author: LASH, J.,

text:
    Strausser v. Strausser

      Joel H. Merow, for plaintiff

      J. Peter Landis, for defendant.

      Lisa D. Gentile, guardian ad litem.
    July 15, 2011
   LASH, J.,

The matter before this court is the petition of plaintiff, Gale Strausser (hereinafter “mother”), to modify the child custody order entered on November 27, 2006. Trial on the petition was held on May 23, 2011, June 24, 2011, and June 28, 2011. The court enters the following findings of fact:

I. FINDINGS OF FACT

1. Plaintiff, Gale Strausser (hereinafter “mother”), is an adult individual who currently resides at 256 Briarwood Court, Allentown, Lehigh County, Pennsylvania.

2. Defendant, John C. Strausser (hereinafter “father”), is an adult individual who currently resides at 2 North Main Street, Topton, Berks County, Pennsylvania 19562.

3. The parties are the natural parents of a female minor child, HJS (hereinafter “minor child”), bom February 3, 1996.

4. The parties were formerly husband and wife, being married on July 7, 1995. The parties separated on December 25, 2003 and were divorced on November 10, 2009, by decree entered by the Berks County Court of Common Pleas.

5. On November 8, 2006, this court conducted a custody trial. On November 27, 2006, this court entered a decision, setting forth, among other things, that father would have primary custody of the minor child, with mother to have partial custody on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and one (1) evening per week from 3:30 p.m. until 8:00 p.m.

6. During the course of the proceedings prior to the first custody trial, this court appointed Lisa D. Gentile, Esquire, as guardian ad litem. Attorney Gentile has continued as guardian ad litem for the current petition to modify proceedings.

7. At the first trial, both parties had sought primary physical custody. Integral to this court’s decision in awarding father primary custody were certain actions and influences performed by mother, which caused psychological and emotional distress to the minor child and affected her relationship with father. The following is an excerpt from this court’s opinion of November 27, 2006, which elaborates:

It is quickly apparent that one issue far overshadows the other issues/factors relative to a determination of primary custody, namely, the exertion by mother of undue influence on the minor child. From time to time, this court is faced with a party’s allegation that the other party is attempting to coax or influence the minor child into expressing a preference for that party, or otherwise “putting words in the child’s mouth.” These allegations can sometimes be established by evidence, but often times remain unsubstantiated. In this case, however, there is overwhelming evidence establishing that mother, in fact, has made concerted and repeated efforts to alter the minor child’s thinking, alienate the minor child from her father, and fabricate, all to benefit mother’s position. Mother has been blatant, dictating and directing the minor child within earshot of the guardian ad litem. Further, when confronted with this indisputable evidence, mother continued to deny, under oath, that she was in any way trying to influence the minor child....
It is also clear to this court that the minor child has been substantially and negatively affected by mother’s conduct. The minor child has become an advocate for her mother’s position, fully acting in submission to her mother’s wishes. She has yielded and perhaps even abandoned her own perspective. At her tender age, this modification of her behavior could affect her ability to interact with others, her ability to be forthright, and her ability to be independent, for years to come. There is also the open question of how the minor child currently relates to father, and what type of bond will exist between the two from this point forward.

8. OnAugust 12,2009, mother filed the within petition to modify the custody order entered November 27, 2006, setting forth that a modification is warranted because the minor child’s school grades have “dramatically gone down,” the minor child has had great difficulty adjusting to the “extremely limited time she is able to spend with her mother,” the minor child has had great difficulty adjusting to living with her father’s paramour and her paramour’s children, the minor child’s preference is to reside with her mother, and mother’s home provides a more stable environment for the minor child.

9. On February 22, 2010, by agreement, this court entered a new order, on a temporary basis, providing, for the most part, the same terms and conditions of the order of November 27, 2006, but adding provisions for the Christmas holiday, transportation, and for counseling, including family counseling and the continuation of the minor child’s counseling.

10. Mother currently resides with her fiance, Robert W. Sherick, Jr., and his daughter, HS, bom June 20,1997. Mother has resided with Mr. Sherick since late 2003 or early 2004.

11. Father currently resides with his fiancee, Rebecca Ann Moyer, and her two (2) sons, NDM, bom June 13, 1997, and SLM, bom October 18, 1999. Father and Ms. Moyer began their relationship in 2006 and have been living together since March of 2007. They intend to be married on September 10, 2011.

12. Mother is employed by Behr Paints in Allentown, working Mondays through Fridays from 5:30 a.m. until* 2:00 p.m.

13. Father is employed by East Penn Manufacturing in Lyons Station, Pennsylvania, working generally Monday through Saturday from 7:00 a.m. until 3:00 p.m. to 5:00 p.m. and Sunday from 7:00 a.m. to noon.

14. Father resides in the Brandywine Heights Area School District. The minor child is currently enrolled at Brandywine Heights High School and is going to tenth grade in the fall.

15. Mother resides in the Parkland School District.

16. By agreement of the parties, this court, on January 11,2011, entered an order appointing Anthony M. Horney, Jr., L.C.S.W., to conduct a custody evaluation. The order required Mr. Homey to evaluate father’s fiancee and the relationship between father’s fiancee and the minor child. Mr. Horney interviewed father’s paramour and the minor child in January of 2010.

17. During the summer months, the minor child is involved with a swim team and as a volunteer at the Topton Lutheran Home, working with elderly patients.

II. DISCUSSION

Both parties seek primary custody. In making disposition, this court considered the testimony of the parties, the evaluator, Anthony M. Horney, Jr., L.C.S.W., the parties’ respective fiancees, Rebecca Ann Moyer and Robert W. Sherick, Jr., an in camera conference with the minor child, and the exhibits submitted by the parties.

Mother believes that the minor child’s interests would be better suited if she resided primarily with her. Mother states that she has established a long term stable household with her fiance, Robert W. Sherick, Jr. The relationship is strong, without undue bickering or fighting. The couple plan to get married in the near future. The minor child gets along well with Mr. Sherick’s daughter, HS.

The Parkland School District, where the couple reside, has an excellent reputation. The minor child has special needs and is enrolled in an IEP program. Mother contends that the IEP program is superior to the one at Brandywine Heights School District. The couple is familiar with Parkland’s IEP, as Mr. Sherick’s daughter is a participant. At Parkland, a committee of 12 to 15 people, including the parents, meet periodically and discuss the outstanding issues of the student, working toward a consensus for the child’s best interest. On the other hand, at Brandywine, mother believes that the IEP is primarily through work on a computer.

Mother states that the minor child has a strong preference to reside with her. According to mother, the minor child consistently urges mother to do what she needs to do to obtain a change in primary custody. Mother states that she would not have pursued the modification were it not for the minor child’s insistence.

Mother alleges that father’s household is “unstable.” Father and his fiancee have been unable to get along, and on at least two (2) occasions, father has separated from his fiancee, moving out from his residence for a short time. The minor child has difficulties with father’s fiancee, does not like her, and does not want to be around her. The minor child also has problems with father’s fiancee’s two (2) children, including becoming engaged in physical altercations.

The volatility in father’s household has resulted in the minor child being involved in several difficult incidents. On one occasion, during the course of an argument, father’s fiancee telephoned mother and screamed to her: “Come pick up your f_kid.” During the course of one of father’s separations, the minor child’s personal belongings were placed in trash bags, ostensibly to assist with her moving with father to a new residence. After things cooled down and the minor child returned to father’s home, she discovered her personal belongings remained in the trash bags, which, according to mother, was very stressful for the minor child.

Mother insists that father will not permit her to participate in legal custody matters. He refuses to provide her information regarding medical treatment or appointments. He does not include her in discussions involving the minor child’s activities. In fact, he requires the minor child to engage in swimming and volunteer work at the Topton Lutheran Home, even though the minor child has no desire to participate in either of these activities. Father has also removed a cell phone from the minor child’s possession, which mother had provided her to enable the minor child to have frequent contact with mother during father’s custodial time.

Mother believes that father does not invest his time in the minor child’s educational needs. The minor child needs help with her homework. Father does not assist the minor child in any way, requiring the minor child to “figure it out for herself.” As a result, the minor child procrastinates, with homework not getting done until she arrives at mother’s house, requiring mother and the minor child to put in several hours of work to enable the minor child to become current.

Father works long hours. As a result, father’s fiancee becomes the de facto primary custodian of the minor child.

Father seeks to maintain primary physical custody. He states that it is he, not mother, who can provide stability in the minor child’s life. In addition, there is continuity, as the minor child would continue to reside in the same neighborhood where she has always resided, continue to attend the same school district, and have the same friends as before.

The minor child is doing relatively well in school. She has been able to maintain her grades. Contrary to mother’s assertions, the IEP at Brandywine has worked well for the minor child. Also contrary to mother’s assertions, father has maintained consistent oversight over the minor child’s educational development.

