing July 31 would be considered a temporary absence, and the six months necessary for Pennsylvania to be considered a home state could subsequently have been established. However, if the informal agreement does exist, it is unenforceable. Parents cannot by agreement between them nullify an order nor oust the jurisdiction of a court in custody proceedings. Commonwealth ex rel. Scholtes v. Scholtes, 187 Pa. Super. 22, 25, 142 A.2d 345, 347 (1958). This is because a private agreement between the parties, without ratification by the court, is voidable by either party, and not binding on the court. In re Custody of Neal, 260 Pa. Super. 151, 156, 393 A.2d 1057, 1059 (1978). If the parties had intended to modify the agreement in accordance with this private understanding, they should have obtained a modification of the California order. As the California order was never modified, it remains in full force and effect and its terms are enforceable. Accordingly, when Mother resumed custody on July 31, 2009, it was in accordance with her rights under the California order. Thus, as of July 31, 2009, the minor child ceased residing in Pennsylvania and began residing in Arizona.

While Pennsylvania cannot, therefore, be considered the home state of the minor child as of the filing of the within petitions, neither can California. As stated, Father filed his petitions on August 28, 2009. More than six months had passed since the minor child left California on February 1,2009. California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act contains identical provisions to Pennsylvania, also requiring that the minor child be residing in the state “within six months before the commencement of the proceeding,” if California is to have jurisdiction on the basis that it is the home state of the child when the minor child does not currently reside there.

When no state qualifies as a home state, the Pennsylvania UCCJEA provides for jurisdiction under the “significant connections test,” set forth in section 5421(a) (2). Here, the determination is whether the minor child has such “significant connections” with Pennsylvania such that this court’s exercise of subject matter jurisdiction would be proper. Wagner, 887 A.2d at 288-89.

When comparing the significant connections of two states, the concern is which state has the “greater degree of connection” with the child. Id. at 289. The Superior Court in Wagner elaborates:

“When analyzing the UCCJEA’s predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA), 23 Pa.C.S. §§5341-5366,™6 we described the purpose ofthe ‘significant connections’ test as follows:
“FN6. The UCCJA was repealed by 2004, June 15, P.L. 236, no. 39, §2, effective August 16, 2004, and reenacted with revisions as the UCCJEA.
“(The test’s)purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.
“See Lucas [v. Lucas], 882 A.2d 523 (Pa. Super. 2005). (footnote and citations omitted)” Id. (emphasis in original)

When comparing the two states, it is apparent that California has significantly greater connections than Pennsylvania. From his birth until February 1,2009, the minor child resided in California with his mother and during certain periods with his father. He attended school there. He likely developed friendships with other children both in school and in his neighborhood. His medical and dental care were performed in California. In contrast, his contacts with Pennsylvania have been for a period of just short of six months, plus the periodic visits he had in accordance with the California order. His father and the paternal grandparents reside in Pennsylvania. His school experience in Pennsylvania lasted from February through June 2009.

We also note that in processing the previous custody action, the California court relied upon a licensed clinical psychologist and marriage and family therapist, who conducted an evaluation of the parties and the minor child and forwarded a recommendation to the court, which became a factor in the court’s determination. As such, the California court has the benefit of having already conducted an extensive review of this matter. For all of these reasons, it is clear that California has had a greater connection to the minor child than Pennsylvania.

A case with somewhat similar facts is McCoy v. Thresh, 862 A.2d 109 (Pa. Super. 2004). In that case, the 7-year-old child of the parties resided in California for his entire life, with the exception of a five and a half-month period when father had refused to return the child after a visit, until mother came and retrieved the child. In consideration of father’s custody complaint, the Pennsylvania trial court declined jurisdiction. On appeal, the Superior Court: affirmed the trial court, agreeing with the court that Pennsylvania was not the child’s home state, and also that the child lacked significant contacts with the state. The child had lived his entire life in California with the exception of five and one-half months after the parties’ separation. Significantly too, the majority of the witnesses with information as to the child’s best interest, i.e., “doctors, teachers, child care providers, and those familiar with the parenting abilities of the parties” were located in California. Id. at 114.

