author: PICCIONE, J.,

text:
    Rzicznek v. Rzicznek

      C.P. of Lawrence County,
    no. 10553 of 2003, C.A.

      Ryan C. Long, for plaintiff.

      Thomas W. Leslie, for defendant.
    May 10, 2006
   PICCIONE, J.,

Before the court for disposition is Michael Rzicznek’s (Husband) petition to enforce marital settlement agreement. Husband contends that all parties agreed to the marital settlement agreement; however, Beverly Rzicznek (Wife) contends that her former attorney, Susan M. Papa, Esquire, coerced her into signing the agreement.

Husband, Wife, Attorney Papa, and Attorney Ryan Long, attorney for Husband, met at Attorney Papa’s office on May 2, 2005, in order to attempt to negotiate a marital settlement agreement. (N.T. 08-11-2005 p. 3.) Husband testified that the aforementioned individuals held a similar conference in July 2004 and both attorneys had been attempting to negotiate a settlement between the two meetings. (N.T. 08-11-2005 p. 3.)

Plaintiff’s exhibit no. 1 is a written memorandum, signed by Husband and Wife, whereby the parties agreed to the allocation of their marital property between themselves. (N.T. 08-11-2005 pp. 4-5.) Plaintiff’s exhibit no. 1 included a list of the parties’ personal property. (N.T. 08-11-2005 p. 7.) The parties marked each item of property on said written memorandum in order to indicate whether Husband or Wife would retain possession of said item. (N.T. 08-11-2005 p. 7.) Husband testified that he and Wife signed the list attached to plaintiff’s exhibit no. 1 on May 2,2005. (N.T. 08-11-2005, p. 7.)

Plaintiff’s exhibit no. 2 is the formal marital dissolution document prepared by Attorney Long subsequent to the May 2,2005 conference. (N.T. 08-11-2005 p. 8.) Said document was intended to reproduce and finalize the agreement of the parties evidenced by the written memorandum signed by the parties at the May 2,2005 conference. (N.T. 08-11-2005 p. 9.) Wife has not signed the formal marital dissolution document as set forth in plaintiff’s exhibit no. 2.

Attorney Papa prepared plaintiff’s exhibit no. 1 at the May 2,2005 conference. (N.T. 08-11-2005 p. 24.) Attorney Papa stated that plaintiff’s exhibit no. 1 “states the particulars of the agreement between the parties.” (N.T. 08-11-2005 p. 24.) Attorney Papa further testified that the marital dissolution document set forth in plaintiff’s exhibit no. 2 “encompassed all the terms of the agreement that we reached.” (N.T. 08-11-2005 p. 26.) Attorney Papa also testified that her client, Wife, signed the written memorandum in the presence of Husband and Attorney Long at the May 2,2005 conference. (N.T. OS-11-2005 p. 30.) Upon her direct examination, Wife verified that she had signed the written memorandum. (N.T. 01-31-2006 p. 14.)

In pointing out why the parties signed a handwritten memorandum evidencing their agreement prior to Attorney Long drafting the formal marital dissolution document, Attorney Papa stated that: “[a]t that point I wanted it [the parties’ agreement] in writing and the reason I wanted it in writing was because Mr. Rzicznek [Husband] had made certain concessions during the meeting, and I did not want him exiting my office and then speaking to a friend or rethinking it.” (N.T. 08-11-2005 p. 31.)

Attorney Papa stated that Wife did not object to the agreement at any time during the May 2, 2005 conference. (N.T. 08-11-2005 p. 32.) However, Attorney Papa did state that Wife asked her how one proceeds at a master’s hearing and expressed a concern that Husband’s stock in Lane Enterprises could experience an increase in valuation due to a buyout. (N.T. 08-11-2005 p. 32.) Wife also indicated to Attorney Papa that she suspected Lane Enterprises was conspiring with Husband in order to conceal the full value of Husband’s stock. (N.T. 08-ll-2005p.39.) Husband is a production engineer at Lane Enterprises. (N.T. 08-11-2005 p. 3.) Attorney Papa testified that she informed Wife that she found the conspiracy theory incredulous. (N.T. 08-11-2005 p. 40.) Attorney Papa did request a five-year open-ended period for Wife to experience the gain of any potential windfall from Husband’s Lane Enterprises stock; however, Husband and Attorney Long rejected this request. (N.T. 08-11-2005 p. 40.) Attorney Papa testified that she and Wife discussed the possibility of pursuing this issue before a master, but eventually decided upon entering into the agreement set forth in plaintiff’s exhibit no. 1. (N.T. 08-11-2005 p. 41.)