Father acknowledges that there have been difficulties in his household but that these problems are caused by actions of the minor child, actions which are tacitly approved of or even encouraged by mother. The minor child has instigated arguments with father’s fiancee and with her children. The interactions with the fiancee’s children have become physical. On one occasion, the minor child struck the child, MN, with a baseball bat, causing injuries. Whether this incident was accidental or purposeful has not been settled. On another occasion, the minor child pulled SLM from the top bunk of the children’s bunk beds, resulting in him falling and striking an alligator toy or object with “alligator’s teeth,” causing an injury. The minor child has also engaged in tantrums and arguments. These problems have caused stress in the household, resulting in the two (2) separations. Since July of 2010, however, these problems have subsided. Father and his fiancee continue to maintain a very strong relationship and intend to be married shortly.

Father opines that mother continues to engage in conduct which tends to influence the minor child and alienate her from father and his household. He believes that she encourages the minor child to lie about father’s behavior, that she, as stated, encourages the minor child to engage in disruptive behavior at father’s house, and that she tries to convince the minor child to resign from the swim team and the Topton Lutheran Home. Father states that mother inappropriately includes the minor child in discussions regarding court proceedings and other topics. He believes that mother’s coercion is so strong that the minor child feels forced to please mother to resolve the conflict, stating that she wants to reside at mother’s house when, in fact, she would rather reside in father’s house. Further, father believes that the minor child was strongly opposed to testifying in court.

Father opines that mother has a separate agenda, to obtain custody to reduce her support obligations. He points out that the within petition to modify was filed almost immediately after the termination of temporary alimony payments from father.

Father admits that he does not want to involve mother with legal custody matters. He readily acknowledged that he has violated the previous court order by refusing to advise mother of any medical appointments or treatments. He states he did so because the minor child’s allergist told father that she refused to have any further contact with mother due to difficulties in dealing with her.

Father believes that mother text messages the minor child excessively, even at midnight on a school day. Father alleges that there were 18,600 texts in one month alone. For this reason, and due to the minor child’s own behavior, father has withheld the minor child’s cell phones, one of which was purchased by father.

Father argues that due to mother’s actions, the minor child cannot simply be herself. Her statements and actions mimic mother’s. On occasion, she does start to act “normal” but then “catches herself’ and reverts back to her trained behavior. The minor child remains under severe stress. The counseling, which has extended over a period of time, has not counteracted the problems created by mother.

Father urges that on most occasions, the minor child is able to get along well with his fiancee and her children. The incidents that have taken place are unfortunate. However, father’s fiancee remains committed to, along with father, providing a household for the minor child, working with her through these difficulties.

As stated, Anthony M. Horney, Jr., L.C.S.W., was hired by the parties, through a court order by agreement, to conduct a custody evaluation assessing the relationship between father’s fiancee and the minor child. He met with them individually in January 2010, conducted clinical interviews, a mental status examination, and a three (3) wish interpretation, and filed a written report.

Mr. Horney noted the “obvious issue” between mother and father’s fiancee, animosity, which has been stressful for the minor child. He urges conflict resolution. Other than this conflict with mother, Mr. Homey did not find any characteristics or behaviors that would be potentially harmful or abusive toward the minor child. In fact, he appears to accept Ms. Moyer’s account that she is making every effort to be a positive influence in the minor child’s life.

Mr. Homey found the minor child to be insecure and under stress. She recognizes herself as the center of controversy, acknowledging that, in some regards, she instigates the problems, where at other times, she perceives herself as being blamed for something she did not do. She reflects some “self-inflicted guilt” but is also willing to transfer accountability for the problems to others, primarily the adults. She has somewhat of a contentious relationship with Ms. Moyer’s two (2) sons. The minor child is also beset by conflicting loyalties between mother and Ms. Moyer. For example, when asked if she cared for Ms. Moyer, the minor child stated, “yes,” noting “it’s a tough balancing act.” Mr. Homey declined to make any long term custody recommendations, noting a need for appropriate therapeutic intervention. Mr. Homey believes that the extensive counseling administered to the minor child over time has been excessive and may have been counterproductive. He advocated a change in the therapeutic care, with the minor child being referred to a therapist with an extensive background in custody cases. In the meantime, Mr. Homey believed that no changes in the child custody schedule is advisable.

The guardian ad litem, Lisa D. Gentile, Esquire, was appointed prior to the first trial and has continued to be involved as legal counsel for the minor child. She provided several reports dated May 2, 2006, October 26, 2010, and May 16, 2011.

The guardian ad litem recommends that the current custody order generally remain the same, providing a minor adjustment to allow mother to have the minor child for short periods of time when father is working overtime on weekends. The guardian believes that the minor child’s true preference would be to continue to reside with father based on her statements to her. The minor child also has a strong need to have the litigation ended as soon as possible and to be excused from testifying or otherwise participating. This position is in contrast to mother’s testimony that the minor child wants to reside with her, urging mother on several occasions to get back to court and “fight for her,” with the minor child looking forward to the opportunity to testify before the court and set the matter straight. The guardian ad litem opines that the minor child’s conflicting positions stem from mother’s continuing exertion of pressure on the minor child through discussions, manipulations, and guilt, causing the minor child to tell mother what she wants to hear. In her October 26, 2010 report, the guardian notes that the minor child appeared “prepped” by mother prior to meeting with the guardian, evidenced by being aware of topics to be discussed, which had recently occurred and which should not have been known to the minor child. The guardian ad litem felt so strongly about the minor child’s reluctance to testify that the guardian was willing to recommend custody on a 50/50 basis for the summer months simply to avoid the need to go to trial. This conflict even extends to collateral matters, such as the swim team practices and the minor child’s volunteer work at the Topton Lutheran Home. She portrays very different levels of interest in these activities, depending upon which parent is involved in the discussion.

At issue is primary physical custody. The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

Section 5328 of the newly enacted child custody statute sets forth specific factors to consider in making a determination on child custody. Some of these factors are applicable to the within proceeding.

The first applicable factor concerns the question of which party is more likely to “encourage and permit frequent and continuing contact” between the minor child and the other party. This factor is difficult to assess because both parties have exhibited conduct which has restricted access of the minor child to the other party, mother’s alienating activities, crucial to her obtaining an adverse decision from this court at the first trial, continues to be exhibited. The guardian ad litem’s reports, in particular, reflect mother’s inability to refrain from attempting to manipulate the child custody dynamic through the minor child. How much of the minor child’s errant behavior stems from mother’s conduct, how much from the minor child’s enjoyment in being discordant, and how much father’s household contributes in response, cannot be precisely quantified. Nevertheless, mother has had a significant input into this minor child’s emotional and psychological distress. As far as father goes, he has refused to deal with mother at any level, taking the position that she cannot be trusted or dealt with in a reasonable manner, even to the extent of willfully violating a court order on medical matters. Whether justified or not, father’s attitude in some ways is imperious, providing little opportunity for any type of reconciliation, should mother be willing to substantially modify her behavior. At this juncture, there is little hope that these parties will ever be able to work together.

The next applicable factor concerns the parental duties performed by each party. Mother has always been ready, willing and able to provide for the daily maintenance of the minor child. She provides extensive assistance in the minor child’s educational development. When mother is viewed in the context of what goes on in her own household, without consideration of the interaction between the households, this factor is positive. For father’s part, he is not as available as mother due to his work schedule. However, from the testimony, it is clear that father has invested significant time in the minor child’s educational development. He has knowledge and insight on the minor child’s needs. He has not refused to assist the minor child as mother suggests, nor relegated these matters to his fiancee. He is also veiy involved with her on medical issues, having paid for her orthodontia, having attended her sessions with an allergist, and otherwise overseeing her medical needs. Once again, limiting the inquiry to the dynamics of father’s household, irrespective of the conflict with the other household, the minor child is well served.

The next factor concerns the need for “stability and continuity in the child’s education, family, and community life.” As stated, if the minor child continues to reside with father, all the dynamics in her life would remain familiar. Her educational, medical, and maintenance needs would continue to be met in a proper manner. In essence, there would be no disruption to her lifestyle. Mother, however, argues that her household is more stable, as evidenced by the two (2) separations of father and Ms. Moyer. While a transfer in custody would mean changing school districts, mother believes that this would not be a problem and, in fact, would benefit the minor child, we note, however, that both the social and legal experts, speaking independently, agree that a change at this time would be adverse. As noted, Mr. Homey recommends that no change in custody take place at this time. This recommendation apparently stemmed from Mr. Homey’s concern about the minor child’s emotional and psychological state developed from the continuing tension between households. Likewise, the guardian ad litem urged that a change in custody was not warranted. This conservative approach relates in large part to the perceived need to preserve the continuity provided in father’s household.

