author: KENNEY, J,

text:
    Delaware County v. Mari A. Schaefer

      Michael E. Baughman and Kaitlin M. Gurney, for appellant.

      Francis J. Catania, for appellee.
    April 8, 2011
   KENNEY, J,

Appellant, Mari A. Schaefer, now appeals this court’s order of January 26, 2011, reversing the October 21, 2010 final determination of the Pennsylvania Office of Open Records. The request, submitted pursuant to the Right-to-Know Law, sought individuals’ home addresses and dates-of-birth, not on the basis that the individuals are citizens, property owners, taxpayers or voters of Delaware County, but solely on the basis that the individuals are employees of Delaware County. In applying a common sense application of the Right-to-Know Law, this court reversed the Office of Open Records, and affirmed the decision of the Delaware County open records officer, Anne Coogan, in her determination that the information sought in this specific request was not a public record subject to disclosure under the Right-to-Know Law. Accordingly, and for the reasons that follow, the order of January 26, 2011 should be affirmed.

FACTUAL BACKGROUND

Mari A. Schaefer, acting on behalf of the Philadelphia Inquirer, made a request to Delaware County by letter dated May 6, 2009 (the “Request”), pursuant to Pennsylvania’s Right-to-Know Law (“RTKL”). See, Delaware County’s “petition seeking judicial review of a final determination of the Pennsylvania Office of Open Records” at “exhibit 2.” The request sought “Delaware County government payroll information” including “employee name, position and department, home address and full date-of-birth information.” See, id. By letter dated May 13, 2009, Delaware County responded to the request and indicated that an additional thirty (30) days would be required to provide a full response. See, id. at “exhibit 3.”

On June 12, 2009, Delaware County submitted its formal response to the request and advised Ms. Schaefer that the request was granted in part and denied in part. See, id. at “Exhibit 4.” The portion of the request seeking Delaware County employees by name, title and salary was granted, and that information was provided to Ms. Schaefer. See, Id. However, Delaware County denied the request as to employee home address and full date-of-birth information, asserting the following as the basis of denial: (a) the information sought was not a record, as defined by the RTKL; (b) the information sought was exempt under Sections 708 and 305; and (c) employees of Delaware County have a common law right to privacy in their home addresses and dates-of-birth, preventing disclosure. See, id.

Ms. Schaefer timely appealed to the Pennsylvania Office of Open Records (“OOR”) by letter dated July 2, 2009. See, Id. at “exhibit 5.” A stipulation between Ms. Schaefer and Delaware County was entered into, allowing the OOR an indefinite time period to adjudicate the appeal, pending the Commonwealth Court’s resolution of PSEA, et al. v. DCED/OOR, et al., 396 M.D. 2009 (Pa.Cmwlth.). See, id. at “exhibit 6,” “exhibit 7.” On October 1,2010, the OOR advised the parties that a final determination would be issued on or before October 25, 2010, and invited the parties to submit any additional information in support of, or against, Ms. Schaefer’s appeal. See, id. at “Exhibit 8.”

The OOR subsequently issued its final determination on October 21, 2010, and held that the home addresses and dates-of-birth of employees of Delaware County are subject to disclosure under the RTKL. See, id. at “exhibit 1.” Following a timely appeal of Delaware County to this court, an order was entered on January 26, 2011 reversing the final determination of the OOR. Ms. Schaefer thereafter instituted the present appeal.

STANDARD OF REVIEW

At the outset, the standard of review of the final determination of the OOR must be noted. To properly adjudicate the appeal of Delaware County, a determination was required to be made whether the OOR committed an error of law, whether the final determination violated constitutional rights, or whether necessary findings of fact are supported by substantial evidence. See, Palmer v. Pennsylvania State Police, 928 A.2d 1165, 1167 fn. 3 (Pa. Cmwlth. 2007). The record presented to this court on appeal was complete for review, as it contained Ms. Schaefer’s request, Delaware County’s response, the appeal filed and the final determination of the OOR. See, 65 P.S. § 67.1303(b).

DISCUSSION

In evaluating the appeal of Delaware County from the final determination, it is important to revisit the intent behind the RTKL. With the intent of the RTKL in mind, and a common sense application of the facts to the RTKL as a guide, a determination must then be made as to whether the home addresses and dates-of-birth, sought in this specific request, fall within an exception to the general rule of disclosure in the RTKL.

The Intent of the RTKL

The appellate courts of this Commonwealth have commented extensively on the intent of the RTKL. Specifically, the RTKL was “designed to permit the scrutiny of the acts of public officials and to make them accountable for their use of public funds.” Buehl v. Pennsylvania Department of Corrections, 955 A.2d 488, 493 (Pa. Cmwlth. 2008); see also, Current Status, Inc. v. Hykel, 778 A.2d 781, 784 (Pa. Cmwlth. 2001). Pursuant to the purpose of the RTKL, individuals or entities are allowed access to public records to discover information about the workings of government. Current Status, Inc., 778 A.2d at 784; see also, Sapp Roofing Co., Inc. v. Sheet Metal Workers ’ International Association, Local Union No. 12, 552 Pa. 105, 109, 713 A.2d 627, 629 (Pa. 1998).

The RTKL intends to “insure the availability of government information to citizens of the Commonwealth by providing access to official information, and thus, broad construction is given to the initial determination of whether a document is a public record.” Heicklen v. Department of Corrections, 769 A.2d 1239, 1242 (Pa. Cmwlth. 2001). “While emphasis of [the RTKL] is on disclosure of official information, [the RTKL] seeks to provide balance between access to this information by the general public, while it protects confidential nature of specific types of information.” Bargeron v. Department of Labor and Industry, Unemployment Compensation Board of Review, 720 A.2d 500, 502 (Pa. Cmwlth. 1998).

Thus, in reviewing the aforementioned cases, it is clear that the general assembly intended to create a more transparentgovemmentthroughtheenactmentoftheRTKL. Citizens must be afforded the opportunity to examine how their government works and how their government spends their hard-earned dollars. In accordance with this intent, Delaware County properly released the names, titles and salary information of its employees in response to the request. However, it must still be determined whether the home addresses and dates-of-birth of the county employees are subject to disclosure under the RTKL, in regard to this specific request.

Balancing Privacy and Public Security Interests

Against Public Disclosure

With the intent of the RTKL in mind, and good common sense and human experience as a guide, a determination must be made whether the home addresses and dates-of-birth are releasable public information in response to this request. Generally, the RTKL presumes that records in the possession of a Commonwealth agency or local agency are public records. See, 65 P.S. § 67.305(a). However, this general presumption is not absolute, as records are not required to be disclosed if they are: (i) exempt under Section 708 of the RTKL; (ii) protected by a privilege; or (iii) exempt from disclosure under any other federal law or state law or regulation or judicial order or decree. See, id. Because the request seeks information going beyond strictly governmental information and into the realm of an individual’s personal information, a balancing test must be employed, weighing the personal security and privacy interests of the employees of Delaware County against the benefits of public disclosure. See, Times Publishing Company v. Michel, 633 A.2d 1233, 1239 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 645 A.2d 1321 (Pa. 1994).

In regard to the disclosure of home addresses, courts have consistently applied a balancing test to determine whether the benefit of disclosure outweighs the privacy interests of non-disclosure. See, Goppelt v. Philadelphia Revenue Department, 841 A.2d 599, 604-05 (Pa. Cmlwth. 2004). The Supreme Court of the United States applied such a balancing test, pursuant to a Freedom of Information Act request, to determine whether the interest in disclosing to a specific union the home addresses of federal union employees, outweighed the privacy interests of the employees in non-disclosure. United States Department of Defense, et al. v. Federal Labor Relations Authority, et al., 510 U.S. 487, 114 S.Ct. 1006 (1994). In balancing these interests, the court sought to determine whether “disclosure of the information would ‘she[d] light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’” Id. at 497, 1013, citing, Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 1482 (1989).

In writing for the majority, Justice Thomas noted that “ [i]t is true that home addresses often are publicly available through sources such as telephone directories and voter registration lists, but ‘ [i]n an organized society, there are few facts that are not at one time or another divulged to another.’” Federal Labor Relations Authority, 510 U.S. at 500, 114 S.Ct. at 1015, citing, Reporters Comm., 489 U.S. at 763, 773 S.Ct. at 1476. The court went onto state:

Many people simply do not want to be disturbed at home by work-related matters. Employees can lessen the chance of such unwanted contacts by not revealing their addresses to their exclusive representative. Even if the direct union/employee communication facilitated by the disclosure of home addresses were limited to mailings, this does not lessen the interest that individuals have in preventing at least some unsolicited, unwanted mail from reaching them at their homes. We are reluctant to disparage the privacy of the home, which is accorded special consideration in our constitution, laws, and traditions. Cf. Rowan v. United States Post Office Dept., 397 U.S. 728, 737, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970); Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J. dissenting). Moreover, when we consider that other parties, such as commercial advertisers and solicitors, must have the same access under [the Freedom of Information Act] as the unions to the employee address lists sought in this case, see supra, at 1013, 1014, it is clear that the individual privacy interest that would be protected by nondisclosure is far from insignificant. Federal Labor Relations Authority, 510 U.S. at 501, 114 S.Ct. at 1015-16.

