author: COX, J.,

text:
    Commonwealth v. Keys

      C.P. of Lawrence County,
    no. 993 of 2009.

      Diane Shaffer, district attorney, for Commonwealth.

      Stanley T. Booker, for defendant.
    January 26, 2011
   COX, J.,

—In the instant matter, the court ordered a nolle prosequi, on February 22, 2010, without a hearing, of all charges filed against the defendant Aaron Lamont Keys. The defendant appealed that decision and the Pennsylvania Superior Court remanded the case to this court to hold an evidentiary hearing regarding the motion for nolle prosequi. The defendant claims that the court should not grant the commonwealth’s motion for nolle prosequi as the commonwealth intends to refile the charges in an attempt to circumvent Pa.R.Crim.P. 600.

On August 19,2009, the commonwealth filed a criminal complaint that included the charges of possession with the intent to deliver a controlled substance, persons not to possess, use, manufacture, control, sell or transfer firearms, and two counts of intentional possession of a controlled substance by a person not registered because the defendant was in possession of 6.8 grams of crack cocaine and 12 Roxycodone tablets. The commonwealth, on September 8, 2009, agreed to withdraw the charge of possession with the intent to deliver a controlled substance regarding the 6.8 grams of crack cocaine and the defendant, in return, waived his right to a preliminary hearing. An information was filed on September 17, 2009, charging the defendant with persons not to possess, use, manufacture, control, sell or transfer firearms and two counts of intentional possession of a controlled substance by a person not registered. All of these facts occurred during the term of then District Attorney John J. Bongivengo.

On January 4, 2010, the defendant filed a motion for continuance for the call of the trial list because defense counsel required more time to communicate with his client. Moreover, the defendant filed a continuance on February 1,2010, for the call of the trial list stating that counsel is in the process of negotiating a plea. This case was reviewed by the current District Attorney Joshua Lamancusa, who disagreed with the decision to withdraw the charge of possession with the intent to deliver a controlled substance regarding the 6.8 grams of crack cocaine. Subsequently, the commonwealth filed a motion for nolle prosequi on February 19, 2010, requesting that the current case be nolle prossed. However, the commonwealth also indicated that the charges would be refiled. On February 18, 2010, Assistant District Attorney Diane Shaffer, who was representing the commonwealth in this matter, informed defense counsel, Stanley T. Booker, Esquire, that the commonwealth was seeking a nolle prosequi. Mr. Booker indicated that he was opposed to the nolle prosequi and he contacted the office of the district court administrator for the Court of Common Pleas of Lawrence County to inform them of the same. However, a hearing was not scheduled for the motion for nolle prosequi filed by the commonwealth and court administration placed the motion amongst the uncontested motions awaiting the court’s signature in conformance with the common practice of Lawrence County. The local rules of Lawrence County permit uncontested motions to be presented to court administration, who subsequently forward them to the court for signature. L211(a)(2). It must be noted that L211 (a)(2) requires that the moving party must provide timely notice to all other parties. The court granted the nolle prosequi on Februaty 22, 2010, without a hearing. The defendant did not file a motion for reconsideration which would have provided the court with an opportunity to further investigate the matter and correct the situation, if necessary. The Pennsylvania Superior Court granted the defendant’s appeal and remanded this matter to provide this court with an opportunity to hold an evidentiary hearing regarding the motion for nolle prosequi. A hearing was originally scheduled for December 21, 2010, but was required to be continued. On January 7, 2011, this court held an evidentiary hearing on the motion.

The defendant now claims that the commonwealth’s motion for nolle prosequi should not have been granted as the commonwealth nolle prossed the charges in order to circumvent Pa.R.Crim.P. 600.

42 Pa.C.S.A. § 8932 states, “After the commencement of a criminal matter by the filing of an information or otherwise, the district attorney shall not enter a nolle prosequi or dispose of the matter or discharge a prisoner from custody by means of a proceeding in lieu of a plea or trial without having obtained the approval of the court.” Furthermore, the Pennsylvania Rules of Criminal Procedure explain, “(A) Upon motion of the attorney for the commonwealth, the court may, in open court, order a nolle prosequi of one or more charges notwithstanding the objection of any person.” Pa.R.Crim.P. 585. Ffistorically, a prosecutor had the authority to enter a nolle prosequi on his or her own motion; however, that procedure has been altered to require the commonwealth to obtain assent from the court. Commonwealth v. Stivala, 645 A.2d 257, 261 (Pa. Super. 1994). The court must consider the following two factors when deciding whether to grant a nolle prosequi: “(1) is the reason given by the commonwealth for requesting the nolle prosequi valid and reasonable, and (2) does the defendant, at the time the nolle prosequi is requested, have a valid speedy trial claim?” Commonwealth v. Reinhardt, 466 Pa. 591, 597, 353 A.2d 848, 852 (1976) (citing Commonwealth v. Learning, 442 Pa. 223, 275 A.2d 43 (1971); Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968)). Hence, the court must consider the reasons given by the commonwealth and there must be a reasonable basis for the nolle prosequi motion. Commonwealth v. Rega, 856 A.2d 1242, 1245 (Pa. Super. 2004) (citing Reinhardt, Supra.). The decision to grant or deny a motion for nolle prosequi lies within the sound discretion of the trial court and its action will not be reversed unless there is an abuse of discretion. DiPasquale, 431 Pa. at 542, 246 A.2d at 433 (citing Bierstein v. Whitman, 355 Pa. 515, 50 A.2d 334 (1947); Anderson v. Guerrein, etc., Co. et al., 346 Pa. 80, 29 A.2d 682 (1943)). The Reinhardt court has explained the procedure for a nolle prosequi as follows:

A motion for nolle prosequi is treated like any other motion: one side presents the motion to the court; both sides argue the merits of the requested motion; the court considers the merits of their arguments; and the trial court issues a ruling. The rule in no way bars the presentation of objections by the defendant nor does it direct the trial court to ignore those objections. It merely states that the defendant’s objection is not dispositive of the issue. Reinhardt, 466 Pa. at 597, 353 A.2d at 851.

Therefore, the commonwealth must present the reasons for requesting the nolle prosequi and the defendant has the right to present its objections. The court will then determine whether there is a reasonable basis to grant the nolle prosequi.

In the current case, the commonwealth presented several reasons for seeking the nolle prosequi and refiling the charges. First, District Attorney Lamancusa disagreed with the withdrawal of the charge of possession with the intent to deliver a controlled substance as it involved 6.8 grams of crack cocaine. The affiant in this matter, Sergeant Robert Salem, was also in favor of refiling the charges. Moreover, the commonwealth claims that it would not gain any additional benefits from obtaining a nolle prosequi and refiling the charges other than being granted the opportunity to assert the charge of possession with the intent to deliver a controlled substance. Next, Assistant District Attorney Shaffer explained that the commonwealth could not properly reprimand the defendant for his actions without the charge of possession with the intent to deliver a controlled substance for his possession of 6.8 grams of crack cocaine. These are compelling reasons for the commonwealth to seek a nolle prosequi in an attempt to refile the charges to include possession with the intent to deliver a controlled substance. The defendant was originally charged with possession of a significant quantity of crack cocaine, but that charge was withdrawn in exchange for the defendant’s waiver of his right to a preliminary hearing through an agreement made with an assistant district attorney under the supervision of then District Attorney Bongivengo. The current district attorney decided that the charge was necessary to properly reprimand the defendant due to the amount of crack cocaine discovered in his possession. Additionally, the defendant is permitted to assert his right to a preliminary hearing upon the refiling of the charges, if he chooses to do so, which will not deny him the benefit of the agreement he made previously to waive his rights.

Furthermore, the defendant does not currently have a valid speedy trial claim as the defendant was free on $5,000.00 bond, which was posted on September 8, 2009. The commonwealth had 365 days from filing of the criminal complaint to commence trial against the defendant. Pa.R.Crim.R 600. The criminal complaint in this case was dated August 19, 2009. The defendant then filed two continuances for the call of the trial list on January 4, 2010, and February 1, 2010. Those continuances delayed the tolling of Rule 600 for two months. The commonwealth’s notice of nolle prosequi and the court order granting the motion for nolle prosequi were filed on February 22, 2010. The defendant filed his appeal of that order on March 2, 2010. Thus, Rule 600 would have originally expired in November of 2010, which was approximately nine months after the nolle prosequi was entered. Additionally, the defendant will have an opportunity to assert any Pa.R.Crim.P. 600 claim, if warranted, when the charges are refiled because the commonwealth is not permitted to circumvent Rule 600 by merely being granted a nolle prosequi and refiling the charges. Commonwealth v. Whitaker, 467 Pa. 436, 442-443, 359 A.2d 174, 176-177 (1976).

The commonwealth has presented the court with valid reasons for requesting the nolle prosequi and the defendant is unable to establish that he had a valid Rule 600 claim resulting from the entry of the nolle prosequi. For the reasons set forth in this opinion, the court’s decision to grant the commonwealth’s motion for nolle prosequi should be affirmed.

ORDER OF COURT

Now, January 26, 2011, an appeal having been filed in the above-captioned case by the defendant, Aaron Lamont Keys, the court directs that the attached opinion be filed to satisfy the requirements of Pa.R.A.P. 1925(a). The clerk of courts of Lawrence County is directed to immediately assemble the record and transmit said record to the Superior Court of Pennsylvania as required by the applicable rules of appellate procedure.