The next factor concerns the minor child’s sibling relationship. The minor child has no siblings, but does interact with Mr. Sherick’s daughter in mother’s household and Ms. Moyer’s sons in father’s household. By all accounts, her relationship with Mr. Sherick’s daughter is positive. They are close in age and have similar interests. On the other hand, the minor child’s relationship with Ms. Moyer’s two (2) sons have been problematic, as already set forth. Many of the issues that have arisen were created by the minor child, although Ms. Moyer’s two (2) sons have not been totally free of fault. In any event, the dismptions have not been positive for any of these children.

The next factor, the preference of the minor child, is essential to this case. The minor child continues to state that she wants to reside with mother. This is mother’s primary reason for pursuing this petition to modify. The minor child’s statements, however, appear dubious to the guardian ad litem, who strongly urges that the minor child’s statements are not how she truly feels, but reflect a need to please mother and to avoid conflict and continuing litigation. Whether the minor child’s preference is in some manner “well reasoned” depends on which position carries more weight. If you accept mother’s evidence, the minor child wants to reside with mother because she has a closer bond with mother, and is somewhat afraid of father and his temper, which arises when he is frustrated due to the disruptions in the household. The minor child also gets along better with Mr. Sherick’s daughter than with Ms. Moyer’s sons. If you accept father’s evidence, then the minor child’s stated preference is illusory, there is no reasoning involved, and the preference cannot be accepted as credible.

The next applicable factor, the attempts of a parent to turn the child against the other parent, has already been discussed at length. At the present time, neither parent has encouraged the relationship of the minor child with the other parent. This factor militates in father’s favor due to mother’s behavior, protracted over time, which has compromised the minor child’s psychological well-being.

The next factor concerns which party is most likely to maintain a “loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.” Again, setting aside the inter-household dynamics and looking at each household singularly, each party has the capacity to address this concern. Mother’s household appears to be a peaceful and happy environment. Both Mr. Sherick and his daughter appear to be positive influences. Mr. Sherick provides the minor child with a positive role model, appearing to be a caring, unselfish individual, as evidenced by his willingness to donate a kidney to a third party and by his paramedic work. He also shows a genuine interest in the minor child and is willing to be involved as a full-time stepparent.

Likewise, father’s household has over time established itself, for the most part, as positive for the minor child. The household is primarily maintained by Ms. Moyer, who is a positive role model for the minor child. Despite the problems with the minor child, which has resulted in Ms. Moyer being pitted against mother and which include the minor child’s fights with her own children, Ms. Moyer has been willing to “hang in” and continue to make the minor child feel welcome in the household.

The incidents that took place in father’s home were substantial, appearing to have occurred due to the continuing rise in the level of frustration of father and Ms. Moyer to the minor child’s conduct, ultimately boiling over on a few occasions. Ms. Moyer’s kneejerk reaction in telephoning mother to tell her to come get her child (Ms. Moyer states there was no expletive included in the demand) was inappropriate. This incident appears to have reflected father’s passive, aggressive nature. He would become frustrated with the minor child’s conduct and ultimately, over time, he would “boil over,” causing arguments with Ms. Moyer and resulting in father’s temporary decision to separate. Father and Ms. Moyer have learned from these incidents, and it does not appear that these types of things will reoccur.

Looking at this same factor across households, however, it appears apparent that the minor child’s emotional needs are not being addressed sufficiently. The genesis of the problems rest at mother’s doorstep, as set forth in this court’s original opinion. Further, father’s household has been ill-equipped to alleviate the continuing tension across households.

The remaining factor concerns the level of conflict between the parties and the “willingness and ability of the parties to cooperate with one another.” For reasons already set forth, this court believes that the level of conflict between the parties remains high and is unacceptable. The lack of cooperation is extensive. Neither party can claim this factor as a basis for an award in their favor.

Upon consideration of these factors, this court determines that father should retain primary custody. Father and his household, for the most part, have satisfactorily addressed the minor child’s needs. The tension that had been present in the household was created and fueled by the minor child, not by the actions of father or his fiancee. While the responses of the adults were not always optimal, they appear to be a thing of the past, and not a basis for warranting a transfer in custody, particularly when balancing the other positive factors present in the household. The court is reluctant to transfer custody of a child when the primary custodian is satisfactorily serving the child’s best interest. Wiseman v. Wall, 718 A.2d 844, 846 (Pa. Super. 1998).

Further, mother’s stated motive for seeking a modification, that the minor child is steadfastly advising her that she wants to reside in mother’s home, is not supported by the weight of the evidence. The guardian ad litem flatly contradicts mother, stating that the minor child has stated to her that she wants to remain with father. The guardian ad litem is credible, being independent, with her only agenda being the best interests of the minor child. There appears to be no valid reason for the guardian to manipulate or influence the minor child, or to falsely report what the minor child says to her.

As Mr. Horney suggests, and as is readily apparent, these parents need to engage in therapy in the hope that at some future time, they can begin to work together for the minor child’s benefit. The minor child’s psychological state must also be addressed. Accordingly, this court will order co-parenting counseling and therapy for the minor child.

This court will make an adjustment to the schedule to address father’s unavailability on Saturdays. Rather than have the minor child spend a few hours on a weeknight, which also involves roughly a one (1) hour round trip, mother shall be permitted to pick up the minor child every Friday after school, keeping the minor child until approximately 6:00 p.m. on Saturday one (1) week, then for the full weekend the next week.

Accordingly, we enter the following order:

ORDER

And now, July 15, 2011, upon consideration of the petition of plaintiff, Gale Strausser, to modify the custody order entered by this court on November 27, 2006, and after trial held, custody of the parties’ minor child, H.J.S. (hereinafter “minor child”), born February 3, 1996, shall be as follows:

1. The parties shall share legal custody of the minor child.

2. Defendant, John C. Strausser (hereinafter “father”), shall have primary physical custody.

3. Plaintiff, Gale Strausser (hereinafter “mother”), shall have partial custody on one (1) weekend from Friday at 3:30 p.m. to Sunday at 6:00 p.m., and on the other weekend from Friday at 3:30 p.m. to Saturday at 6:00 p.m., and at such other times as the parties may agree.

4. Mother shall have custody of the minor child on mother’s day and father on father’s day from 9:00 a.m. to 8:00 p.m. each year.

5. The parties shall alternate custody on the following holidays: Easter, Memorial Day, July Fourth, Labor Day, and Thanksgiving. Mother shall begin with Easter in 2011, and the parties shall alternate the holidays thereafter. Custody shall be from 9:00 a.m. until 8:00 p.m. The parties shall equally divide any spring break from school.

6. The parties shall share custody for the Christmas holiday with one (1) parent having custody from noon on December 24th until noon on December 25th and the other parent having custody from noon on December 25th until noon on December 26th. Mother shall have custody from Christmas Eve to the Christmas morning time period in even-numbered years. Father shall have custody from Christmas Eve to the Christmas morning time period in odd-numbered years. The parties shall equally divide any remaining school vacation days over the Christmas break.

7. Each party shall be entitled to two (2) weeks of uninterrupted time with the minor child for purposes of vacation. The vacationing party shall provide the non-vacationing party with at least sixty (60) days written notice of the dates and times for said vacation. In the event of a conflict, mother’s vacation shall take precedence during odd-numbered years and father’s during even-numbered years.

8. The holiday and vacation schedules shall take precedence over the regular custody/partial custody schedule.

9. Unless otherwise agreed, the party commencing their period of custody shall be responsible for picking up the minor child from the other party.

10. All parties shall ensure that the minor child’s homework is completed on time. In the event that any extra-curricular activity is scheduled during mother’s period of partial custody, except in cases of emergency, mother shall ensure that the minor child attends. Father shall ensure that mother is provided a schedule of extracurricular activities at the beginning of every month and give mother as much notice as possible of any change to the schedule.

11. The custodial parent shall make reasonable efforts to maintain an open phone line in his/her residence from 7:40 p.m. until 8:00 p.m. each evening so that the minor child may place calls to or receive calls from the non-custodial parent. In the event the minor child is unavailable during that time, the parent having custody shall use an answering machine/voicemail to receive messages from the other parent. The parent having custody shall ensure that the minor child is aware of any missed call and returns any missed call as soon as possible. Neither party shall use Caller ID, Call Block, or any other device or service which limits telephone access to the minor child. The minor child shall be permitted to speak for a minimum of ten (10) minutes with the other parent, unless the minor child chooses to conclude the call at an earlier time.

12. The parties and their respective paramours, shall participate in family therapy/co-parenting counseling pursuant to the recommendation of Anthony M. Horney, Jr., L.C.S.W. The parties’ counsel shall contact Sandra Lamma and Claire Malfaro to determine which counselor can best assume the role of family therapist. Each party shall be responsible for the cost of their own therapy sessions. The cost of any joint therapy sessions or of the minor child’s sessions shall be divided equally.

