text:
    Perrini v. Madison Township Board of Supervisors

      Nicholas E. Fick, for plaintiffs.

      John C. McMeeking II and Susan M. Dean, for defendant Madison Township Board of Supervisors.

      Gerald A. Connor, for defendant Madison Township.

      Susan Smith Lloyd, for defendant Hanson Aggregates.

      Howard A. Rothenberg, for defendant Garvey.
    June 4, 2009
   MINORA, J,

The issue presently before the court is plaintiffs’ and defendant Hanson Aggregates’ appeal from special trial master (STM) Richard S. Campagna’s order dismissing defendant David Garvey P.E. from the case.

FACTS

In 1996, plaintiffs Teresa Perrini and Theresa Koziell purchased a house in Madison Township, Lackawanna County, Pennsylvania. In 2002, Madison Township undertook a road improvement project that involved repaving TR-344, deepening the drainage ditch that runs along the side of the road opposite plaintiffs’ house, and replacing drainage cross-pipes running underneath the road.

In December of 2003, plaintiffs sued the defendants alleging that the 2002 road improvement project resulted in increased water on their property. Plaintiffs allege three activities undertaken as part of the road improvement project that resulted in additional water on their property: (1) an alleged change in the slope of TR-344; (2) deepening of the drainage ditch running parallel to TR-344 that allowed water to infiltrate under the road; and (3) failure to re-establish a drainage cross-pipe underneath TR-344 to divert water from plaintiffs’ property.

PROCEDURAL HISTORY

On April 10, 2008 STM Campagna issued an order granting a rule on all parties to present evidence to show cause why defendant Garvey should not be discharged as a party in this matter. The rule returnable and hearing was set for 9:30 a.m. on October 16, 2008.

On October 16, 2008 counsel/representatives for defendant Hanson did not appear at the hearing before the STM. Plaintiffs, counsel for defendant Madison Township, and counsel for defendant Garvey were present for the hearing on October 16, 2008. On October 16, 2008 STM Campagna issued an order dismissing defendant David Garvey from the case.

Defendant Hanson and plaintiffs filed appeals to STM Campagna’s order of October 16,2008. An oral argument was held on February 26, 2009 and briefs have been submitted by the parties. This matter is now ripe for disposition.

LEGAL ARGUMENTS

Plaintiffs assert that STM Campagna, pursuant to the local rules of civil procedure only has the authority to set the time for filing dispositive motions and the dismissal of a party should be done by the dispositive motion for summary judgment, which the STM does not have the authority to hear.

Defendant Hanson asserts that STM Campagna lacked the authority to dismiss a party from the case, that the procedure purporting to dismiss defendant Garvey is invalid because defendant Garvey did not present a petition for rule to show cause, and that defendant Garvey did not seek to be dismissed through summary judgment or another appropriate procedure.

Defendant David Garvey asserts that Lackawanna Rules of Civil Procedure 4000 and 4000.1 give STM Campagna the authority to issue deadlines for the completion of discovery and the exchange of expert reports. Therefore, defendant Garvey asserts that STM Campagna is also empowered to enforce those deadlines if they are not complied with by issuing appropriate sanctions, which could include dismissal of a party.

LEGAL ANALYSIS

The Lackawanna County Local Rules of Civil Procedure state:

“Lacka.Cty.R.C.P 4000: Motion praecipe for discovery and scheduling matters.
“(a) Any court order regarding discovery, including orders involving sanctions and pretrial deadlines for the completion of discovery, the exchange of expert reports, the filing of case dispositive motions and other scheduled matters prior to the filing of a certificate of readiness, which a party seeks pursuant to any provisions of Pa.R.C.P. 4001 thru 4020 or any provisions of the Rules of Civil Procedure of the court of common pleas of Lackawanna County pertaining to discovery or scheduling order shall be sought by the presentation of a motion in compliance with the provisions of Lacka.Cty.R.C.P. 206.1,4000.1 and 4000.19.
“Lacka.Cty.R.C.P 4000.1: Motion for presentation before a special trial master.
“(a) Presentation to the court of a motion pursuant to Lacka.Cty.R.C.P. 4000 shall in all circumstances be initially presented to and decided by a special trial master appointed by the court who shall follow the same procedures set forth in Lacka.Cty.R.C.P. 4000.
“(b) An order of the special trial master may be appealed de novo by presentation of an appeal motion to the court, together with proof of payment of the clerk of judicial records of an appeal cost of an amount to be set by the court from time to time. The appeal motion shall be filed within 10 days of the order of the special trial master and shall be considered by the court pursuant to Lacka.Cty.R.C.P. 4000.
“(c) Motions practice before the special trial master shall be conducted in compliance with Lacka.CtyJLC.P. 206.1 and the master shall hear motions in the Lackawanna County courthouse on Monday and Thursday at 9:30 a.m., unless otherwise agreed by counsel and the master or by order of the master.
“(d) Presentation of a motion in any case in which the special trial master is involved shall be presented to the court rather than through the procedure set forth in this rule.
“Lacka. Cty.R. C.P 4019: Petitions for sanctions before a special trial master.
“(a) Any party seeking sanctions pursuant to Pa.R.C.P. 4019 for violation of an order of the special trial master pursuant to Lacka.Cty.R.C.P., of an order of the court pursuant to Lacka.Cty.R.C.P. 4000, or otherwise pursuant to Pa.R.C.P. 4019 shall, in all circumstances, initially do so by motion to the special trial master pursuant to Lacka.Cty.R.C.P. 4000.1.
“(b) Any order of the special trial master granting or denying a sanction may be appealed de novo by presentation of an appeal motion to the court, together with proof of payment of the clerk of judicial records of an appeal cost of an amount to be set by the court from time to time, and said appeal motion shall be considered by the court pursuant to Lacka. Cty.R.C.P. 4000.
Lacka. Cty.R.C.P. 206.1: Definition of petition.
“(a) In addition to an application to open a default judgment or a judgment of non pros, a party seeking relief from the court shall proceed by petition and rule when the party is seeking an order which is not otherwise covered by any statute or rule of civil procedure governing motions, including an order:
“(1) imposing sanctions for failure to obey a discovery order;
“(2) holding a party or witness in contempt;
“(3) granting relief from any other judgment, including judgments entered by confession; or
“(4) granting a preliminary injunction
“(b) Any person presenting a petition seeking the issuance of a rule to show cause must follow the procedures set forth in Lacka.Cty.R.C.P. 206.4(c).”

We first note that all parties have properly brought their discovery appeal to the decision of special trial master before this court pursuant to Lacka.Cty.R.C.P. §§4000.1(b) and 4019(b), which permits an order of a STM to be appealed de novo by presentation of a motion to the court to be filed within 10 days of the appealed decision and upon proof of payment to the court of appropriate costs. We find that the present appeals are properly before this court.

In Pennsylvania, the purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court. Gladstone Partners LP v. Overland Enterprise Inc., 950 A.2d 1011, 1014 (Pa. Super. 2008). The sine qua non of de novo review is not that the person or body conducting the review hears testimony anew; rather it is that such person or body possess and exercise the authority to arrive at an independent judgment on the matter in dispute. West Chester Area School District v. Collegium Charter School, 571 Pa. 503, 812 A.2d 1172 (2002). De novo review entails full consideration of case anew; reviewing body as in effect substituted for prior decision maker and redecides the case. Rebert v. Rebert, 757 A.2d 981 (Pa. Super. 2000).

Under the Lacka.Cty.R.C.P. §4000 a STM has the authority to set discovery deadlines for expert reports and enforce those deadlines. Under Lacka.Cty.R.C.P. §§4000.1 and 4019 the STM has the authority to issue sanctions for violations of the STM discovery deadlines, pursuant to Pa.R.C.P. §4019.

Pa.R.C.P. 4019 states in part:

“(a)(1) The court may, on motion, make an appropriate order if:
“(viii) a party or person otherwise fails to malee discovery or obey an order of court respecting discovery.
“(c) The court, when acting under subdivision (a) of this rule, may make
“(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
“(5) Such order with regard to failure to make discovery as is just.”

The decision whether to sanction a party for a discovery violation and the severity of such a sanction are matters vested in the sound discretion of the trial court. Philadelphia Contributionship Insurance Co. v. Shapiro, 798 A.2d 781, 785 (Pa. Super. 2002); see also, Luszczynski v. Bradley, 729 A.2d 83, 87 (Pa. Super 1999). The appellate court will not reverse a trial court’s order imposing a sanction unless the trial court abused its discretion. Luszczynski v. Bradley, supra at 87. When determining the appropriate sanction under Rule 4019 a trial court must weigh the following factors.

“(1) the nature and severity of the discovery violation;
“(2) the defaulting party’s willfulness or bad faith;
“(3) prejudice to the opposing party;
“(4) the ability to cure the prejudice; and
“(5) the importance of the precluded evidence in light of the failure to comply.”

The exercise of judicial discretion in formulating the appropriate sanction order requires the court to select a punishment which “fits the crime”. Dunn v. Maislin Transport Ltd., 310 Pa. Super. 321, 325, 456 A.2d. 632, 634 (1983). The most severe sanction a trial court can issue is dismissing the lawsuit. Philadelphia Contributionship Insurance Co. supra at 785; see also, Croydon Plastics Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997). The entry of default judgment will be proper only rarely, and in extreme circumstances. Sahutsky v. Mychak, Geckle & Welker P.C., 900 A.2d. 866 (Pa. Super. 2006). See also, Luszczynski v. Bradley, 729 A.2d 83, 88 (Pa. Super. 1999). “Therefore, dismissal is only appropriate where after ‘balancing] the equities,’ the court concludes that ‘the violation [of the discovery rules] is willful and the opposing party has been prejudiced.’” Philadelphia Contributionship Insurance Co., supra at 785 (Pa. Super. 2002).