The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Diane Shaffer, Esquire and Stanley T. Booker, Esquire.

      . 35 P.S. § 780-113(a)(30). This charge was filed because the defendant was in possession of 6.8 grams of crack cocaine.

      . 18 Pa.C.S.A. § 6105(a)(1).

      . 35 P.S. § 780-113(a)(16).

      . District Attorney Joshua Lamancusa was subsequently elected to the position of District Attorney of Lawrence County on November 3, 2009, and assumed office on January 4, 2010.

      . Rule L211 (a)(2) is listed under the heading Chapter 2 Local Rules of Civil Procedure, but is commonly applied to uncontested criminal motions as well.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Cappello v. CBH20 General Partner, LLC d/b/a Camelback Ski Corp.
    C.P. of Monroe County,
    no. 149 CV 2008.

      Hugh M. Emory, for plaintiffs.

      Jason R. Ohliger, for defendants.
    December 17, 2010
   ZULICK, J.,

—This case arises from injuries received on a chair lift at Camelback Ski Area on February 22, 2007. While dismounting a chair, plaintiff Phillip Capello was struck in the eye when the chair’s safety bar descended from its upright position. Mr. Cappello signed a “rental agreement and agreement not to sue” (“the release”) before using the slopes that day. The release is the subject of the motion for summary judgment now before the court.

The Capellos filed suit on January 8, 2008. Defendants (“Camelback”) filed an answer and new matter on February 6, 2008. Camelback asserted the defense of release from liability and has now moved for summary judgment. The parties submitted briefs and argument was held on December 6, 2010.

DISCUSSION

The Pennsylvania Rules of Civil Procedure permit a party to move for summary judgment after the close of pleadings. Pa.R.C.P. 1035.2. Summary judgment is appropriate only in those cases in which: (1) the record shows that there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. Erie Ins. Co. v. Abbott Furnace Co., 972 A.2d 1232, 1237 (Pa. Super. 2009). Summary judgment is therefore proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Lance v. Wyeth, 4 A.3d 160, 163 (Pa.Super. 2010).

The moving party has the burden of proving that no genuine issues of material fact exist. The trial court must examine the record in a light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Moyer v. Teledyne Cont’l Motors, Inc., 979 A.2d 336, 342-43 (Pa. Super. 2009) (citation omitted). The burden is therefore placed upon the moving party to prove that there is no issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Lance, 4 A.3d at 163.

Phillip Cappello admits that he signed the release. The release provides, in pertinent part:
I also hereby acknowledge, accept, and assume all risks of injury to any parts of this user’s body that can and do exist in the sport of skiing and/or snowboarding. I agree that I will not sue Camelback (either on my own behalf or on behalf of my spouse, child or ward) for injuries or damages relating to skiing and/or snowboarding and/ or the use of this equipment or any of Camelback’s facilities, even if I contend that Camelback was negligent or otherwise at fault.
I have carefully read this agreement and release of liability and fully understand its contents. I am aware this is a release of liability and a contract between myself and Camelback for any and all injury I may suffer while using Camelback’s facilities and I sign it of my own free will. Defendant’s motion for summary judgment, exhibit “A.”

Camelback argues that Mr.Cappello has released Camelback from liability by signing the release.

Mr. Cappello contends that the release does not bar his suit because a falling safety bar is not a risk inherent to skiing. He argues that the release “is so broad that, if enforceable, Mr. Cappello would not (sic) be barred from suit even if he slipped and fell on spilled liquid in the lobby of the lodge....” Cappello brief, p. 5. He argues that the release only applies to claims resulting from a “risk inherent in the activity of skiing.” Id.

Camelback responds by saying that the release does bar this claim, citing the recent decision of our Supreme Court in Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (Pa. 2010). The plaintiff in Chepkevich also signed a written release as part of her season ski pass. She was skiing with her six-year-old nephew, and asked the lift attendant to stop the chair lift twice, once to allow her to position herself and her nephew in front of the chair, and again when the chair reached them for pickup. The lift attendant stopped it once to allow them to get into position, but did not stop it again. The nephew had difficulty in getting into the chair as it came through the loading area, and the plaintiff fell off the lift while trying to assist her nephew, causing her injury.

Chief Justice Castille, writing for the court, reviewed the elements necessary for a valid exculpatory agreement, citing Topp Copy Products, Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (Pa. 1993):

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. Singletary at 470 (citing Princeton Sportswear Corp. v. H & M Assoc., 507 A.2d 339 (Pa. 1986); Employers Liab. Assurance Corp. v. Greenville Bus. Men’s Assoc., 224 A.2d 620 (Pa. 1966).

The Chepkevich court found that the release the plaintiff signed was not a contract of adhesion. The court noted that the release had been signed to obtain a season ski pass and was for recreational purposes. It was not unconscionable: “The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich at 28-29, 2 A.3d at 1190-1191. The Chepkevich court also found that the clause did not contravene public policy and was between private parties dealing with their private affairs.

The release arises from a similar context. Phillip Cappello signed the release in exchange for the use of the Camelback ski facilities. It was a private agreement between the ski area and a skier. The release was therefore a valid exculpatory agreement. Cappello concedes as much.

This does not end the inquiry. In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), our Supreme Court noted that even if an exculpatory agreement is valid, it will not be enforced unless the language clearly relieves a party of liability for negligence. The Dilks court held that in interpreting such clauses:

the guiding standards are that: 1) the contract language must be strictly construed; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause. Dilks, at 434, 192 A.2d at 687.

The language in the release meets these standards, just as the release in Chepkovich did. Again the release stated:

I agree that I will not sue Camelback (either on my own behalf or on behalf of my spouse, child or ward) for injuries or damages relating to skiing and/ or snowboarding and/or the use of this equipment or any of Camelback’s facilities, even if I contend that Camelback was negligent or otherwise at fault.

Mr. Cappello was using Camelback’s facilities while he was injured; he was struck by the falling chair lift bar while dismounting from the ski lift. He argues, however, that the defective chair lift bar was not an inherent risk of skiing, and that as in Crews, this risk could be removed “without altering the nature of the sport.” Cappello brief, page 7 Therefore, he contends the release is not enforceable.

The Crews case arose out of a collision involving an underage intoxicated snowboarder. The Superior Court held that the risk of colliding with an underage drinker on the slopes was not a risk “inherent to skiing” and refused to enforce an exculpatory agreement or to find assumption of the risk. Id. at 105.

Cappello acknowledges that the Supreme Court has stated in Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339 (Pa. 2000), that “boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail” are all activities that are part of downhill skiing. Id. at 344. The court also stated in Chepkevich that “use of the ski lift and the attendant dangers are inherent to the sport of skiing, and so were properly encompassed by the exculpatory language of the Release.” Chepkevich at 1194.

While Mr. Cappello argues that the improperly maintained bar was not an inherent risk of the sport, he cites no authority which would allow Chepkevich to be distinguished. He also cites no cases placing clear limits on the validity of releases from non-inherent risks other than the Crews decision. However, Crews did not involve the use of a ski lift. Plaintiff quotes Justice Baer’s concurring opinion in Chepkevich in which he opined that to the extent the release in that case could be read to include risks not inherent to the sport of skiing, he would find that it contravenes the public policy animating the Skier’s Responsibility Act. Chepkevich, at 1200. However, Justice Baer’s statement is dictum and not binding on this court.

In his opinion for the majority in Chepkevich, Chief Justice Castille stopped short of considering the validity of releases from non-inherent risks. The court found that the use of the ski lift by the plaintiff was an inherent risk of the sport. The agreement at issue in the Chepkevich case released Hidden Valley from “inherent and other risks.” Id. at 17 (emphasis added). Chepkevich thus did not hold whether or not exculpatory agreements could release liability for non-inherent risks. The Skier’s Responsibility Act, 42 Pa.C.S. § 7102(c), requires that the injury at issue arise from an inherent risk of the sport in order for the assumption of risk defense to apply. Chief Justice Castille did not import that requirement to his analysis of the release’s validity.

The use of the chair bar was part and parcel of using the lift and an inherent risk of the sport. The chair and its bar were facilities a skier uses to get to the top of the mountain. Camelback’s negligence in maintaining the bar was covered by language of the exculpatory agreement. The release will therefore be enforced.

Numerous other holdings of Pennsylvania courts are in accord. See, e.g. Zimmer v. Mitchell & Ness, 385 A.2d 437 (Pa. Super. 1978), affirmed per curiam, 416 A.2d 1010 (Pa. 1980) (upholding release of liability language in rental agreement for ski equipment); Kotovsky v. Ski Liberty Operating Corp., 603 A.2d 633 (Pa. Super. 1992), allocator denied, 609 A.2d 168 (Pa. 1992) (upholding release of liability language in agreement signed by ski race participant); Makar v. Wilderness Recreations, 124 Civil 1993, C.P. Monroe, affirmed 664 A.2d 1066 (Pa. Super. 1995) (barring snowmobile operator who signed release from bringing claim for injuries from accident in which snowmobile went through safety fence); Macioce v. Camelback Ski Corp., No. 20 Civil 1999, (C.P. Monroe, O’Brien, J., May 10, 1999) (barring snowtubing customer who signed release from bringing suit for injuries suffered when snowtube traveled down cliff and through mesh netting). See Hathi v. Camelback Ski Corp., No. 5704 Civil 2007 (C.P. Monroe, Miller, J., August 24, 2010) (upholding release where snowtuber sustained injury in falling out of tube, allegedly due to Camelback’s negligence relating to placement of protective hay bales). Federal court decisions have also found exculpatory releases valid under Pennsylvania law. See Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663 (M.D. Pa. 2005) (granting summary judgment for Camelback where plaintiff unable to mount lift chair due to raised seat was struck and injured by lift chair, but had signed waiver); Ruocco v. Camelback Ski Resort, Civil No: 3: CV-02-0393(M.D.Pa. 2003) (granting summary judgment where plaintiff skied off one of the slopes, off the trail and struck a tree, but had signed a release).