Wife testified that she felt pressured by Attorney Papa to sign the written memorandum. (N.T. 01-31-2006 p. 19.) However, Wife testified that Attorney Papa advised her that the agreement contained within the written memorandum was probably a better result than going before a master. (N.T. 01-31-2006 p. 19.) Wife also testified that she had difficulty making a decision on the matter and felt pressured by Attorney Papa, who allegedly stated: “if you can’t make a decision on this, you’re not going to do any better at a master’s hearing”. (N.T. 01-31-06 p. 19 11. 1-3.) However, at no time did Wife testify that Attorney Papa told her that she had to sign the written memorandum; conversely, Wife’s testimony indicates that Attorney Papa merely counseled Wife on the merits of the agreement contained within the written memorandum.

Prior to the May 2, 2005 conference, Attorney Papa informed Wife that any settlement reached by the parties would almost certainly involve a “no fault” divorce. (N.T. 08-11-2005 p. 34.) Attorney Papa testified that she informed Wife that the agreement “was a very acceptable settlement; that I did not think going to a master’s hearing would benefit her in any way because then we were getting into greater expenses for myself and that I could not say that she would do any better than that in a master’s hearing.” (N.T. 08-11-2005 p. 35.) Attorney Papa further stated that she felt the agreement regarding the parties’ personal property was resolved in Wife’s favor, because Wife indicated a strong desire that Husband not reenter the marital residence. (N.T. 08-11-2005 p. 37.) The court notes that the agreement included in plaintiff’s exhibit no. 1 does preclude Husband from returning to the marital residence and provides for the husband’s personal property to be delivered to him through the attorneys. This provision was intended to render a prior order of court, allowing Husband access to the marital residence, moot.

Attorney Papa testified that she terminated her role as Wife’s attorney pursuant to telephone conversations with Wife that occurred on May 3 and May 4 of 2005. (N.T. 08-11-2005 pp. 27-28.) However, Attorney Papa indicated that, upon receiving the formal marital dissolution document from Attorney Long, she forwarded the document to Wife. Attorney Papa testified that, during a May 4, 2005 telephone conversation, Wife further inquired about a master’s hearing; specifically:

“On May 4, 2005, she called me and asked questions about — she said she had heard from someone that master’s hearings involve a stenographer’s presence, and that she wanted to know if that transcript was a public record, if you went to a master’s hearing. I asked her why. And she related that she basically wanted to go to a master’s hearing to say everything negative about Mr. Rzicznek [Husband] that she could and then circulate a transcript to his place of employment, relatives. And it was at that conversation that I was actually very abrupt with Mrs. Rzicznek [Wife] and said, that’s it, you can get another attorney, I’m not going to engage in this.” (N.T. 08-11-2005 p. 46.)

Attorney Papa’s testimony regarding Wife’s intentions was substantiated by Wife’s direct testimony, where Wife stated: “I was going to confront my husband with information that I had found about his abnormal sexual behavior.” (N.T. 01-31-2006 pp. 7-8.)

Attorney Papa further testified that Wife’s complaints were “not as to the substance of the agreement, it was as to the other matters ....” (N.T. 08-11-2005 p. 46.) Specifically, Wife’s complaints concerned the Lane Enterprises conspiracy theory and the master’s hearing transcript. (N.T. 08-11-2005 p. 46.)

The Pennsylvania Supreme Court has defined duress as that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness. Carrier v. William Penn Broadcasting Company, 426 Pa. 427, 233 A.2d 519 (1967).

Absent fraud, misrepresentation, or duress, spouses are bound by the terms of their agreements. Paroly v. Paroly, 876 A.2d 1061 (Pa. Super. 2005). A determination of whether the parties’ financial positions were adequately disclosed is to be made on a case-by-case basis. Id. Such a disclosure need not be exact, so long as it is full and fair. Simeone v. Simeone, 525 Pa. 392, 403, 581 A.2d 162, 167 (1990).

A court may award reasonable attorney’s fees against a “participant for dilatory, obdurate or vexatious conduct during the pendancy of a matter.” 42 Pa.C.S. §2503(7) (2005).