1. The Nature and Severity of the Discovery Violation

In the instant case the nature of the discovery violation was the disobeyence of STM Campagna’s April 10,2008 order (rule returnable) directing the parties to present, in six months, all evidence and expert reports they had showing defendant Garvey’s fault in this matter. STM Campagna’s order outlined that if no evidence was presented within six months he would dismiss defendant Garvey from the lawsuit. As no parties presented any evidence and no expert reports on October 16,2008 STM Campagna dismissed defendant Garvey from the lawsuit.

This violation was severe because for five years defendant Garvey has been a party to this suit and been forced to defend this suit, while no specific allegations and evidence has been offered to show his involvement. Also, the April 10, 2008 order of STM Campagna set a hearing for the presentation of evidence and expert reports of the parties for October 16,2008. At said hearing defendant Hanson failed to appear and attorney for the plaintiffs failed to appear. Defendant Madison Township appeared but presented no evidence or expert reports and did not challenge the dismissal of defendant Garvey. Defendant Hanson and plaintiffs’ attorney did not feel it necessary to attend the hearing on October 16, 2008 or present expert reports and thereby failed to comply with the STM order.

Plaintiffs’ attorney was unable to make it to the October 16,2008 hearing due to weather conditions delaying his return from a hunting trip, however the STM gave six months to present evidence and expert reports and in that time frame plaintiffs failed to present any. Further it was not until four days after STM Campagna dismissed defendant Garvey from the suit that plaintiffs filed a motion to extend the discovery deadline. Plaintiffs further claim they could not produce an expert report indicating defendant Garvey’s liability until they obtained a third set of core samples from TR-344, which were not taken until January 2009. While this may be true, it does not explain why plaintiffs did not ask for a timely extension of the discovery deadline, waiting until four days after STM Campagna ordered the dismissal of defendant Garvey and then seeking a discovery extension, or why no new expert report has been produced now that plaintiffs have the third set of core samples. Plaintiffs’ attempt to justify their disobedience of STM Campagna’s order is insufficient and untimely.

From our analysis above it is this court’s conclusion that the discovery violation was severe enough to warrant the dismissal of defendant Garvey.

2. The Defaulting Party’s Willfulness or Bad Faith

To determine whether a party acted willfully or in bad faith, the court must examine the record. Stewart v. Rossi, 452 Pa. Super. 120, 126, 681 A.2d 214, 217 (1996). Rule 4019 does not expressly require the imposition of an order compelling discovery as a prerequisite to the trial court’s authority to impose an appropriate sanction. Griffin v. Tedesco, 355 Pa. Super. 475, 481, 513 A.2d 1020, 1023 (1986).

However, the Pennsylvania Superior Court found that a “lone violation of the Pennsylvania Rules of Civil Procedure without something further could not be deemed ‘willful,’ ‘contemptuous’ or ‘dilatory’.” Philadelphia Contributionship Insurance Co. supra at 785, quoting Estate of Ghaner v. Bindi, 779 A.2d 585, 589 (Pa. Super. 2001). In the Ghaner case the record revealed only a single failure to comply with the rules of civil procedure. The court reasoned that since there was not a repeated failure to comply with the rules of civil procedure and the conduct was inadvertent, the granting of a severe sanction (dismissal of the case) would be unwarranted. Ghaner supra at 590.

While in the present case the record reveals only a single failure to comply with a court order, we find this is sufficient to be deemed willful. STM Campagna gave the parties six months to present expert reports showing defendant Garvey’s liability. However, the parties completely ignored this order and not a single expert report was presented to the court. Normally parties are given 20 or 30 days to comply with discovery orders, rules returnable, but in this instance STM Campagna gave the parties six months. This extended time frame coupled with the lack of production of expert reports, and the fact that only a party was dismissed and not the entire case; leads this court to conclude that the parties acted willfully in their disregard for STM Campagna’s discovery order, perhaps because the evidence simply is not available to comply with the STM’s order.

3. Prejudice to the Opposing Party

In the case sub judice we see no or only minimal prejudice to the opposing parties. Only one party, and not plaintiffs’ entire case has been dismissed. The plaintiffs still have their case against defendants Hanson and Madison Township. Defendant Hanson still has an indemnification and contribution claim against defendant Madison Township.

Further, no party has asserted that the dismissal of defendant Garvey has created a prejudice. The parties’ main assertions in this matter are that STM Campagna lacked the authority to dismiss defendant Garvey. The parties opposing the dismissal discovery sanction, have still not shown nor alleged any prejudice. There still exists no evidence shown to this court, even after core samples have been taken, that implicates defendant Garvey. As such, it is the conclusion of this court that the prejudice to the opposing parties is not even proven to exist, and therefore does not rise to a level which implicates the sanction of dismissal was unwarranted.

4. The Ability To Cure the Prejudice

As we have already concluded prejudice is not a factor in this case, this factor is not relevant to our analysis of this case.

5. The Importance of the Precluded Evidence in Light of the Failure To Comply

As no evidence has been either produced or precluded by our decision in this case and the preclusion of evidence is not being advocated as an option, this factor is not relevant to our analysis of this case.

CONCLUSION

After reviewing the Lackawanna Rules of Civil Procedure and the Pennsylvania Rules of Civil Procedure it is the conclusion of this court that STM Campagna has the authority to set discovery deadlines, enforce discovery deadlines with sanctions when appropriate, and when deemed appropriate issue the discovery sanction of dismissing a party from a lawsuit.

Upon reviewing the record de novo and weighing the factors to determine the appropriate discovery sanction, it is the conclusion of this court: that the nature and severity of the incident warrants a dismissal, there was willfulness, and that the prejudice suffered by opposing parties was virtually nonexistent if any at all was suffered. Therefore, it is the opinion of this court that STM Campagna’s order of October 16,2008 dismissing defendant David Garvey P.E. is sustained and upheld and the plaintiffs’ and defendant Hanson Aggregates’ appeals of STM Campagna’s order dated October 16, 2008 are denied and dismissed. An appropriate order follows.

ORDER

And now, June 4, 2009, upon consideration of the pleadings, their supporting briefs, and the able oral arguments of counsel for the parties; STM Campagna’s order of October 16,2008 dismissing defendant David Garvey P.E. is sustained and upheld and the plaintiffs’ and defendant Hanson Aggregates’ appeals of STM Campagna’s order dated October 16, 2008 are denied and dismissed.

      . Plaintiffs’ counsel was not present at the meeting.

      . Philadelphia Contributionship Insurance Co. v. Shapiro, 798 A.2d 781, 785 (Pa. Super. 2002); see also, Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa. Super. 1997).


source: Caselaw Access Project

author: RUEST, J,

license: Public Domain

text:
    Witherite v. Witherite

      Brian K. Marshall, for plaintiff.

      Kimberly Hamilton, for defendant.
    July 30, 2009
   RUEST, J,

Presently before the court is a complaint for custody filed by plaintiff Julie L. Witherite on October 2, 2008. An interim order was entered on November 5,2008. Ahearing was held on March 16, 2009, and briefs submitted on or about May 1, 2009.

FINDINGS OF FACT

(1) The parties, Carl E. Witherite Jr. (Father) and Julie L. Witherite (Mother) are husband and wife, having been married on December 31, 1998.

(2) The parties are the parents of one minor child, Alex Witherite, whose date of birth is July 18, 1996.

(3) Pursuant to the court’s order of November 5,2008, the parties share legal custody, and Mother has primary physical custody, with Father having periods of partial physical custody every other weekend and at such times as may be arranged between the parties.

(4) Mother resides in a two-bedroom rented residence at 106 Water Street, Centre Hall, Centre County, Pennsylvania.

(5) Mother’s residence is in the Penns Valley Area School District.

(6) Father resides with his parents at 110 Hill Street, Unionville, Centre County, Pennsylvania.

(7) Father’s residence is in the Bald Eagle Area School District.

(8) Alex is in the seventh grade at the Penns Valley Area High School.

(9) Mother has a son, Philip, from a prior relationship. Philip is in the 12th grade at Bald Eagle Area High School.

(10) Mother has had primary physical custody of Philip for much of Alex’s life, so that until recently, Alex and Philip lived together most of the time. Philip went to live with his father in the spring of 2008.

(11) Father has two adult daughters from a prior relationship.

(12) Alex is healthy, as are both of the parties.

(13) The parties separated on or about September 22, 2008. Wife thereafter filed a petition to Centre County no. 2008-4135 under the Protection From Abuse Act on September 26,2008, and a modified and continued temporary PFA order was entered on October 16, 2008, by stipulation of the parties. As part of the stipulated order, Mother agreed to drop the temporary PFA order no later than three months after the entry of a final decree in divorce and/or the equitable distribution was completed. There were no allegations of abusive behaviors by Father against Alex.

(14) Mother filed an action in divorce in the Court of Common Pleas of Centre County, Pennsylvania on October 2, 2008.

(15) An individual by the name of Mike Bower has been staying overnight at Mother’s residence. Mother denies that she and Mr. Bower are involved in an intimate relationship, but instead claims that he is staying with her as a friend who needs her to care for him after an operation.

(16) When the parties separated, Father moved to his parents’ three-bedroom home in Fleming, Centre County, Pennsylvania, and he continues to reside there. The home is on approximately six acres of ground. Father would like to purchase a trailer, but is unable to make any financial plans until the equitable distribution of the parties’ property is resolved pursuant to the divorce.

(17) Father has a high school education and is employed as a miner with Graymont, where he has worked for 11 years.

(18) Father works swing shift, so one week he works the 6 a.m. to 2 p.m. shift, and the next week he works the 2 p.m. to 10 p.m. shift.

(19) While Mother claims to be employed from 6:45 a.m. to 2:45 p.m., she testified that she is receiving no hours at the present time.

(20) Mother has a high school education and is trained as a licensed practical nurse through the Central Pennsylvania Institute of Science and Technology.