13. The minor child shall continue to participate in counseling with Kathleen Spees once per month. The parties shall sign any releases necessary so that Ms. Spees and the family therapist can communicate to coordinate the family’s care.

14. Lisa D. Gentile, Esquire, shall continue to act as the guardian ad litem for the minor child on an as needed basis. The parties shall be equally responsible for any fees of the guardian ad litem. This appointment shall continue until the guardian deems it no longer necessary, by agreement of the parties, or upon further order of court.

15. If either party is planning to relocate with the child and the relocation will significantly impair any other party’s exercise of their custodial rights, the relocating party is obligated to provide a detailed notice and counter-affidavit by certified mail, return receipt requested, to all individuals who have custody rights to the child at least sixty (60) days in advance of the proposed relocation in compliance with 23 Pa. C.S.A. Section 5337.

16. This order shall be considered a final order finally resolving the issues raised in the petition of plaintiff to modify the child custody order.

17. The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

1. In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

A. The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.
B. The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and
C. The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

2. In the event of any serious illness of the child at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

3. Neither party shall alienate nor permit to attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

4. Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take atrip with the child out of the jurisdiction of Berks County in excess of three (3) days.

5. The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

6. The parties shall, at all times, consider the child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

7. Neither party shall question the child as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of spy.

8. The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

9. Weekend and evening visitation shall be subject to:

A. Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.
B. Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.
C. If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.
D. The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.
E. If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.
F. If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

10. If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.

      . 23 Pa. C.S.A. § 5328.


source: Caselaw Access Project

author: PICCIONE, J.,

license: Public Domain

text:
    Catlin v. Hamburg

      John A. Caputo and Carmen F. Lamancusa, for plaintiffs.

      Judith A. Moses, for defendants.
    July 20, 2011
   PICCIONE, J.,

Before this court for disposition is the motion in limine filed on behalf of defendants Marc Hamburg, M.D., St. Francis Hospital of New Castle, and St. Francis Physicians, Inc. (hereinafter, “defendants”). This action arose out of medical treatment provided by Dr. Hamburg to plaintiff Natalie Catlin following the birth of her child. On March 24, 1999, Ms. Catlin underwent a postpartum tubal occlusion in which Dr. Hamburg performed a modified Pomeroy procedure on her right fallopian tube and a Filshie Clip on her left fallopian tube. In February of 2000, Ms. Catlin sought treatment from Dr. Hamburg after she began experiencing pain in her abdominal area and very light periods. Dr. Hamburg conducted an internal pelvic exam and advised Ms. Catlin that she was not pregnant. Shortly thereafter, her primary care physician recommended that she undergo additional testing. On May 25, 2000, a blood test and sonogram revealed that Ms. Catlin was 19 weeks pregnant. She did not decide to terminate the pregnancy until June 1, 2000, when additional testing revealed that the fetus had various congenital anomalies. On June 7, 2000, Ms. Catlin was admitted to Magee Womens Hospital and underwent an abortion. Due to postoperative bleeding, a second ultrasound was performed and revealed some retained products of conception. As a result, a second curettage of the uterus was performed. On June 8, 2000, Ms. Catlin was placed in the Intensive Care Unit for observation, and, on June 9, 2000, she was diagnosed with symptomatic anemia and given several transfusions. Upon cessation of the bleeding, Ms. Catlin was discharged in stable condition on June 11, 2000.

On March 21, 2001, plaintiffs Natalie and Vernon Catlin (hereinafter, “plaintiffs”) commenced this action against defendants. After a complaint and preliminary objections to that complaint were filed, plaintiffs filed an amended complaint in which they allege that Dr. Hamburg was negligent in performing Ms. Catlin’s tubal occlusion and in failing to diagnose her pregnancy. During the course of discovery, plaintiffs produced the report of their medical expert, Bruce L. Halbridge, M.D. In his report, Dr. Halbridge asserts that the failure of Dr. Hamburg to perform a modified Pomeroy procedure on Ms. Catlin’s left fallopian tube as he did on the right tube directly resulted in Ms. Catlin’s pregnancy, the necessity to terminate that pregnancy, and the resulting post-abortal hemorrhage. Dr. Halbridge also asserts that Dr. Hamburg’s failure to diagnose Ms. Catlin’s pregnancy directly resulted in her inability to terminate her pregnancy at an early stage, reducing the risk of a post-abortal hemorrhage. In addition, Dr. Halbridge claims that Dr. Hamburg’s failure to provide adequate informed consent prior to the tubal occlusion ultimately led to the injuries sustained by plaintiffs.

On February 24, 2011, defendants filed the instant motion in limine, followed by a supplemental motion on June 15, 2011. In their motion, defendants raise the following issues and assertions:

I. Plaintiff’s expert’s opinions related to defendant’s negligence for lack of informed consent must be stricken.
II. The opinions of Dr. Halbridge should be stricken in their entirety.
III. Should the jury find that the sterilization procedure was performed within the standard of care, then plaintiff may not recover for costs associated with termination of her pregnancy
IV. Plaintiff may not recover for damages for psychological pain and suffering and wage loss and other damages alleged in her complaint, into the indefinite future.
V. Whether plaintiff’s claim of wage loss is recoverable.

Defs’ Mt. in limine. On June 28, 2011, this court heard oral argument on defendants’ motion in limine. During the argument, the parties represented to the court that plaintiffs are not asserting a claim for lack of informed consent. Therefore, Dr. Halbridge’s opinions relating to lack of informed consent are stricken.

Defendants next assert that all of Dr. Halbridge’s opinions should be stricken. They argue that his opinions regarding negligent sterilization and failure to diagnose Ms. Catlin’s pregnancy lack a medical or scientific basis. In his report, Dr. Halbridge claims Dr. Hamburg could have prevented Ms. Catlin’s pregnancy if he had performed a modified Pomeroy procedure on the left fallopian tube. Defendants argue that Dr. Halbridge has no medical or scientific basis for believing that the Filshie Clip on the left tube failed or that the ovum was fertilized from the left tube. As a result, defendants seek to strike Dr. Halbridge’s opinion and testimony.

To prevail in a medical malpractice suit, a plaintiff must plead and prove that the physician owed a duty to the patient, that the physician breached the duty, that the breach was the proximate cause of or a substantial factor in harming the patient, and that the damages suffered by the patient were a direct result of the harm. Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super. 2007) (citing Corrado v. Thomas Jefferson University Hospital, 790 A.2d 1022, 1030 (Pa. Super. 2001)). Expert testimony is generally required to establish the elements of duty, breach, and causation, unless the medical malpractice is obvious and self-evident. Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 199, 907 A.2d 1061, 1070 (2006). In order for expert testimony to be admissible, the testimony must be rendered within a reasonable degree of medical certainty. Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004). “However, expert witnesses are not required to use ‘magic words’ when expressing their opinions; rather, the substance of their testimony must be examined to determine whether the expert has met the requisite standard.” Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 555, 981 A.2d 145,155 (2009) (emphasis removed). The jury is then charged with fact-finding and credibility assessments. Winschel, 925 A.2d at 788.

A review of the report indicates that Dr. Halbridge expresses his opinion with a reasonable degree of medical certainty. He does not state that the failure to use the modified Pomeroy procedure on the left fallopian tube “possibly” or “could have” led to Ms. Catlin’s pregnancy and ultimately the termination of the pregnancy. Therefore, Dr. Halbridge expresses his opinion with the requisite level of certainty. The fact that the pregnancy could have resulted in a different way does not render Dr. Halbridge’s opinion inadmissible. A plaintiff is not required to exclude every possible explanation to establish a prima facie case. Stimmler, 981 A.2d at 155. It is enough that reasonable minds are able to conclude that the preponderance of the evidence shows that Dr. Hamburg’s omission was a substantial cause of the harm. Id.

Furthermore, Dr. Halbridge provides support for his opinion in his report. He quotes Dr. Hamburg’s notes from Ms. Catlin’s operation, which indicate that Dr. Hamburg originally applied a Filshie Clip to the right fallopian tube but, when the clip slid from the right tube, Dr. Hamburg performed the modified Pomeroy procedure on the right tube. Dr. Halbridge theorizes that Dr. Hamburg’s failure to perform a modified Pomeroy procedure on the left tube increased the risk of Ms. Catlin becoming pregnant. In support of his theory, Dr. Halbridge also quotes from the operative record of Dr. Zyczynski, who performed a hysterectomy on Ms. Catlin. The record indicates that one of the clips was found on the surgical field after manipulating the uterine specimen and that the other clip was identified on the fallopian tube. Dr. Halbridge further argues that, because both fallopian tubes were of the same or similar diameter, the clip would have slid from the left tube if it slid from the right tube. Finally, Dr. Halbridge supports his theory with statistics indicating that the failure rate of Filshie Clips is as high as 8.6 pregnancies per 100 women at the end of two years while the failure rate of sterilization utilizing the modified Pomeroy technique is approximately 0.6 pregnancies per 1000 women at the end of one year. “Once a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to a person in the plaintiff’s position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not the increased risk was a substantial factor in producing the harm.” Mitzelfelt v. Kamrin, 526 Pa. 54, 63-64, 584 A.2d 888, 892 (1990) (citing Hamil v. Bashline, 481 Pa. 256, 269, 392 A.2d 1280, 1286 (1978)). Dr. Halbridge sufficiently supports his opinion to meet this preliminary burden.