Both Husband and Attorney Papa testified that Wife signed all relevant portions of plaintiff’s exhibit no. 1. (N.T. 08-11-2005 pp. 7,30.) In her answer to rule to show cause, Wife does not deny signing plaintiff’s exhibit no. 1, but avers that she signed them under “duress and coercion.” (Defendant’s answer to rule to show cause p. 1.) The court accepts Attorney Papa’s testimony as credible; specifically, the court finds that Attorney Papa properly acted as competent counsel for Wife and advised Wife to act in her best interests. At times, this advice may have contradicted Wife’s apparent desires to pursue a conspiracy theory and create a “public record” via transcript. The mere fact that Attorney Papa counseled Wife to undertake a course of action that would preclude Wife from pursuing these theories does not give rise to a claim of coercion or duress. Wife is unable to provide the court with any evidence that Attorney Papa forced or leveraged her into signing the agreement. The subjective opinion of a client claiming that counsel’s advice pressured or coerced her into action does not establish a claim of coercion or duress.

The testimony establishes that Attorney Papa effectively negotiated an agreement that favored her client; in fact, Attorney Papa testified that she suggested that the parties reduce the agreement to writing at that conference because she was concerned that Husband would try to back out. (N.T. 08-11-2005 p. 31.) Wife’s testimony did not establish that Attorney Papa coerced her or employed duress in order to reach an agreement. Wife’s primary complaint is that Attorney Papa did not pursue her conspiracy theory regarding Husband’s stock assets or her purported desire to obtain a transcript in order to disseminate it to Husband’s associates and family.

The court finds that Wife entered into a contractual agreement with Husband evidenced by the aforestated written memorandum and Wife’s consent to said agreement was not the result of any misconduct or coercion by Attorney Papa. If Wife had specific concerns regarding the manner in which she was to receive the sum of $78,000, payable over five years, from Husband, she could have addressed that specific concern with Attorney Papa upon her receipt of the formalized marital dissolution document. Instead, Wife refused to sign, or in any way discuss the agreement, which necessitated the instant litigation. There is no credible testimony before this court that Wife raised this specific issue upon receipt of the marital dissolution agreement; furthermore, the court notes that the written memorandum did not provide any mechanism for Wife to receive the $78,000, but merely stated that she would receive it within five years. The court finds that the marital dissolution agreement’s provision regarding the payment of the $78,000 is consistent with the provisions within the signed memorandum. Therefore, Husband’s petition to enforce marital settlement agreement is hereby granted.

Husband requested an award of reasonable attorney’s fees. Although attorney’s fees are the exception and not the rule in litigation, said fees may be awarded where the party against whom such fees are sought engages in “dilatory, obdurate or vexatious conduct during the pendancy of a matter.” 42 Pa.C.S. §2503(7) (2005). The court finds that Wife’s refusal to sign the formalized marital settlement document was not based on a good faith legal theory, but rather the intent to escape a contractual agreement in order to pursue her ulterior ambitions that do not appear related in any way to the equitable distribution of the parties’ marital assets. If Wife was merely concerned about any perceived inconsistencies with the formal marital settlement agreement, those concerns should have been addressed with Attorney Papa upon her receipt of the formalized marital dissolution document. The court finds that Wife’s actions amount to dilatory, obdurate or vexatious conduct pursuant to Pennsylvania law. Husband shall be awarded reasonable attorney’s fees in the amount of $1,075.91 as set forth in plaintiff’s exhibit no. 3.

ORDER

And now, May 10, 2006, the court having held hearings on August 11, 2005 and January 31, 2006, on petition to enforce marital settlement agreement, with Ryan C. Long, Esquire, appearing and representing Michael Rzicznek (Husband), and Thomas W. Leslie, Esquire, appearing and representing Beverly Rzicznek (Wife), the court finds and it is hereby ordered, adjudged and decreed as follows:

(1) The petition to enforce marital settlement agreement is hereby granted as expressed in the accompanying opinion.

(2) Husband’s petition for attorney’s fees is granted pursuant to the attached opinion. Wife is hereby ordered to pay attorney’s fees in the amount of $1,075.91.

(3) The prothonotary shall serve notice of this order of court and opinion upon counsel of record for the parties, and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


source: Caselaw Access Project

author: WECHT, J.,

license: Public Domain

text:
    Dolinar v. Kapton
    C.P. of Allegheny County,
    no. FD 99-4549-003.

      Charles P Voelker, for plaintiff.