(21) When Alex was young, Mother was not employed and was the child’s primary caretaker.

(22) In the past, Alex has been an average student. He is doing poorly in the seventh grade, and has received incompletes in some of his classes.

(23) Mother has taken steps, including obtaining internet access and a second set of textbooks from Alex’s school, so that she may monitor his academic progress and assist him with his homework and assignments.

(24)As of the time of the hearing, Alex was improving in his attitude toward academics and recently received a S.T.A.R. award in school.

(25) Mother assisted Alex with becoming a member of the swim team in summer 2008, and took him to his daily swim practices and weekly swim meets.

(26) Alex is now participating in the track program at Penns Valley Area High School.

(27) Prior to the parties’ separation during the summer of 2008, during the weeks when Father was on the 2 p-.m. to 10 p.m. shift, Father would leave for work several hours early, rather than spending time with Alex.

(28) Alex’s maternal grandmother, Carol Solt, lives in Bellefonte, is very involved in his life, and involves Alex in various activities, including camping. In addition she attends Alex’s extracurricular activities.

(29) Alex’s paternal grandparents, in whose residence Father resides, are 67 years of age and are both retired.

(30) They would be available to care for Alex when Father works the night shift. Alex’s grandfather has been diagnosed with cancer, but is currently doing well.

(31) Alex’s paternal grandmother does not drive.

(32) Alex has a good relationship with all of his grandparents.

(33) Alex has his own bedroom in both residences.

(34) Mother’s activities with Alex include riding a four-wheeler with him and going camping. Mother lets Alex drive the four-wheeler at her house and she reports that she supervises Alex from the house by watching him through a window.

(35) Father has serious concerns about Alex being permitted to drive the four-wheeler on his own. Father believes that Mother’s four-wheeler is much too big for Alex’s age and size and that an accident would seriously injure or even kill Alex, particularly if the four-wheeler turned over on him. Father showed the court a video segment that Alex sent him on his cell phone, riding the four-wheeler in his mother’s driveway.

(3 6) Father and Alex enj oy hiking, fishing and hunting together. They also spend time visiting with relatives, many of whom live in the area.

(37) If Father’s request for primary custody of Alex is granted, Alex would need to change from the Penns Valley School District to the Bald Eagle Area School District where his half brother is enrolled.

(38) The court interviewed Alex in chambers. Alex clearly loves both of his parents and did not explicitly state that he wanted to live with one parent or the other.

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) That which constitutes the best interest of a child is a fact-specific, case-by-case analysis of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Sawko v. Sawko, 425 Pa. Super. 450, 454, 625 A.2d 692, 693 (1993), citing Lee v. Fontine, 406 Pa. Super. 487, 594 A.2d 724 (1991).

(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) Factors relevant to the custody decision include the character and fitness of the parties seeking custody, the nature of proposed custodial homes, their ability to adequately care for the child and their ability to financially provide for the child. Moorman v. Tingle, 320 Pa. Super. 348, 467 A.2d 359 (1983).

(5) The preference of a child in a custody case, although not controlling, is a factor to be carefully considered, as long as it is based on good reason. E.A.L. v. L.J.W., 443 Pa. Super. 573, 662 A.2d 1109 (1995).

(6) At the outset of a custody dispute, both parents are on equal footing, and each has the burden of proving, by a preponderance of the evidence, that their having primary custody is in the best interest and permanent welfare of the minor child. Murphy v. Hatala, 350 Pa. Super. 433, 504 A.2d 917 (1986).

(7) When both parents are otherwise fit, one parent’s role as the primary caretaker may be given weight as the determining factor by the court. Wiskoski v. Wiskoski, 427 Pa. Super. 531, 629 A.2d 996 (1993), alloc. denied, 536 Pa. 646, 639 A.2d 33 (1994).

DISCUSSION

The paramount concern of the court in any custody matter is the best interest of the child. McMillen v. Mc- Millen, 529 Pa.198, 602 A.2d 845 (1992). That which constitutes the best interest of a child is a fact-specific, case-by-case analysis of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Sawko v. Sawko, 425 Pa. Super. 450, 454, 625 A.2d 692, 693 (1993), citing Lee v. Fontine, 406 Pa. Super. 487, 594 A.2d 724 (1991).

Alex has primarily resided with Mother since the parties’ separation. While Father has some legitimate concerns, Alex appears to be doing well in this current arrangement. When his grades dropped, Mother contacted the school and took actions to help him. She obtained internet access and a second set of textbooks so she could monitor his homework assignments and his progress. His grades began to improve. Mother has also arranged for extracurricular activities for Alex, including swimming and track.

Father has been only marginally involved in Alex’s academic and extracurricular activities. Father’s work schedule may be partially to blame, but even when his schedule permitted, he did not readily involve himself in his son’s life. If custody were to be changed, and Alex placed in Father’s primary custody, he would have to switch school districts. It is not clear this would be beneficial to Alex. Additionally, if Alex wanted to participate in sports and other extracurricular activities, transportation could be a problem due to Father’s work schedule.

Father does present valid concerns regarding Mother’s possible lack of supervision while Alex rides her four-wheeler. Obviously, Mother should supervise Alex at all times, and he should always wear a helmet when riding any four-wheeler.

It is clear that both parents love Alex and want what is best for him, and Alex loves both of his parents. When the court spoke with Alex, he did not indicate that he preferred to live with either parent. He did indicate that he wanted to spend more time with Father. After careful review of all the relevant factors in this case, the court concludes that the best interests of Alex will be served by keeping primary physical custody with Mother.

Accordingly, the following is entered:

ORDER

And now, July 30, 2009, it is ordered and decreed as follows:

(1) Mother and Father shall have shared legal custody of Alex.

(2) Mother shall have primaiy physical custody subject to Father’s periods of partial physical custody.

(3) Father’s periods of partial physical custody shall be exercised as agreed upon by the parties.

(4) If Mother and Father cannot agree upon a schedule, including vacations and holidays, this court will address the schedule upon petition of either party.

(5) Both parties shall ensure at all times that Alex is properly supervised.


author: KISTLER, J,

text:
    Commonwealth v. Williams

      Mark Smith, for Commonwealth.

      Ronald S. McGlaughlin, for defendant.
    July 29, 2009
   KISTLER, J,

Presently before this court is the omnibus pretrial motion, in the form of a motion to suppress, filed by Joanne C. Williams (defendant). For the following reasons, this court denies defendant’s motion to suppress.

STATEMENT OF FACTS

(1) On March 12, 2009, at approximately 2:45 a.m., Sergeant Muse of the State College police department was en route to the 1200 block of E. College Ave. to monitor a red Hyundai Elantra parked next to the Battery Warehouse.

(2) Earlier that same night the driver of the vehicle had been arrested at approximately 1 a.m. for DUI by Police Officer Salyards. Sergeant Muse had assisted in the arrest and observed the defendant undergo, and fail, the field sobriety tests.

(3) Officer Salyards had informed Sergeant Muse that he believed the defendant would return to her car to drive it home because the defendant had stated several times at the booking station she intended to return to her car that night since the police were unwilling to drive her home.

(4) Officer Salyards advised the defendant not to return to her car that night because he believed, based on his observations during the field sobriety test and the preliminary results from the breathalyzer, that defendant was still intoxicated and would be DUI if she chose to return to her car that night and attempted to drive.

(5) Acting on this information, Sergeant Muse returned to the location of defendant’s vehicle and parked his marked police vehicle, a Chevy Tahoe, in a manner such that he was unable to see the vehicle, but could see if the headlights were turned on.

(6) While monitoring the location of the vehicle, Sergeant Muse observed a Nittany Express taxi pulled in to the spot near defendant’s car.

(7) Sergeant Muse observed the headlights on the car turn on and observed the car pull out onto the road.

(8) Sergeant Muse pulled his police vehicle to within 10-20 feet of defendant’s car while driving, in order to discern whether defendant was operating the car.

(9) Sergeant Muse was able to see a single person operating the vehicle who had a hairstyle and body stature matching that of the defendant.

(10) Sergeant Muse observed no erratic driving from the vehicle.

(11) Acting on the information he received from Officer Salyards, the taxi cab arriving near defendant’s car, and a person with the same hairstyle and stature as defendant, Sergeant Muse believed defendant was operating the vehicle and pulled the car over after 35 seconds of observing the car from behind.

(12) The time between the first stop and the second stop was approximately one hour and 45 minutes.

(13) At the time the second stop was made, the weather was overcast.

DISCUSSION

Defendant argues that the stop of her vehicle was illegal in that Sergeant Muse did not have reasonable suspicion to believe that a motor vehicle violation had occurred pursuant to 75 Pa.C.S. §6308. This statute states:

“Section 6308. Investigation by police officers:
“(a) Duty of operator or pedestrian. — The operator of any vehicle or any pedestrian reasonably believed to have violated any provision of this title shall stop upon request or signal of any police officer and shall, upon request, exhibit a registration card, driver’s license and information relating to financial responsibility, or other means of identification if a pedestrian or driver of a pedalcycle, and shall write their name in the presence of the police officer if so required for the purpose of establishing identity.
“(b) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S. §6308(a) and (b).

Defendant takes the position that Sergeant Muse did not possess reasonable suspicion to stop defendant’s car because he did not actually observe defendant enter and operate the car and he did not observe any erratic driving. This argument, however, is fundamentally flawed for two reasons:

The first reason is that in a situation where information is relayed from one officer to another, the law requires the court to determine whether someone in the police department possesses sufficient information to give rise to reasonable suspicion. “The officer with the reasonable suspicion, usually the dispatcher, need not convey all of this background information to the officer who actually effectuates the stop. Thus, the police may justify the search by presenting sufficient evidence at the suppression hearing that someone in the chain of command had reasonable suspicion before the stop, even if the arresting officer did not.” Commonwealth. v. Anthony, 2009 WL 2006438 (Pa. Super. 2009) (citing Commonwealth v. Barber, 889 A.2d 587, 594 (Pa. Super. 2005)). In this instance, Officer Salyards engaged in several conversations with the defendant at the booking station. Defendant conveyed to Officer Salyards that she intended to return to her car that night and drive it home. Officer Salyards advised defendant against this course of action and told her that, in his opinion, she was still too intoxicated to operate a vehicle based on her performance during the field sobriety tests and field breath test. Defendant however was undeterred.