For the aforesaid reasons, we decline to exercise jurisdiction on Father’s petitions. We, therefore, dismiss Father’s petitions, without prejudice, to having them refiled in the State of California. We enter the following order:

ORDER

And now, October 22,2009, upon consideration of the preliminary objections of defendant, Bree F. Erb, to the petitions of plaintiff, Travis C. Hunter, to modify a child custody order and emergency petition for special relief, response thereto, briefs filed by the parties, and after hearing held, the preliminary objections are sustained. The aforesaid petitions are hereby dismissed.

      . Case no. D 470841.

      . 1 Pa.C.S. §1910.

      . West’s Annotated California Family Code §§3400-3465.

      . West’s Ann.Cal.Fam. Code, §3421.

      . California’s provisions are the same. West’s Ann.CaLFam. Code, §3421(2)(A)(B).


author: PANCHIK, J,

text:
    Andrews v. Stiffler

      Matthew S. Faher, for plaintiff.
    Andrew G. Uncapher, Jr., for defendant.
    July 9, 2009
   PANCHIK, J,

Before the court for disposition are defendant’s preliminary objections to plaintiff’s complaint alleging breach of contract, breach of warranty, and violation of the Unfair Trade Practices Consumer Protection Law (CPA).

Plaintiff entered into a written contract with defendant for the installation of an in-ground swimming pool replacement liner. The contract specified that defendant would sell plaintiff the replacement liner and new gaskets, install the new liner and gaskets, and perform minor repairs to the bottom of the pool for a total price of $2,543.

Plaintiff alleges that defendant breached the terms of the contract and warranty by failing to order the proper size liner, failing to adequately install the liner, and failing to fix the deficiencies when notified.

Defendant’s first preliminary objection seeks dismissal of the CPA count on the basis of the gist of the action doctrine. The second preliminary objection seeks dismissal of the CPA count on the basis that it fails to allege elements of common-law fraud as required by law.

The court will address the gist of the action issue first. Essentially, the gist of the action doctrine precludes plaintiffs from turning ordinary breach of contract actions into tort actions. Freestone v. New England Log Homes Inc., 819 A.2d 550, 554 (Pa. Super. 2003). Courts are reluctant to permit tort recovery based upon breaches of contract. Hart v. Arnold, 884 A.2d 316, 339 (Pa. Super. 2005). The key distinction between tort and contract theory is that tort claims arise from the breach of duties imposed as a matter of social policy, whereas contract claims arise from the breach of duties imposed by mutual consensus between individuals. Id.

Defendant claims that the dispute in the instant case is a breach of contract claim and as such, the CPA claim, which is essentially a tort claim, is precluded by the gist of the action doctrine. However, it is clear that “the remedies of the UTPCPL are not exclusive, but are in addition to other causes of action and remedies.” Wallace v. Pastore, 742 A.2d 1090, 1093 (Pa. Super. 1999), appeal denied, 564 Pa. 713, 764 A.2d 1071 (2000). (citations omitted) “The UTPCPL supplements rather than supplants traditional common-law remedies with per se liability for a variety of unfair trade practices.” Gabriel v. O’Hara, 368 Pa. Super. 383, 389, 534 A.2d 488, 491 (1987). Were the court to accept defendant’s assertion that a breach of contract claim precludes the assertion of a CPA claim, that would completely eviscerate the CPA, which by its nature deals almost exclusively with consumer contracts. Therefore, the court will overrule this preliminary objection as such. The count, however, may be the subject of other pretrial challenge.

We next turn to the demurrer as to the CPA claim.

“In reviewing preliminary objections in the nature of a demurrer, we must accept as true all well-pleaded facts, which are material and relevant, as well as any reasonable inferences therefrom. Cohen v. City of Philadelphia, 806 A.2d 905 (Pa. Commw. 2002). In deciding whether to sustain a demurrer, this court is not required to accept as true legal conclusions, unwarranted factual inferences, allegations that constitute argument, or mere opinion. Id. Moreover, a demurrer will not be sustained unless the court finds that on the face of the complaint the law states with certainty that no recovery is possible. Id. Furthermore, any doubts are to be resolved against sustaining the demurrer. Id.” Commonwealth v. Percudani, 825 A.2d 743, 745 (Pa. Commw. 2003).