In conclusion, the release was a valid exculpatory agreement under Pennsylvania law and the claim brought in the complaint was covered by its reach. Skiers and snowboarders who sign such releases therefore take on both the risks of the sport and the risk that the provider of the facilities may not properly maintain the area and the lifts. Summary judgment will be granted accordingly.

ORDER

And now, December 17, 2010, upon consideration of the parties’ briefs and arguments. Defendants’ motion for summary judgment is granted.

      . It must be noted that the Yacoub court stated that the hospital could have filed a preliminary objection to request a more specific pleading and it chose not to do so. However, the court held that the complaint was sufficiently specific to provide the hospital with notice of the appellant’s claims even though the purported agents or ostensible agents were not identified by name. Id.


author: BOCCABELLA, J.,

text:
    Commonwealth v. Henderson

      Jesse Leisawitz, assistant district attorney, for Commonwealth at trial.

      Alisa R. Hobart, district attorney, for Commonwealth on appeal.

      Eric C. Diggan, for defendant.
    January 13, 2011
   BOCCABELLA, J.,

On September 15,2010, this court accepted Ramon Gaspar Henderson’s (hereinafter “defendant”) negotiated plea of guilty to the charge of count two (2) driving under the influence of alcohol. On the same day, this court sentenced the defendant to not less than ninety (90) days nor more than five (5) years incarceration in the Berks County Jail System and a fifteen hundred dollar ($1,500.00) fine. As a special condition, in lieu of incarceration, the defendant was placed on electronic monitoring for ninety (90) days, which was to run concurrent to count three (3) on CP-45CR-224-2010.

On October 15, 2010, the commonwealth, by and through counsel Alisa R. Plobart, Esquire, filed a notice of appeal to the Superior Court of Pennsylvania. On October 22, 2010, this court ordered the commonwealth as appellant to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On November 3, 2010, the commonwealth filed its concise statement. The following issue has been set forth for appellate review:

1. Whether the trial court imposed an illegal sentence by allowing the defendant to serve the mandatory incarceration portion of his sentence on electronic monitoring after the defendant failed to comply with the terms of the Second Time Offender Program (S.T.O.P) and was removed from that program. See Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (Pa.1991); Commonwealth v. Koskey, 571 Pa. 241, 812 A.2d 509 (Pa. 2002); Commonwealth v. Griffith, 950 A.2d 324 (Pa. Super. 2008).

FACTUAL SUMMARY

On December 28, 2009, at approximately 2:15 p.m.. Corporal Oesterling responded to Route 422 east near Hillview Road in response to an overturned vehicle. Based on his observations at the scene, Corporal Oesterling placed the defendant under arrest for suspicion of DUI. A blood test revealed the defendant’s BAC to be .407%. On September 15, 2010, this court accepted the defendant’s negotiated plea of guilty to the DUI charge. On the same day, this court sentenced the defendant to not less than ninety (90) days nor more than five (5) years incarceration in the Berks County Jail System and a fifteen hundred dollar ($1,500.00) fine. As a special condition, in lieu of incarceration, the defendant was placed on electronic monitoring for ninety (90) days, which was to run concurrent to count three (3) on CP-45-CR-224-2010.

DISCUSSION

The commonwealth’s appeal presents the sole issue of whether the court sentenced the defendant to an illegal sentence. The commonwealth asserts that the sentence is illegal due to the court allowing the defendant to serve the mandatory incarceration of his sentence on electronic monitoring.

A claim that the trial court imposed an illegal sentence is a matter of law and, accordingly, the Superior Court’s scope of review is plenary. Commonwealth v. Evans, 901 A.2d 528, 536 (Pa. Super. 2006). An illegal sentence exists if no statutory authorization exists for a particular sentence. Commonwealth v. Griffith, 950 A.2d 324, 325 (Pa. Super. 2008), quoting Commonwealth v. Kinney, 111 A.2d 492, 494 (Pa. Super. 2001) (citations omitted).

A sentence will not be overturned unless the record shows a manifest abuse of discretion, which is more than mere error in judgment. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004), appeal denied, 875 A.2d 1074 (Pa. 2005), quoting Commonwealth v. Cunningham, 805 A.2d 566 (Pa. Super. 2002). A manifest abuse of discretion may be found only where the record establishes that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).

The motor vehicle code provides in pertinent part:

(c) Incapacity; highest blood alcohol; controlled substances. - An individual who violates section 2802(a)(1) and refused testing of blood or breath or an individual who violates section 3802(c) or (d) shall be sentenced as follows:
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school approved by the department; and
(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815. 75 Pa. C.S.A. §3804(c)(2)(i-iv).

This court is amenable to amending the sentence to state that it is a county IP sentence. See 42 Pa.C.S.A. §9804. Berks County has an IP program and this court has found that the defendant is appropriate for the program. A determination regarding whether or not to grant or deny alternative sentencing is within the sound discretion of the trial court. Commonwealth v. Syno, 791 A.2d 363, 366 (Pa. Super. 2002). The Pennsylvania Superior Court, sitting en banc, has stated that:

In adopting IPP as a sentencing alternative, “[t] he Legislature’s intent was to give judges another sentencing option which would lie between probation and incarceration with respect to sentencing severity; to provide a more appropriate form of punishment/ treatment for certain types of non-violent offenders; to make the offender more accountable to the community; and to help reduce the county jail overcrowding problem while maintaining public safety.” Id. At 534. Thus, the grant or denial of a defendant’s request for IPP is largely within the sound discretion of the trial court. Commonwealth v. Williams, 941 A.2d 14,24 (Pa. Super. 2008) (en banc), quoting Commonwealth v. Arthur Williams, 868 A.3d 529, 534 (Pa. Super. 2005), appeal denied, 890 A.2d 1059 (Pa. 2005) and citing Syno, 791 A.2d 363.

In this case, the court’s intention is to sentence the defendant to county IP. It is semantics whether the defendant is given an intermediate punishment sentence or is given a sentence with intermediate punishment as a special condition. The plea agreement was for the ninety (90) days to five (5) years timeframe and the court has the discretion to sentence the defendant to electronic monitoring (County IP). As evidenced in Syno, the court has the discretion to sentence the defendant to county IP whether the DA’s office or adult probation office likes it or not. Syno, 791 A.2d at 366 (“Nowhere in the statute does it state that the eligibility of a defendant is to be determined by the county adult probation department.”).

For the foregoing reasons this court respectfully requests that the sentence imposed on the defendant be affirmed on appeal.

      . 75 Pa.C.S.A. §3802(c).


text:
    Imblum v. Shober

      Richard J. Schubert, for plaintiff.

      Lynn E. Bell and Jason M. Logue, for defendants.
    January 19, 2011
   COX, J.,

Before the court for disposition are the preliminary objections and motion to strike certificate of merit for insufficiency filed on behalf of the defendants Michelle M. Shober, D.O., and Lawrence County Eye Associates, P.C. (hereinafter “Lawrence County Eye Associates”). The preliminary objections raise the following arguments:

I. The plaintiff’s complaint is insufficiently specific as it contains the terms “generally,” “recklessness” and “negligence” and it lacks specific dates and conduct, which renders the claims susceptible of amplification in violation ofthe court’s ruling in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983);
II. The plaintiff fails to aver sufficient facts to support the averments in the complaint that the defendants’ conduct was reckless;
III. The plaintiff made broad references to agents, servants or employees, but failed to adequately identify the same; and
IV. The plaintiff’s complaint is legally insufficient as a claim for coiporate negligence has not been extended to physician practice groups as they are not comprehensive health care providers.

In their motion to strike certificate of merit for insufficiency, the defendants contend that the plaintiff violated Pa.R.C.P. No. 1042.3(b)(1), which requires separate certificates for each licensed professional against whom the claims are asserted, because the plaintiff filed a certificate for Michelle M. Shober, D.O., and a certificate for Michelle M. Shober, D.O., and Lawrence County Eye Associates, but did not file certificates for the unnamed agents, servants or employees referenced in the complaint.

According to the complaint, the plaintiff received medical care from Dr. Shober, an agent or representative of Lawrence County Eye Associates, regarding the plaintiff’s deteriorating eyesight. On November 25, 2008, and December 8, 2008, the plaintiff was examined and treated by Dr. Shober for blurred vision in the right eye and for headaches above her right eye. On November 25, 2008, Dr. Shober diagnosed the plaintiff with ischemic optic neuropathy for which she ordered blood tests and steroid therapy. On the same day, Dr. Shober also diagnosed the plaintiff with primary angle closure glaucoma and prescribed glaucoma eye drops. The plaintiff was then examined by Dr. Shober on December 8, 2008, as her condition had declined to include double and blurred vision and worsening eyesight. Dr. Shober continued to treat the plaintiff with steroid therapy and eyedrops. However, the plaintiff’s condition did not improve and she now suffers from the following ailments of her right eye: profound loss of eyesight, chronic angular closure glaucoma, peripheral retinal hemorrhages and constant pain.