Defendants also argue that Dr. Halbridge’s opinion regarding Dr. Hamburg’s failure to diagnose Ms. Gatlin’s pregnancy is without foundation. Dr. Halbridge asserts that Dr. Hamburg’s failure to diagnose the pregnancy on February 28, 2000 resulted in the failure to terminate the pregnancy at an early stage and thereby reduce the risk of a post-abortal hemorrhage. Defendants claim that Ms. Catlin did not choose to terminate the pregnancy until she learned that the fetus had various congenital anomalies, and, as a result, an earlier diagnosis by Dr. Hamburg would not have caused her to seek an abortion at an earlier stage. Although the parties agree that Ms. Catlin decided to seek an abortion only when she learned of the congenital anomalies, it does not follow that an earlier diagnosis of the pregnancy would not have led to an earlier decision to terminate the pregnancy. Had Dr. Hamburg discovered the pregnancy at six to seven weeks, Ms. Catlin may have sought additional testing that would have revealed the defects at an earlier time. She also may have opted to terminate the pregnancy knowing that there was lesser risk involved at the earlier stage. Based on these considerations, the court concludes that Ms. Catlin’s initial decision not to terminate the pregnancy does not render Dr. Halbridge’s opinion moot, as defendants argue.

Defendants’ remaining three issues involve the damages to which plaintiffs are entitled in the event that they satisfy their burden of proof. Defendants first argue that plaintiffs cannot recover for anxiety and psychological damage and pain and suffering related to the termination of Ms. Catlin’s pregnancy. The applicable statute states, in part, that “[njothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or a child, as a result of an attempted abortion.” 42 Pa.C.S.A. § 8305(a). As a result, plaintiffs may recover damages in connection with the termination of the pregnancy. Specifically, if plaintiffs sustain their burden of proof, they are “entitled to recover all medical expenses and lost wages related to pre-natal care, delivery, and post-natal care, as well as compensation for pain and suffering incurred during the pre-natal through postnatal periods.” Hatter v. Landsberg, 563 A.2d 146, 150 (Pa. Super. 1989) (citing Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 486, 453 A.2d 974, 976 (1982)). Therefore, plaintiffs may recover for pain and suffering related to the termination of Ms. Gatlin’s pregnancy.

Defendants next argue that plaintiffs may not recover for pain and suffering, wage loss, and other damages into the indefinite future. As stated above, plaintiffs may recover damages related to the pregnancy that were incurred during the pre-natal through post-natal periods. The amount of such damages is a question for the jury to decide based on the evidence presented by both parties. The same reasoning applies to defendants’ final issue. Whether plaintiffs are entitled to 29 weeks or six to eight weeks of wage loss payments is a question for the jury.

ORDER OF COURT

And now, July 20, 2011, the court having heard oral argument on June 28, 2011 regarding defendants’ motion in limine, with John A. Caputo, Esquire and Carmen F. Lamancusa, Esquire, appearing and representing the plaintiffs, and Judith A. Moses, Esquire, appearing and representing the defendants, it is hereby ordered and decreed:

1. Defendants’ motion in limine is granted in part and denied in part pursuant to the attached opinion.

a. The portion of plaintiffs5 expert’s opinion regarding lack of informed consent shall be stricken.
b. Defendants’ motion in limine is denied in all other respects.

2. The Prothonotary shall properly serve notice of this order and attached opinion upon counsel of record.

      . The court notes that both parties have cited cases addressing the issue of an expert’s testimony falling outside of the fair scope of that expert’s report. There is no indication that Dr. Halbridge’s testimony will contain theories or assertions that are outside the fair scope of his report. Therefore, the court finds that any such argument is also without merit.


author: CEPPARULO, J.,

text:
    Commonwealth v. Sarsfield

      Brian Scanlon, for Commonwealth.

      Sharif Abaza, for defendant.
    August 1, 2011

      . Baker was charged in Bucks County Criminal Information Nu - bers 0672-2010, 7542-2010, 7505-2010, and 6872-2010.

   CEPPARULO, J.,

I. INTRODUCTION

Defendant Thomas Sarsfield appeals to the Superior Court of Pennsylvania from the denial of his pro se motion to withdraw his nolo contendere pleas. We file this opinion pursuant to Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(a).

II. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the commission of three residential burglaries in Warrington, Langhome, and Bensalem, Pennsylvania by defendant and a co-defendant, Jerry Lee Baker.

On July 31, 2010, Warrington Township police responded to 46 East Kulp Road in Warrington, Bucks County, Pennsylvania for a report of a residential burglary. (Prelim. Hr’g N.T. 20.) Resident Jacqueline Springier told police that she had received a phone call from a neighbor who informed her that a white Mitsubishi Gallant was parked in her driveway. (Prelim. Hr’g N.T. 21; see id. at 34.) Upon returning home, Ms. Springlier saw footprints and pry marks on the inner garage door and realized that a flat screen television, jewelry, power tools, and a set of golf clubs were missing from her home. (Prelim. Hr’g N.T. 21.)

On August 1, 2010, William Erickson returned from a vacation to his residence located at 3713 Hickory Lane, Bensalem, Bucks County, Pennsylvania, to find that the door had been kicked in and his home had been ransacked. (Prelim. Hr’g N.T. 7-9.) When Bensalem police responded, Mr. Erickson reported that jewelry and his off-white Mitsubishi Gallant, with a tag number of EKH-5820, were missing. (Prelim. Hr’g N.T. 11.)

On August 2, 2010, fifteen-year-old Tyler Edwards (“Tyler”) was alone in his residence located at 200 National Avenue, Langhome, Bucks County Pennsylvania. (Prelim. Hr’g N.T. 38-39.) While in his bedroom, Tyler heard noises and then saw a person, who was later identified as matching the description of defendant, in the master bedroom. (Prelim. Hr’g N.T. 39.) Because he did not recognize defendant, Tyler attempted to hide by silently closing his bedroom door. (Id.) A second man, later identified as the co-defendant, Jerry Lee Baker, opened Tyler’s bedroom door, saw Tyler, and yelled “we gotta go” before fleeing with defendant to a car parked in the driveway of the home. (Prelim. Hr’g N.T. 48, 39.) A neighbor informed Langhome Borough police that he observed a white male flee from the residence into a white Mitsubishi and drive off at a high rate of speed. (Crim. Info. No. 7666-2010, Aff. of Probable Cause, 7-8.) Tyler’s mother, Lisa Edwards, and stepfather, Stephen Garris, returned to the residence and informed police that jewelry and prescription drugs were missing. (Id.)

On August 4, 2010, Middletown Township police responded to a report of a suspicious vehicle in Levittown, Bucks County, Pennsylvania. (Crim. Info. No. 7506-2010, Aff. of Probable Cause, 5.) The police found that the vehicle, a 2001 white Mitsubishi Gallant with the tag number EKH-5820, had been reported as stolen. (Id.) Defendant and Baker were observed inside the vehicle by police, who after arresting defendant and Baker, spotted several syringes, one containing blood and the other containing heroin, and a small plastic bag with drug residue, later confirmed to be marijuana. (Plea Colloquy N.T. 12.) Upon the execution of a search warrant, police also recovered items which had been reported stolen by Jacqueline Springier, William Garrison, Lisa Edwards, and Stephen Garris. (See Plea Colloquy N.T. 11.)

Defendant was charged in four criminal informations. For the break-in at William Erickson’s house, defendant was charged with burglary, theft by unlawful taking, and receiving stolen property. (Crim. Info. No. 7506-2010.) For the break-in at Tyler Edwards’s house, defendant was charged with burglary, criminal trespass, criminal mischief, two counts of theft by unlawful taking, and conspiracy to commit the foregoing offenses. (Crim. Info. No. 7666-2010.) For the break-in at Jacqueline Springler’s house, defendant was charged with burglaiy, theft by unlawful taking, and criminal trespass. (Crim. Info. No. 7543-2010.) Finally, defendant was charged with possession of a controlled substance and possession of drug paraphernalia. (Crim. Info. No. 6873-2010.)