Similar to the Supreme Court of the United States in Federal Labor Relations Authority, the appellate courts of this Commonwealth have consistently employed a balancing test when analyzing the personal security and privacy interests against the benefits of public disclosure. See, Times Publishing Company, 633 A.2d at 1239; see also, Hartman v. Department of Conservation and Natural Resources, 892 A.2d 897, 906 (Pa. Cmwlth. 2006); Cypress Media, Inc. v. Hazelton Area School District, 708 A.2d 866, 870 (Pa. Cmwlth. 1998); Goppelt, 841 A.2d at 604. This is so, because the R.TKL has been interpreted to include a right to privacy — more specifically, a privacy exception to the general rule of disclosure. See, Hartman, 892 A.2d at 905-06, citing, Cypress Media, Inc., 708 A.2d at 870 (there exists a privacy exception to the RTKL’s general rule of disclosure), Tribune-Review Publishing Co. v. Allegheny County Housing Authority, 662 A.2d 677, 683 fn. 9 (Pa. Cmwlth. 1995) (a right of privacy exists in the RTKL). Moreover, in regard to a person’s home address, it is “generally accepted that a person has a privacy interest in his or her home address.” Hartman, 892 A.2d at 905, citing, Sapp Roofing Co., Inc., 713 A.2d at 630.

Recently, our Supreme Court had the occasion to address the release of employee salary information, where the salary was funded directly by Commonwealth funds. See, The Pennsylvania State University v. State Employees’ Retirement Board, 594 Pa. 244, 935 A.2d 530 (Pa. 2007). In holding that the salaiy information was discoverable, the court stated:

...the public interest asserted herein is the people’s right to govemmentl transparency in the form of their right to know the identities of individuals receiving, or standing to receive, Commonwealth funds and the specific basis therefore. Such requests for information go to the heart of the RKT[L] and are precisely what the general assembly intended when codifying the public’s right to know. The Pennsylvania State University, 935 A.2d at 539.

The court continued:

With regard to the right to privacy in one’s social security number, telephone number or home address, we would have greater difficulty concluding that the public interest asserted here outweighs those basic rights to privacy. Such is not the scenario presently before the court, however. The request for disclosure in this matter specifically excluded such personal information. Id. (emphasis added).

In the instant case, applying good common sense and human experience, any conceivable benefits of disclosure of the home addresses and dates-of-birth of Delaware County employees are overwhelmingly outweighed by the personal security and privacy interests in nondisclosure. In denying the request, Delaware County noted that the personal security and privacy interests of its employees favor nondisclosure. See, Delaware County’s “petition seeking judicial review of a final determination of the Pennsylvania office of open records,” “exhibit 4” at 3. Delaware County asserted that it had an obligation to protect its employees from identity theft, a very real and apparent threat in our society today. See, id. at 3-4. This much was supported by the county’s citation to extensive federal research indicating how the release of this personal information will directly expose its employees to identity theft. See, Id. at 3. Thus, the specific information requested herein is exactly the type of information that “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of [the employees of Delaware County].” See, 65 P.S. 67 §67.708(b)(1)(ii).

Delaware County, in addition to the personal security concerns, asserted a common law right to privacy in its denial. See, Delaware County’s “Petition seeking judicial review of a final determination of the Pennsylvania office of open records,” “exhibit 4” at 3. A fundamental privilege enjoyed by all citizens of the United States of America is the right to be left alone from their government. See, Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572 (1928) (Brandeis, J. dissenting). In Pennsylvania, citizens are afforded an even greater protection under our constitution. See, Pa. Const. Art. 1, § 1, 8. Many Delaware County employees may simply not want to be disturbed at home by matters relating to work. On point with the analysis of the Supreme Court of the United States, each request made pursuant to the RTKL, made by either a citizen, a newspaper, a marketing company or a convicted felon, must be given the same deference regardless of intent. See, Federal Labor Relations Authority, 510 U.S. at 501, 114 S.Ct. at 1015-16. Considering this, “it is clear that the individual privacy interest that would be protected by nondisclosure is far from insignificant.” Id.

In reviewing Pennsylvania State Education Association, there does appear to be some current disagreement as to whether there exists a specific privacy interest in one’s home address in Pennsylvania. See, Pennsylvania State Education Association, 4 A.3d at 1170, fn. 6 (Pellegrini, J. dissenting), at 1172 (McCullough, J. dissenting). The disagreement stems from our Supreme Court’s holding in Commonwealth v. Duncan, a criminal case. See, Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455 (Pa. 2003). Most important is the context in which Duncan was decided. The court held in Duncan that a criminal defendant did not have a right to privacy in the home address and name, associated with a bank card, which was disclosed to police by a bank without a warrant. See, id. at 451-52. Irrespective of whether or not Duncan applies in the context of a civil RTKL request, it goes without saying that the home “is accorded special consideration in our constitution, laws, and traditions.” Federal Labor Relations Authority, 510 U.S. at 501, 114 S.Ct. at 1015-16; see also, Olmstead, 277 U.S. at 478, 48 S.Ct. at 572 (1928) (Brandeis, J. dissenting). In addition, and most importantly, the currently enacted RTKL provides an exemption to disclosure for records that would “reasonably likely” subject an individual to “physical harm” or “personal security” and our courts have consistently held that the “personal security” exception of the RTKL includes a right to privacy. See, 65 P.S. 67 § 67.708(b)(1)(ii); see also, Pennsylvania State Education Association, 4 A.3d at 1172 (McCullough, J. dissenting), citing, The Pennsylvania State University, 935 A.2d 530; Rowland v. Public School Employees’ Retirement System, 885 A.2d 621 (Pa. Cmwlth. 2005), Times Publishing Co., Inc. v. Michel, 633 A.2d 1233 (Pa. Cmwlth. 1993).

It must be stated that this opinion does not advocate a bright-line test wherein the addresses or dates-of-birth of all governmental employees, or any specific group of individualsforthatmatter,shouldbeexemptfrom disclosure in every case. In certain circumstances, the disclosure of home address information may be appropriate, and that disclosure may include the home addresses of Delaware County employees. See, e.g., Goppelt, 841 A.2d at 606. As indicated, this is a process requiring a good faith effort on the part of the Delaware County open records officer to use her good common sense and human experience on a case by case basis to determine whether the presumed public record falls under one of the exceptions outlined in Section 708 of the RTKL. Employees of Commonwealth or local agencies should not be afforded special protections, not afforded to the general public, in each and every RTKL request. In the same vein, employees of Commonwealth or local agencies should not be deemed to have waived their personal security and privacy interests simply by being in the employ of a Commonwealth or local agency.

The request presented to this court for review included a specific request for the home addresses and dates-of-birth of Delaware County employees in the context of their employment. This type of request, for the specific personal information of a governmental employee or employees, should in and of itself raise a “red flag” to any local open records officer when applying common sense to the request. Although the intent behind the request is not to be considered, it is undeniable that when a request is made for such specific personal information of individual employees, a very real and demonstrable threat to the personal security and physical safety of those targeted employees exist. The RTKL presumes that a local open records officer will act in good faith in evaluating a request made pursuant to the RTKL. See, 65 RS. § 67.901. Acting in good faith includes the application of common sense.

To note the obvious, certainly the home addresses, and even possibly dates-of-birth, of the employees of Delaware County are available in a myriad of public fora. Such was noted by the Supreme Court of the United States in Federal Labor Relations Authority. See, Federal Labor Relations Authority, 510 U.S. at 500, 114 S.Ct. at 1015 (citation omitted). However, this fact alone should not require the disclosure of home address and date-of-birth information in this RTKL request. Nor should the fact that the information sought here may be available in a different RTKL request require disclosure in this instance. Each request made pursuant to the RTKL must be evaluated on its face, and when personal security and privacy interests are raised, the interests must be weighed against the public interest in disclosure.

In evaluating the instant request, the following conclusions can be reached. The information requested here does not allow for the scrutiny of the acts of public officials. See, Buehl, 955 A.2d at 493. This information does not assist citizens in holding public officials accountable for their use of public funds. See, id. The home addresses and dates-of-birth of the employees of Delaware County reveal little to nothing about the workings of the Delaware County government. See, Sapp Roofing Co., Inc., 713 A.2d at 629. Moreover, this case does not involve voluntarily submitted home address information that may assist in the collection of delinquent taxes, or aid in the communication of property conditions or tenant activity to an absent property owner. See, Goppelt, 841 A.2d at 606. Nor does this case involve the release of home address information of a property owner with regard to a county’s board of tax revisions. See, id.