Defendant claims that plaintiff must plead all the elements of common law fraud in order to make out a case under the CPA. That is not an accurate statement of the law. There is actually a split of authority on that issue. In Commonwealth v. Percudani, the Commonwealth Court found that because the legislature amended the CPA in 1996 to include “deceptive conduct” in addition to “other fraudulent conduct,” the legislature must have meant to include conduct other than fraudulent conduct. We agree with the Commonwealth Court’s detailed analysis and find that plaintiff need not plead the elements of common-law fraud in order to state a claim under the CPA.

The question then becomes whether plaintiff has pleaded any facts showing that the defendant made representations having a capacity to deceive. The plaintiff alleges that defendant made various specific misrepresentations to him, intending or recklessly inducing plaintiff to act in justifiable reliance on them. See ¶¶30, 31. Therefore, the court will allow the CPA claim to go forward. The preliminary objection in the nature of a demurrer on this issue is overruled, as is the preliminary objection for lack of specificity.

An appropriate order will be entered

ORDER

And now, July 9, 2009, after consideration of defendant’s preliminary objections, it is ordered that said preliminary objections be and are hereby overruled.

      . See Commonwealth v. Percudani, supra; Weiler v. SmithKline Beecham Corp., 53 D.&C.4th 449 (2001); Flores v. Shapiro & Kreisman, 246 F. Supp.2d 427 (2002); Stephen Buckingham, Distinguishing Deception and Fraud, 78 Temp. L. Rev. 1025 (2005), all finding that due to the amendment of the CPA in 1996, the CPA is not limited to common-law fraud allegations. Cf. Booze v. Allstate Insurance Co., 750 A.2d 877 (Pa. Super. 2000), and cases cited therein, which found that in order to state a claim under the CPA, a plaintiff must prove the elements of common-law fraud.


author: CULLEN, J.,

text:
    Commonwealth v. Russin

      Joseph P. McMahon, for Commonwealth.

      James J. Karl, for defendant.
    June 10, 2009
   CULLEN, J.,

On January 6, 2006, a jury found defendant, Keith Michael Russin, guilty of aggravated indecent assault, indecent assault and corruption of minors.

These charges resulted from an incident that occurred on April 2 and 3,2005, when the 34-year-old defendant touched the breasts and digitally penetrated the vagina of his stepdaughter’s 16-year-old friend while the victim was asleep. Defendant denied the victim’s accusations and argued that she fabricated the allegations against him. The jury, however, found the victim credible.

On June 23, 2006, following completion of a presentence report, defendant was sentenced to a term of imprisonment of not less than two nor more than five years for aggravated indecent assault and a consecutive term of five years probation for corruption of minors. A concurrent sentence of two years probation was imposed for the offense of indecent assault. Defendant’s aggregate sentence was not less than two nor more than five years imprisonment followed by five years probation.

Defendant filed a timely notice of appeal to the Superior Court which affirmed the judgment of sentence on August 14, 2007. Commonwealth v. Russin, no. 1579 MDA 2006 (August 14, 2007). The Pennsylvania Supreme Court denied his petition for allowance of appeal on December 24, 2007. Commonwealth v. Russin, no. 745 MAL 2007 (December 24, 2007).

On February 1, 2008, defendant filed a motion for post-conviction collateral relief, and counsel was appointed to represent him. On October 10,2008, defendant filed an amended petition for relief under the Post Conviction Relief Act. An evidentiary hearing was held on February 6, 2009. At the conclusion of the hearing, the court ordered the notes of testimony transcribed and established a briefing schedule. The parties have filed briefs in support of their respective positions, and the matter is now ready for disposition.

DISCUSSION

In order to be eligible for relief under the Post Conviction Relief Act, a defendant must satisfy the requirements of 42 Pa.C.S. §9543 which provides in pertinent part:

“Section 9543. Eligibility for relief
“(a) General rule. — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
“(1) That the petitioner has been convicted of a crime under the laws of the Commonwealth and is at the time relief is granted:
“(i) currently serving a sentence of imprisonment, probation, or parole for the crime;...
“(2) That the conviction or sentence resulted from one or more of the following:...
“(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place....
“(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. §9543(a).