      Harry Kapton, pro se
    March 10, 2006
   WECHT, J.,

Defendant Harry Kapton (Husband) appeals from this court’s equitable distribution order dated September 13,2005. In addition to distributing the marital assets between the parties, the order directed Husband to pay $50,000 in counsel fees and found Husband in civil contempt for his failure to pay $3,700 in counsel fees that already had been awarded.

BACKGROUND

The parties married on November 29,1980. They separated on August 1, 1999. A decree in divorce issued on December 19,2002. Two children were bom of the marriage: Matthew, age 22 at the time of trial, and Amanda, age 19 at the time of trial.

At the time of trial, Wife was 50 years of age and in good health. Wife’s highest level of education was a high school diploma. (R. at 7-8.) Wife was employed at the beginning of the marriage until 1982, when she became pregnant with Matthew. (R. at 8.) Wife then spent the next 14 years, until 1996, as a full-time mother and homemaker. (R. at 8.) In addition, Wife assisted Husband by acting as an accountant and bookkeeper for rental units owned by the parties. (R. at 8-10.) Wife also participated in running the parties’ business, Crown Limousine Service, during the 1990s. (R. at 9.)

In 1996, Wife began working outside the home for Davis Baker, an accounting firm. (R. at 10.) In 1997, Wife commenced employment as a bookkeeper with Greyfox Systems. (R. at 10.) At Greyfox, Wife worked her way up to a level where she was responsible for maintaining the general ledger, accounts payable, accounts receivable and payroll. (R. at 10.) Wife had been unemployed since July 8,2005, when her employer, Greyfox, relocated its operations to Harrisburg. (R. at 8,66.) Wife was not offered a job with the new company. (R. at 8, 66.) Wife had been searching for new employment for six or seven months without success. (R. at 11.) Wife cited her lack of a college degree and age as “roadblocks” in attaining employment. (R. at 11.)

Husband was 61 years old at the time of trial. Husband did not offer any evidence as to the status of his health at trial, other than to state that, “I’m old, I’m fat, I’m bald, I’m drawn.” (R. at 158.) On cross-examination, Husband verified that he had admitted at deposition that he had attended Carnegie Tech and was only six credits short of a degree. (R. at 156-57.) Husband admitted that he had been “pretty lucky” in the real estate business. (R. at 157.) During the marriage, the parties maintained several rental properties, both commercial and residential. (R. at 9.) Husband also admitted that the parties’ limousine business, Crown Limousine Service, had been successful. (R. at 157.) Husband had a pilot’s license and was licensed to fly a number of different aircraft. (R. at 157.) Husband owned an airplane at one point during the parties’ marriage. (R. at 158.)

PROCEDURAL HISTORY

This action has had a long and torturous history since its commencement in 1999. The undersigned received this case after the Honorable Guido A. DeAngelis entered an order on April 4, 2003 providing that the case would be assigned to this member of the court following Judge DeAngelis’ transfer to the Criminal Division.

Following the filing of a praecipe by Wife, this court first conciliated the economic issues in this case on October 26,2004. Husband appeared alone for that conciliation and stated that Angelo Papa, Esquire was his attorney. Wife and her counsel appeared and provided a marital asset and liability summary based upon information that they had been able to obtain from Husband. By order dated October 27,2004, this court scheduled a one-day equitable distribution trial for April 18, 2005. Following presentation of a “Motion for continuance” by Wife on March 1, 2005, the trial date was re-scheduled for September 12,2005 because of Wife’s counsel’s unavailability on April 18.

Husband appeared pro se at trial on September 12,2005. Husband did not submit a pretrial statement in accordance with this court’s October 27, 2004 pretrial order. At the close of trial, this court invited both parties to submit proposed forms of order to this court by 12 p.m. on September 13. Both parties submitted proposed orders on the morning of September 13. Following consideration of the proposed orders, as well as the particular facts of this case and the applicable law, this court issued its equitable distribution order on September 13,2005.

On October 6,2005, Husband filed a notice of appeal. Husband attached a certificate of service dated September 26,2005, stating that he had served the undersigned by mail. However, this court did not receive Husband’s notice of appeal. Rather, this court, on its own initiative, discovered the notice of appeal on October 12, 2005 by looking at the prothonotary’s docket. Despite Husband’s failure to properly serve this court, this court issued an order on October 12 directing Husband to provide a concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(b). On October 13,2005, this court received a copy of Husband’s notice of appeal in the mail with a postmark of October 12, 2005 on the envelope. On October 27, 2005, Husband filed his concise statement.