The specific informationrequestedhere, home addresses and dates-of-birth, are the personal information of the employees of Delaware County. By releasing the home addresses and dates-of-birth of its employees, Delaware County invites anywhere from a modest pestering to its employees while at home, all the way to identity theft or physical violence. Delaware County went beyond just stating as much, in its response to the request, as the county cited to extensive federal research establishing how the release of the home addresses and dates-of-birth of its employees, in this specific instance, exposes the employees to identity theft. See, Delaware County’s “petition seeking judicial review of a final determination of the Pennsylvania office of open records,” “exhibit 4” at 3. Applying a modicum of common sense to the analysis, it is abundantly clear that the release of the home addresses and dates-of-birth of the Delaware County employees in this instance “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to [the employees] or the personal security of [the employees].” 65 P.S. § 67.708(b)(1)(ii). Therefore, balancing the personal security and privacy interests in nondisclosure against the benefits of public disclosure, whatever they may be, the scale tips heavily in favor of nondisclosure of the home addresses and dates-of-birth of the employees of Delaware County.

CONCLUSION

Delaware County properly disclosed the names, titles and salaries of its employees to Ms. Schaefer, as is the central intent of the RTKL to allow the citizens of Delaware County access into how taxpayer dollars are spent, to know how the county’s government works, and let the citizens of Delaware County know what their government is up to. See, Buehl, 955 A.2d at 493; see also, Current Status, Inc., 778 A.2d at, 784; Sapp Roofing Co., Inc., 713 A.2d at 629; Federal Labor Relations Authority, 510 U.S. at 497, 114 S.Ct. at 1013. However, this case establishes that the release of the home addresses and dates-of-birth of the Delaware County employees “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to [the employees] or the personal security of [the employees].” 65 P.S. § 67.708(b)(1)(ii). When the interests of personal security and privacy are balanced against the interest in public disclosure of the county employees’ home addresses and dates-of-birth, it is abundantly clear that the interest in personal security and privacy substantially outweighs any public interest in disclosure. Accordingly, the response of Delaware County to the request was just and proper, and this court’s reversal of the final determination of the OOR was appropriate under the law. Therefore, this court’s order of January 26, 2011 should be affirmed.

      . Juries in this Commonwealth are instructed to follow their good common sense and human experiences in determining facts and applying those facts to the law as instructed. See, Pa. SSJI (Civ.) § 20.00 at ¶ 4 (2005); See also, Pa. SSJI (Crim.) §§7.01 at ¶ 8, 7.05 at ¶3 (2005). In this same vein, local open records officers are called upon to evaluate Right-to-Know Law requests with their good common sense and human experiences in applying the facts of the request to the law.

      . Pennsylvania’s Right-to-Know Law is codified at 65 P.S. §§67.101, et seq.

      . As the “request” was granted in part and denied in part by Delaware County, this opinion will only address the “request” in terms of the denial of releasing the home addresses and dates-of-birth of the employees of Delaware County.

      . See, 65 P.S. §67.102.

      . See, 65 P.S. §§ 67.708(b)(1)(ii), (6)(i)(A-C); 65 P.S. § 67.305(a) (3).

      . Pursuant to the RTKL, findings of fact and conclusions of law were issued in conjunction with the January 26,2011 order. See, 65 P.S. §67.1301(a).

      . While this balancing test was judicially created under the prior version of the RTKL, this balancing test has not been abolished under the currently enacted RTKL. In fact, the Commonwealth Court had the opportunity to consider whether this balancing test applies in the current RTKL, but declined to do so, instead dismissing the case on jurisdictional grounds. See, Pennsylvania State Education Association, et al. v. Commonwealth of Pennsylvania, et al., 4 A.3d 1156, 1162 (Pa.Cmwlth. 2010), appeal docketed, No. 59 MAP 2010 (Pa. Sept. 28, 2010). This court does, however, find persuasion in the dissenting opinion of Judge McCullough that such a balancing test would apply to the presently enacted RTKL. See, id. at 1174 (McCullough, J. dissenting). Until such time that the appellate courts, or the general assembly, completely prohibit such a balancing test, the test must be employed to determine whether personal security and privacy interests are invaded in the context of a RTKL request.

      . The employees at issue were employees of The Pennsylvania State University, which under the prior RTKL, was not considered a Commonwealth agency. This classification has been amended through the currently enacted RTKL. See, 65 P.S. § 67.102. However, the fact that the university was not a Commonwealth agency under the then RTKL was not an issue, because the specific employees, whose salary information were sought, voluntarily participated in the State Employees Retirement System, a Commonwealth agency, and by statute, that participation classified the subject employees as state employees. See, The Pennsylvania State University, 935 A.2d at 539-40.

      . In reviewing the legislative debate leading up to the passage of the current RTKL in 2008, members of the general assembly raised the very same concerns regarding the release of home addresses and dates-of-birth in a RTKL request. See, e.g., 192 Legis. J. 7,1559 (daily ed. Jan. 30, 2008) (statements of Sen. Punt). Important of note, however, is that while the currently enacted RTKL does not totally prohibit the release of home addresses and dates-of-birth, the current RTKL did not prevent the courts from balancing, on a case-by-case basis, the public interest in disclosure of home addresses and dates-of-birth against the personal security and privacy interests in nondisclosure. See, supra, fn. 6.

      . Pursuant to the RTKL, the intent behind the request is not to be considered. See, 65 P.S. §§ 67.301(b), 67.302(b), 67.303(b) and 67.304(b).

      . Of course, judges, law enforcement officers and minor children are excluded from this line of reasoning, as judges, law enforcement officers and children aged 17 or younger are afforded some special protections in RTKL requests. See, 65 RS. § 67.708(b)(6)(i)(C), (b)(30).

      . Whether the RTKL request is for the personal information of one or all employees of an agency, the very same threat exists.

      . In regard to the personal security exception to the RTKL, the Commonwealth Court previously noted, “The Supreme Court of Pennsylvania and [the Commonwealth] Court have consistently held that addresses and Social Security numbers are not releasable due to the personal security exception in the Right-to-Know Law.” Buehl, 955 A.2d at 492, fn. 9 (citations omitted) (emphasis added).

      . The OOR previously had the chance to aptly note that “The role of the OOR is to effectuate, not obfuscate, the intent of the legislature.” Carroll v. Harrisburg Area School District., OOR Dkt. No. AP 2009-0442 at 6. Clearly, the release of the home addresses and dates-of-birth of Delaware County employees in this instance does not effectuate the intent of the RTKL, as discussed herein.


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    Sosnoski v. Sosnoski

      Angelo A. Papa, for plaintiff.

      NickaA. Frisk Jr., for defendant.
    April 20, 2011
   HODGE, J.,

This case was before the court on September 20, 2010 for a hearing on a petition for contempt and enforcement of marital settlement agreement filed on behalf of the plaintiff, Shirley Sosnoski (hereinafter “wife”). After a complete hearing was held before the court, counsel for the parties were ordered to submit to the court memorandums of law relative to the factual and legal issues presented at the hearing. Counsel has complied with the court’s request and the matter is fit for the court to make a determination.

A brief summary of the relevant factual background can be summarized as follows: A complaint in divorce was filed on September 18, 2004. On July 18,2006, the parties entered into a marital settlement agreement (hereinafter “MSA”). However, the same was never filed by plaintiff’s counsel, and on January 16, 2007 a motion to compel compliance with marital settlement agreement was filed on behalf of the defendant, Martin Sosnoski (hereinafter “husband”). An order of court was subsequently issued directing wife’s counsel to filed the MSA, wife’s affidavit of consent and wife’s waiver of notice of intention to request entry of divorce decree under Section 3301(c) of the Divorce Code pursuant to the Pennsylvania Divorce Code. Husband was further ordered to pay wife $7,000 for her interest in a 1971 Corvette owned by the parties. Wife’s counsel complied with the directions of the court; however husband had not paid wife the $7,000 as directed. On February 8, 2007, the court entered a decree in divorce.

On May 14, 2007 a petition for contempt and special relief was filed on behalf of wife. In her petition, wife alleged that there were still outstanding obligations/ requirements of husband under the MSA and specific relief based on husband’s failure to comply with the MSA. The court then entered a rule to show cause upon husband and scheduled a hearing. An answer was filed by husband and a hearing was held on June 8, 2007.

Prior to the court issuing an order from the June 8,2007 hearing, plaintiff filed a motion for emergency special relief. In the motion, plaintiff alleged irreparable injury pending the court’s determination and sought injunctive relief whereby husband was prohibited from further dissipating marital assets as well as reimbursement for attorney’s fees associated with her attempts to enforce the parties’ MSA. The court again entered a rule to show cause upon husband and scheduled a hearing for May 30, 2008. Husband responded by filing an answer and new matter asserting that wife has not complied with the MSA and seeking attorney’s fees and reimbursement for other costs.

To complicate matters further, the transcript for the hearing held on June 8,2007 was damaged beyond repair, and the court was forced to schedule a re-hearing on the petition for contempt and special relief. After multiple continuances requested by both sides and on the court’s own motion, a second hearing was finally held on September 20, 2010.