The defendant bears the burden of establishing by a preponderance of the evidence that his conviction re-suited from one or more of the enumerated errors listed in the Act. Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1226 (2005); Commonwealth v. Crawley, 541 Pa. 408, 412, 663 A.2d 676, 678 (1995).

Since defendant’s post-conviction petition involves a claim of ineffective assistance of counsel, the following standards apply. Generally, counsel’s performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. Commonwealth v. Dennis, 597 Pa. 159,174, 950 A.2d 945, 954 (2008). To obtain relief, the petitioner must demonstrate that counsel’s performance was deficient and that deficiency prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). A petitioner establishes prejudice when he demonstrates “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068; Commonwealth v. Mallory, 596 Pa. 172, 201, 941 A.2d 686, 704 (2008). Applying the Strickland performance and prejudice test, the Pennsylvania Supreme Court has noted that a properly pled claim of ineffectiveness posits that: (1) the underlying legal issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel’s act or omission. Commonwealth v. Tedford, 598 Pa. 639, 659-60, 960 A.2d 1, 12 (2008) (citing Commonwealth v. Pierce, 515 Pa. 153, 157-58, 527 A.2d 973, 975 (1987) (adopting U.S. Supreme Court’s holding in Strickland)).

With regard to the first prong of the ineffective assistance of counsel standard, if a criminal defendant can demonstrate the existence of an actual conflict of interest which adversely affected his counsel’s performance, then he is entitled to a new trial. Commonwealth v. Padden, 783 A.2d 299, 309 (Pa. Super. 2001). To make such a showing, the defendant must demonstrate that counsel “actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 309-310 (citing Commonwealth v. Buehl, 510 Pa. 363, 379, 508 A.2d 1167, 1175 (1986) (emphasis in original)) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1718-19 (1980)). “[A]n actual conflict of interest exists whenever, during the course of representation, there is a divergence between the interests] of the defendant and the interests] of another client [to] whom defense counsel bears obligations with respect to a material factual or legal issue or to a cause of action.” Commonwealth v. Karenbauer, 552 Pa. 420, 437, 715 A.2d 1086, 1094 (1998) (citing In re Saladin, 359 Pa. Super. 326, 332, 518 A.2d 1258, 1261 (1986)). The showing of a mere possibility of a conflict of interest “is insufficient to impugn a criminal conviction.” Commonwealth v. Munson, 419 Pa. Super. 238, 245, 615 A.2d 343, 347 (1992) (quoting Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719).

In evaluating the second prong of the standard which requires an examination of counsel’s conduct, the court must not employ a hindsight evaluation that examines whether other alternative actions were more reasonable. Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005). Rather, a court must deem counsel to have been effective so long as the course which counsel chose was not unreasonable in acting to effectuate his or her client’s interests. Id. Thus, a party must demonstrate that counsel’s strategy was “so unreasonable that no competent lawyer would have chosen that course of conduct.” Commonwealth v. Chmiel, 585 Pa. 547, 614, 889 A.2d 501, 541 (2005) (citing Commonwealth v. Williams, 537 Pa. 1, 29, 640 A.2d 1251, 1265 (1994)).

The third prong of the standard may be the most crucial. The Pennsylvania Supreme Court has consistently held that if the party asserting the claim has not established the prejudice prong, the claim may be dismissed on that basis alone without a determination of whether the party met the first two prongs of the standard. Chmiel, 585 Pa. at 613, 889 A.2d at 540; Commonwealth v. Brown, 582 Pa. 461, 481, 872 A.2d 1139, 1150 (2005); Commonwealth v. Travaglia, 541 Pa. 108, 118, 661 A.2d 352, 357 (1995). This “prejudice inquiry requires consideration of the totality of the evidence.” Commonwealth v. Spotz, 582 Pa. 207, 228 n.15, 870 A.2d 822, 834 n.15 (2005) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at 2069). Prejudice is presumed when counsel is burdened by an actual conflict of interest. Buehl, 510 Pa. at 379, 508 A.2d at 1175.