The disposition of Husband’s appeal has been significantly delayed by Husband’s failure to comply with procedural rules in a timely manner. In particular, Husband failed to file his docketing statement and to order the trial transcript. By order dated November 14, 2005, the Superior Court directed Husband to file his docketing statement by November 24, 2005. Husband complied.

By letter dated November 15,2005, this court informed the Superior Court Prothonotary that Husband had not ordered the trial transcript, and that this court was accordingly unable to file an opinion. By order dated January 19, 2006, the Superior Court directed Husband to show cause, in the form of a letter, as to why his appeal should not be dismissed for his failure to order and pay for the trial transcript. Husband ultimately paid for the trial transcript, which was filed on March 1, 2006.

THE INSTANT APPEAL

In his concise statement, filed on October 27, 2005, Husband states the following as his issues for review:

(1) The trial court erred in finding the net value of the 307 Main Street property to be $25,000, since the court failed to consider the liens, charges and expenses incurred in connection with the property, including but not limited to the existing mortgage, unpaid realty taxes, and costs for repair and maintenance. The true equity subject to distribution was less than $1,000.

(2) The trial court erred in finding the net value of the 423 Cubbage Street property to be $57,000, since the court failed to consider the liens, charges and expenses incurred in connection with the property, including but not limited to the existing mortgage, unpaid realty taxes, and costs for repair and maintenance. The true equity subject to distribution was $4,500.

(3) The trial court erred in valuing the vehicles at $50,000 and in basing its finding solely on Wife’s speculative, unsubstantiated and unreliable testimony, since the court failed to consider the age and poor condition of the vehicles. The true equity subject to distribution was less than $3,500.

(4) The trial court erred in finding that Husband did not inform tenants at all three properties that all checks were to be made payable to him and Wife, since he did so inform them and since he did not fail to comply with the order.

(5) The trial court erred in finding the fair rental value of Husband’s apartment to be $600 per month, since this value was based solely upon unfair and inaccurate speculation by Wife’s counsel, since the property had a far lower rental value, and since the property had previously rented for only $200 and $230 per month.

(6) The trial court erred in finding that all of Wife’s counsel fees were necessary and reasonable, and were due to Husband’s conduct and in failing to adequately consider the fact that Wife retained expensive counsel, and that many actions taken by her counsel were in no way related to Husband’s actions. Furthermore, the trial court failed to consider that Husband caused postponement of the sheriff sales on at least four occasions.

(7) The trial court erred in failing to split the Wife’s 401(k), since Husband was entitled to one half.

(8) The trial court erred in directing Husband to sign a deed to the rental property at 415-417-419-412 [sic] Cubbage Street and “Burgan Alley” property since Husband no longer has any legal interest in the realty and since he is therefore unable to comply with this court’s directive.

(9) The trial court erred in granting Wife’s claim for rental income from the rental properties, since all of the values assumed by the court were inaccurate, unfair, speculative and not based on reliable or competent evidence.

(10) The trial court erred in finding Husband in contempt for his failure to pay $3,700 to Attorney Voellcer, all without proper notice and due process, since Husband had no ability to pay this amount and did not willfully or intentionally violate the order.

(11) The trial court erred in finding that the proceeds of sale of the marital property at 307 East Main Street was $25,000 and that the proceeds of sale from 423 Cubbage was $57,000, since the true proceeds were considerably less and since the court’s finding was inaccurate, incorrect and unfair.

(12) The trial court erred in directing Husband to pay the sum of $50,000 to Wife and her attorney, since amount [sic] was erroneously determined and since Husband has neither the assets nor the present ability to pay such an enormous sum of money.

(13) The trial court erred in entering an equitable distribution award that was unfairly and unreasonably punitive as to Husband, and that failed to either accurately fix the true values of the assets and liabilities of the parties or to equitably distribute the assets.

(14) The trial court erred in uncritically accepting the testimony and evidence of the Wife and in rejecting the testimony and evidence of the Husband on virtually all matters in dispute, and in accepting speculative and unsubstantiated information on which to base its determinations of fair market value.

(15)The trial court erred in finding a fair market value of $75,000 for the Cubbage Street realty and awarding same to Wife. The realty is worth substantially more than that and the court erred in relying upon outdated, inaccurate and unreliable tax assessments records.