In Pennsylvania, a settlement agreement between a husband and wife is governed by the law of contracts, unless the agreement itself provides otherwise. Caccavo v. Caccavo, 565 A.2d 1199 (Pa. Super. 1989); Sonder v. Sonder, 549 A.2d 155 (1988). Hence, when the language of such an agreement is clear and unambiguous, the focus of the interpretation must be upon the terms as manifestly expressed. Caccavo, supra, 565 A.2d at 1202. The standard of enforceability of a contractual agreement is also clear: “[a]bsent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.” McMahon v. McMahon, 612 A.2d 1360, 1363 (Pa. Super. 1992) (citations omitted). As such, a trial court may interpret a marital settlement agreement like a contract, but the court has neither the power nor the authority to modify or vary the decree unless there is conclusive proof of fraud or mistake. Bianchi v. Bianchi, 859 A.2d 511,515 (Pa. Super. 2004).

When construing agreements involving clear and unambiguous terms, a trial court need only look to the writing itself to give effect to the parties’ understanding. Vaccarello v. Vaccarello, 563 Pa. 93, 101, 757 A.2d 909, 913-914 (Pa. 2000). A court may not modify the plain meaning of the words under the guise of interpretation. Id. In addition, this court must consider such contracts without reference to matters outside of the document, and we must ascertain the parties’ intentions when entering into the contract from the entire instrument. Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super. 1998). Additionally, the parties are bound “without regard to whether the terms were read and folly understood and irrespective of whether the agreements embodied reasonable or good bargains.” Sabad v. Fessenden, 825 A.2d 682, 688 (Pa. Super. 2003).

After a careful review of the MSA, the court notes that both parties were represented by counsel and entered into this agreement freely. Each committed to abiding by the terms thereof and in doing so agreed not only to devise a plan for payment of outstanding debt but also to relinquish all other interest in each other’s property. The validity of the MSA was finalized when it was originally incorporated in the divorce decree and no appeal asserting fraud or mistake in the execution of the MSA was taken subsequent to it being filed. As such the MSA is deemed valid. Jackson V. Culp, 583 A.2d 1236, 1239 (Pa. Super. 1990); Sonder v. Sonder, 549 A.2d 155, 159 (Pa. Super. 1988); Litwack v. Litwack, 433 A.2d 514, 516 (Pa. Super. 1981). The court now looks to determine whether either party has willfully failed to comply with the terms of the agreement.

In 1988, Section 3105(a) of the Divorce Code was amended to read as follows:

“(a) Enforcement. —A party to an agreement regarding matters within the jurisdiction of the court under [the Divorce Code], whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in [the Divorce Code] to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.”

Courts have consistently utilized Section 3105 to enforce marital settlement agreements through a civil contempt complaint regardless of whether or not the agreement has been incorporated or merged into, or reduced to, an order. See, e.g., McGinnis v. McGinnis, 654 A.2d 563 (Pa. Super. 1995); Jackson v. Culp, 583 A.2d 1236 (Pa. Super. 1990)(Section 3105 facilitates enforcement of a marital settlement agreement by providing an alternative enforcement vehicle in the form of a civil contempt complaint).

Several issues are put before the court relating to assets classified as marital property, or property affecting the distribution thereof. Specifically, wife claims she is entitled to credit for: 1) personal jewelry that was destroyed when the parties’ marital residence was burned in a fire; 2) one half of her interest in a 1971 Corvette; and 3) one half the value of the parties’ time-share in Hilton Head, South Carolina. Alternatively, husband claims that he is entitled to credit for: 1) payments made on the loan obtained by the parties for the purchase of the Hilton Head time-share; 2) payments made on two credit cards utilized by wife; 3) $24k removed by wife an ESB bank account issued to both parties; and 4) $15,000 wife received from husband in September of 2008. Both parties have made a claim for attorney’s fees in an effort to enforce specific provisions of the MSA. The court will dispose of each of the above listed claims in the following discussion.

The portion of the MSA that references wife’s jewelry reads as follows: “husband shall account for items like melted jewelry, computer, and share equally any value, or alternatively confirm the lack thereof. MSA § 3.02(C) (5). In resolving this issue, the court notes that the parties stipulated that they each received $45,062.00 from their insurance carrier for their personal belongings lost when their marital residence was destroyed in a fire. (N.T. Sept. 20, 2010, p. 58) Additionally, husband testified that any remnants from the fire have since been “hauled away” and that he is unaware of any existing melted jewelry that may have survived the fire. (N.T. p.46) The court finds that wife has been properly compensated for any personal jewelry lost in the fire by the insurance company and that Husband’s testimony clearly indicates that the jewelry no longer exists. The court therefore denies wife’s request for compensation for said jewelry.

With respect to the 1971 Corvette, §3.02(c)(1)(B) of the agreement states that “husband shall have as sole and separate property... 1971 Corvette, subject to buying out half of wife’s value in the automobile (14,000).” When husband’s counsel initially presented the court with a motion to compel compliance with marital settlement agreement for the parties on January 12, 2007, the resulting order of court ordered that wife’s counsel file the marital settlement agreement and that husband pay wife the sum of $7,000 for her interest in the 1971 Corvette. It is the recollection of the court that the sum of $7,000 was determined to be half of wife’s value in the automobile; this figure is consistent with the language set forth in the agreement. Therefore wife shall receive credit in the amount of $7,000.

The next issue put before the court involves the timeshare purchased by the parties during the course of marriage. The MSA expressly provides in Section 3.02(c) (4) that “[t]he parties shall equally split the value of the time-share.” Based on this provision, wife argues that she is entitled to $13,000.00 for her half interest in the timeshare. Wife’s calculation is based on the fact that when the parties purchased the time-share, they paid $26,000. Husband also testified to this fact at the September 20, 2010 Hearing. (N.T. p. 26)

Alternatively, husband testified that at the time of separation the parties still owed $22,464.47 on the loan used to purchase the time-share. (N.T. Sept. 20, 2010, p. 37) After separation, husband made monthly payments in the amount of $279.44 for a period of 70 months; he then made a final payment on July 7, 2010 in the amount of $2,903.67. Additionally husband testified that he paid an annual fee of $700.00 for the general upkeep, maintenance and taxes on the time-share. (N.T. Sept. 20, 2010, p. 29) Husband asserts that he should receive credit in the amount of $11,232.23 for costs associated with the time-share.

The date for valuation of marital property is generally the date of trial or distribution. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (Pa. 1988); Nagle v. Nagle, 799 A.2d 812 (Pa. Super. 2002) (it may be more equitable, however, to value marital assets at the date of separation in certain situations that warrant such a valuation). In determining the proper value for this marital asset, the court considers the fact that the parties paid $26,000 (N.T. Sept. 20, 2010, p. 26) for the time-share at the time of purchase. Although husband testified that the time-share has substantially decreased in value (N.T. Sept. 20, 2010, p. 63-64), the court finds that there is insufficient evidence to establish a valuation based on its present value.

The court concludes that the following distribution is appropriate and consistent with the parties’ MSA: wife shall receive $ 13,000 for her half interest in the time share. However, husband shall receive credit in the amount of $11,232.23, being half of the balance owed on the loan used to purchase the time share. The result being that wife shall receive $1,767.77 ($13,000 - $11,232.23). The court further finds that husband is not entitled to credit for the $700.00 annual maintenance fee, as he was the only party who utilized the time-share since the parties separated. Alternatively, husband shall retain title to the time-share, and the parties are directed to ensure that husband alone has title to the same.

Husband also contends that he is entitled to credit for payments made on two credit cards utilized by wife during the course of marriage. The credit cards were issued in husband’s name, but provided to wife for her personal use. (N.T. Sept. 20, 2010, p.49) Husband requests to receive credit for half the debt owed on these credit cards at the time of separation. Husband contends that the total amount owed on the two credit cards was $6,000, and that he is therefore entitled to a credit in the amount of $3,000. However, after a close review of the MSA, the court finds that husband is not entitled to any credit for payments he may have made on the credit cards in question. Section 3.02(6) expressly states that “all charge cards...are to be voided, which existed at [the] date of separation.” Furthermore, the court finds that there is insufficient evidence to establish that the credit card debt was incurred by wife or that any debt does in fact exist, as the only evidence to support such a finding was the testimony from husband. This finding shall, by no stretch of the imagination, lead either party to believe that the court finds husband’s testimony to be unreliable, but only that there is insufficient evidence to support an award to husband for said debt.

On August 30, 2004, the day after the parties were legally separated. (N.T. Sept. 20,2010, p. 18) Wife removed $24,107.00 from an ESB bank account previously used by the parties during their marriage. (N.T. Sept. 20, 2010, p. 58-59) The funds in the ESB bank account were clearly marital in nature and subject to equitable distribution. See 23 Pa.C.S. §3501(a); Drake v. Drake, 555 Pa. 481, 725 A.2d 717 (Pa. 1999). Husband is seeking credit in the amount of $12,053.50 for his portion of these marital funds. Consistent with the marital settlement agreement, which expressly included the underlying “theme” that the parties equally share, “50/50”, all marital debt and property, the court determines that husband shall receive credit in the amount of $12,053.50.