As a result, the plaintiff filed suit in the current matter alleging that the plaintiff’s injuries were caused by Dr. Shober’s negligence. She also asserts a claim against Lawrence County Eye Associates in Count II. In response, the defendants filed preliminary objections and a motion to strike certificate of merit for insufficiency.

First, the defendants claim that paragraphs 17 and 24 of the plaintiff’s complaint are insufficiently specific. Paragraph 17 states, “The defendant, Michelle M. Shober, D.O., breached her obligations to plaintiff, generally, and in the following particulars.” In addition, paragraph 24 states, “The defendant, Lawrence County Eye Associates breached its obligation to the plaintiff, and the injuries and damages which are hereinafter set forth were caused solely by and were the direct and proximate result of the carelessness, recklessness, negligence and malpractice of the defendant in any or all of the following respects...” The defendants argue that the inclusion of the terms “generally,” “recklessness” and “negligence” renders those paragraphs as insufficiently specific.

The specificity of a pleading is governed by Pa.R.C.P. 1019, which states “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com’n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008) (quoting Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992)). Additionally, theplaintiffmustsummarizethe facts essential to support the claims. Id. “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth. 2005) (citing Department of Transportation v. Shipley Humble Oil Co., 370 A.2d 438 (Pa. Cmwlth. 1977)). The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. Krajsa v. Keypunch, Inc., 622 A.2d 355, 357 (Pa. Super. 1993). “The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense, and they must be sufficient to convince the court that the averments are not merely subterfuge.” In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473 (1984) (citing Sokoloff v. Strick, 404 Pa. 343, 172 A.2d 302 (1961); Hornsby v. Lohmeyer, 364 Pa. 271, 72 A.2d 294 (1950); Rice v. Braden, 243 Pa. 141, 89 A. 877 (1914)).

The defendants argue that the plaintiff’s complaint violates the court’s ruling in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), because it contains the terms “generally” in paragraph 17 and “recklessly” in paragraph 24. The defendants assert that those terms are vague and may be amplified throughout the litigation. In her brief, the plaintiff concedes that the term was merely an introductory phrase and does not permit her to amplify her allegations of negligence in this matter. In Connor, the court determined that a subparagraph in the complaint which states, “otherwise failfed] to use due care and caution under the circumstances,” lacked specificity and the defendant could have filed a motion to strike off that statement, but chose not to do so. Id., 501 Pa. at 311, 461 A.2d at 603 fn. 3 (citing Arner v. Sokol, 373 Pa. 587, 592-593, 96 A.2d 854, 856 (1953); King v. Brillhart, 271 Pa. 301, 114 A. 515, 516 (1921)). However, a complaint is sufficiently specific if the whole complaint contains material facts which set forth a cause of action. Lipinsky v. Graham, 88 Pa. D. & C. 156, 158 (Pa. Com. Pl. Mercer 1954). “In determining whether a particular paragraph in a complaint has been stated with necessary specificity, such paragraph must be read in context with all other allegations in that complaint.” Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579, 589 (Pa. Super. 2002). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L.B. Smith, Inc., 69 Pa. D.& C. 2d 420, 423 (Pa. Com. Pl. Columbia 1974) (citing General Acceptance Corp. v. Wilson, 40 Northumb. L.N. 54).

In Lipinsky, supra., the plaintiff’s complaint contained an averment that the defendant was operating his vehicle “at an excessive rate of speed under the circumstances.” Although the court found that allegation to be overly-broad, the complaint as a whole was sufficiently specific to place the defendant on notice of the plaintiff’s claims and the defendant’s preliminary objection was overruled. Lipinsky, 88 Pa.D.&C. at 158.

In the current matter, the plaintiff utilized the terms “generally” and “recklessness,” which appear to be vague; however, the court must examine the plaintiff’s complaint as a whole and detennine if the claims are averred in a manner that provides the defendants with notice of the specific claims being asserted. First, paragraph 17 contains the term “generally” as an introductory phrase and it is followed by subparagraphs (a) through (j), which identifies the allegedly negligent conduct of Dr. Shober, Included in those subparagraphs are averments that explain that Dr. Shober was negligent in failing to properly diagnose the plaintiff’s condition, failing to refer the plaintiff to a specialist to treat her condition, ignoring complaints and symptoms of the plaintiff, omitting proper precautions or proper remedies to minimize the potential for loss of eyesight and failing to exercise reasonable judgment in diagnosing the plaintiff’s condition. Clearly, these averments are sufficiently specific to provide the defendant with adequate notice of the claims being asserted and the defendant is able to begin formulating a defense based upon the allegations in the complaint. In addition, the plaintiff concedes that the term “generally” was included in paragraph 17 as an introductory phrase and it does not permit the plaintiff to amplify its claim of negligence. Thus by this concession, plaintiff will be precluded from expanding on its theory of liability except as set forth in the subparagraphs.

Moreover, paragraph 24 contains the introductory phrases “recklessness” and “negligence”; however, it is also followed by subparagraphs (a) through (i), which explain the specific manner in which Lawrence County Eye Associates were reckless or negligent. In those subparagraphs, the plaintiff claims that Lawrence County Eye Associates failed to promptly or properly diagnose the plaintiff’s condition, its employees did not possess the requisite educational background to diagnose the plaintiff’s condition, failing to continually educate its employees and failing to establish appropriate protocol for the treatment of patients. Again, an examination of these allegations clearly demonstrates that the plaintiff provided the defendants with sufficient notice regarding the claims that are being asserted and the defendants have the ability, based on those allegations, to formulate a defense. Therefore, the defendants’ first preliminary objection is overruled.

Next, the defendants assert that the plaintiff’s complaint lacks sufficient factual averments to support the allegation that Lawrence County Eye Associates were reckless in the current case.

Pa.R.C.P. No. 1019(b) states, “averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.” It is apparent that recklessness may be averred generally in conformance with Pa.R.C.P. 1019(b) because it is a state of mind. Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009) (citing Ammlung v. City of Chester, 302 A.2d 491, 497 (Pa. Super. 1973)).

In Archibald, the appellants filed suit against the appellee resulting from injuries sustained when the appellee checked one of the appellants while participati ng in an adult no-check ice hockey league. The court determined that the standard to be applied in that case was whether the appellee’s actions were reckless as the alleged tortious conduct occurred during a sporting event. Id., 971 A.2d at 518. Reckless means the actor commits an “act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Id., 971 A.2d at 519 (citing Restatement (Second) of Torts § 500 (1965)). The Archibald court recognized that recklessness, willfulness or wantonness is a degree of care which can be described as aggravated negligence and “they apply to conduct which is still, at essence negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is to be treated in many respects as if it were so intended.” Id. (citing Stubs v. Frazer, 454 A.2d 119 (Pa. Super. 1982)). The court also noted that malice, intent, knowledge and other conditions of mind may be averred generally in accordance with Pa.R.C.P. 1019(b) and, due to recklessness being defined as wanton and willful misconduct, recklessness is a condition of mind that the appellants were permitted to aver generally. Id. Additionally, the Archibald court ruled that the appellants provided sufficient evidence to support a claim that the appellee’s conduct was reckless as there was testimony that the appellee’s actions were deliberate and could cause serious injuries. Therefore, the Archibald court decided that it was proper for the trial court to permit the appellants to proceed with a claim of recklessness or intentional conduct in a cause of action that sounded in negligence. Id.

In the instant case, it appears that the plaintiff has averred a claim of negligence against Dr. Shober and Lawrence County Eye Associates, but the complaint also contains allegations that the agents, servants or employees of Lawrence County Eye Associates performed acts that a reasonable person would realize created a substantial risk of further injury to the plaintiff. Those averments include hiring personnel that lacked the sufficient skills or qualifications to properly diagnosethe plaintiff’s condition, failing to sufficiently train or educate employees and failing to establish protocols to diagnose someone with the plaintiff’s symptoms. Although this conduct appears to establish a claim in negligence, the plaintiff provides a general averment that Lawrence County Eye Associates’ conduct demonstrated recklessness, whichraises aquestion of fact as to whether the actions performed by the agents of Lawrence County Eye Associates were so far removed from the proper course of conduct that it must be treated as though it were intended. In accordance with the court’s ruling in Archibald, the plaintiff is permitted to maintain her general averment of recklessness, even though the complaint, when read in its entirety, sounds like a cause of action in negligence. The defendants’ second preliminary objection is overruled.

The defendants also argue that the plaintiff failed to adequately identify the agents, servants or employees of Lawrence County Eye Associates that she referred to in her complaint.