Taking into consideration all the information known to Officer Salyards, the court determines that Officer Salyards had reasonable suspicion to believe that defendant would attempt to return to her car that night and drive it home. This information was relayed to Sergeant Muse who initiated the stop of defendant’s vehicle based in part on this information. It is therefore immaterial that Sergeant Muse did not view the defendant actually enter and drive the vehicle because Officer Salyards had reasonable suspicion to believe that defendant would attempt to drive her car that night while intoxicated. Sergeant Muse was merely acting on Officer Salyard’s reasonable suspicion.

The second reason is that defendant’s argument attempts to limit this court’s review to the brief period of time in which Sergeant Muse is following defendant’s car. It is well-established law that the evaluation necessary to determine whether a police officer had reasonable suspicion requires the court to look at the totality of the circumstances. Commonwealth. v. Zhahir, 561 Pa. 545, 751 A.2d 1153 (2000). Therefore, the court must not limit its inquiry to the period of time Sergeant Muse followed defendant’s vehicle; rather, the court must take into consideration all of the information available to Sergeant Muse at the time of the stop. Sergeant Muse testified that he recognized defendant because he had a chance to observe her when she was first stopped. The court accepts as true that Sergeant Muse was able to discern that the person driving defendant’s car had the same hairstyle and stature as defendant. Sergeant Muse also had information from Officer Salyards that the defendant intended to return to her car after leaving the booking station. A relatively short period of time later, Sergeant Muse observed a taxi cab pull into the spot at a closed business, near defendant’s car. Based on the observations and information available to Sergeant Muse at the time he made the stop, the court determines that Sergeant Muse had reasonable suspicion to initiate a traffic stop of defendant’s vehicle. Defendant’s motion to suppress the evidence is therefore denied.

ORDER

And now, July 29, 2009, the defendant’s omnibus pretrial motion in the form of a motion to suppress, is hereby denied.


author: LASH, J,

text:
    Basile v. Berks County Board of Assessment Appeals

      MarkH. Koch, for appellant.

      William R.A. Rush, for appellee.

      George J. Ozorowski, for intervenor Daniel Boone Area School District.
    August 5, 2009
   LASH, J,

The appellant, Andrew G. Basile (landowner), has filed an appeal from the decision entered by the Berks County Board of Assessment Appeals, assessing residential real estate owned by landowner at $362,000, effective January 1,2009. A de novo trial was heard on the appeal on July 28,2009. The court enters the following findings of fact:

I. FINDINGS OF FACT

(1) The appellant, Andrew G. Basile, is an adult individual who resides at 279 Hallman Road, Douglasville, Berks County, Pennsylvania.

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

(3) Intervenor, Daniel Boone Area School District, is a school district with a principal office located at Matthew Brooke Building, Suite 200, 321 North Furnace Street, Birdsboro, Berks County, Pennsylvania 19508.

(4) Landowner is the owner of real estate approximately 2.92 acres in size, improved with a residence of approximately 4,750 square feet in size, located at 279 Hallman Road, Douglasville, Berks County, Pennsylvania. It is identified by parcel no. 88-5363-01-27-3181.

(5) The residence is in the Daniel Boone Area School District.

(6) The residence features 11 rooms, including four bedrooms and three and one-half baths. There is an attached two-car garage and a separate detached two-car garage/outbuilding. The attached two-car garage is part of the new construction. The detached building has foundational cracks, is in generally poor condition, and is used primarily for storage of outdoor maintenance equipment.

(7) The residence was originally built in 1852 with an addition in 1960. After a fire, the residence was rebuilt in 2001.

(8) About 23 percent of the square footage consists of the original farmhouse. It is constructed of two-foot wide masonry walls, two stories in height, and is currently used for the living room area on the first floor and a recreational area on the second floor. There is a stone fireplace in the living room.

(9) The new section features a modern kitchen with a subzero built-in refrigerator, dishwasher, oven, electric cook top, granite countertops and stock wood cabinets. The guest bath and master bath have several ceramic tile shower stalls, ceramic tile floors and a jet tub. The hall bathroom has a modular tub over a shower. The flooring is wide-width hardwood, except for the three bedrooms on the second floor. There is also a rear second floor wood deck, a front slate patio/porch area and mature landscaping and trees on the property.

(10) The residence is well maintained, in good condition on both the interior and exterior.

(11) The property was assessed at $362,000 for the 2009 tax year.

(12) Landowner filed an appeal of the assessment to the board. On October 22,2008, the board issued a notice, denying the appeal and reiterating the assessed value of the property at $362,000 for the 2009 tax year.

(13) On or about November 12,2008, landowner filed an appeal from the board’s decision to the court of common pleas.

(14) The Berks County common level ratio for tax year 2009 is .657.

II. DISCUSSION

The issue before this court is the fair market value of the premises. Actual or market value is defined as “the price which a purchaser, willing but not obliged to buy, would pay an owner, willing but not obliged to sell, taking into consideration all issues to which the property is adapted and might in reason be applied.” F & M Schaeffer Brewing Company v. Lehigh County Board of Appeals, 530 Pa. 451, 457, 610 A.2d 1, 3 (1992).

In support of their respective positions, each party presented testimony by an appraiser expressing an opinion of fair market value. Landowner’s expert was Bruce R. Hall, a state certified general appraiser, who valued the fair market value of the property, as of October 12, 2008, to be $408,000. The board and Daniel Boone jointly retained Thomas J. Bellairs, a state certified general appraiser, who valued the property at $480,000 as of August 15, 2008.

The court’s function is not to independently value the property, but to determine the value based on competent and credible evidence. Appeal of F.W. Woolworth Company, 426 Pa. 583, 586, 235 A.2d 793, 795 (1967). When there are conflicting experts, the court may accept all, none or part of an expert’s testimony, part of one expert’s testimony and part of another’s. Appeal of Avco Corporation, 100 Pa. Commw. 616, 621, 515 A.2d 335, 338 (1986). In determining actual value, three approaches to valuation are to be used: cost (reproduction over placement, as applicable, less depreciation in all forms of obsolescence), comparable sales, and the income approach. 72 P.S. §§5020-402, 5348(d), F & M Schaeffer Brewing Company, 530 Pa. at 456-57, 610 A.2d at 3. In considering the weight to be given to various approaches to valuation, a trial court has discretion to determine which of the conflicting methods (cost, comparable sales or capitalized income) is the fairest and most reasonable for a particular property. Pennypack Woods Home Ownership Association v. Board of Revision of Taxes, 163 Pa. Commw. 80, 82, 639 A.2d 1302, 1303 (1994), allocatur denied, 539 Pa. 669, 652 A.2d 839 (1994).

The residence is large, approximately 4,750 square feet in size. It features a unique combination of an 1850s farmhouse, which comprises approximately 23 percent of the living space, and a new addition with many modem amenities. The house sits on 2.92 acres of land in a nice mral setting, with a view of a golf course.

The residence was constmcted in phases. Initially, it consisted solely of the farmhouse, built in approximately 1852. Sometime in the 1950s or 1960s, a previous owner constructed an addition. In approximately 1999, landowner’s family purchased the residence for the benefit of another relative. The family then began making improvements on the property, in essence, rebuilding the newer portion of the premises. However, sometime in 2001, a fire occurred, substantially damaging the residence. Very little was left of the new section other than the foundations.

The house remained in its damaged condition for a period of time, reconstmction being delayed due to litigation arising from the fire. Ultimately, landowner, who is a residential developer, approached his family and purchased the property from them, to reconstruct the building and provide himself with a residence.

Landowner’s improvements to the farmhouse portion consisted of laying down new flooring, and putting a new plaster facade on the walls. The newer portion had to be almost entirely reconstructed. Landowner built the new portion on the existing foundations. There were problems due to the different heights of the foundations, the limited access available from the farmhouse, as well as the nature of the foundations themselves. According to landowner, this resulted in a difficult and expensive reconstruction, amounting to a total cost for purchase of the property, labor and materials of over $500,000.

In reaching his conclusion on fair market value, landowner’s appraiser relied solely on the comparable sales approach. The income approach was inapplicable, as the property was being used as a residence. The cost approach was unwieldy, based on the substantial obsolescence of the farmhouse portion and the unusual expenses associated with the difficult reconstruction.

Landowner’s appraiser identified five comparable sales. The comparables were chosen primarily because they were all considered “farmhouse” properties, all featuring farmhouse type residences at least 100 years old. The comparables were all modernized and some of the comparables had additions constructed to the original farmhouse, however, none of the additions approached the approximate 3,000 square foot addition constructed by landowner for the subject property. All but one comparable was sold in 2008, the other being sold on August 30,2007. All but one had greater acreage. Significantly, all of the residences were significantly smaller, with the largest being comparable sale no. 5 of 3,751 square feet.

Landowner’s appraiser employed a quantitative analysis, making adjustments in dollar amounts to the comparables to account for the differences in the features. The estimated excess land was valued at $10,000 per acre. Additional square footage of the improvements was estimated at $10 per square foot. Other values were also set: central air at $2,000, $1,000 for each additional bathroom, $2,000 per bay for the garages, $2,000 for each additional fireplace, $10,000 for each additional barn, $20,000 for an in-ground pool, and $10,000 for an additional summer kitchen/shed/outbuilding.