(16) The trial court erred in failing to award Husband the many items of personalty to which he is clearly entitled and ignoring such items as household furnishings worth $45,000, silver and china worth $43,000, Husband’s personal furniture and pool table, all of which remain in Wife’s possession.

(17) The trial court erred in awarding property valued at $383,439 to Wife and -$128,439 for Husband, since this distribution was unfair, inequitable and against the evidence and applicable law.

(18) The trial court erred in ruling against Husband during the trial on evidentiary and related issues and in overruling and disallowing Husband’s attempts to offer proof on the issues.

(19) The Husband reserves the right to supplement this statement to farther identify and specify the trial court’s errors upon receipt and review of the trial transcript.

DISCUSSION

I. Standard of Review

In the recent case, McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005), the Superior Court restated its standard of review in equitable distribution cases as follows:

“Our standard of review in assessing the propriety of a marital property distribution is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure.” 888 A.2d at 908, quoting Harasym v. Harasym, 418 Pa. Super. 486, 494, 614 A.2d 742, 746 (1992).

Further, the McCoy court reminded that an abuse of discretion must be shown by clear and convincing evidence. McCoy, supra at 908. (citations omitted)

II. Valuation and Distribution of Marital Property

A. Fairness of Valuation and Distribution

In his thirteenth and seventeenth issues raised on appeal, Husband takes issue in general with the fairness of this court’s valuation and distribution of the marital assets. This court applied the factors set forth at 23 Pa.C.S. §3502(a) to reach the equitable distribution contained in its September 13, 2005 order. The following section 3502(a) factors played a significant role in this court’s determination:

“(1) The length of the marriage.

“(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

“(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

“(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.”

As to the first equitable distribution factor, at 19 years, the parties’ marriage was of significant duration. As to the third equitable distribution factor, while Wife is about 11 years younger than Husband, Wife credibly testified that her age and lack of a college degree have limited her employment opportunities. (R. at 11.) Husband, on the other hand, was just six credits short of a degree at Carnegie Tech and had been successful in the real estate and limousine businesses. (R. at 156-57.)

As to the sixth equitable distribution factor, Wife testified that her medical insurance from her most recent employer was about to run out. (R. at 11.) Wife testified that her sole retirement asset was her 401(k) from Greyfox Systems. (R. at 12,137.) Wife testified that she had life insurance at the time she was employed by Greyfox, but that she no longer had the coverage. (R. at 12.) Wife testified that Husband had a $50,000 life insurance policy during the marriage. (R. at 12.) Wife did not know whether the policy still existed at the time of trial. (R. at 12.) Husband offered no testimony or evidence on this issue. Further, Husband offered no testimony or evidence as to his medical, retirement, insurance, or other benefits other than to mention the fact that he had been covered under Wife’s medical insurance through Greyfox and had subsequently obtained medical coverage through the Veteran’s Administration. (R. at 147.)

As to the seventh equitable distribution factor, this court considered Husband’s significant dissipation of marital assets, including the real estate and vehicles owned by the parties. This issue will be discussed more fully below in relation to the specific real estate parcels and vehicles.

Because Husband failed to provide any evidence as to the values of marital property, this court relied for the most part upon values provided by Wife. In the recent case of Jacobs v. Jacobs, 884 A.2d 301 (Pa. Super. 2005), the court held that it was proper to sanction the husband for his failure to comply with a discovery order by assigning values to the marital assets based upon evidence presented by Wife. Jacobs, 884 A.2d at 306. Similarly, in this case, where Husband presented almost no evidence, it was proper for this court to utilize the values provided by Wife.

This court also notes that Husband’s assertion (within his seventeenth issue raised on appeal) that this court awarded property worth $383,439 to Wife and -$128,439 to Husband has no basis in the evidence presented at trial. The total marital estate, as shown at the end of paragraph 4 of this court’s September 13, 2005 order, was $ 172,835. Of that amount, Husband received assets worth $132,000, while Wife received only $40,835 after the loans that Wife had incurred were subtracted out. On top of that distribution, Husband already had received the total rental income of $70,560 and was directed to reimburse Wife for one-half, or $35,280. (See September 13, 2005 order, ¶5.)

B. Valuation and Distribution of Real Estate

In his first, second, fifth, eighth, ninth, eleventh, and fifteenth issues raised on appeal, Husband takes issue with this court’s valuation and distribution of real estate owned by the parties during the marriage.

1. Valuation of property at 307 Main Street and 423 Cubbage Street

In his first, second, and eleventh issues raised on appeal, Husband states that this court erred in its valuation of the 307 Main Street and 423 Cubbage Street properties.