It is apparent that the plaintiff is not required to plead all the various details of the alleged agency relationship, but the plaintiff must state facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent’s authority, and how the tortious acts of the agent either fall within the scope of that authority, or if unauthorized, were ratified by the principal. Rachlin v. Edmison, 813 A.2d 862, 870 (Pa. Super. 2002) (citing Alumni Association v. Sullivan, 535 A.2d 1095, 1100 n. 2 (Pa. Super. 1987)). In Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579 (Pa. Super. 2002), the appellant attempted to assert an ostensible agency relationship between a hospital and the radiologists who provided medical care to the decedent. In the complaint, the appellant averred that all of alleged acts were performed or not perfomed by the hospital’s “agents, ostensible agents, servants, workmen and/or employees, acting in the course and scope of their employment with and on behalf of said defendant.” The Yacoub court stated that it must examine the aforementioned allegation along with all of the other averments in the complaint to determine if the complaint was sufficiently specific. Id., 805 A.2d at 589 (citing Smith v. Wagner, 588 A.2d 1308, 1310 (Pa. Super. 1991)). The court recited numerous paragraphs in the complaint that set forth in detail the negligent acts of the hospital’s purported agents and ruled that, after reading the complaint as a whole, it was sufficiently specific as it clearly called into question the care provided by the radiology department. Id. Thus, the complaint provided the hospital with sufficient notice of the claims against which it must defend. Id.

In the case sub judice, the plaintiff’s complaint references “agents, servants, physicians, nurses, medical personnel and/or employees”; however, it fails to adequately identify specific individuals, whether by name, position or description, who performed the alleged negligent acts other than Dr. Shober. In Yacoub, the court explained that the complaint, when read as a whole, clearly indicated that the agents or servants identified were members of the radiology department. In this case, the complaint in its entirety does not describe the agents or their particular job descriptions who actually treated the plaintiff. From the description provided in the complaint, it appears that the entire staff employed by Lawrence County Eye Associates were responsible for the treatment and diagnosis of the plaintiff. As a result, the plaintiff has not provided an adequate description of the agents of Lawrence County Eye Associates as is required under the courts decisions in Rachlin and Yacoub. It must be noted that paragraphs 23 and 24(a) specifically refer to Dr. Shober as an agent of Lawrence County Eye Associates. Therefore, the court sustains the third preliminary objection as to the general references to “agents, servants, physicians, nurses, medical persomiel and/or employees” are stricken; however, the averments regarding Dr. Shober in paragraphs 23 and 24(a) are not stricken. The plaintiff is granted leave to amend her complaint to conform to the court’s ruling.

Finally, the defendants contend that count II of the plaintiff’s complaint is legally insufficient because the Pennsylvania courts have refused to extend corporate negligence to physician practice groups.

In Thompson v. Nason Hosp., 527 Pa. 330, 339, 591 A.2d 703, 707 (1991), the Pennsylvania Supreme Court recognized that hospitals may be held liable for a failure to uphold the proper standard of care owed to a patient under the doctrine of corporate negligence. The corporate negligence of a hospital is derived from the negligent acts of the institution itself arising from the policies and actions or inaction of the institution rather than the specific acts of the hospital employees. Rauch v. Mike-Mayer, 783 A.2d 815, 827 (Pa. Super. 2001) (quoting Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581, 585 (1997)). Thus, the hospital is held directly liable, as opposed to being held vicariously liable for the actions of their employees and the injured party does not need to rely on the liability of the employee. Id. A hospital may be liable if it fails to uphold any of the following four duties:

1. a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment;
2. a duty to select and retain only competent physicians;
3. a duty to oversee all persons who practice medicine within its walls as to patient care; and
4. a duty to formulate, adopt and enforce adequate mies and policies to ensure quality care for the patients. Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149 (Pa. Super. 2001) (citing Thompson, supra.).

Additionally, aprima facie case for corporate negligence is established when the plaintiff demonstrates that the following elements exist:

1. the hospital acted in deviation from the standard of care;
2. the hospital had actual or constructive notice of the defects or procedures which created the harm; and
3. the hospital’s conduct in question was a substantial factor in bringing about the harm. Id.

The theory of corporate negligence has been extended to nursing homes by several Pennsylvania courts of common pleas. Capriotti, 72 Pa. D. & C. 4th at 572 (citing Frantz v. HCR Manor Care Inc., 64 Pa. D. & C. 4th 457 (2003)). The Capriotti court reasoned that corporate negligence is an evolving doctrine which is based on the systematic or institutional negligence of an organization, not the negligence of individual employees. Id., 72 Pa. D. & C. 4th at 571. It was noted that the Pennsylvania Superior Court extended corporate negligence to health maintenance organizations (hereinafter “HMOS”) even though they do not practice medicine as they control daily decision-making that affects patient care. Id. (citing Shannon v. McNulty, 718 A.2d 828, 835 (Pa. Super. 1998)). The Capriotti court quoted the Shannon court as stating, “’We see no reason why the duties applicable to hospitals should not be equally applicable to an HMO when that HMO is performing the same or similar functions of a hospital.’” Id. Next, the court cited Frantz, supra., as the first court of common pleas to extend the theory of corporate liability to nursing homes as the Frantz court overruled the defendant’s preliminary objections claiming that corporate liability did not apply to nursing homes. Id., 72 Pa. D.&C. 4th at 571.

In Capriotti, 72 Pa. D. & C. 4th at 572, the court overruled the defendant’s preliminary objection that the theoiy of corporate negligence did not apply to cases involving nursing homes. The plaintiff averred that the defendant, a nursing home, was grossly understaffed and underfunded. The facility failed to appropriately train the staff and permitted the plaintiff to be neglected. The plaintiff also set forth that the patient sustained injuries due to poor treatment at the facility through the acts and omissions of the corporate owners of the nursing home. The court reasoned, “The corporate defendants exercised comprehensive control over the treatment and care accorded to the plaintiff, and in this regard acted analogously to a hospital or HMO, and not simply as a facility where the patient was housed while others performed medical care.” Id. Therefore, the Capriotti court permitted the plaintiff’s claims for corporate liability to remain and dismissed the defendant’s preliminary objection. Id.

Moreover, this court has extended the theoiy of corporate negligence to a case involving a nursing home in Wolf v. Indian Creek Healthcare, Inc., 11721 OF 2008 C.A. (Com. Pl. Lawrence 2009). In that case, the plaintiff averred that the defendant nursing home did not routinely enforce certain policies and failed to adequately inform its staff about specialized care that, ultimately, led to the plaintiff’s death. This court reasoned that nursing homes assume the responsibility to provide their patients with comprehensive medical care similar to hospitals as they hire extensive medical staff including registered nurses, certified nursing assistants, respiratory therapists and licensed practical nurses. Id.

Conversely, in Sutherland v. Monongahela Valley Hospital, 856 A.2d 55, 62 (Pa. Super. 2004), the court ruled that corporate negligence should not be extended to physician practice groups. In Sutherland, the appellee underwent a surgical procedure performed by the appellant doctor at Monongahela Valley Hospital. As the surgical anesthesia wore off, the appellee began complaining of burning pain in her calf. The appellant doctor attempted to alleviate the pain by bending the splint on the appellant’s leg to stop it from rubbing on her skin. Subsequently, the appellee called the appellant doctor’s office complaining about pain, but the doctor did not return her telephone call. She then contacted her family physician who performed an examination and observed a wound developing under the splint. The appellee was referred to a plastic surgeon for treatment of the wound, which required a debridement of the area and a skin graft because the area was burned and infected. The appellee’s leg was severely disfigured because of that injury. As a result, the appellee filed suit against the appellant doctor, another doctor, the hospital where the surgery was performed and the appellant doctor’s physician practice group. The jury found in favor of the appellee and a judgment of $ 150,000.00 was entered against the appellant doctor. The trial court subsequently modified that verdict to include the appellant’s physician practice group as jointly liable. The appellant doctor appealed and argued, among other issues, that the trial court erred in failing to charge the jury that they could consider the individual negligence of the physician practice group under the theory of corporate negligence. The Pennsylvania Superior Court rejected that argument.

The appellant doctor argued that corporate negligence should be extended beyond hospitals to physician’s offices. Tha Sutherland court, quoting Thompson, supra., explained that hospitals have undertaken the role of comprehensive health care centers that are responsible for coordinating the total health care of its patients. Sutherland, 856 A.2d at 62. However, the court also stated, “The same cannot be said for a physician’s practice group. Accordingly, we decline [the appellant doctor’s] invitation to extend the negligence principles contemplated by Thompson to the case sub judice.” Id. Hence, the Sutherland court determined that trial court did not err in refusing to instruct the jury regarding corporate negligence as it relates to the appellant doctor’s physician practice group. Id.

In the case sub j udice, the plaintiff’s complaint describes Lawrence County Eye Associates as “a corporation duly organized and existing by virtue of the laws of the Commonwealth of Pennsylvania with its principal place of business located at 708 N. Jefferson St., New Castle PA 16101, County of Lawrence and Commonwealth of Pennsylvania.” However, the plaintiff does not provide any further description as to the day-to-day operation of Lawrence County Eye Associates. More specifically, the complaint is devoid of any reference that Lawrence County Eye Associates has undertaken the role of a comprehensive health care center, which is responsible for coordinating the total health care of its patients. Clearly, the court in Sutherland held that a plaintiff can only assert a claim for coiporate negligence if the health care provider undertakes the responsibility of coordinating the health care of its patients. There is no indication that Lawrence County Eye Associates has assumed that responsibility. Thus, the plaintiff’s claim for corporate negligence is legally insufficient. However, count II contains averments that Lawrence County Eye Associates are vicariously liable for the acts of its agent, Dr. Shober. As a result, any allegations of vicarious liability located in count II are permissible. The court sustains the defendants’ fourth preliminary objection in part and the averments regarding corporate negligence are stricken.