After applying these adjustments, the appraiser found the adjusted sale price of each of the comparables to be roughly equivalent, from a range of $404,000 to $409,500. From these adjusted sale prices, landowner’s appraiser arrived at the final estimated fair market value at $408,000.

The board/Daniel Boone’s appraiser relied on both the sales comparison approach and the cost approach, also declining to use the income approach as inapplicable. As the appraiser could not locate any sales in close proximity to the subject property which featured a farmhouse with substantially new construction, and because approximately 77 percent of the subject property was newer construction, and because the “feel” of the residence was “new”, the board/Daniel Boone’s appraiser opined that the best available comparisons would be made from sales of residences of relatively new construction. He determined the effective age of the subject property to be seven years.

He then identified three sales, two occurring in 2007 and one in 2008. The comparables featured residences of roughly the same square footage. Two of the properties are on substantially smaller lots.

The appraiser also made quantitative adjustments to the comparables in dollar amounts. He employed a figure of $50 per square foot for the additional square footage in the living area and $10 per square foot for the lower level, $5,000 per acre for additional acreage, and $5,000 for an additional bathroom, fireplace, or car bay in a garage.

The board/Daniel Boone’s appraiser then reached adjusted sale prices for each of the comparables, and reviewed the mean and medians of the adjusted sales prices. He concluded that $480,000 was an appropriate fair market value for the premises.

On the cost approach, the board/Daniel Boone’s adjuster, using fair market value figures for raw land in the area, reached a site value of $100,000. Utilizing the Marshall and Swift Residential Cost Handbook, and considering the nature of the building and renovations, he determined that the dwelling area could be constructed at a cost of $72 per square foot, totaling $342,432, the basement could be constructed at $30 per square foot, totaling $59,130, and the garage carport could be constructed at $30 per square foot, totaling $23,940. The total estimate for the construction was $425,502. He then estimated depreciation for obsolescence at $49,656, re-suiting in a depreciated cost of the improvements at $375,846. He then added $10,000, ostensibly for the value of the detached outbuilding/garage. Adding these figures to the $100,000 site value, results in a value by the cost approach of $485,846.

In making our determination, we initially reject the cost approach. For one, the cost to reconstruct the farmhouse portion of the building would be difficult to ascertain and would require huge estimates for depreciation based on obsolescence. The estimates would be little more than guesswork. Secondly, landowner provided competent testimony that the reconstruction of the new addition was problematic, for reasons already set forth. These problems would factor into the cost of reconstruction. Additionally, the excess cost presented superadequacy issues. Superadequacy occurs when the construction exceeds basic market requirements, at an additional cost, but the excess does not contribute to fair market value in an amount equal to its cost.

Turning then to the comparable sales approach, we observe that the appraisers reached very different conclusions on the nature of the subject property, one considering the property to be a “farmhouse” to be compared with older farmhouse dwellings, with the other considering the property to be “newer construction”. In fact, the subject property is a combination of both, a type of hybrid. It has some characteristics of an older building, but also has many modem amenities. In essence, landowner possesses the best and worst of both worlds.

Unfortunately, the appraisers were not able to locate similar “hybrid” properties. Their choice of comparables were consistent with their conception of the nature of the property.

The characteristics of the property make it inequitable to find the subject property to be classified simply as a farmhouse or as newer construction. It is also inappropriate to appraise the old and new portions separately and apply a percentage mechanically, such as 23 percent/77 percent, as you might do with the cost approach, for the property must be considered as a whole, not as a combination of separate parts. Comparing a sale of one property to a portion of another property to determine fair market value of the portion of that property is improper, because fair market value addresses what a prospective buyer would purchase for the whole property, not what would be an accurate cost for a portion of same.

Turning then to a review of the comparables, we comment first on the line item adjustments. As stated, landowner’s appraiser made an adjustment of $1,000 for an additional bathroom, $2,000 for an additional fireplace or an additional garage bay, and $10,000 per acre for additional acreage. The board/Daniel Boone’s appraiser adjusted at $5,000 for an additional bath, $5,000 for an additional garage bay, $5,000 for an additional fireplace, and $5,000 per acre for additional acreage. The figures submitted by landowner’s appraiser appear more appropriate and will be utilized.

We disagree, however, with landowner’s appraiser’s figure of $ 10 per square foot for the additional residential area. Landowner’s comparables are significantly smaller in square footage, ostensibly because they are older farmhouses. For example, comparable sale no. 1 is a property with residential area of 2,178 square feet, 2,562 square feet smaller than the subject property. Landowner’s appraiser suggests that the additional 2,562 square feet is worth only $25,500. This figure is clearly low, when you also consider that the additional square footage appearing on the subject property represents newer construction, the modem portion of the residence. Further, the additional square footage in the subject property represents the main living area, namely, the kitchen, bathrooms, and bedrooms. We accept instead a figure of $30 per square foot, representing the midpoint between landowner’s figure and the board/Daniel Boone’s figure of $50 per square foot. Reduction from the board/Daniel Boone’s figure is warranted because that appraisal presumes the subject property to be “newer construction,” with an effective age of seven years, where in reality, nearly one-quarter of the property is much older with underutilized and less valuable square footage.

We also reject the adjustment made by landowner’s appraiser for the presence of a swimming pool in two of the comparables. Generally, prospective buyers are not willing to pay a higher price for a home simply because it features a swimming pool.

We have one other major concern. The board/Daniel Boone’s appraiser made no adjustment on any of his three comparables to account for the difference in condition between the newer homes represented by the comparables and the hybrid subject property. Thus, the problems associated with an older, obsolescent structure were not addressed. This is best illustrated by looking at the board/ Daniel Boone’s comparable no. 1, a beautiful property, approximately 11 years old, selling for $550,000, with an even larger adjusted sale price of $577,800. A downward adjustment of $40,000 or $50,000 to equalize the partial obsolescence of the subject property is probably warranted before this property can be considered a fair comparison. Any adjustment of this nature made by this court on any of these three properties, however, would be mere speculation. It appears best therefore, to decline to rely on the comparables offered by the board/Daniel Boone.

Accordingly, we will take the average of the five comparables submitted by landowner, after making the line item adjustments set forth herein. The new adjusted sale prices are $459,360 for comparable no. 1, $465,040 for comparable no. 2, $438,100 for comparable no. 3, $469,560 for comparable no. 4, and $426,670 for comparable no. 5. The average of these figures is $451,746, which we round off to $451,750. Applying the common level ratio of .657, the assessed value for tax year 2009 becomes $296,797, which we round off to $297,000.

We enter the following order:

ORDER

And now, August 5, 2009, upon consideration of the within appeal and after a de novo trial held, it is ordered that the actual market value of the property owned by appellant, Andrew G. Basile, and situate in the Daniel Boone Area School District, with an address of279 Hall-man Road, Douglasville, Berks County, Pennsylvania, parcel no. 88-5363-01-27-3181, is set at $451,750. The common level ratio for tax year 2009 being .657, the assessed value for tax year beginning January 1, 2009 for county and township taxes and beginning July 1,2009 for school district taxes shall be rounded off to $297,000.


author: NANOVIC, PJ,

text:
    Righter v. Walter

      George G. Oschal and James J. Albert, for plaintiffs.

      Rebecca E. Jellen, for defendant.
    March 12, 2009
   NANOVIC, PJ,

FACTUAL AND PROCEDURAL BACKGROUND

On May 22, 2002, a pickup truck driven by Ebin M. Walter (defendant) rear-ended a van driven by Ronald Righter (plaintiff). The accident occurred at the intersection of Sixth and Mahoning Streets, in Lehighton, Carbon County, Pennsylvania. Both vehicles were traveling in the same direction on Mahoning Street, defendant behind plaintiff, and plaintiff behind a third vehicle driven by Janet Bonner. As a result of this accident, plaintiff claims he suffers from neck and lower back pain.

A jury trial commenced on June 11, 2008, and concluded on June 12,2008, when the jury returned a verdict finding that defendant was negligent, but that plaintiff suffered no injuries as a result of defendant’s negligence. Plaintiff has timely filed a motion for post-trial relief seeking a new trial on damages only. In short, plaintiff asserts that the verdict is contrary to the evidence and contrary to the weight of the evidence. Plaintiff also asserts that we erred in allowing a lay witness to offer an opinion as to the fault of a non-joined third party. For the reasons which follow, plaintiff’s post-trial motion will be denied.

DISCUSSION

1) Lay Witness Testimony

Procedurally, plaintiff’s assertion that we erred in allowing a lay witness to offer opinion testimony on the fault of a non-joined third party is deemed waived. At trial, Hillary Hancock testified that she was stopped on Sixth Street, at its intersection with Mahoning Street, waiting for traffic to pass, when she saw the accident occur. Because she believed Mrs. Bonner was responsible for the accident — by making a sudden, abrupt left turn which caused the plaintiff to unexpectedly brake and defendant, in turn, to run into plaintiff’s van — she followed Mrs. Bonner, who apparently was totally unaware of the accident behind her, to a nearby doctor’s office and then returned to the scene of the accident and reported to the investigating police officer where Mrs. Bonner could be found. Plaintiff’s counsel failed to object to any of Ms. Hancock’s testimony at trial, or to have any portion of it stricken. “[P]ost-trial relief may not be granted unless the grounds therefor, (1) if then available, were raised... by ... objection ... or other appropriate method at trial....” Pa.R.C.P. 227.1(b)(1) (2004); see also, Frederick v. City of Pittsburgh, 132 Pa. Commw. 302, 306, 572 A.2d 850, 852 (1990) (“The import of the rule is that the grounds for relief requested must have been raised in pretrial proceedings or at trial and that those grounds must be stated in the motion.”).

Even had the issue been properly preserved for our review, it would not warrant setting aside the jury’s verdict, nor would it warrant a new trial on damages.