Wife additionally received $15,000 from husband in September of 2008. Husband provided this amount to wife to avoid foreclosure actions on wife’s residence. The parties stipulate to this fact. As such, husband shall receive credit for the sum of $15,000. The court determines that husband is entitled to full credit for this advancement, as the money was provided after separation from non-marital funds.

The court additionally finds that neither party shall be awarded attorney’s fees. This case has been litigated for over seven years, with multiple continuances being granted on behalf of both parties. The matter was further prolonged by the court’s stenographer being unable to transcribe the notes of testimony from the June 8, 2007 hearing. Both parties have been prejudiced by the numerous delays, and the court refuses to further penalize either party by awarding attorney’s fees.

Accordingly, the court will enter the following order enforcing the marital settlement agreement and deciphering specific portions thereof.

ORDER OF COURT

And now, April 20,2011, the court having held hearing on September 20, 2010, on a petition for contempt and for enforcement of marital settlement agreement filed on behalf of the plaintiff, Shirley Sosnoski, by and through her counsel, Angelo A. Papa, Esquire, and on a response to said petitions filed on behalf of the defendant, Martin Sosnoski, by and through his counsel, Nick A. Frisk, Jr., Esquire, and the court having had the opportunity to conduct a thorough review of the entire record as well as the transcript from the September 20,2010 hearing, and in accordance with the attached opinion, it is hereby ordered and decreed as follows:

1. The court therefore denies wife’s request for compensation for said jewelry.
2. Wife shall receive credit in the amount of $7,000 for one half her interest in the 1971 Corvette.
3. Wife shall receive $13,000 for her half interest in the time share. However, husband shall receive credit in the amount of $11,232.23, being half of the balance owed on the loan used to purchase the time share. The result being that wife shall receive $1,767.77 ($13,000 -$11,232.23).
4. Husband is not entitled to any credit for the $700.00 annual maintenance fee on the parties’ time-share.
5. Husband shall retain title to the time-share, and the parties are directed to ensure that husband alone has title to the same within thirty (30) days from the date of this order.
6. Husband’s request for credit in the amount of $3,000.00 for payments made on credit card debt is denied.
7. Husband shall receive credit in the amount of $12,053.50 for his portion of marital funds removed by wife from the parties’ ESB bank account.
8. Husband shall receive credit in the amount of $15,000 for funds provided to wife after the parties were separated.
9. The parties’ requests for attorney’s fees are denied.
10. Based on the above findings the court calculates that wife is entitled to a total credit of $8,767.77 and husband is entitled to a total credit of $27,053.50. The difference of which results in husband being awarded a net crediting totaling $18,285.73.
11. Attorney Angelo Papa shall prepare a qualified domestic relation’s order within 30 days from the date of this order.
12. Husband’s credit shall be offset against any outstanding payments due to wife pursuant to the QDRO or against any future payments husband is required to make there under.
13. The parties are further orders to comply with all provisions of the marital settlement agreement, which shall remain in full force and effect.
14. The prothonotary shall properly serve notice of this order and opinion by regular mail or personal service upon counsel of record and any party not represented by counsel at their last known address as contained in the court’s file.


author: FORD, P.J.,

text:
    Abeln v. Abeln

      Anthony M. Muir, for plaintiff.

      Heidi C. Noll, pro se.
    April 20, 2011
   FORD, P.J.,

In this appeal, plaintiff, Paul Abeln, challenges an order that I entered on March 8, 2011, denying his petition to enroll the parties’ child, Paul Christopher Abeln, in kindergarten at Saint Joseph the Worker Catholic School for the next academic year. Defendant, Heidi C. Noll, wants her child enrolled in the local public school, Kemsville Elementary School in the Parkland School District. In the March 8 order, I directed that the child be enrolled for kindergarten in Kemsville, the public school.

Mr. Abeln claims that the March 8 order does not serve Paul Christopher’s best interests. He also alleges that the order is overly broad based on his interpretation that it mandates that the child undergo his entire elementary school education in the Parkland School District. Mr. Abeln’s third contention is that his due process and equal protection rights were violated in the way I conducted the hearing. Each allegation lacks merit.

In Lehigh County, the court attempts to have the same judge address all petitions which are filed from time to time in a family’s custody case. I was assigned this case in 2008. Since then, both parties have filed multiple petitions. They have appeared before me repeatedly for hearings on these petitions from 2008 to the present. The hearings included a trial which covered five days from late March into early April, 2009, on Mr. Abeln’s petition to modify custody and Ms. Noll’s petition to relocate to the state of Arizona. The parties have also been before me in the courtroom on their divorce and property issues. One of the items in the record sent to the Superior Court is the docket. It provides a glimpse of the extraordinary frequency with which these parties file petitions and come to the courtroom. Through these hearings, I know the parties well. As to litigation matters, Mr. Abeln andMs. Noll contest almost everything. They repeatedly show incivility to each other. They make personal attacks upon each other during their testimony. They drift into extraneous matters. This litigation requires the judge to be actively involved in directing all of their hearings.

The educational experience for the child is more beneficial when both parents are invested in the process. Unfortunately, that is unlikely to happen at Saint Joseph based on an earlier incident that Mr. Abeln orchestrated at the Saint Joseph parish church for Paul Christopher’s baptism. This incident understandably created distrust in Ms. Noll in any dealings that Mr. Abeln would have with Saint Joseph parish. The incident is best described in three findings of fact from my May 18,2009, opinion following the custody trial.

23. Father was raised in the Roman Catholic faith. Mother was raised in the Lutheran faith. The parties discussed religion for Paul Christopher on a number of occasions. Mother made it clear to father that she wanted to be part of any decision pertaining to Paul Christopher’s faith and baptism in particular.
24. Notwithstanding a specific court prohibition, on April 26,2007, father registered the Abeln family at St. Joseph the Worker Church in Orefield, Pennsylvania. (See Exhibit D-19). Fie registered Paul Christopher for Catholic baptism. He registered for the August 4, 2007, baptismal workshop. Then he scheduled Paul Christopher’s baptism for late 2007. He chose the Godparents for Paul Christopher. All of this was done without the knowledge or consent of mother even though she shared legal custody with him at the time.
25. On December 2, 2007, mother with her friend, Colleen Geiger, went to St. Joseph’s church in the early afternoon. They saw vehicles with New Jersey license plates. Inside the church was father with the child and party assembled for the child’s baptism. The child was baptized.

As part of the record sent to the Superior Court, I include the May 18, 2009, opinion, which contains the findings of fact from the 2009 custody trial. It should provide insight for the Superior Court about the parents, child, and the dynamics of the relationships. Thus, a factor in my decision was the way Mr. Abeln went about the baptism at Saint Joseph which created a taint for Ms. Noll in educating the parties’ son there.

A second reason for directing that Paul Christopher be enrolled in public school rather than Catholic school is the fashion in which the parents have addressed religion with their son. Mr. Abeln attends Catholic services at Saint Joseph’s parish. Mother is now a member of the Jordan United Church of Christ. Both parents practice and try to teach their respective religious beliefs to their son.

Ms. Noll objects to having Paul Christopher educated at a Catholic school where the Catholic religion will be part of the curriculum. She testified that the instilling of principles of religion by both parents during the child’s extra-curricular time with the parents is sufficient and proper. At the hearing just conducted, Ms. Noll directed the court to paragraph 22 of the May 15,2009, order which was entered after the custody trial. In that part of the order, each parent was permitted to “provide religious instruction to the child during each parent’s respective period of custody.” Note that the issue of religious training by each parent, following the baptism incident at Saint Joseph church, reached a level of contention which caused me to include in paragraph 22 the following: “It is appropriate that the parental approach to religious issues in respect to the child’s religious training and practice be discussed in therapy.”

Mother has a concern that placing Paul Christopher in a Catholic school will undermine her attempts to instill her religious values in Paul Christopher. Her concern is not groundless. Under the circumstances of this case, for each parent to be on an equal footing in providing religious instruction for the child, the child should not be placed in a Catholic curriculum particularly at this parish where the baptism incident took place.

The final factor that I considered was the relative strength of the public school and the parochial school and circumstances surrounding attendance at each. As the record from the March hearing demonstrates, both of these schools are academically excellent. Both would provide wonderful educational opportunities for Paul Christopher. Under what was presented, there is insufficient basis to find that one school is superior to the other.

I considered each point raised by each parent. Many of the benefits that Mr. Abeln explained for Saint Joseph students apply comparably to Parkland School District students, such as attendance with the same students through each school year, contact with classmates outside the classroom, class size, a sense of community among the students and cost when one factors Catholic school tuition and child-care expense. Both schools have child-care options that make attendance at both schools practical for these parents. The child-care options are different at the schools but the parents’ respective duties and schedules make both options workable.

Placing Paul Christopher in public school was a proper exercise of my discretion based upon my considerable knowledge of the parties through hearings over many months and based upon the evidence presented at the March hearing. The placement of Paul Christopher at Kemsville Elementary School will serve Paul Christopher’s best interests.