On March 14, 2011, defendant entered pleas of nolo contendere to the burglaries in Bensalem, Langhome, and Warrington and a plea of guilty to the possession charges.

During the counseled colloquy, defendant testified he understood that a nolo contendere plea would be treated the same as a guilty plea for purposes of sentencing. (Plea Colloquy N.T.3.) Defendant also stated he understood that he had a right to a juiy trial in which the Commonwealth was required to prove his guilt beyond a reasonable doubt and in which defendant was allowed, but not required, to present evidence in his defense. (Plea Colloquy N.T. 4.) Defendant then affirmed he was waiving his right to file pretrial motions and to have a jury determine his guilt or innocence. (Id.)

Next, we explained the penalties associated with the charged offenses to allow defendant to make an informed decision about entering a guilty or a nolo contendere plea. (Plea Colloquy N.T. 5.) Defendant stated that he understood the following: (1) his drug offense was an upgraded misdemeanor which carried a maximum penalty of one year’s incarceration and a $5,000 fine, (2) his first-degree felonies carried a maximum penalty of twenty years’ incarceration and a $25,000.00 fine, (3) conspiracy, when charged as a second-degree felony, carried a maximum penalty of ten (10) years’ incarceration and a $25,000 fine and, when charged as a third-degree felony, carried a maximum penalty of seven years’ incarceration and a $15,000 fine. (Plea Colloquy N.T 5-6.)

Defendant also testified that: (1) he was not under the influence of drugs, alcohol, or medication that impaired his ability to understand his plea; (2) no one forced or threatened him to coerce him to enter a plea; (3) he was pleading guilty to possession of drug paraphernalia because he was guilty of that charge; (4) he was pleading nolo contendere on the other charges because he could not contest the Commonwealth’s evidence; (5) he understood he could be sentenced consecutively or concurrently; and (6) he understood this court was not bound to accept a negotiated guilty plea and, if we did not, he could then have the right to withdraw his guilty plea. (Plea Colloquy N.T. 6-7.) Defendant also affirmed that he understood his guilty plea had only a limited right of appeal and that there was a ten-day period after the imposition of his sentence to file post-verdict motions and a thirty-day period after the imposition of his sentence to file an appeal. (Plea Colloquy N.T. 7-8.)

The Commonwealth then provided the factual basis for the plea, as noted above. (Plea Colloquy N.T. 8-12.) Defendant testified that he remembered being arrested in the white Mitsubishi. (Plea Colloquy N.T. 13.) Defendant testified that, because he was under the influence of heroin while he committed the burglaries and could not remember much of what haspecifically in each home, he decided to enter into a partial nolo contendere plea. (Id.) We next reviewed with defendant his extensive criminal history. (Plea Colloquy N.T. 13-16.)

Next, defendant testified that, while committing the burglaries, he and his co-defendant were “basically on a heroin binge” and that he had very little, if any, recollection of the crimes. (Plea Colloquy N.T. 17-18.) Defendant testified that he had been prepared to go to trial on March 14, 2011 but decided to enter pleas upon discovering his co-defendant was prepared to testify against him. (Plea Colloquy N.T. 18.) Furthermore, defendant testified that he had reviewed the standard range guidelines with defense counsel and that he understood the sentencing range he was facing. (Id.) Defendant then stated “I would just like to apologize to the court and to the victims and to my family for my actions” and informed the court that he was grateful for being allowed to speak with his mother before deciding to enter pleas. (Plea Colloquy N.T. 19.)

Defendant was sentenced to not less than seven (7), nor more than fourteen (14) years’ incarceration for burglary at Tyler Edwards’s home in Langhome, Pennsylvania. Additionally, defendant received not less than three (3), nor more than ten (10) years’ incarceration for the burglary of Jacqueline Springier’s house in Warrington, Pennsylvania. Defendant also received not less than three (3), nor more than ten (10) years’ incarceration for the burglary at William Erickson’s house in Bensalem, Pennsylvania. Furthermore, defendant pled guilty to possession of a controlled substance and was sentenced to not less than six (6) months nor more than one (1) year of incarceration. There was no further penalty on the remaining counts. We ordered that defendant’s four sentences would mn concurrently and include credit from August 4, 2010, the date of defendant’s arrest, to March 16, 2011, the date of sentencing.

On March 17, 2011, defendant filed a pro se “Motion To Withdraw Nolo Contendere Plea.” In addition to asserting his innocence and that his nolo contendere pleas were not knowing, intelligent, and voluntary, defendant argued that he had felt coerced, frightened, and depressed and that the nolo contendere pleas were the product of an alleged deteriorated physical and mental condition.

At the hearing on May 6, 2011, defendant testified that he was not guilty of the crimes charged and that he had not made a knowing and intelligent decision to plead guilty. (Withdrawal Hr’g N.T. 5.) Defendant explained that he was prepared to go to trial but was overwhelmed when he discovered his co-defendant was prepared to testify against him. (Id.) Defendant further testified that after being sentenced and again speaking to his family, he knew he did not commit these crimes and that he made the wrong decision to plead and would rather have gone to trial. (Id.) Defendant also testified as follows:

And like there was - there was no pre-sentence or anything done. Before I pled guilty, I was - the impression - I pled nolo contendere to these crimes. It was all in a five-minute period. I was overwhelmed at the time. I didn’t have time to prepare. There was no other talks of pleading guilty until the morning this happened, and I wasn’t prepared for this, and I was overwhelmed by the fact I didn’t even commit the crimes. I would rather have took my chance at trial.” (Withdrawal Hr’g N.T. 5-6.)

Defendant however admitted that he remembered this court explaining that a plea of nolo contendere provides for the same sentence as a guilty plea. (Withdrawal Hr’g N.T. 6.) Defendant further admitted that he remembered “in a roundabout way” that he had acknowledged during his plea that he was aware of the Commonwealth’s evidence and also that the evidence was sufficient to convict him of the charges and that he possessed no evidence to challenge the charges against him. {Id. ) Most importantly, defendant acknowledged that we had fully explained to him, in accepting his nolo contendere pleas, that for purposes of a criminal case, a nolo contendere plea was the same as a guilty plea and that defendant would, accordingly, be sentenced on all charges together.

Finally, after reviewing the facts of the case and the sentences imposed, we found defendant’s testimony not credible and therefore denied his motion to withdraw his nolo contendere pleas. On May 18, 2011, defendant filed this appeal to the Superior Court.

III. MATTERS COMPLAINED OF ON APPEAL

Pursuant to this court’s order of May 24, 2011, defendant filed his statement of matters complained of on appeal, raising the following issues, verbatim:

1. Was [defendant’s] plea “knowingly, voluntarily and intelligently made”?

IV. ANALYSIS

Defendant’s sole assertion on appeal is that he did not enter his nolo contendere pleas knowingly, voluntarily, and intelligently. Although this verbatim statement is vague and imprecise, stated another way, defendant asserts (we believe) that this court erred in denying his motion to withdraw nolo contendere pleas because, by alleging that the plea was not entered knowingly, voluntarily, and intelligently, defendant claims prejudice on the order of manifest injustice.

A guilty plea is treated the same as a nolo contendere plea in terms of its effect upon a given case. Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010); Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 2004). In order to be valid, a guilty plea or a nolo contendere plea must be knowingly, voluntarily, and intelligently entered. See Commonwealth v. Pollard, 382 A.2d 517 (Pa. Super. 2003). Although there is no absolute right to withdraw a plea, Commonwealth v. Muhammad, 832 A.2d 517, 522 (Pa. Super. 2003), a motion to withdraw plea made prior to sentencing is to be liberally allowed where a defendant offers a “fair and just reason,” Commonwealth v. Gunter, 565 Pa. 79, 84, 771 A.2d 767, 770 (2001) (citing Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973)).

After the imposition of sentence, however, the standard for withdrawal of a plea is much higher and a defendant who wishes to withdraw a plea must show “prejudice on the order of manifest injustice” before the grant of his motion is properly justified.” Commonwealth v. Carpenter, 555 Pa. 434, 454, 725 A.2d 154, 164 (1999); Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002). Manifest injustice occurs where a plea was “entered into involuntarily, unknowingly, or unintelligently.” Muhammad, 794 A.2d at 383 (citing Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999)).

To determine whether a defendant’s plea was involuntary, unknowing, and unintelligent, a court examines the guilty plea colloquy and inquires into the following areas: (1) the nature of the charges; (2) the factual basis of the plea; (3) the right to a trial by jury; (4) the presumption of innocence; (5) the permissible range of sentences; and (6) the judge’s authority to depart from any recommended sentence. Muhammad, 794 A.2d at 383-84; Pa.R.Crim.P. 590 Comment. The adequacy of the plea colloquy and the voluntariness of the resulting plea are evaluated in light of the totality of the circumstances surrounding the entry of that plea. Id. Lastly, a defendant who enters a guilty plea is presumed to be aware of what he is doing and bears the burden of proving otherwise. Pollard, 832 A.2d at 523.