“A lay witness may express an opinion if it is based upon his own perceptions and helpful to a clear understanding of his testimony or the determination of a fact in issue____Although the admission of an opinion on an ultimate issue of fact does not constitute error per se,... if its admission would confuse, mislead, or prejudice the jury, it should be excluded. ... In order for a ruling on evidence to constitute reversible error, it must be shown not only to have been erroneous, but harmful to the party complaining.” McManamon v. Washko, 906 A.2d 1259, 1276 (Pa. Super. 2006) (citations and quotations omitted) (finding no prejudice in trial court’s admission of party-witness’ lay opinion testimony as to fault regarding automobile accident), appeal denied, 591 Pa. 736, 921 A.2d 497 (2007); see also, Wilson v. Pennsylvania Railroad Company, 421 Pa. 419, 427, 219 A.2d 666, 671 (1966) (placing discretion with the court on the admissibility of a lay witness’ opinion, based upon personal knowledge and helpful to an understanding of the witness’ testimony).

Here, no ruling was made on the evidence because, as mentioned, counsel did not object. Moreover, there is no basis to believe that the jury was confused or misled by Ms. Hancock’s opinion of fault, or that the plaintiff was prejudiced by its admission, as the jury found defendant was negligent.

“[T]he ultimate issue rule has been criticized because of the inherent difficulty in deciding what constitutes an ultimate issue in the particular case. . . . Moreover, the rationale for the rule, that ultimate issue opinion should be excluded because it ‘usurps’ the jury’s function, has been labeled ‘mere empty rhetoric’, because no witness can usurp the jury’s function even if he wants to. . .. If the word ‘usurp’ is put aside, and the ultimate issue rule considered as prohibiting opinions that might lead the jury to forgo an independent analysis of the case, still the question remains whether any ultimate issue lay opinion does have such an effect. The opinion cannot prevent an independent jury decision; the jury is still free to decide. Moreover, it is at best doubtful that a jury is influenced more by opinion testimony on the ultimate issue than it is by fact testimony on the ultimate issue; yet we do not exclude fact testimony on the ultimate issue. ... If a jury reaches the same conclusion as that offered by the lay witness, it seems more likely that the jury interpreted the facts in the same way and accepted the witness’ opinion because it fit the facts, than that it failed to make an independent analysis of the facts merely because it happened to hear an opinion. Where the opinion is not supported by the facts, that may be pointed out by cross-examination and argument, and the jury persuaded to reject the opinion.” McKee by McKee v. Evans, 380 Pa. Super. 120, 138-39, 551 A.2d 260, 268-69 (1988) (citations and quotations omitted), appeal denied, 522 Pa. 604, 562 A.2d 827 (1989).

As to the effect of any fault which the jury might attribute to Mrs. Bonner, the jury was specifically instructed that the question of defendant’s negligence as a cause of the accident was independent of any other causes and that, if defendant’s conduct was determined to be a legal cause of harm to plaintiff, plaintiff was entitled to be fully compensated for all injuries caused by defendant’s conduct notwithstanding that the conduct of other persons who are not parties to these proceedings may also have contributed to the harm. Accordingly, plaintiff’s assertion that we erred in allowing a lay witness to offer opinion testimony on the fault of a non-joined third party is without merit, if not waived, and does not constitute reversible error.

2) Sufficiency of the Evidence

We next turn to plaintiff’s assertion that the verdict is contrary to the evidence. This claim is a challenge to the sufficiency of the evidence. “Where the evidence is insufficient to sustain the verdict, the remedy granted in civil cases is a judgment n.o. v.” Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 91, 596 A.2d 203, 206 (1991), appeal denied, 530 Pa. 644, 607 A.2d 254 (1992). “Judgment n.o.v. is an extreme remedy properly entered by the trial court only in a clear case where, after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper.” Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa. Super. 49, 58, 537 A.2d 814, 819 (1987), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988).

“In considering a challenge to the sufficiency of the evidence, [we] must view the evidence presented in a light most favorable to the verdict winner, grant that party the benefit of all reasonable inferences, and determine whether the evidence introduced at trial was sufficient to sustain the verdict. ... A party moving for judgment n.o.v. (i.e., challenging the sufficiency of the evidence) contends that the evidence and all inferences deducible therefrom, viewed in the light most favorable to the verdict winner, is insufficient to sustain the verdict.” Gorski v. Smith, 812 A.2d 683, 691 (Pa. Super. 2002) (citations and quotations omitted), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004). This same standard is applied by the courts of common pleas in addressing a post-trial motion. See e.g., Michaels v. State Farm Fire and Casualty, 33 Phila. 59, 61 (1997), affirmed, 707 A.2d 557 (Pa. Super. 1997).

Viewing the evidence, together with all favorable inferences drawn therefrom, in the light most favorable to defendant as the verdict winner, we find ample support for the jury’s determination that the defendant’s negligence was not a substantial factor in bringing about plaintiff’s alleged harm. This determination is one for the jury. See Peterson v. Shreiner, 822 A.2d 833, 840 (Pa. Super. 2003). “[Wjhether the defendant caused the plaintiff’s injuries and whether the plaintiff suffered from compensable pain” is within the province of the jury. Id. at 838-39.

We do not agree with plaintiff’s assessment that the evidence is insufficient to sustain the verdict. Plaintiff premises his argument upon the mistaken belief that there was uncontested evidence at trial of his injuries, and indeed refers us to a line of cases in which there was truly uncontested evidence of injury. Cf. Andrews v. Jackson, 800 A.2d 959, 965 (Pa. Super. 2002) (holding that where a defendant’s negligence is the cause of an auto accident and both parties ’ medical experts agree that plaintiff sustained some injury as a result of the accident, a jury finding that defendant’s negligence was not a substantial factor in causing at least some injury to the plaintiff warranted a new trial on the issue of damages), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002). However, plaintiff’s assertion that his evidence was uncontradicted is belied by the record. Defendant chose not to call a medical expert witness, and relied instead upon thorough cross-examination of plaintiff’s expert witness and plaintiff himself. Defendant never conceded liability for plaintiff’s injuries, nor did he present an expert witness who conceded that plaintiff suffered any injury as a result of the accident. Cf. Peterson, 822 A.2d at 836, 838, 840 (reinstating jury’s verdict in motor vehicle accident case that defendant was negligent, but that negligence was not a substantial factor in bringing about plaintiffs’ harm, after trial in which defendant did not concede liability for plaintiffs’ alleged injuries, did not present an expert witness, and relied upon cross-examination of plaintiffs’ witnesses).

More directly, defendant testified that at the time of the accident when he inquired whether plaintiff was hurt, plaintiff denied any injuries. Additionally, plaintiff’s own testimony raises serious doubts about the injuries for which he seeks to hold defendant responsible. Plaintiff admitted he did not seek medical assistance at the scene of the accident or until three weeks had passed. Plaintiff acknowledged that shortly after the accident, he went about his day as planned. Defendant’s counsel elicited discrepancies between plaintiff’s testimony at trial of what caused the accident and plaintiff’s version given to the police at the time of the accident, as well as in his pretrial deposition. Plaintiff was unable to explain why he did not provide a complete medical history of injuries, treatment, and complaints he experienced before the accident to Dr. Albert Janerich, the physician plaintiff presented at trial as his medical expert in the field of physical medicine and rehabilitation. Plaintiff also testified that he was involved in another motor vehicle accident which occurred after his accident with defendant, and that he also fell down 14 steps following which diagnostic studies were taken of both his back and neck. By exaggerating the injuries which he claimed were caused in the instant motor vehicle accident, plaintiff undermined his credibility regarding both the existence and the extent of such injuries.

Our review of Dr. Janerich’s testimony is equally damaging to plaintiff’s cause. Dr. Janerich testified that he examined plaintiff nine months after the accident at the request of plaintiff’s counsel (N.T. 02/13/2008, pp. 8-9,70), that plaintiff did not sustain any bulges or disc herniations in the cervical spine region (N.T. 02/13/2008, p. 62), that straightening of the cervical lordosis can be a result of the patient’s position during the diagnostic study (N.T. 02/13/2008, p. 62), that plaintiff sustained a lumbar injury prior to the accident requiring the surgical placement of Harrington Rods (N.T. 02/13/2008, p. 10), that plaintiff failed to see other physicians and to comply with treatment as recommended (N.T. 02/13/2008, p. 65), and perhaps most importantly, that he relied almost entirely upon medical records supplied to him by plaintiff’s counsel in ascertaining plaintiff’s medical history prior to the accident, without obtaining complete medical records from plaintiff’s medical providers. (N.T. 02/13/2008, pp. 49-50, 58-61.)

The medical records not reviewed by Dr. Janerich revealed that plaintiff saw a pain management specialist 16 days prior to the accident in question (N.T. 02/13/2008, p. 76) and that plaintiff had previously sustained damage to his left leg nerve. (N.T. 02/13/2008, pp. 54-55.) Dr. Janerich was further unable to tell the jury what medications plaintiff was taking for pain management at the time of the accident. (N.T. 02/13/2008, p. 54.) In short, Dr. Janerich’s opinion was based upon his limited treatment of plaintiff to whom he was introduced by plaintiff’s counsel, plaintiff’s self-serving oral medical history, and a misleading summary of plaintiff’s medical records created by plaintiff’s counsel and reviewed by the doctor on the day of his deposition. (N.T. 02/13/2008, pp. 11, 49-50.) Without question, Dr. Janerich’s testimony was suspect and the jury was entitled to discredit this testimony in its entirety. See Bezerra v. National R.R. Passenger Corp., 760 A.2d 56, 63 (Pa. Super. 2000) (“[T]he jury is not required to accept everything or anything a party presents.”), appeal denied, 567 Pa. 708, 785 A.2d 86 (2001).