The defendants have also filed a motion to strike certificate of merit for insufficiency, in which the defendants claim that the plaintiff violated Pa.R.C.P. No. 1042.3(b)(1), which requires separate certificates for each licensed professional against whom the claims are asserted, because the plaintiff filed a certificate for Michelle M. Shober, D.O., and a certificate for Michelle M. Shober, D.O., and Lawrence County Eye Associates, but did not file certificates for the unnamed agents, servants or employees referenced in the complaint.

Certificates of merit are governed by Pa.R.C.P. No. 1042.3, which states:

(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
(b)(1) A separate certificate of merit shall be filed to each licensed professional against whom a claim is asserted.
(2) If a complaint raises claims under both subdivisions (a)(1) and (a)(2) against the same defendant the attorney for the plaintiff, or the plaintiff if not represented, shall file
(1) a separate certificate of merit as to each claim raised, or
(ii) a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a) (2).

A note following Pa.R.C.P. No. 1042.3 explains that, “certificates of merit must be filed as to the other licensed professionals whether or not they are named defendants in the action.” It is also generally recognized that a rigid application of the procedural rules does not always serve the interests of fairness and justice. Womer v. Hilliker, 589 Pa. 256, 267, 908 A.2d 269, 276 (2006) (citing Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280, 1281 (1978)). Pa.R.C.P. No. 126 was promulgated to avoid a rigid and unfair application of procedural rules which do not affect the substantial rights of the parties. Id. “With this language, we incorporated equitable considerations in the form of a doctrine of substantial compliance into Rule 126, giving the trial courts the latitude to overlook any ‘procedural defect’ that does not prejudice a party’s rights.” Id. (citing Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996, 1001 (2001)).

In Kennedy v. Butler Memorial Hospital, 901 A.2d 1042 (Pa. Super. 2006), the plaintiff’s certificates of merit contained language of subsection (a)(1), even though there are clear directives concerning the language necessary in vicarious liability cases contained in subsections (a) (2) and (b)(2). Plowever, the court determined that the plaintiff substantially complied with Pa.R.C.P. No. 1042.3 because of the detailed nature of the amended complaint, the certificate of merit was timely filed, the hospital knew that the certificate of merit referred to the actions of its employees and the hospital was not prejudiced. Id., 901 A.2d at 1047.

In the current case, the defendants claim that the plaintiff failed to comply with Pa.R.C.P. 1042.3 because she did not file separate certificates for each licensed professional against whom a claim is asserted. Additionally, the plaintiff did not file separate certificates of merit for the other licensed professionals that were referred to as agents, servants or employees. The plaintiff has filed two separate certificates of merit which were entitled certificate of merit as to Michelle M. Shober, D.O. and certificate of merit as to defendants, M'ichelle M. Shober, D.O. and Lawrence County Eye Associates, P.C.

It appears the central issue to resolve is whether the certificate of merit naming both Dr. Shober and Lawrence County Eye Associates substantially complied with Pa.R.C.P. 1042.3. That certificate of merit contains the requisite language established in Pa.R.C.P. No. 1042.3(a) (1), even though it also contains Dr. Shober’s name as well. As the Kennedy court explained, it is important to examine the certificate and the complaint in its entirety to determine if the certificate substantially complies with Pa.R.C.P. No. 1042.3. Moreover, the court must also consider whether the defendants were aware of the facts supporting the plaintiff’s claims and whether the defendants are prejudiced by the deficiencies in the certificate of merit. In this case, the plaintiff’s complaint adequately explains the claims against Dr. Shober and Lawrence County Eye Associates. More specifically, the complaint establishes a negligence claim in count I against Dr. Shober individually and count II is a claim against Lawrence County Eye Associates. Moreover, the plaintiff filed a separate certificate of merit for Dr. Shober, which indicates that the certificate naming both Dr. Shober and Lawrence County Eye Associates is actually filed against Lawrence County Eye Associates because of the acts of its agent, Dr. Shober. The defendants should know that the claims being asserted in the complaint are referring to a deviation from the professional standards by Dr. Shober individually and Dr. Shober as an agent for Lawrence County Eye Associates. As a result, the defendants have not been prejudiced by any possible deficiency in the certificates of merit. Therefore, the defendants’ motion to strike certificates of merit for insufficiency is denied.

For the reasons set forth in this opinion, the court has overruled the defendants’ first and second preliminary objections. The court sustains the defendants’ third preliminary objection in part and overrules it in part as the general references to agents, servants or employees are stricken; however, the specific references to Dr. Shober as an agent of Lawrence County Eye Associates in paragraphs 23 and 24(a) arc not stricken. The defendants’ fourth preliminary objection is sustained in part and the plaintiff’s averments of corporate negligence are stricken; however, any allegations of vicarious liability located in count IT regarding the acts of Dr. Shober as an agent for Lawrence County Eye Associates are legally sufficient. The court has granted the plaintiff leave to amend her complaint. Moreover, the court denies the defendants’ motion to strike certificates of merit for insufficiency.

ORDER OF COURT

And now, January 19, 2011, this case being before the court on November 29, 2010, for oral argument on the preliminary objections filed by the defendants, with counsel for both parties appearing, the plaintiff, Jane Imblum, represented through counsel, Richard J. Schubert, Esquire, and the defendants, Michelle M. Shober, D.O. and Lawrence County Eye Associates, represented through counsel, Jason M. Logue, Esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court, in accordance with the attached opinion, enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. The first preliminary objection in the nature of a motion to strike general allegations of negligence is hereby overruled.
2. The second preliminary objection in the nature of a motion to strike allegations of recklessness is hereby overruled.
3. The third preliminary objection in the nature of a motion to strike general allegations of agency is hereby sustained in part and overruled in part. The court sustains the preliminary objection to the general references to agents, servants or employees of Lawrence County Eye Associates and said references are hereby stricken from the complaint. The preliminary objection as to any specific references as to Michelle M. Shober, D.O. being an agent of Lawrence County Eye Associates is hereby overruled.
4. The fourth preliminary objection in the nature of a motion to strike corporate negligence claims is hereby sustained, however any valid allegations of vicarious liability regarding the acts of Michelle M. Shober, D.O. as an agent for Lawrence County Eye Associates are legally sufficient and shall not be stricken from the record. Any claim for corporate negligence is stricken from the complaint.
5. Plaintiff may file an amended complaint within twenty (20) days after notice of this order of court. If plaintiff chooses not to file an amended complaint, then defendants shall file an answer to the complaint within twenty (20) days of the expiration of the time frame for plaintiff to file an amended complaint.
6. The motion to strike certificate of merit for insufficiency filed by the defendants is hereby denied.
7. The prothonotary is directed to serve a copy of this order of court upon counsel of record, Richard J. Schubert, Esquire for the plaintiff and Jason M. Logue, Esquire for the defendants.

      . It must be noted that the Yacoub couxt stated that the hospital could have filed a preliminary objection to request a more specific pleading and it chose not to do so. However, the court held that the complaint was sufficiently specific to provide the hospital with notice of the appellant’s claims even though the puipoited agents or ostensible agents were not identified by name. Id.


author: BERNSTEIN, J.,

text:
    Roache v. Nguyen

      Michael S. Bomstein, for plaintiff.

      Charles V. Curley, for defendant.
    January 10, 2011
   BERNSTEIN, J.,

Defendant Chau Nguyen has appealed from this court’s order and opinion dated July 28, 2010, and its order denying post-trial relief dated December 8, 2010. The order and opinion dated July 28, 2010 ruled that defendant Chau Nguyen had constructive notice of certain mortgages encumbering real properly which she purported to have acquired. The order dated December 8, 2010 denied defendant Chau Nguyen’s motion for post-trial relief. For the reasons stated in the accompanying opinion, this court respectfully suggests that its order and opinion dated July 28, 2010, and its order denying post-trial relief dated December 8, 2010, should be affirmed.

Background and Procedural History

In this action plaintiff, Laura Roache (“plaintiff’), administratix of the estate of Frances Stephens, sought to quiet title in real property owned by the estate of Frances Stephens (the “property”).

On July 11, 2008, plaintiff filed the instant lawsuit on behalf of the estate. The complaint alleged that in 2007, defendant Richmond American General Contractors, Inc. (“Richmond,”) acquired the property owned by the estate of Frances Stephens by means of a fraudulent deed. According to the complaint, the deed was fraudulent because it contained the signatures of grantors who had been dead since 1976.

On October 18, 2008, Richmond filed preliminary objections. Subsequently, plaintiff filed an amended complaint, and defendant Richmond filed preliminary objections thereto. These preliminary objections were overruled on January 26, 2009.

On February 16, 2009, Richmond filed an answer with new matter to the amended complaint. On the same day, Richmond joined three additional individuals, Bruce Doan, Stephen Roache, and Elizabeth De Jesus. The joinder complaint alleged that in 2007 Bruce Doan had delivered to Richmond a deed to the property containing the forged signatures of John and Lillie Mae Bomier. John and Lillie Mae Bonner were the last individuals appearing as owner in the registry of deeds, and had been deceased since 1976, more than thirty years before their purported signatures appeared on the deed. The joinder complaint also alleged that additional defendant Elizabeth De Jesus had notarized the deed containing the forged signatures, and additional defendant Stephen Roache had impersonated one of the decedents, John Bonner, throughout the transaction.