“A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.” Commonwealth v. Bedell, 954 A.2d 1209, 1211 (Pa. Super. 2008) (quoting Commonwealth v. Bryant, 579 Pa. 119, 136, 855 A.2d 726, 736 (2004)).

As fact-finder in a proceeding for post-conviction relief that is based on a claim of ineffective assistance of counsel, the credibility of witnesses remains exclusively within the province of the hearing court. Commonwealth v. Pate, 421 Pa. Super. 122, 132, 617 A.2d 754, 760 (1992) (citing Commonwealth v. Moore, 321 Pa. Super. 442, 450-51, 468 A.2d 791, 795 (1983)). An appellate court, therefore, “must give great weight to the findings of a lower court concerning the credibility of witnesses in a post-conviction proceeding.” Commonwealth v. Dupert, 555 Pa. 547, 557, 725 A.2d 750, 755 (1999) (citing Commonwealth v. Madison, 501 Pa. 485, 491, 462 A.2d 228, 231 (1983)).

In his amended petition for relief under the Post Conviction Relief Act, defendant claims that his attorney was ineffective because counsel had a conflict of interest during the course of the representation which was not disclosed to defendant.

Although some points are unclear, there does not appear from the record to be significant dispute about the basic facts concerning the relationship between defendant’s attorney and the uncle of the victim on which defendant relies to support his assertion that a conflict of interest existed. Defendant’s retained counsel, Allan L. Sodomsky, maintains an active criminal practice with an office in Reading, Berks County, Pennsylvania. (N.T. Feb. 6,2009, at 4-6.) The victim of these offenses, K.D., resides in Ephrata, Lancaster County, Pennsylvania, with her family. (Id. at 8.) Mr. Sodomsky is familiar with the Ephrata area which is approximately 20 minutes from his office. (Id.)

When Mr. Sodomsky’s daughter was 12 years old, she played on a girls under-13 traveling volleyball team in Berks County. (Id. at 14-15.) For one year, L.D., the daughter ofE.D., played on the same team. (Id. at 14-15, 33-34.) L.D. is the first cousin of the victim, and E.D. is the victim’s uncle. (Id. at 13, 30.) Mr. Sodomsky has a great interest in volleyball and attended almost all of his daughter’s practices and games while she was on the traveling team. (Id. at 14.) He became acquainted with the other players as well as their parents and would exchange pleasantries with them although he generally sat by himself. (Id. at 14-15, 34.) E.D. testified that on one occasion he thanked Mr. Sodomsky for donating either uniforms or warm-ups to the team. (Id. at 35.)

In the fall of 2006, L.D. transferred to Wyomissing High School and played on the school volleyball team with Mr. Sodomsky’s daughter for the next two years. (Id. at 15-16,34.) Both young women graduated in June 2008. (Id. at 16, 33.) During this period, Mr. Sodomsky attended games where he would see E.D. (Id. at 18.) On one occasion during the fall of 2007, their daughters’ senior year, Mr. Sodomsky and E.D. drove to a volleyball tournament together and brought bagels for the team. (Id. at 18, 24.)

Mr. Sodomsky testified that he would like to believe that he and E.D. are friends, (id. at 26), although he had very limited contact with him. (Id. at 21, 26). E.D. confirmed that he had no social relationship with defendant’s attorney other than their daughters’ participation in volleyball. (Id. at 35-36).

There is a dispute regarding when Mr. Sodomsky realized the relationship between the victim and E.D., and when he informed defendant of his connection to the victim’s uncle.

Mr. Sodomsky testified that when he saw the criminal complaint, he recognized the name of the victim and recalled that a number of years before he knew a family, primarily the mother and daughter, of that name through his daughter’s participation in under-13 volleyball. (Id. at 14.) Counsel assumed there could be no relationship because, as he stated, “What are the odds?” (Id.) He had no reason at that time to believe the family he knew from volleyball was related to the victim. (Id. at 24.)