Here, defendant did not seek to withdraw his nolo contendere pleas until after this court imposed four concurrent sentences and was therefore required to show that his nolo contendere pleas were entered unknowingly, involuntarily, and unintelligently. In making this determination, we first considered the plea colloquy. During the colloquy, defendant testified that he understood he was entitled to a jury trial in which the Commonwealth would need to prove his guilt beyond a reasonable doubt. (See Plea Colloquy N.T. 4.) Defendant stated that he understoodthathe was entitledto, butnotrequiredto present evidence in his defense and that by entering a plea he was waiving his right to atrial. (See id.) Furthermore, defendant testified that he understood the maximum penalties authorized for an ungraded misdemeanor and felonies in the first, second, and third degrees and, additionally, that even though he was charged with offenses including theft, criminal trespass, and criminal mischief, that he could be sentenced only on the burglary and conspiracy offenses. (See Plea Colloquy N.T. 5-6.) Defendant also stated he was aware that he could face either concurrent or consecutive sentences on the possession, burglaiy, and conspiracy charges. (See Plea Colloquy N.T. 7.)

Additionally, the Commonwealth established the factual basis underlying the charges against defendant, which provided that defendant had entered residential homes without the owners’ permission, that jewelry, a television, and other items of value were reported missing from those homes, and that defendant was found in a vehicle which was spotted at all three residences and which, after his arrest, was found to contain items reported missing from the three homes as well as drug paraphernalia. (See Plea Colloquy N.T. 8-12.) At no point during the plea colloquy, even after the Commonwealth’s recitation of the facts, did defendant contest any of the underlying facts. (See Plea Colloquy N.T. 13.) Defendant, rather, testified that he had decided to plead nolo contendere because he could not contest any of the Commonwealth’s evidence. (See id.) Defendant stated during the colloquy that he informed this court that he could not contest this evidence because he was on a “heroin binge” and could recall little, if any, of the three burglaries. (See id.)

We further note that despite defendant’s admitted history of heroin use, he testified that he was not then under the influence of heroin or any other controlled substance during the colloquy. (See Plea Colloquy N.T. 7.) Only after being sentenced to a concurrent term of incarceration did defendant later assert that he knew he “didn’t even commit the crimes.” (See Withdrawal Hr’g N.T. 5.) Defendant, however, admitted that he remembered stating he was aware of the Commonwealth’s evidence, which he could not contest and which was sufficient to convict him in each case. (See id.) The contrast between his testimony at the colloquy that he could not contest the Commonwealth’s evidence and his statement and his testimony at the hearing on the motion to withdrawal his plea evinces only defendant’s displeasure with the length of his sentence rather than any lack of voluntariness during his plea. Based on the foregoing, therefore, we did not find his assertion of innocence to be credible.

Finally, defendant’s assertions that he was overwhelmed prior to entering his pleas by his discovery that his co-defendant was prepared to testify against him and by the “fact” that he is actually innocent of the crimes charged, (See Withdrawal Hr’g N.T. 6), are belied by the statements he made during the plea colloquy and the evidence. During the colloquy, defendant testified that he was prepared to proceed to trial, despite not being able to remember the specifics of the three (3) burglaries, and that only upon learning that the co-defendant was going to testify against him did he change his mind. (See Plea Colloquy N.T. 18.) Defendant testified that he was grateful that he had been able to speak with his mother prior to deciding to enter a nolo contendere plea. (See Plea Colloquy N.T. 19.) We found defendant’s decision was not “spur-of-the-moment” or the result of being overwhelmed by his innocence, but rather was a calculated decision made by defendant after discovering his co-defendant would testify for the Commonwealth and after discussing whether to enter nolo contendere and guilty pleas with both defense counsel and his mother. Even though defendant apparently changed his mind again after being sentenced, he failed to present any credible evidence that his decision to plead nolo contendere and guilty was anything other than voluntary, knowing, and intelligent.

Accordingly, we denied defendant’s motion to withdraw his nolo contendere pleas.

V. CONCLUSION

The foregoing represents this court’s opinion regarding defendant’s appeal from the denial of his motion to withdraw his nolo contendere pleas.

      . For ease of reference, notes of testimony from the preliminary hearing held on December 15,2010 is referred to “Prelim. Hr’g N.T.”

      . For ease of reference the Notes of Testimony from the colloquy conducted on March 14, 2011 shall be referred to as “Plea Colloquy N.T.”

      . 18 Pa.C.S. § 3502(a).

      . 18 Pa.C.S. § 3921(a).

      . 18 Pa.C.S. § 3925(a).

      . 18 Pa.C.S. §3503(a)(1).

      . 18 Pa.C.S. § 3304(a)(5).

      . 18 Pa.C.S. §§ 3502(a), 3921(a), 3503(a)(1), 3304(a)(5).

      . 35 Pa.C.S. §780-113(a)(16).

      . 35 Pa.C.S. §780-113(a)(32).

      . Defendant had multiple juvenile adjudications. Defendant was charged with (1) driving under the influence in 1990, (2) escape in 1991, (3) possession of drug paraphernalia in 1992, (4) escape in 1992, (5) criminal conspiracy to commit theft by unlawful taking in 1992, and (6) robbery in 1993.
      Defendant also had multiple contacts with the criminal justice system as an adult. In January 1994, defendant pled guilty to simple assault, and in April 1994, he pled guilty to receiving stolen property. In November 1994, defendant pled guilty to theft by unlawful taking, and in a separate case, to burglary. In February 1996, defendant was found guilty of receiving stolen property. In January 1998, defendant pled guilty to receiving stolen property. In July 1999, defendant pled guilty to retail theft. In August 2000, defendant pled guilty to unauthorized use of a vehicle. In February 2005, defendant pled guilty to retail theft in two separate cases and also to receiving stolen property and fleeing and eluding in a third case. In January 2007, defendant was found guilty of retail theft, and in September 2007, defendant pled guilty to retail theft. In June, 2008, defendant pled guilty to use and possession of drug paraphernalia.

      . Defendant was represented at the withdrawal of plea hearing by Keith Williams, Esq., who, after the hearing on May 6, 2011, filed the instant appeal and moved to withdraw his appearance. This court appointed W. Craig Penglase, Esq., who subsequently withdrew his appearance due to a conflict of interest caused by Mr. Penglase’s representation of co-defendant Baker. Thereafter, we appointed Sharif Abaza, Esq., who is representing defendant on the instant appeal.

      . For ease of reference the Notes of Testimony from the hearing conducted on defendant’s motion to withdraw his nolo contendere pleas will be referred to as “Withdrawal Hr’g N.T.”

      . Although defendant’s concise statement is somewhat vague, it is nevertheless abundantly clear from the history of this case and defendant’s pro se motion to withdraw his nolo contendere pleas that defendant’s complaint is that this court had no basis to deny his motion to withdraw his nolo contendere pleas and we will therefore address this issue.

      . The fact that defendant had been in custody from August 4,2010 to March 14, 2011 provided us with confidence that defendant was not now under the influence of a controlled substance and also that defendant had had a sufficient period of time to review the discoverable materials provided by the Commonwealth prior to his pleas.


author: COX, J.,

text:
    Kokrak v. Colella

      Nicole Greer, for plaintiff.

      LeeAnn A. Fulena, for defendants.
    June 27, 2011
   COX, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of defendants Rosemary L. Colella and John P. Colella, which argues that the plaintiff has failed to establish the dog that bit him had a vicious propensity.

The plaintiff began a partnership with Rick Porco in which they did fire restoration work. The plaintiff was hired to perform fire restoration tasks at the defendants’ residence located at 2416 Old Pittsburgh Road, New Castle, Lawrence County, Pennsylvania. His main task was to remove a rancid odor from clothes and draperies. When the plaintiff arrived at the defendants’ residence for his first visit, Mrs. Colella was standing in the kitchen with her Greyhound dog lying nearby. The dog did not growl or bark when the plaintiff drove up to the residence or when he entered. The dog did not appear to have aggressive tendencies at that time. Subsequently, the plaintiff made several other trips to the defendants’ residence and the dog did not display any type of aggressive behavior towards him. On December 1, 2007, the plaintiff entered the residence to hang draperies. Mr. and Mrs. Colella were present at the residence on that occasion. The plaintiff stood on a stool and hung the draperies. While he was doing so, the dog laid in the living room watching him work. The dog did not bark or growl at the plaintiff. When he finished hanging the draperies, the plaintiff asked to pet the dog and was granted permission to do so from Mrs. Colella. The plaintiff approached the dog at that time and patted it on the head. In response, the dog immediately bit the plaintiff on the index and middle fingers of his right hand. The dog continued to squeeze the plaintiff’s hand until Mrs. Colella yelled something to make him stop. Immediately thereafter, Mrs. Colella shouted for Mr. Colella and she led the plaintiff to the kitchen to clean his wound. The plaintiff then sat down at the kitchen table, drank a Coke and exited the residence. Mr. Colella offered to transport the plaintiff to the hospital to seek medical care, but the plaintiff declined and drove himself home. However, the plaintiff went to the hospital the next day after being urged to do so by his mother. The plaintiff remained in the hospital for two days and received intravenous antibiotics.