During discovery, plaintiff learned that Richmond had conveyed the property by deed to an individual named Chau Nguyen (“Nguyen”) plaintiff sought to file a second amended complaint joining Nguyen as an indispensable party. On June 17, 2009, the court issued an order granting plaintiff’s motion, and on June 20,2009, plaintiff filed a second amended complaint naming Nguyen as a defendant. The second amended complaint sought to void the conveyance from Richmond to Nguyen.

On July 14, 2009, Nguyen filed an answer with new matter to the second amended complaint, and a cross-claim against defendant Richmond. Nguyen’s cross-claim asserted contribution and indemnification against Richmond if the court voided the forged deed and all subsequent transactions therefrom. On July 17, 2009, defendant Richmond cross-claimed against defendant Nguyen. The cross-claim of Richmond sought contribution and indemnification from Nguyen.

Trial ensued, and this court issued on July 28, 2010 an order and opinion containing findings of fact and conclusions-of-law. This court found that the deed conveying the property to defendant Richmond was fraudulent. The deed was fraudulent because it contained the forged signatures of John and Lillie Mae Bonner who had both been dead more than 31 years before the property was purportedly sold to Richmond. This court also found that the subsequent deed purporting to convey the property from defendant Richmond to defendant Nguyen was void and null because it flowed from the deed containing the forged signatures of John and Lillie Mae Bonner. The order issued by this court on July 28, 2010 directed defendant Nguyen to relinquish possession of the property, and instructed the recorder of deeds to cancel the deed containing the forged signatures.

After this court issued its finding of fact and conclusions of law, defendant Nguyen filed a motion for post trial relief. This court denied that motion. Defendant Nguyen appeals the order and opinion dated July 28, 2010, as well as the order denying post trial relief dated December 8, 2010. Below are the findings of fact and conclusions of law as determined by this court at the end of trial.

Findings of Fact

1. Laura Roache, plaintiff, is an adult individual and a citizen of Pennsylvania, with an address at 5013 North Camac Street, Philadelphia, Pa., 19141.

2. Defendant Richmond American General Contractors, Inc. (“Richmond,”) is a Pennsylvania corporation. Mr. John Hong (“Hong,”) founder and president of Richmond, is a non-party in this action.

3. Defendant Nguyen Chau is an individual residing in Pennsylvania.

4. Joinder defendant Bruce Doan is an individual residing in Pennsylvania.

5. Joinder defendant Elizabeth De Jesus is a notary public licensed in Pennsylvania.

6. Joinder defendant Stephen Roache is an individual residing in Pennsylvania.

7. By deed dated December 14, 1970, recorded in the office of the recorder of deeds at D/162/324, John and Lillie Mae Bonner, husband and wife, became owners of property located at 722 McKean Street, Philadelphia, Pa. (the “property”).

8. John Bonner died on July 13,1976. His wife, Lillie Mae Bonner, also known as Lillie Mae Settles, became the sole owner of the property upon the death of John Bonner.

9. Lillie Mae died intestate on October 2,1976. Lillie Mae’s sole heir was her sister, Frances Stephens. Frances Stephens was appointed administratix of the estate of Lillie Mae Bonner/Settles on May 19, 1977.

10. Title to the property passed to Frances Stephens by operation of law. No deed was ever recorded in her name.

11. Frances Stephens took out a series of loans from Logan Discount Company, each of which was secured by a mortgage against the property:

(a) Mortgage dated May 7, 1980, recorded July 10, 1980. Satisfaction of this mortgage was recorded on January 21, 1982;
(b) Mortgage dated November 17, 1981, recorded January 21, 1982. Satisfaction of this mortgage was recorded on January 14,1983;
(c) Mortgage dated December 9, 1982, recorded January 14, 1983,
(d) Mortgage dated September 19. 1985, recorded January 29, 1986.

12. In each of the mortgages above, Frances Stephens was identified as the mortgagor.

13. Frances Stephens died on February 25, 2000 leaving her only child, Frances Howard, as her intestate heir.

14. Frances Howard executed and filed a renunciation of her right to administer the estate of Frances Stephens. Frances Howard died intestate in 2007, leaving Laura Roache, Pearl Murray, Allen Roache, Stephen Roache, Anthony Roache, Janice Watson, Diane Sturgis and Donna Mclver as her heirs.

15. On May 29, 2006, the Philadelphia Register of Wills appointed Laura Roache, plaintiff herein, as admnistratix of the estate of her deceased grandmother, Frances Stephens. On May 30, 2006, the Philadelphia Register of Wills appointed Laura Roache to be also administratix of the estate of her deceased great aunt, Lillie Mae Bonner/Settles.

16. John Hong testified at trial on behalf of Richmond that he was approached by joinder defendant Bruce Doan and was told that Bruce Doan owned the property.

17. On December 7,2009, the property was ostensibly sold to Richmond. On the same day, defendant Bruce Doan provided Richmond with a deed to the property which had been notarized by joinder defendant Elizabeth DeJesus.

18. At the time the deed was conveyed to Richmond, John Flong had constructive notice of the existence of two satisfied and two unsatisfied mortgages which identified Frances Stephens as a potential owner of the property.

37

19. The deed purporting to convey the property to Richmond contained the signatures of John and Lillie Mae Bonner as grantors. At the time this deed was notarized, John and Lillie Mae Bonner had been dead for over 31 years.

20. The deed containing the signatures of John and Lillie Mae Bonner was forged and known to be forged. The forged deed is the product of an agreed upon illegal transaction knowingly conducted with the intent to defraud and avoid payment of proper transfer tax.

21. All subsequent transactions flowing from the forged deed are null and void.

22. Mr Hong paid $35,000 cash for the property. However, the forged and fraudulent deed purporting to convey the property to Richmond recites consideration of only $2,000, and the real estate tax certification form filed with the city of Philadelphia recites consideration of only $10,000.

23. Mr. Hong renovated the property on behalf of Richmond, but provided no credible evidence of expenditures. Although he stated that he had paid thousands of dollars in wages, he admitted that all wages had been paid in cash and could not be proven. He admitted that he withheld no Social Security or federal, state or local taxes on behalf of his employees, and issued no W-2 or 1099 forms to his workers.

24. Mr. Hong offered a compilation of expenditures for various construction materials, but the compilation was produced by his wife, at his request, even though he testified that he had an accountant who kept track of all expenditures. Mr. Hong’s testimony failed to provide any credible evidence of the thousands of dollars paid to renovate the property, and his testimony is rejected.

25. While renovation was in progress, an heir of Frances Howard, Allen Roache, saw the work performed upon the property, and notified Mr. Hong that the property was owned by his family.

26. In October 2008, Mr. Hong received notice that the instant lawsuit had been instituted by plaintiff, Laura Roache, contesting Richmond’s title to the property.

27. After receiving notice of the lawsuit, Mr. Hong signed an agreement to sell the property to defendants Chau Nguyen. Chau Nguyen paid in good faith $220,000 for the property.

28. Schedule B, Section 1 of the title commitment given to Chau Nguyen disclosed the following:

(a) On January 12, 1983, a mortgage was recorded against the property in mortgage book EFP/576, Page 112, in the amount of $3,024.00. Frances Stephens was the named mortgagor;
(b) On January 29, 1986, a mortgage against the property was recorded in mortgage book FHS/457, page 379, in the amount of $2,520.00. Frances Stephens was the named mortgagor.

29. Chau Nguyen received from Mr. Flong a deed, dated November 14, 2008, which purported to convey the property from Richmond to Chau Nguyen. This deed was recorded on November 24, 2008.

30. At the time this deed was accepted, the two satisfied and two unsatisfied recorded mortgages identified Frances Stephens as the potential owner of the property.

Conclusions of Law

31. “A forged instrument being of record for [any] period of time does not estop the injured party from asserting the fraud and securing its cancellation.”

32. The deed purporting to convey the property from John and Lillie Mae Bonner/Settles to Richmond is null and void ab initio because the signatures of John and Lillie Mae Bonner/Settles were forged and known to be forged.

The forged deed is the product of an agreed upon illegal transaction knowingly conducted with the intent to defraud and avoid payment of proper transfer taxes.

33. All subsequent transactions flowing from the forged deed are null and void.

34. 42 Pa. C.S. § 4302(a) provides that “every document affecting title to or any interest in real property which is filed and indexed in the office of the clerk of the court of common pleas...shall be constructive notice to all persons of the filing and full contents of the document.” Moreover, “When a mortgage is properly indexed...such proper indexing shall be notice to all persons of recording of the same.”

35. Though Nguyen acted in good faith when she paid for the property, she had constructive notice of the existence of two satisfied and two unsatisfied recorded mortgages identifying Frances Stephens as potential owner of the property.

36. Aplaintiffwho obtains cancellation of a forged deed and rescission of the underlying transaction is required to pay the bona fide purchaser for any incurred tax and insurance expenditures. Plaintiff is directed to pay such expenditures, if any, to defendant Chau Nguyen.

The evidence presented at trial supports the findings of fact made by this court, and the applicable statutory and case law support the legal conclusions reached by this court at the end of trial. For the foregoing reasons, this court respectfully suggests that its order and opinion dated July 28, 2010, and its order denying post-trial relief, dated December 8, 2010, should be affirmed.

      . Joinder complaint of defendant Richmond, ¶¶10-17.

      . Joinder complaint of defendant Richmond, ¶¶18-19,21.

        . Stanko v. Males, 390 Pa. 281, 286, 135 A.2d 392, 395 (Pa. 1957).