Wife’s testimony established the following:

The parties purchased a commercial building at 307 Main Street in Carnegie, PA in 1989 for $40,000. (R. at 13,15.) The property was occupied over the years by various commercial establishments, such as pizza shops, that paid rent to the parties. (R. at 15.) It was Husband’s practice to put the title to properties that the parties acquired into the name of a corporation. (R. at 15.) Husband titled the property at 307 Main Street in the name of Commercial One Incorporated. (R. at 15; plaintiff’s exhibit B.)

By orders dated August 30, 1999 and November 6, 2000, Husband was enjoined from selling, transferring, encumbering or otherwise dissipating the interest and/or value of the parties’ real estate, including the property at 307 Main Street titled in the name of Commercial One Incorporated. The November 6, 2000 order, entered by the Honorable Kathleen R. Mulligan, added Commercial One Incorporated as an additional defendant. Commercial One Incorporated was enjoined from selling, transferring, encumbering or otherwise dissipating the interest and/or value of the real estate at 307 Main Street.

By order dated June 19, 2002, entered by Judge DeAngelis, Husband was permitted to sell the property at 307 Main Street, provided he submit an agreement of sale to the court. Wife testified that the sale pending at that time was “for a different buyer, a different time and a different price.” (R. at 21.) Ultimately, on August 30, 2004, Husband sold the property to Tasco Properties for $25,000. (R. at 21-22; plaintiff’s exhibit D.) Wife did not know what Husband did with the sale proceeds. (R. at 21.) Wife did not indicate, and the docket did not show, that Husband provided an agreement of sale before selling the 307 Main Street to Tasco Properties.

Based upon Wife’s testimony and exhibit D showing the sale price of307 Main Street to be $25,000, this court assessed the 307 Main Street property at $25,000. This asset was distributed to Husband because he presented no evidence that he shared the proceeds with Wife. Husband asserts in his first issue for review that the “true equity” from the sale of this property was less than $1,000. Husband did not attempt to contradict the $25,000 value, nor did he offer evidence that the true equity from the sale of this property was less than $1,000.

As to the property at 423 Cubbage Street, Wife’s testimony established the following:

On August 29,1983, the parties acquired 423 Cubbage Street, a residential building. (R. at 13,22.) Husband had the property titled under the name of C&B Incorporated. (R. at 22.) On October 22,2004, Husband sold this property to Jason Eckles for $57,000. (R. at 24; plaintiff’s exhibit G.) Husband sold this property in violation of the August 30, 1999 and November 6, 2000 orders enjoining him from selling marital real estate. (R. at 24.)

Based upon Wife’s testimony and the documentation she provided, this court valued the 423 Cubbage Street property at $57,000 and awarded it to Husband. Husband did not offer any evidence to contradict this value. In his second issue raised on appeal, Husband asserts that the “true equity” of this property was $4,500. However, Husband did not present any evidence to that effect at trial. Accordingly, this court properly distributed this property to Husband, who had sold the property in violation of court orders and received sale proceeds of $57,000.

2. Valuation and transfer of property at 415-417-419-421 Cubbage Street

In his fifteenth issue raised on appeal, Husband contends that the undersigned erred in valuing 415-417-419-421 Cubbage Street (415/421 real estate) at $75,000 and awarding it to Wife. In his eighth issue raised on appeal, Husband states that the undersigned erred in directing Husband to sign a deed transferring the 415/421 real estate to Wife where Husband no longer has any legal interest in the realty.

As to the valuation of the 415/421 real estate, this court accepted Wife’s proposal to use the 2004 Allegheny County real estate assessment of $75,000. This court did not find that this assessment was “outdated, inaccurate and unreliable,” as Husband claims in his fifteenth issue raised on appeal. At trial, Wife testified that she had been unable to obtain information either from Husband or PNC Bank as to the status of the mortgage on the property. (R. at 33; plaintiff’s exhibit O.) Husband offered absolutely no evidence at trial as to the value of this property. Accordingly, this court properly accepted Wife’s value. See Jacobs, 884 A.2d at 305-306. Further, in light of the fact that Husband already had received sale proceeds for such a large chunk of the marital estate, it was proper to award this asset to Wife.