Mr. Sodomsky testified that he disclosed his relationship with the victim’s uncle to defendant when counsel “became aware” of that relationship, “in a face-to-face meeting” with defendant “sometime between the preliminary hearing and the trial.” (Id. at 13-14.) Upon further questioning relating to the circumstances in which he would have had contact with the victim’s uncle, it became apparent that Mr. Sodomsky was using the fall of 2006, when L.D. joined or was about to join the Wyomissing High School volleyball team, as a point of reference. He then corrected his testimony to reflect that he informed defendant of the relationship in the “fall of 2006.” (Id. at 20-23, 27.) Mr. Sodomsky stated that he did not remember defendant reacting abnormally after being told of the relationship in the fall of 2006. (Id. at 27.) When shown a copy of the appellate brief filed on defendant’s behalf, Mr. Sodomsky stated that he believed he informed defendant of his connection to the victim’s uncle before September 27, 2006. (Id. at 29.)

E.D testified that he was unaware that Mr. Sodomsky was representing defendant until early February or early March 2006, after the trial, but before sentencing. (Id. at 31,36.) He stated that he attended the sentencing to support his niece and saw Mr. Sodomsky, but did not speak to him, exchange greetings or shake hands with him. (Id. at 32, 37.)

Defendant’s testimony differs from that of Mr. Sodomsky with respect to the time when Mr. Sodomsky disclosed to defendant the relationship with the victim’s uncle. As referenced above, Mr. Sodomsky placed this event in the fall of 2006. (Id. at 20-23, 27.) Defendant and his wife, however, testified that Mr. Sodomsky made this disclosure only minutes before defendant entered the courtroom for sentencing on June 23, 2006. (Id. at 47-49,56-58.) “Mr. Sodomsky told myself and my wife, don’t be surprised if I walk up to this man and shake his hand and say hello. He’s [the victim’s] uncle, and our daughters play on a sports team together and I just saw him recently and he was going to be here.” (Id. at 47.) Defendant stated that after he received this information, he thought he had to continue using Mr. Sodomsky’s services for sentencing and direct appeal because he had already paid him a retainer. (Id.) Defendant continued to state that if he had known about the relationship prior to trial, he would have hired another attorney. (Id. at 48.)

When asked specifically about what occurred at sentencing, Mr. Sodomsky stated he did not recall E.D. being present at sentencing or discussing his presence with defendant. (Id. at 12, 19-20.) He conceded, however, that it was possible E.D. was at sentencing and that he had spoken to him, but not concerning anything of significance. (Id. at 22-23, 27-28.)

E.D. denied having any contact with Mr. Sodomsky before or after sentencing. (Id. at 32, 37.) While he saw Mr. Sodomsky, he was unaware if the attorney had seen him until the end of the proceeding. (Id. at 32.)

The court finds the testimony of Mr. Sodomsky and E.D. to be credible regarding the nature of their relationship. While they are cordial to each other, their relationship is very superficial and limited to their daughters’ participation in a common activity. There is no evidence of any relationship between the two that does not concern their daughters playing volleyball.

The court also finds E.D.’s testimony credible regarding what occurred at the time of sentencing. E.D. has the least interest of any of the witnesses in the outcome of this proceeding. There is no need to determine whether defendant’s recollection and that of his wife as to what happened prior to sentencing is accurate since, even if Mr. Sodomsky did identify E.D. to them, defendant is not entitled to relief.

Defendant asserts that his attorney’s relationship with the victim’s uncle constitutes a conflict of interest under Rule 1.7 of the Pennsylvania Rules of Professional Conduct, and because Mr. Sodomsky did not make full disclosure to defendant pursuant to Rule 1.7, counsel was burdened by a conflict of interest rendering him ineffective.

It is well established that the Rules of Professional Conduct address the grounds for disciplinary actions against attorneys. Donald J Weiss & Associates P.C. v. Tulloch, 961 A.2d 862, 863 (Pa. Super. 2008) (citing In re Estate of Wood, 818 A.2d 568, 573 (Pa. Super. 2003)). “Those rules are not substantive law.” Id. (citation omitted) Thus, a violation of a Rule of Professional Conduct does not, ipso facto, translate into a meritorious ineffective assistance of counsel claim.