Mr. Abeln’s next contention is that “the order was overly broad because it required the parties to enroll the minor child in the Parkland School District for his entire elementary school education beginning with kindergarten in the fall of 2011.” The part of the March 8, 2011, order which is challenged here reads: “The parties’ child, Paul Christopher Abeln, shall be enrolled in the Parkland School District for his elementary school education beginning with kindergarten in the fall of 2011.” A common sense reading of this sentence of the order reveals that it is a proper provision.

It is recognized that it is the court’s obligation to consider subsequent petitions with the circumstances then existing to resolve issues as they arise. At one time, Pennsylvania courts declined to grant petitions to reconsider earlier custody orders unless the petitioning party demonstrated that there had been a substantial change in the parties’ circumstances. There has been a change. The Superior Court of Pennsylvania explained:

It is settled law in Pennsylvania that a custody order is subject to modification without proof of substantial change in circumstances when it is shown that change is in the best interests of the child. Whenever a court is called upon to address the best interests of a child, traditional burdens or presumptions such as substantial change in circumstances, the fitness of one parent over another, or the tender years doctrine must all give way to the paramount concern; the best interests of the child. Jordan v. Jackson, 876 A.2d 443, 452 (Pa. Super. 2005) (quoting Clapper v. Harvey, 716 A.2d 1271, 1273 (Pa. Super. 1998)) (emphasis in original).

The point of the challenged provision in the March 8, 2011, order is that the court is directing that Paul Christopher attend public school for each year unless the parties agree otherwise or the court directs otherwise. This sentence was placed in the order to forestall unnecessary petitions when Paul Christopher finishes each of his school years. If it becomes appropriate for the court to reconsider the order, for example, if Parkland is no longer the proper school district based upon the residences of the parents, the court should and would re-visit the school issue. The requirement to look at the circumstances on the filing of any subsequent petition is presumed based upon Pennsylvania law. There is no need to change the wording of this order.

The final contention is that “[t]he plaintiff was denied the right to a full hearing on the issue of where the minor child should attend elementary school.” Mr. Abeln claims that he was denied his due process and equal protection rights in the fashion in which I conducted the hearing. He says that I cut him off and I did not allow him to make a full presentation on the issue.

When the parties appeared for hearing on March 4, in addition to Mr. Abeln’s petition about school, I also had before me Ms. Noll’s petition for contempt filed on January 25 and a second petition from Mr. Abeln which was filed on February 11, which he termed an “emergency petition” to freeze Ms. Noll’s assets pending decision on the equitable distribution issues. After the part of the hearing during which evidence was taken on the school issue, I took evidence on the other two petitions. The Abeln matters were not the only cases that I had on March 4.1 was the motions-miscellaneous judge on March 4. The record of the Abeln hearing reveals that, before that hearing started, I addressed unrelated matters in the courtroom. The record of the Abeln hearing also reveals that I had another custody hearing to be conducted following the Abeln hearing. It also reflects that I had other unrelated matters still to be heard. This was a busy hearing day for me. (N.T., 3/4/11, pp.2, 11,37)

On March 4 in the Abeln hearing, I had to strike the balance among several factors. I had to be informed so that I could make a proper decision for Paul Christopher pertaining to his school. I had to be fair to the parties in terms of permitting them to present relevant evidence on the issue. I also had to be fair to the litigants in the unrelated cases so that their matters could be reached. Based upon my knowledge of this family from my many prior hearings with them and from the evidence presented during the March hearing, I was fully informed on the issue. They each fully presented their evidence on the issue during their cases-in-chief. The only curtailing of Mr. Abeln’s presentation occurred when he attempted a rebuttal to Ms. Noll’s evidence by referring to a “recent evaluation.” (N.T., 3/4/11, p.15) I did not allow that hearsay. Then, when I was announcing my decision on the school issue, he referred to evidence about the baptism issue. (N.T., 3/4/11, p.17) I did not permit that. That matter had been litigated, with findings of fact, two years previously.

The record reflects that I allowed each party a complete presentation on the school issue. I kept the hearing on track. I did not permit improper rebuttal from Mr. Abeln. There were no due process or equal rights violations.


author: PICCIONE, J.,

text:
    Honey Creek Stone Co. v. Telsmith Inc.

      John J. DeCaro Jr. and Frank G. Salpietro, for plaintiff.

      Kevin L. Colosimo and Andrew G. Jenkins, for defendant Telsmith.

      Donald M. Lewis III, for defendant Stewart-Amos Equipment Company.
    April 5, 2011
   PICCIONE, J.,

Before the court for disposition are defendants’ joint motion in limine and plaintiff’s motion to quash and for protective order. With their joint motion in limine, defendants Telsmith, Inc. and Stewart-Amos Equipment Company (hereinafter, “defendants”) seek to preclude any reference to or testimony reliant upon the “summary of lost business opportunities” identified as Attachment III in the expert report of expert witness James S. Fellin, CPA, CFE. According to plaintiff Honey Creek Stone Company (hereinafter, “plaintiff’), Attachment III is a summary of lost sales opportunities experienced by plaintiff from 2000 to 2006 as a result of defendants ’ alleged breach of contract and warranties. It was authored by Stan Barefield, plaintiff’s former salesman, and lists 17 former and potential customers of plaintiff along with the cost and amount of material expected to be sold to each of those customers. Defendants argue that any reference to Attachment III should be precluded because Attachment III is hearsay, speculative in nature, wholly unreliable, and prejudicial if admitted.

Defendants claim that Attachment III is “classic hearsay” because it is an out of court statement made by Mr. Barefield for the purpose of establishing a foundation for the conclusion that plaintiff could have become profitable by producing and selling more stone. Plaintiff notes that Mr. Barefield will be called to testify at trial.

Defendants maintain, however, that any reliance upon Attachment III by Mr. Fellin during his testimony constitutes hearsay. Regardless of the admissibility of Attachment III, Mr. Fellin may rely on Mr. Barefield’s report during his testimony since Rule 703 of the Pennsylvania Rules of Evidence permits expert witnesses to rely on the reports of third parties. Jahanshahi v. Centura Development Co., Inc., 816 A.2d 1179, 1185 (Pa. Super. 2003). Rule 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Pa.R.E. 703 (emphasis added).

Furthermore, if Attachment III is found to be inadmissible, the court may instruct the jury to consider Attachment III only to explain the basis for Mr. Fellin’s opinion, and not as substantive evidence. Pa.R.E. 703, comment.

In order for Mr. Fellin to permissibly rely upon Attachment III, Rule 703 requires that Attachment III be the type of report that is reasonably relied upon by experts in the field. This is a preliminary question to be determined by the court. Id. To answer this question, the court must determine what type of evidence is typically relied upon to determine lost profits or future profitability. The Superior Court of Pennsylvania has stated that the following types of evidence are permissible to establish such damages:

(1)...(2) evidence of past profits in an established business furnish a reasonable basis for estimating future profits. (3) Profits made by others or by a similar contract, where the facts were not greatly different may also afford a reasonable inference of the plaintiff’s loss. (4) The evidence of experts if based on anything more than individual opinion or conjecture has also been admitted.” Bolus v. United Penn Bank, 525 A.2d 1215, 1226 (Pa. Super. 1987) (citing Massachusetts Bonding & Insur. Co. v. Johnston & Harder, Inc., 22 A.2d 709 (Pa. 1941)).

As a result, the testimony of an expert as to lost profits or the potential for future profitability may be admitted assuming the expert’s testimony is based on anything more than individual opinion or conjecture. Id.

Defendants claim that Attachment III merely represents the opinion of Mr. Barefield. They argue that Attachment III is speculative, wholly unreliable, and generally not the type of evidence reasonably relied upon by an expert testifying as to lost profits. As stated above, defendants assert that Attachment III has been offered by plaintiff to establish a foundation for the conclusion that plaintiff could have become profitable by producing and selling more stone. Consistent with defendants, Mr. Fellin indicated in his report that he consulted Attachment III as well as other sources to determine whether there was adequate demand to consume the production capability of plaintiff. Pl.’s expert report, at 8. To support its claim of increased customer demand asserted in Attachment III, plaintiff offered letters and communications between defendants and some of plaintiff’s customers that are listed on Attachment III. Lindy Paving, Inc. provided defendant with documentation indicating that plaintiff had at least sent lists of prices for their product to Lindy Paving, Inc. Pl.’s Ex. A. Kokosing Construction Co., Inc. never denied that it had previously requested prices from plaintiff. Pl.’s Ex. B. Similarly, John Gulisek Construction Co. indicated that it may have requested pricing on material from plaintiff. Pl.’s Ex. C. Baird Concrete Products notified defendants that it purchased No. 9 Limestone from plaintiff until November of 2006, when plaintiff no longer had the material available. Pl.’s Ex. D. T.C. Redi-Mix provided defendants with documentation indicating that substantial business was conducted with plaintiff. Pl.’s Ex. E.