The burden in this case was upon plaintiff to prove and persuade the jury of the merits of his case. Plaintiff failed to do so and the record is more than adequate to sustain the validity of the jury’s verdict. See Morgan v. Philadelphia Electric Co., 299 Pa. Super. 545, 549, 445 A.2d 1263, 1265 (1982) (stating that “a jury may properly ignore any plaintiff’s claim for damages when it disbelieves the witnesses of the plaintiff and therefore is unconvinced by plaintiff’s evidence”). Further, a jury is not required to find every injury compensable and may, according to our Superior Court, dismiss a bruise as “a transient rub of life,” undeserving of compensation. Kennedy v. Sell, 816 A.2d 1153, 1157 (Pa. Super. 2003). Based upon the record presented, we would abuse our discretion were we to set aside the jury’s findings on causation and enter judgment n.o.v. See Rohm and Haas Co. v. Continental Casualty Co., 732 A.2d 1236, 1248 (Pa. Super. 1999), aff’d, 566 Pa. 464, 781 A.2d 1172 (2001).

3) Weight of the Evidence

Lastly, we turn to plaintiff’s contention that the verdict was contrary to the weight of the evidence, and again find that the jury did not err. As noted, the remedy if the evidence was improperly weighed is the granting of a new trial. See Morin v. Brassington, 871 A.2d 844, 851 (Pa. Super. 2005).

“There should be nothing difficult about a decision to grant a new trial for inadequacy: the injustice of the verdict should stand forth like a beacon. Nor, weighing difficulties, may a court resolve them with a coin, when the result is to overturn the verdict of a jury reached on dubious evidence of damages.” Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 241 (1959).

“A trial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it ‘shocks one’s sense of justice.’” Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995).

“It is hard to imagine a situation which calls for a more deferential standard of review than a weight of the evidence claim. It is the exclusive province of the jury, as fact-finder, to hear evidence on damages and decide what amount fairly and completely compensates the plaintiffs. A trial court should be loath to substitute its judgment for the jury’s and may do so only in very limited circumstances.” Matheny v. West Shore Country Club, 436 Pa. Super. 406, 407-408, 648 A.2d 24, 24 (1994), appeal denied, 540 Pa. 601, 655 A.2d 990 (1995).

For plaintiff to be awarded a new trial, the jury’s verdict must be so devoid of any rational basis that it must have reflected passion, prejudice, or some other nonjudicial basis, such that the entire effort of the jury must be disregarded, and the case retried.

It is true that “where a defendant concedes liability and his or her expert concedes injury resulting from the accident that would reasonably be expected to cause compensable pain and suffering, the jury’s verdict is against the weight of the evidence where it finds for the defendant.” Peterson, 822 A.2d at 837. (emphasis in original) Here, although defendant conceded liability, he never conceded injury resulting from the accident, and plaintiff presented no reliable evidence of compensable pain and suffering for the jury’s consideration. Indeed, the only testimony substantiating the claimed injuries was that of plaintiff and his treating physician, both of whose credibility was severely tested as described above. See Brodhead v. Brentwood Ornamental Iron Company Inc., 435 Pa. 7, 11, 255 A.2d 120, 122 (1969). “From time immemorial, it has been the province of the jury in [negligence] cases, where oral testimony is concerned, to pass upon the credibility of witnesses even though uncontradicted by [defense] witnesses or even though the defendant introduces no testimony at all.” Id.

In short, the weight of the evidence available to the jury, as described above, amply supports its verdict and the verdict in no way shocks our sense of justice. We cannot hold that the jury’s disbelief in plaintiff’s or his expert’s testimony was wholly unwarranted and against the weight of the evidence and we will not usurp this prerogative vested in the jury. The jury was “free to believe all, some, or none of the testimony presented by a witness.” Neison, 539 Pa. at 520, 653 A.2d at 637. “[Plaintiff’s] motion for a new trial [merely represents] the act of a disappointed litigant raising sails on the ship of a defeated cause, hoping that some vagrant or wanton wind might bear the craft into a happier port. [We] believe that the [plaintiff is] aboard a ship [devoid of] a cargo of legal and justified complaint.” Thomas v. Mills, 388 Pa. 353, 362, 130 A.2d 489, 493 (1957) (Musmanno, I, dissenting).

CONCLUSION

For the reasons given, plaintiff’s motion for post-trial relief will be denied.

ORDER

And now, March 12, 2009, upon consideration of plaintiff’s motion for post-trial relief, defendant’s response thereto, and counsels’ submissions and argument thereon, and in accordance with our memorandum opinion of this same date, it is hereby ordered and decreed that said motion is denied. Accordingly, judgment is hereby entered on the jury’s verdict in favor of the defendant, Ebin M. Walter, and against the plaintiffs, Ronald Righter and Megan Righter.

      . The plaintiff, Megan Righter, as the wife of Ronald Righter, has a claim for loss of consortium. Because Mrs. Righter’s claim is dependent on that of her husband’s and because the jury found defendant was not responsible for any injuries claimed by Mr. Righter, for purposes of this opinion, we refer to Ronald Righter as the “plaintiff’.

      . Plaintiff raised no objections to these instructions.

      . We also note that plaintiff has apparently abandoned this issue. No argument, or legal authority in support of the issue, is contained in plaintiff’s brief in support of motion for post-trial relief.

      . “[T]he remedy of entry of judgment in a party’s favor is proper only when a party successfully challenges the sufficiency of the evidence____On the other hand, the remedy of a new trial is proper when the verdict rendered by the trial court indicates that the trial court abused its discretion when weighing the evidence.... This distinction is crucial and is repeated ad nauseum by the appellate courts of this Commonwealth in both civil and criminal cases.” Morin v. Brassington, 871 A.2d 844, 851 (Pa. Super. 2005). (emphasis in original)

      . Plaintiff did not request that any portion of the trial transcript be prepared for post-trial proceedings. Therefore, our references are limited to our review of the trial recording, being unable to cite to any transcript.

      . Dr. Janerich’s deposition testimony taken on February 13,2008, was read into the trial record. For purposes of post-trial proceedings, plaintiff submitted a copy of Dr. Janerich’s deposition testimony, and it is to this transcript that we cite.


author: LUDGATE, J,

text:
    Commonwealth v. Gonzalez

      John Adams, district attorney, for Commonwealth.

      Miguel A. Gonzalez, Jr., pro se.
    July 24, 2009
   LUDGATE, J,

I. PROCEDURAL HISTORY

On March 23, 2001, Miguel Angel Gonzalez Jr., defendant, was charged by information in docket 1226-01 with criminal attempt to commit rape, 18 Pa.C.S. §901, aggravated indecent assault, 18 Pa.C.S. §3125(1), criminal attempt to commit aggravated indecent assault, 18 Pa.C.S. §901, indecent assault, 18 Pa.C.S. §3126(a) (1), criminal attempt to commit sexual assault, 18 Pa.C.S. §901, indecent exposure, 18 Pa.C.S. §3127 and corruption of minors, 18 Pa.C.S. §6301(a); in docket 1227-01, the defendant was charged by information with indecent assault, 18 Pa.C.S. §3126(a)(1), indecent exposure, 18 Pa.C.S. §3127 and corruption of minors, 18 Pa.C.S. §6301(a); in docket 1228-01, the defendant was charged by information with aggravated indecent assault, 18 Pa.C.S. §3125(1), indecent assault, 18 Pa.C.S. §3126(a)(l) and corruption of minors, 18 Pa.C.S. §6301(a).

On January 30, 2002, the defendant entered negotiated guilty pleas in all three dockets. On that date, bail was changed from $35,000 to $200,000 in each docket. However, this court allowed the defendant to withdraw his guilty pleas on March 19,2002. On May 7,2002, the defendant’s request for reinstatement of bail at $35,000 was denied.

The defendant was scheduled for a jury trial in dockets 1227-01 and 1228-01 on August 7,2002. The defendant was informed in person of the trial dates for all three dockets by court order issued April 23, 2002. On the date trial was to begin, the defendant was out of custody on a bail bond and failed to appear for trial. The defendant’s privately retained counsel, Samuel Stretton, was present and ready for trial and had made efforts to contact the defendant. (N.T. excerpt of jury trial, 8/7/2002-8/8/2002, p. 9.) This court heard testimony from Ronald Seltman and Donald Frees of Capitol Bonding, a bail bond company. (N.T. 8/7/2002-8/8/2002, p. 4.) Mr. Seltman and Mr. Frees testified that they had searched at the two addresses the defendant had given to the bail bondsmen, one being his mother’s house in Reading, Pennsylvania and the other the defendant’s house in Blandón, Pennsylvania. The bondsmen found the Blandón address “cleaned out”, containing no furniture and found no one home at the Reading address. (N.T. 8/7/2002-8/8/2002, p. 5.) The men learned the defendant’s mother was at church, but were unable to locate her there. (N.T. 8/7/2002-8/8/2002, p. 6.) Several phone calls also failed to achieve contact with the defendant or his family. (N.T. 8/7/2002-8/8/2002, p. 7.) The defendant’s last contact with the bail bond company was on or about July 25, 2002. (N.T. 8/7/2002-8/8/2002, p. 6.) Based on this testimony, the court forfeited the defendant’s $200,000 bail, issued a bench warrant for the defendant and proceeded to jury trial in absentia.

On August 9, 2002, the defendant was found guilty of indecent assault, indecent exposure and corruption of minors in docket 1227-01. The same day, the defendant was found guilty of aggravated indecent assault, indecent assault and corruption of minors in docket 1228-01.