On January 9, 2008, the plaintiff underwent exploratory outpatient surgery, but the plaintiff has not had any other treatment for his injuries since that time, except for occupational therapy. The plaintiff admitted that he did not have to miss work as a result of his injuries, but is required to use his other hand to complete some tasks in poor weather. Hence, the plaintiff filed suit against the defendants to recover damages for the injuries he sustained from the dog bite. However, the defendants have now filed this motion for summary judgment asserting that there is no evidence that the dog had a propensity for viciousness.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law 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 if, after the 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. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Id. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shinor Silicones, Inc. 756 A.2d 697 (Pa. Super. 2000). The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000) (citation omitted). Only when the facts are so clear that reasonable minds cannot differ, a trial court properly enters summary judgment. Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001) (citing Cochran v. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995)). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

It is well established in Pennsylvania law that liability for an animal biting a person attaches to the animal’s owner if the owner knew or had reason to know that the animal displayed vicious tendencies. Kinley v. Bierly, 876 A.2d 419, 422 (Pa. Super. 2005) (citing Restatement (Second) of Torts § 518). However, mere awareness of a vicious propensity does not per se expose the owner to liability, if the owner takes proper precautions to preclude that viciousness from exhibiting itself. Deardorff v. Burger, 414 Pa. Super. 45, 50, 606 A.2d 489, 492 (1992) (citation omitted). In Deardorff, the court determined that knowledge of a previous bite by a dog may not be sufficient to establish that the dog had a propensity for viciousness because there was evidence that the dog was mistreated prior to performing the first bite and the dog did not demonstrate any other signs of viciousness. Id., 414 Pa. Super, at 53, 606 A.2d at 493. Several factual instances set forth circumstances that constitute knowledge of the dog’s viciousness or dangerous propensities, which include but are not limited to: (1) complaints brought to the owner’s attention; (2) fighting with other dogs; (3) frequent confinement of the dog; (4) warning signs on the owner’s premises; and (5) statements by the owner as to the dog’s character. Sheptak v. Wagner, 23 Pa. D. & C. 3d 46, 48 (Pa. Com. Pl. 1982) (citing Proof of Facts 2d, vol. 13, pg. 473).

The plaintiff has attached two cases from the Court of Common Pleas of Lawrence County. The first case is Allen v. Tanchuk, 11 Pa. D. & C. 5th 326 (Com. Pl. Lawrence 2009), which was before this court on a motion for summary judgment. In that case, the plaintiff was employed at a veterinary clinic where the defendant brought her dog to get a rabies booster shot and a physical examination for its refusal to eat. The plaintiff held the dog as the doctor performed his examination. While that was occurring, the dog began wagging its tail and striking the doctor in the groin area. In response, another individual accompanying the defendant grabbed the dog’s tail, but was instructed to release it. When he did so, the dog became violent and attacked the plaintiff. This court determined that the dog previously demonstrated a propensity for viciousness as there was evidence that the dog did not like its tail or back legs touched, it had aggressive tendencies “when it would see black people or someone in uniform” and the dog was acting strangely after the death of the defendant’s husband. In addition, someone accompanying the defendant indicated to the staff that the dog should have been muzzled because it was uncomfortable around new people, but failed to inform the plaintiff or the doctor about that situation. Accordingly, it was determined that the plaintiff provided sufficient evidence to establish that the dog had a propensity for viciousness, which the defendant should have known and provided safeguards for the plaintiff. Id.

The plaintiff also cited to Mangino v. Cowher, 13 Pa. D. & C. 5th 427 (Com. Pl. Lawrence 2010), which was determined by the Honorable Judge Thomas M. Piccione. In that case, the plaintiff was injured while riding a bicycle near the defendant’s property when a dog owned by the defendant charged toward him. The plaintiff attempted to elude the dog, fell from the bicycle and sustained injuries. He subsequently filed suit claiming negligence and negligence per se. The defendants filed a motion for summary judgment, which was denied by Judge Piccione. The plaintiff presented evidence that the dog demonstrated a vicious propensity because it would often run along the defendants’ lawn and bark at him as he rode past on his bicycle. The only barrier preventing the dog from chasing the plaintiff on previous occasions was an electric fence. The defendants were aware of these events because they were outside and observed the dog’s behavior. Therefore, Judge Piccione determined that a fact-finder could infer from the evidence presented that the dog demonstrated a propensity for viciousness and the defendants were aware of that propensity. Id.

In the case sub judice, the evidence established that the plaintiff entered the defendants’ residence on several occasions to perform his work-related tasks, such as cleaning different types of fabrics that were soiled by smoke damage. On these visits, the plaintiff observed the defendants’ dog, but did not notice that it had any aggressive tendencies. The dog did not bark or growl at him and, on most occasions, it appears the dog did not acknowledge the plaintiff’s presence. On the plaintiff’s last visit, he was hanging draperies and noticed that the dog was watching him. The plaintiff decided he wanted to pet the dog and he asked for permission to do so, which was granted by Mrs. Colella. As the plaintiff was patting the dog on the head, it bit him on the hand and clamped down tightly causing the plaintiff’s injuries.

In his deposition, the plaintiff indicates that he discovered, after he was bitten, that the dog had a dangerous propensity, but he does not explain from whom he received that information and what type of dangerous propensity was exhibited by the dog. Moreover, the plaintiff admitted that he did not know whether the dog demonstrated a dangerous propensity prior to this incident. However, throughout his deposition, the plaintiff indicated that the dog was unresponsive when he entered the residence and it did not exhibit any type of aggressive behavior. In fact, the plaintiff explained that the dog never barked or growled at him when he entered the residence. Mrs. Colella testified that she usually allows people to pet her dog because it never demonstrated a propensity for viciousness. She stated that the dog often greets people when they enter the residence, which consists of the dog acting excited, but it never growls or barks, and then leaves the visitor alone for the duration of their stay. In his deposition, Mr. Colella stated that none of the workers asked to have the dog removed from the residence while they were there and they did not express any fear regarding the dog.

The plaintiff now argues that, based on Allen and Mangino, he has presented sufficient evidence to establish that the dog had a dangerous propensity. However, in both of those cases, the record establishes that the dogs had displayed some form of vicious or aggressive behavior prior to the incidents for which the plaintiffs filed suit. In Allen, the dog did not like its tail or back legs touched, it had aggressive tendencies “when it would see black people or someone in uniform” and the dog was acting strangely after the death of the defendant’s husband. Furthermore, a person accompanying the defendant indicated that the dog should be muzzled during the examination because it was uncomfortable around new people. Similarly in Mangino, the dog often barked and ran along the line of the electric fence when the plaintiff rode his bicycle past the defendants’ residence. The defendants often observed the dog’s behavior when the plaintiff rode his bicycle. In the current case, the plaintiff has not presented any evidence that the dog displayed any aggressive tendencies. The dog did not bark or growl when he entered the residence. In fact, it seems that the dog did not react to the plaintiff’s presence. The most menacing behavior that the plaintiff provides is that the dog was staring at him while he was hanging draperies. Clearly, the evidence is insufficient to demonstrate that the dog had a dangerous propensity or that the defendants knew or should have known the dog was vicious. Therefore, the plaintiff has failed to present the court with sufficient evidence to establish that the dog displayed a propensity for viciousness prior to this incident.

For the reasons set forth in this opinion, the defendants’ motion for summary judgment is granted.

ORDER OF COURT

Now this June 27, 2011, this case being before the court on May 31, 2011, for oral argument on the motion for summary judgment filed by the defendants, with both parties appearing through counsel, the plaintiff Albert Kokrak represented by counsel Nicole Greer, Esquire and the defendants Rosemary L. Colella and John P. Colella represented by counsel LeeAnn A. Fulena, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion for summary judgment filed by the defendant is hereby granted.

2. The Prothonotary is directed to enter a summary judgment in favor of the defendants Rosemary L. Colella Individually and John P. Colella, individually and Rosemary and John Colella jointly as husband and wife against the plaintiff Albert Kokrak.

3. The complaint filed by the plaintiff against the defendants at the above-captioned term and number is hereby dismissed with prejudice.

4. The Prothonotary is directed to serve a copy of this order of court upon counsel of record.