The information on Attachment III is consistent with the letters and communications between defendants and plaintiff’s customers. Attachment III lists Lindy Paving, Inc. as a potential customer but does not indicate that plaintiff ever conducted any business with that company. Attachment III notes that plaintiff could not meet production requirements and, as a result, could not bid on a sewer projected handled by Kokosing Construction Co., Inc. Similarly, Attachment III states that plaintiff could not bid on a project of John Gulisek Construction Co. because it could not produce enough stone. Attachment III also indicates that plaintiff conducted business with Baird Concrete Products and T.C. Redi-Mix until plaintiff ran out of stone. Based on the above examination of the evidence presented, it appears that Attachment III accurately reflects the business relationship between plaintiff and its previous and potential customers. As a result, the court may infer that Attachment III is based on plaintiff’s actual business relationship with the 17 previous and potential customers listed. The information in Attachment III is drawn from past profits and past attempts to bid on or supply certain projects. It is not based on Mr. Barefield’s individual opinion or conjecture. Therefore, the court finds that Attachment III provides the type of facts and data that are reasonably relied upon by experts in determining whether there is sufficient demand for a business’s product. Mr. Fellin may rely on and reference Attachment III during his testimony. Defendants will not be unfairly prejudiced by the court’s decision. Therefore, defendant’s joint motion in limine is denied.

In addition to defendants’ joint motion in limine, plaintiff’s motion to quash and for protective order is currently before the court. Defendant Telsmith has sought to subpoena seven of plaintiff’s Ohio customers to give a deposition relative to the instant litigation. Plaintiff argues that defendant Telsmith has failed to comply with the proper procedure and that this court does not have the authority to compel these depositions in Ohio. Plaintiff requests that the court quash the subpoenas and enter a protective order prohibiting the depositions of the seven customers.

Preliminarily, the court notes that plaintiff’s motion was previously argued and was denied by order of court dated December 8, 2010. Notwithstanding the previous denial, the court finds that plaintiff’s current motion is also without merit. Plaintiff claims that defendant Telsmith was required to apply to this court for issuance of a letter rogatory; however, the authority cited by plaintiff imposes no such requirement to secure a deposition in Ohio. See 42 Pa.C.S.A. § 5325; see also Pa.R.C.P. 4015. Furthermore, defendant Telsmith may attempt to depose plaintiff’s seven customers, regardless of this court’s authority to compel a deposition in Ohio. If defendant Telsmith cannot secure those depositions, that evidence will not be available at trial. Therefore, plaintiff’s motion to quash and for protective order is denied.

ORDER OF COURT

And now, April 5, 2011, this court having held a hearing/argument on March 29, 2011 regarding defendants’ joint motion in limine and plaintiff’s motion to quash and for protective order, with John J. DeCaro, Jr., Esquire, and Frank G. Salpietro, Esquire, appearing and representing the plaintiff, and Kevin L. Colosimo, Esquire, and Andrew G. Jenkins, Esquire, appearing and representing the defendant Telsmith, Inc., and Donald M. Lewis, III, Esquire, appearing and representing the defendant Stewart-Amos Equipment Co., and after consideration of the parties’ arguments, it is hereby ordered, adjudged, and decreed as follows:

1. Plaintiff’s motion to quash and for protective order is denied pursuant to the attached opinion.

2. Defendants’ joint motion in limine is denied pursuant to the attached opinion.

3. The court confirms this case is scheduled for commencement of trial during the first week of the May 2011 civil trial term to commence May 9, 2011.

4. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record for the parties, John J. DeCaro, Jr., Esquire, and Frank G. Salpietro, Esquire, counsel for the plaintiff; Kevin L. Colosimo, Esquire, and Andrew G. Jenkins, Esquire, counsel for the defendant Telsmith, Inc.; and Donald M. Lewis, III, Esquire, counsel for the defendant Stewart-Amos Equipment Co.


author: PICCIONE, P.J.,

text:
    Ayala v. Ayala

      Angelo A. Papa Jr., for plaintiff.

      Jean Krkuc Perkins, for defendant.
    April 18, 2011
   PICCIONE, P.J.,

Before the court for disposition is petitioner’s (hereinafter the “mother”) “petition to relocate minor child.” The relevant factual background is as follows: mother, Beth A. Ayala, and Michael L. Ayala (hereinafter the “father”), were divorced from each other in 2007. During their marriage, one child was born, A.E.A., bom March 23, 2004 (hereinafter the “minor child”). The parties have been before the court regarding custody and related domestic matters many times during which the court has been able to observe the parties in their interactions, receive evidence and testimony regarding their abilities to parent their child, their strengths and weaknesses regarding the resolution of noncomplex custody differences and other domestic issues which from time to time have arisen. In addition, the court has received evidence in the form of testimony and reports from various counselors regarding the parties, their child, their marital difficulties and interactions. By order of court dated June 11, 2009, the court confirmed the parties’ custody consent agreement which sets forth the parties’ agreed-upon resolution of primary, partial and legal custody, summer vacation, holiday custody and other matters. Pursuant to the parties’ June 11, 2009 agreement and the court’s order, the mother was granted primary physical custody of the parties’ minor child subject to father’s partial custody on alternate weekends from Fridays after school until the following Monday at 9:00 a.m. and each Wednesday from after school until 7:00 p.m. that same evening. Further, father was granted partial custody during the summer vacation from school on alternate Tuesdays from 9:00 a.m. until the following Wednesday at 5:00 p.m., alternate Fridays from 9:00 a.m. until the following Monday at 9:00 a.m. and during alternate weeks on Wednesdays from 9:00 a.m. until Friday at 9:00 a.m.

The mother currently resides in the east side of the city of New Castle, Lawrence County, Pennsylvania and father resides in Shenango Township, Lawrence County, Pennsylvania. Flowever, each of the parties exchange custody of the minor child at the Pennsylvania state police barracks located in Neshannock Township which is in the northern section of Lawrence County, which entails approximately a 10- to 15-minute drive from their current residences for each of the parties. Mother’s present household consists of herself and her two children — the minor child and her older sibling. Both children attend school in the New Castle Area School District. Mother currently is employed in a podiatry office located in Beaver Falls, Pennsylvania and has held such position for approximately one and one-half (1-1/2) years.

In September of 2010 and after dating for more than a year, the mother became engaged to Richard Holt and the parties have planned a fall 2011 wedding. Mr. Holt is employed full-time for Nementz Foods in Wellsville, Ohio where he manages Save-a-Lot grocery stores. Mr. Holt did not appear at the hearing because of his work. The mother testified that he has worked for Nementz Foods for approximately four (4) years, earns income which is sufficient, is divorced and enjoys partial custody of his 13-year-old daughter on alternate weekends. Mother describes the minor child’s relationship with her fiance as good, stating that affection is shown back and forth between them. As to the fiance’s previous spouse, mother describes that relationship as cordial, stating there is frequent contact. Mother further testified that the minor child and the fiance’s daughter refer to each other as sisters and get along well with each other, as well with the mother’s other child.

On October 27, 2010 the mother filed a petition to relocate requesting that the court permit her and her children to move to 462 Woodbine Avenue, East Liverpool, Ohio, 43920, the present residence of her fiance.

“With any child custody case, the paramount concern is the best interests of the child.” Collins v. Collins, 847 A.2d 466, 471 (Pa. Super. 2006). This standard requires a case-by-case assessment of all the relevant factors that could affect the child’s well-being. Id. When a custody case involves a request by one parent to relocate with the child, a best interest analysis must include consideration of the three factors originally outlined in Gruber v. Gruber, 583 A.2d 434 (Pa. Super. 1990). Klos v. Klos, 934 A.2d 724, 728 (Pa. Super. 2007) (citing Collins, 897 A.2d at 471). The Gruber factors are as follows:

(1) the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;
(2) the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; [and]
(3) the availability of realistic substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Id.

When there is a custody order already in place the parent who desires to relocate bears the burden of proving the aforementioned factors. Klos, 934 A.2d at 728.

In determining whether the proposed relocation would improve the quality of life of the custodial parent and child, a court must consider economic opportunities as well as other possible benefits, including reuniting with family and friends or an improved physical environment. Boyer v. Schake, 799 A.2d 124,127(Pa. Super. 2002). “Importantly, the court may not ignore or underestimate any facts which are likely to contribute to the well-being and general happiness of the custodial parent and the children.” Billhime v. Billihime, 869 A.2d 1031, 1038 (Pa. Super. 2005). The court must also consider the respective motives of the parents in requesting or opposing relocation and determine whether the custodial parent will cooperate with alternative visitation arrangements necessitated by the move. Id. Finally, the court must decide whether realistic substitute visitation arrangements can be made. Id. Such arrangements need not be “as frequent as prior to the relocation in order to allow the relocation.” Schake, 799 A.2d at 127. “The necessity of shifting visitation arrangements to account for geographical distances will not defeat a move which has been shown to offer real advantages to the custodial parent and children.” Id.

In the case sub judice, mother bears the burden of production and persuasion as the custodial parent. In support of her position, mother presented several exhibits as well as her own testimony. With respect to the first Gruber factor, mother presented evidence of the economic benefits of relocating to East Liverpool, Ohio.