      . First Citizens National Bank v. Sherwood and Bradford County Recorder of Deeds, 583 Pa. 466, 470, 879 A.2d 178, 181 (Pa. 2005).

      . Stanko v. Males, 390 Pa. at 287, 135 A.2d at 395 (Pa. 1957).


author: KELLER, J.,

text:
    In re S.J.E.

      Jennifer Grimes, for BCCYS.

      Wendie Ziegler, guardian ad litem.

      John Grenko, for mother.
    January 11, 2011
   KELLER, J.,

This appeal stems from the involuntary termination of the parental rights of D.E. (hereinafter, “mother”) to the above referenced children. An involuntary termination hearing was held on November 15,2010. At that hearing, mother was represented by John Grenko, Esquire. At the conclusion of the hearing, this court took all of the evidence and testimony under advisement and deferred decision on the petition to terminate parental rights. After much consideration this court found that the facts alleged in Children and Youth Services petition were established by clear and convincing evidence and therefore forever terminated mother’s rights to S.J.E. by order of court dated November 16, 2010. Mother timely filed a notice of appeal along with her concise statement of matters complained of on appeal to said order on December 15, 2010.

Mother alleges the following acts of error:

1. The learned trial judge erred in determining that mother, D.M.E., had failed to attempt to remediate the issues which at to the October 21, 2009 determination that her child was dependent under the Juvenile Act.
2. The learned trial judge erred in determining that mother failed to use her best efforts, given her incarceration, to remediate the issues which led to the October 21, 2009 determination that her child was dependent.
3. The learned trial judge erred in detennining that it was in the best interests of the minor child to terminate mother’s parental rights.

DISCUSSION

Terminating the parental rights of the natural parent to his/her child carries with it a constitutional significance because of the importance of the right involved. T.J.B. v. E.C., 652 A.2d 936, 943 (Pa.Super. 1995) (citing In re J.W., 578 A.2d 952, 957 (Pa. Super. 1990). Consequently, clear and convincing evidence is necessary to prove the statutoiy grounds necessary to terminate parental rights. Id. The Superior Court aptly set forth the standard of review in In re T.D., 949 A.2d 910, 914-15 (Pa.Super 2008) as follows:

Our standard of review regarding orders terminating parental rights is as follows:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this court must accord the hearing judge’s decision the same deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence. In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the burden is upon CYS to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

We have previously stated:

The standard of clear and convincing evidence is defined as testimony that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination. Id.

Requests to have a natural parent’s parental rights terminated are governed by 23 Pa.C.S. §2511, which provides in pertinent part as follows:

Grounds for involuntary termination
(a) General rule.-The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
***
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
***
(b) Other considerations.-The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition. 23 Pa.C.S. §2511.

The court applies a two-part test for termination of parental rights. In Inre L.M., 923 A.2d 505, 511 (Pa. Super. 2007). The Superior Court has stated:

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the secondpart of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

We will begin by applying the two-prong test to the case at bar. First we note that the children were removed from the care of mother for at least six (6) months preceding the action to terminate parental rights. Moreover, mother has failed to remedy the conditions which led to the placement of her child and continued services will not remedy those conditions. Testimony from Berks County Children and Youth Adoption Social Worker, Carol Rentschler revealed the following:

Ms. Grimes: And are you aware of mother’s criminal histoiy?
Ms. Rentschler: Yes. Her criminal history extends back to 1995 where she was charged with prostitution, pled guilty, received a minimum of 12 months, and was incarcerated at Muncy. In 2005, she was charged with prostitution and loitering, pled guilty, and received a maximum of 3 years and was incarcerated at Muncy. On April 14, 2007, she was charged with manufacturing, delivery, possession with the intent to manufacture, deliver, and possession, pled guilty with - pled guilty to manufacturing, delivery, and possession with intent to manufacture and received a minimum of 2 years and maximum of 4 years.
Ms. Grimes: And how old is [S.J.E.] currently?
Ms. Rentschler: [S.J.E.] is 2.
Ms. Grimes: And how — of that time of her son’s life — how much that time has mother spent not being incarcerated?
Ms. Rentschler: 2 months.
Ms. Grimes: And is the agency aware of whether mother cooperated with any services while she was incarcerated?
Ms. Rentschler: 1 don’t have proof of any services that she’s participated in. I do know that she told me that she is starting into a program now, yes.
Ms. Grimes: And how often did mother contact the Agency with regard to requesting information about her son?
Ms. Rentschler: We received five telephone calls that I have.
Ms. Grimes: Throughout the entire —
Ms. Rentschler: Throughout the time.
Ms. Grimes: -- placement?
Ms. Rentschler: Yes.

(Notes of testimony (hereafter N.T.), 11/15/10, at 8-10).

We believe that the most telling testimony in regards to mother’s ability to parent her child was the following:

Ms. Grimes: Ms. Rentschler, would you please explain how [S.J.E.] came to the attention of the agency?
Ms. Rentschler: Yes. On October 13th, 2009 the agency received a report that [mother] had walked away from her halfway house and not returned for her child. Evidently, on October 8th, she had left the halfway house and left [S.J.E.] with another woman that resided there, and she hadn’t returned, and it was October 13th, they called the agency to let us know that she hadn’t returned.
Ms. Grimes: And at the detention hearing or — excuse me. At the dependency hearing, which occurred on October 21, 2009, what occurred?
Ms. Rentschler: The court found that [S J.E.] was again dependent with temporary legal custody transferred to Berks County Children and Youth with the goal of - primary goal of return to mother, concurrent goal of placement and adoption. The court further ordered that mother should cooperate with parenting education, maintain stable and appropriate housing, participate in casework services, keep children and youth informed of any changes of residence, sign release of information, participate in a drug and alcohol evaluation and any treatment recommendations, and participate in a mental health evaluation and any treatment recommendations.
Ms. Grimes: And was there any visitation that occurred between [S.J.E.] and his mother?
Ms. Rentschler: She visited with [S.J.E.] just one time
Ms. Grimes: And is that the only time — the one and only time that the agency is aware that mother saw [S.J.E.] since his placement on October 13th, 2009?
Ms. Rentschler: Yes.

(N.T., 11/15/10, at 6-7).

We also note that mother is currently incarcerated and her earliest possible release date is November 2011. /¿/at 8. Based on the above testimony and the exhibits entered into evidence at the hearing this court believes that the conditions which led to the removal or placement of the child continues to exist and that termination of the parental rights of mother would best serve the needs and welfare of the small child involved.

As we believe that the first prong of the test has been satisfied we will now move on to the second prong which asks this court to consider the developmental, physical and emotional needs and welfare of the children pursuant to 23 Pa.C.S. § 2511. After reviewing the testimony, and considering the exhibits this court has no doubt that termination of parental rights will serve the best interests of the child. To date, mother has done little to nothing to remedy the situation which necessitated the involvement of Children and Youth Services. Mother is currently incarcerated and has been so for essentially for the child’s entire life, with the exception of two (2) months. Further, as the testimony revealed, mother simply left her child at a halfway house with another resident and never came back. These are not the hallmarks of good parenthood, nor do they exhibit intent to have one’s child returned to one’s care.

We do believe that mother loves her child, but love alone is not enough. She is simply unable to parent her child despite her desire to do so. The child is bonded to his caretaker who presents as a long term resource to him. At the earliest mother will be released from prison is November 2011. To have this child in a state of flux while mother bounces in and out of prison does not support his developmental, physical and emotional needs and is not in his best interest. He is presently in a stable environment being cared for by those who love him. To uproot him on the whim and prayer that mother will this time, when she has been unable to in the past, remain out of jail is just not practical. Therefore, we believe that termination of parental rights is the only course of action that will serve the needs and welfare of the child involved.

We note that the trial court, as finder of fact, is the sole determiner of credibility of witnesses. In re Adoption of B.G.S., 614 A.2d 1161, 1168 (Pa. Super. 1992). This court has listened to the testimony of the Children and Youth case worker and has considered all of the exhibits. Again, while we believe that mother does love her child, we cannot in good conscious allow her to parent her young child without the proper tools. Although the agency has tried to help mother for a number of years, she has repeatedly and consistently failed to follow through with the necessary steps to allow her to bring her child home to her. Although, before filing a petition for termination of parental rights, the commonwealth is required to make reasonable efforts, to promote reunification of parent and child, the commonwealth does not have an obligation to make such efforts indefinitely. In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003). The commonwealth has an interest not only in family reunification but also in each child’s right to a stable, safe, and healthy environment, and the two interests must both be considered. Id. A parent’s basic constitutional right to the custody and rearing of his or her child is converted, upon the parent’s failure to fulfill his or her parental duties, to the child’s right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment. In Interest of Lilley, 719 A.2d 327 (Pa. Super. 1998). Mother has tied the court’s hands and we have no doubt that mother is unable to parent this child, and that involuntarily terminating her parental rights is in her child’s best interests. Our courts have repeatedly stated that being a parent is more than a passive state of mind; it requires constant affirmative demonstration of parental devotion. In re Adoption of M.J.H., 501 A. 2d 648 (Pa. Super. 1985).

Thus, for all of the reasons set forth above, and because we believe that none of mother’s issues contain any merit, and that the needs of the four (4) minor children would be best served by the involuntary termination of mother’s parental rights, we respectfully request that mother’s appeal be denied.