To establish the existence of an actual conflict of interest, defendant must prove that his attorney “actively represented conflicting interests and that an actual conflict of interest adversely affected his attorney’s performance,” Commonwealth v. Padden, 783 A.2d 299, 309-10 (Pa. Super. 2001) (emphasis in original) (citing Commonwealth v. Buehl, 510 Pa. 363, 379, 508 A.2d 1167, 1175 (1986) (citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718-19 (1980)).

Defendant argues that the relationship between Mr. Sodomsky and E.D. amounts to a “personal interest conflict” under Rule 1.7 of the Pennsylvania Rules of Professional Conduct. After reviewing the record, however, the court finds this assertion is devoid of substantive merit.

It appears Mr. Sodomsky and E.D. first met when their daughters were approximately 12 years old and played together for one year on a traveling volleyball team. Their relationship consisted of superficial conversations about their daughters’ volleyball team and polite greetings in passing. (N.T. Feb. 6, 2009, at 15, 23, 24, 32, 34-35,37.) After this experience, there is no evidence of any interaction between the two men until the fall of 2006 when E.D.’s daughter, L.D., transferred to Wyo-missing High School and again played on the same team as Mr. Sodomsky’s daughter. This inconsequential relationship based only on their shared interest in their daughters’ participation in volleyball resumed on the same level as before. Under the interpretation of the evidence most favorable to defendant, Mr. Sodomsky did not realize the relationship between E.D. and the victim until sentencing in June 2006.

In support of his position, defendant has referred to the comment to Rule 1.7 as well as general ethics references. Despite this research, he has failed to cite a court decision or an opinion from any bar association or disciplinaiy board which would indicate that the relationship reflected in the record could constitute a conflict of interest.

Under the circumstances, defendant has failed to prove the existence of an actual conflict of interest. Accordingly, the court finds that his claim lacks substantive merit and defendant is not entitled to relief.

The court, therefore, enters the following:

ORDER

And now, June 10, 2009, upon consideration of the amended petition for relief under the Post Conviction Relief Act, it is ordered that the amended petition is denied.

      . 18 Pa.C.S. §3125(a)(1).

      . 18 Pa.C.S. §3126(a)(1).

      . 18 Pa.C.S. §6301(a)(1).

      .42 Pa.C.S. §9541 et seq.

      . Defendant was represented by privately retained counsel from April 2005, prior to the filing of criminal charges, through the denial of the petition for allowance of appeal by the Supreme Court. Defendant is currently represented by the Office of the Public Defender.

      . Based on L.D.’s age in June 2008, the girls would have been on the same team in 2002.

      . The court also notes that defendant never claimed at the evidentiary hearing that he complained to Mr. Sodomsky about this perceived conflict or sought to rectify it in any manner.

      . Defendant suggests in his brief that the relationship between Mr. Sodomsky and E.D. could have affected the attorney’s conduct to defendant’s detriment. There is no support in the record for this suggestion. Defendant testified that defense counsel declined the offer of witnesses to testify about the victim’s character at trial. (N.T. Feb. 6, 2009, at 43.) Defendant has failed to identify these witnesses, indicate that they were available and willing to testify and provide the substance of their testimony. When this issue was raised, Mr. Sodomsky explained that such testimony would be inadmissible under the Rape Shield Law. {Id. at 10, 45.) The purpose of Pennsylvania’s Rape Shield Law, 18 Pa.C.S. §3104, is to prevent a sexual assault trial from denigrating into an attack upon the victim’s reputation for chastity. Commonwealth v. Killen, 545 Pa. 127, 132, 680 A.2d 851, 853 (1996).
      Defendant also appears to call into question defense counsel’s strategy of relying on cross-examination to challenge the victim’s version of events and notes, that at trial counsel was unable to provide the jury with a specific reason why the victim made her accusations. Again, defendant has offered no evidence to demonstrate that counsel’s strategy was unreasonable and not designed to further defendant’s interest, nor has defendant provided any evidence to support any specific motive by the victim to fabricate the charges against him which counsel unreasonably failed to pursue.