Mother testified that she would move from her New Castle, Pennsylvaniaresidence after the current 2010-2011 school year but prior to the commencement of the 2011-2012 school year, with she and her children residing in her fiance’s home in East Liverpool, Ohio. She describes this home as a three (3) bedroom, one (1) bath, three (3) car garage dwelling situate on one (1) acre of land. The property is owned and maintained by Richard Holt and the relocation would relieve mother of the sole responsibility of maintaining her present residence.

Mother has testified that she intends to continue in her present employment, which is located in Beaver Falls, Pennsylvania and which does not present any significant difference in travel time from either dwelling places. In addition, the court has heard testimony from mother that appropriate educational opportunities and institutions are available to the minor child within five (5) miles of her proposed relocation residence; those being the East Liverpool School District, the Beaver Local School District and private school options which are available through a voucher system in the state of Ohio. Additionally, recreational and community activities are available through the East Liverpool Track Club. Therefore, a relocation to East Liverpool, Ohio will most likely not result in a substantial difference in the minor child’s educational, recreational and social opportunities nor in mother’s continued employment.

The court heard testimony regarding the relationship among the minor child, her brother, the fiance’s daughter, the mother and Mr. Holt. Such relationship was called typical, the court hearing that the girls already refer to themselves as sisters. The individuals all interact appropriately and would appear to have a good chance to interact and live well as a two-parent family unit.

The mother presented testimony that Mr. Holt has been steadily employed with Nementz Foods as the top store manager of the Wellsville, Ohio Save-a-Lot and earns sufficient income to support the family unit. Mr. Holt has worked for his current employer for about four (4) years and generally works six (6) days a week, 6:30 a.m. to 3:00 p.m. The court accepts that Mr. Holt was unable to attend the hearing because of his work responsibilities. Mother testified that the minor child and her fiance get along well together and that Mr. Holt treats the mother and her children well, that a good relationship has developed among all and that she and Mr. Holt are in love.

The mother has demonstrated that relocation to East Liverpool, Ohio would yield economic and non-economic benefits for her and the minor child. Under the first Gruber factor, however, mother must also establish that the decision to relocate is not the result of a momentary whim. Klos, 934 A.2d at 728. Mother testified that she dated her fiance since July 2009 and became engaged in September of 2010. A wedding in the fall of 2011 is planned. She has determined that it would be in her and her children’s best interest to move into her fiance’s house, which is more spacious for her and the children and would relieve her of the maintenance and expense of her present rental property. The court finds mother’s testimony on this issue to be credible and it would appear obvious that a newly married couple would want to live together. Furthermore, no evidence to the contrary was presented. As a result, the court is satisfied that mother’s desire to relocate to East Liverpool, Ohio is sincere and not the result of a momentary whim.

The second Gruber factor requires consideration of the integrity of both parents motives in seeking and opposing the relocation. Klos, 934 A2d at 728. As mentioned above, mother’s request to relocate appears to be motivated not by any ill-will towards father, but by a genuine desire to live with her future husband and children as a two-parent family unit. The integrity of her motive is demonstrated by her willingness to propose alternative appropriate custody arrangements for the father and to help transport the minor child for custody exchanges. After reviewing the evidence and testimony, it is clear that mother is not requesting relocation in order to inconvenience the father or to sabotage his relationship with the minor child. The court has no reason to doubt that father sincerely cares about his daughter and wants to see her as much as possible; however, some of father’s actions indicate that in opposing the relocation, he may also be motivated by feelings of animosity toward the mother. It is obvious to the court from the parties’ interactions that communication and cooperation difficulties persist between mother and father which the court believes are principally the result of the father’s obstinance in insisting that everything must be exactly as he alone perceives the custody arrangement requires. Examples of this behavior are insistence upon the exact timing of telephone communications with the minor child and times of custody exchanges.

The father also opposes mother’s relocation based upon the increased travel time for custody exchanges. The court finds that at present, the travel time to the point of custody exchange for each of the parties is about 10 to 15 minutes. If mother’s request to relocate is granted, the distance between the two parties’ residences would be approximately 45 to 60 minutes. By requiring each party to travel to a mutually convenient custody exchange location approximately mid-way between the parties’ residences, the mother and father could be reasonably expected to have to travel 25 to 30 minutes. The court does not believe that an increase of about 12 to 15 minutes to the point of custody exchange will occasion a significant hardship upon either of the parties. The father also objects on the basis of increased gasoline costs and the location of the minor child’s pediatrician in Lawrence County. As to the increased cost of gasoline, the court does recognize such a factor; however, such increase is not oppressive and may be offset through reasonable partial custody modifications which might result in a reduction of the number of trips to custody exchanges.

After reviewing the evidence and testimony, the court is convinced that mother is seeking relocation because of a genuinely held belief that the move is in the best interest of herself and her children.

The third and final Gruber factor requires consideration of the availability of realistic substitute visitation arrangements which will adequately foster an on-going relationship between the child and the non-custodial parent. Klos, 934 A.2d at 728. During her testimony, the mother proposed that the minor child stay with the father on alternate weekends after school until Sunday at 6:00 p.m. and that custody of the child during the summer months be changed to alternate weeks between the mother and the father. Mother also proposed maintaining the same holidays as currently enjoyed by the parties with the exception of changing the Christmas holiday exchange time to 5:00 p.m. Mother also proposes that all custody exchanges take place at the Chippewa Township Municipal Building in Beaver County, Pennsylvania, which she asserts would be approximately mid-way between her new residence and father’s current residence. The court believes that by providing for alternate weekend partial custody, the alternating summer custody arrangement and the custody maintained through the parties’ consent custody agreement, father’s time with the minor child will be reduced only slightly, if at all. As a result, he will be able to maintain an on-going relationship with his daughter. Therefore, mother’s proposed custody arrangement is realistic and does no harm to the relationship between father and the minor child.

After weighing the Gruber factors in conjunction with the best interest of the child standard, the court concludes that mother and minor child should be permitted to relocate to East Liverpool, Ohio. The move will result in improved economic benefits to the mother and will allow her and her children to live with her new husband. The minor child should benefit directly from the mother’s increased economic security and will be able to strengthen her bonds with her sibling and the others involved in her welfare in a stable two-parent household and having a loving and supportive father. Despite the relocation, the minor child will be able to maintain her relationship with the father. She will still see him on weekends, major holidays and during the summer and mother’s willingness to assist with transportation will not significantly impact the father’s travel times.

As such, the court grants mother’s petition to relocate minor child. Accordingly, the court enters the attached order of court.

ORDER OF COURT

And now, April 18, 2011, the court having held a hearing on February 8, 2011 regarding petitioner Beth A. Ayala’s petition to relocate minor child, and petition for special relief filed on behalf of A.E.A. (hereinafter the “minor child”), with Jean Krkuc Perkins, Esquire, appearing and representing Beth A. Ayala (hereinafter the “mother”), Angelo A. Papa, Jr., Esquire, appearing and representing Michael L. Ayala (hereinafter the “father”), and Bradley G. Olson, Jr., Esquire, appearing and representing the minor child, it is hereby ordered and decreed as follows:

1. Mother’s petition to relocate minor child is granted pursuant to the attached opinion.

2. Commencing after the mother has relocated her residence to East Liverpool, Ohio:

a) The father shall be entitled to partial custody of the parties’ minor child, A.E.A., on alternate weekends after school until the following Sunday at 6:00 p.m. Such alternate weekends shall not be during the alternate weekends when the child of the fiance is scheduled for custody at the fiance’s residence; and
b) The father shall be entitled to partial custody with the minor child during the summer months of June, July and August during alternate weeks from Sunday to Sunday, commencing the first Sunday following the last day of school beginning at 6:00 p.m. until the following Sunday at 6:00 p.m. and alternating thereafter on a one (1) week basis with the mother. The summer of 2011, the partial custody will end on the last Sunday preceding the commencement of the new school year.
c) The parties shall continue to enjoy two (2) weeks of non-consecutive summer vacation with the minor child. However, unless the mother and father mutually agree otherwise, such vacation time shall coincide with an alternating summer week during which the vacationing parent already is scheduled to have custody of the minor child.

3. Each of the parties shall participate in the transportation of the minor child to and from the custody exchanges. The parties are further given the opportunity to amicably determine and agree upon a place for the custody exchange to occur. However, in the event the parties are unable to mutually agree upon a place for the custody exchanges, the court then directs that the custody exchanges take place at the designated times at the Chippewa Township Municipal Building, Beaver County, Pennsylvania with each party traveling to that point and arriving within five (5) minutes of the exchange time.

4. The time of the custody exchange on Christmas shall be changed to 5:00 p.m.

5. All other provisions of the court’s order dated June 11, 2009 confirming the parties’ custody consent agreement, not amended by or in conflict with the provisions of this instant order of court, shall continue and remain in full force and effect.

6. The petition for special relief is granted and except in case of emergency or general invitation to the public to attend an event such as open house, school play or assembly, the father shall not present himself on the premises of Thaddeus Stevens Elementary School without prior written arrangement and authorization from the school administrator.

7. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.