The defendant was scheduled for trial on August 14, 2002 in docket 1226-01. On this date, the defendant again failed to appear for trial. The court again heard testimony from representatives of the bail bond company. (Partial N.T. 8/14/2002-8/15/2002, p. 4.) By that date, Ronald Seltman had determined that mail going to the defendant’s Blandón address had been forwarded to his mother’s house in Reading. (N.T. 8/14/2002-8/15/2002, p. 5). Mr. Seltman testified to his ongoing efforts to locate the defendant, including following leads outside the Commonwealth of Pennsylvania. (N.T. 8/14/2002-8/15/2002, p. 6.) AUnited States’ Marshal’s Task Force had also been assigned to the case due to the possibility the defendant was outside of the United States. The defendant was entered into the National Crime Information Center as a wanted person. (N.T. 8/14/2002-8/15/2002, p. 7.) The defendant had received notice of the trial date by court order on May 7,2002. The defendant’s attorney, Mr. Stretton, stated the defendant was aware of the trial date because he had spoken to the defendant numerous times between July 25 and August 3, 2002. (N.T. 8/14/2002-8/15/2002, pp. 8-9.) Mr. Stretton had received a voicemail message from the defendant at his office on August 7,2002, indicating the defendant would come to drop off a payment. Based on this contact, secretaries in Mr. Stretton’s office attempted to call the defendant “every hour most of the day” but were unable to reach him. (N.T. 8/14/2002-8/15/2002, pp. 9-10.) Based upon the evidence that the defendant had absconded, the court proceeded to a jury trial in absentia.

On August 16, 2002, the defendant was found guilty of criminal attempt to commit rape, aggravated indecent assault, indecent assault, indecent exposure, corruption of minors and criminal attempt to commit sexual assault in docket 1226-01.

On October 1, 2002, this court held a Megan’s Law hearing and found the defendant to be a sexually violent predator pursuant to 42 Pa.C.S. §9791 et seq. and ordered the defendant to register as a sex offender for the rest of his life. The court ordered a copy of the notice to register to be served upon the defendant upon his apprehension. That day, this court sentenced the defendant in absentia to 13 to 28 years incarceration in docket 1226-01, two to four years incarceration in docket 1227-01 and five to 10 years incarceration in docket 1228-01, all consecutive. The same day, Attorney Stretton was granted leave of court to withdraw his appearance. Direct appeal was not sought.

The defendant was deported from the Dominican Republic to Miami, Florida on August 31, 2007 and taken into custody that day. Attorney Andrea Mertz of the Berks County Public Defender’s Office entered her appearance in each docket. The defendant began serving this sentence on September 4,2007 following an execution of sentence hearing. At the hearing, the defendant was notified of his duty to register his address with the Pennsylvania State Police following his release from prison. (N.T., hearing, 8/4/2007 pp. 4-5.)

The defendant filed a pro se motion for post-conviction collateral relief on January 28, 2009. This motion was treated as a pro se motion for post-conviction collateral relief pursuant to 42 Pa.C.S. §9541 et seq. Osmer S. Deming, Esquire, was appointed to represent the defendant in matters relating to post-conviction relief on February 3, 2009. On April 30, 2009, Attorney Deming filed a timely “no-merit letter” under Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988), as well as a petition for leave to withdraw as court-appointed counsel.

After a thorough review of the record and Attorney Deming’s “no-merit” letter, this court issued a notice of intent to dismiss the defendant’s PCRA pursuant to Pennsylvania Rule of Criminal Procedure 907(1) on May 6,2009. The notice of intent cited the lack of jurisdiction of this court to entertain an untimely PCRA due to the defendant’s sentence having become final on November 1, 2002 and there being no applicable exception to the one-year timeliness requirement. The defendant was allowed 20 days to respond to the notice of intent. This court dismissed the defendant’s PCRA on June 8, 2009.

The defendant filed a timely notice of appeal from the dismissal of his PCRA petition on June 24, 2009. The following day, this court ordered the defendant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days of the order. As of the date of this opinion, the defendant has not filed a 1925(b) statement.

The court respectfully requests that the defendant’s appeal be dismissed for failing to file a statement of matters complained of on appeal, pursuant to 42 Pa.C.S. §1925, untimeliness of the initial PCRA petition and waiver for failure to pursue claims on direct appeal.

II. DISCUSSION

At the outset, the court wishes to indicate that the defendant has demonstrated years of unmitigated distain for our system of criminal justice, as is shown by his flight from the United States mere days before trial and five-year fugitive status. The defendant absconded from our country to avoid the criminal justice system. Now, he wishes to avail himself of the rights under the justice system as now that it is in his best interest.

Under the timeline provided for by 1925(b), the defendant’s concise statement should have been filed by July 16,2009; however, in observance of the prisoner’s mailbox rule, this court would have allowed five additional days for the defendant’s statement to be filed. Even observing the prisoner’s mailbox rule, the defendant’s concise statement should have been filed with the clerk by July 21,2009. Even given these additional days, which this court feels is a reasonable time under the prisoner’s mailbox rule, the defendant’s concise statement has yet to be filed with the clerk as of the date of this opinion.

The Superior Court has held that the failure to file a timely 1925(b) statement renders no issue preserved for appellate review, Commonwealth v. Overby, 744 A.2d 797 (Pa. Super. 2000), citing, Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). In Lord, the Supreme Court stated:

“[F]rom this date [October 28,1998] forward, in order to preserve their claims for appellate review, appellants must comply whenever the trial court orders them to file a statement of matters complained of on appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” 553 Pa. at 420, 719 A.2d at 309.

A pro se defendant “is subject to the same rules of procedure as is a counseled defendant; he has no greater right to be heard than he would have if he were represented by an attorney.” Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989).

More recently, in Commonwealth v. Steadley, 748 A.2d 707 (Pa. Super. 2000), the Superior Court cautioned that a trial court should not attempt to glean a defendant’s appellate issues when no concise statement is filed as this may result in the waiver of constitutional issues. In Steadley, the defendant failed to file a concise statement in compliance with the trial court’s order. The trial court filed an opinion anticipating the appellate issues the defendant might raise. The Superior Court discouraged this practice, stating:

“We are constrained by Lord and its progeny to find that appellant has waived the claim presently before this court because she neglected to file a Rule 1925(b) statement. If we allow review of cases where a trial judge determined which issues an appellant could raise and how to frame those issues, that appellant would potentially lose a variety of protected constitutional rights. This procedure that appellant urges upon this court would undermine the appellate process in that it severely limits the types and nuances of arguments that appellant may raise on appeal. Therefore, such a procedure prevents the meaningful appellate review sought in Lord. ” Steadley, 748 A.2d at 709.

Based on the holding in Steadley, this court cannot address any appellate issues because the defendant has failed to file a concise statement and therefore has alleged no specific points of error to be reviewed on appeal.

The court was and is without jurisdiction to grant any of the requested relief due to the PCRA petition’s untimeliness. “A PCRA petition, including a second or subsequent one, must normally be filed within one year of the date the judgment becomes final, . . . unless one of the exceptions contained in section 9545(b)( 1 )(i)-(iii) applies and the petition is filed within 60 days of the date the claim could have been presented.” Commonwealth v. Copenhefer, 596 Pa. 104, 108, 941 A.2d 646, 648 (2007) (citing 42 Pa.C.S. §9545(b)(1)(i)-(iii); 42 Pa.C.S. §9545(b)(2)). (footnote omitted) “A judgment becomes final at the conclusion of direct review, including discretionary review, or at the expiration of time for seeking such review.” Id., 596 Pa. at 108 n.5, 941 A.2d at 649 n.5 (citing 42 Pa.C.S. §9545(b)(3)). “The PCRA’s timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed.” Id., 596 Pa. at 108, 941 A.2d at 648-49 (citations omitted); see also, Commonwealth v. Wojtaszek, 951 A.2d 1169 (Pa. Super. 2008). Fugitive status does not serve to excuse or modify this deadline. Commonwealth v. Pollard, 911 A.2d 1005 (Pa. Super. 2006).

Sentencing occurred October 1, 2002. Because no post-sentence motions were filed and direct appeal was not sought, sentence became final on October 31,2002, after the expiration of 30 days allowed to seek appellate review. The defendant’s first PCRA petition was filed on January 28.2009, more than six years after the one-year deadline.

Based upon the finding that the defendant’s initial PCRA petition was not timely, the defendant must have pleaded and proven an exception to the one-year requirement in order for this court to have jurisdiction. The exceptions are:

“(i) The failure to raise a claim previously was the result of interference by government officials with the presentation of the claim in violation of the constitution or laws of the Commonwealth or laws of the United States;
“(fi) The facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the existence of due diligence; or
“(iii) The right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.” (42 Pa.C.S. §9545(b) (l)(i)-(iii).)

The defendant did not plead any of the exceptions to the one-year deadline, nor did appointed PCRA counsel discover any such basis. The petition was untimely and this court remains without jurisdiction.

In addition to being waived by failure to file a 1925(b) statement and untimeliness, the defendant’s claims are also waived for failure to seek direct review. While fugitive status is not a per se waiver of appellate or post-conviction rights, where flight from justice causes a defendant to fail to file a direct appeal, the claims are waived for post-conviction purposes. Commonwealth v. Judge, 568 Pa. 377, 797 A.2d 250 (2002); Commonwealth v. Kindler, 554 Pa. 513, 722 A.2d 143 (1999).

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied.

      . See order issued 4/23/2002 (“(2) Trial in the matter of 1227/01 and 1228/01 shall be set as a date certain for August 7, 8 and 9,2002. (3) Trial in docket 1226/01 shall be set as a date certain for August 14, 15, and 16,2002”).

      . The prisoner mailbox rule holds that a pleading propounded by an incarcerated defendant who is proceeding pro se is timely so long as it is placed into the stream of correspondence (mailed or given to a prison employee for mailing) by the deadline date. See Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998).

      . The date of the execution of sentence hearing (September 4,2007) is immaterial for purposes of the one-year limitation. See Commonwealth v. Pollard, 911 A.2d 1005 (Pa. Super. 2006). Even if this were the relevant date, however, the defendant’s PCRA would still be late by more than four months.