As to Husband’s contention within his eighth issue that he no longer has a legal interest in the 415/421 real estate, the evidence at trial was to the contrary. At the time of trial, Husband was living on the second floor of this building with the parties’ son. (R. at 26.) The six-unit property was acquired on October 7, 1981 by Heritage Associates Limited, which was another “corporation” formed by Husband. (R. at 27.) Husband purchased the property from his parents for $1. (R. at 27.)

Wife presented evidence demonstrating that Husband had acknowledged ownership of this property in the past. (Plaintiff’s exhibits L and M.) Further, Husband had the alley known as Burgan Alley between the 415/ 421 real estate and 423 Cubbage Street vacated as a public right of way. (R. at 31-32; plaintiff’s exhibit N.) Consequently, Husband also owned Burgan Alley, which provides parking space for the tenants of the 415/ 421 real estate. This court also distributed Burgan Alley to Wife. Husband did not attempt to contradict Wife’s testimony at trial, nor did he offer any evidence to show that he had entered into an agreement of sale of the 415/421 real estate and/or Burgan Alley. Accordingly, this court properly concluded that Husband still owned this property and thus could sign a deed transferring the property to Wife.

3. Fair rental value of Husband’s apartment

In his fifth issue raised on appeal, Husband states that the trial court erred in finding the fair rental value of Husband’s apartment at the 415/421 real estate to be $600 per month. Husband added that the property had previously rented for only $200 to $230 per month.

At trial, Wife testified that her opinion was that the fair rental value of Husband’s apartment was $600 to $700 per month. (R. at 36.) Husband did not object to Wife’s offer of an opinion, nor did he attempt to introduce any evidence as to a different fair rental value for this apartment. Therefore, this court properly adopted Wife’s fair rental value of $600 per month. See Jacobs, 884 A.2d at 306.

4. Wife s claim for rental income

In his ninth issue on appeal, Husband states that the undersigned erred in granting Wife’s claim for rental income “since all of the values assumed by the court were inaccurate, unfair, speculative and not based on reliable or competent evidence.” In his fourth issue raised on appeal, Husband states that the trial court erred in finding that Husband did not inform tenants at the parties’ rental properties that they were to make all checks payable to both parties.

At trial, Wife testified that, by order dated September 18, 2002, Judge DeAngelis directed Husband to inform the tenants at the 415/421 real estate, 423 Cubbage Street, and 307 Main Street to make all rental checks payable to both parties. (R. at 34.) Husband was further directed to deliver all rental checks to his counsel at the time, Dennis Cline, Esquire. (R. at 34.)

Husband testified that he instructed his tenants to make the checks payable to both parties, but that the tenants did not comply. (R. at 160.) On cross-examination of Elusband, the following exchange took place:

“Wife’s counsel: So you ignored Judge DeAngelis’ order of court?

“Husband: No. They [the tenants] did.” (R. at 160.)

Further, Husband asserted that he did not deliver the checks to Dennis Cline because Mr. Cline allegedly stated, “I don’t want your checks.” (R. at 160.)

Based upon Husband’s own admission that (a) the tenants did not make the checks out to both parties, and (b) Husband did not deliver the checks to Dennis Cline, as well as Wife’s testimony that she never saw any of these rental checks, this court concluded that it should grant Wife’s request for one-half of the rental income. (R. at 159-60, 34.)

This court based its award of rental income on Wife’s testimony. Wife testified as to the rent being charged for each of the four units at issue. (R. at 35.) Wife multiplied the monthly amount due for each unit by the 36 months that had passed since the September 18, 2002 order to reach a rental income in the amount of $48,960 that should have been placed in escrow for both parties. (R. at 35.) Further, Wife added the fair rental value of Husband’s apartment at $600 per month for 36 months for a total of $21,600. (R. at 36.) The grand total for rental income was $70,560. Husband did not offer an alternative to the $70,560 figure. Accordingly, this court properly accepted Wife’s figure for $70,560 in rental income and awarded her one-half. See Jacobs, 884 A.2d at 306.

C. Valuation and Distribution of Personalty

1. Vehicles

In his third point raised on appeal, Husband takes issue with this court’s valuation of the approximately 24 vehicles that the parties owned for use by their limousine business. At paragraph 4c. of the September 13 order, this court valued the vehicles at $50,000. At paragraph 12, this court awarded the vehicles, which were in existence as of the time of separation, to Husband.

At trial, Wife testified as follows concerning the vehicles owned by the parties:

During the marriage, and at the time of separation, the parties owned a limousine company called Crown Limousine Incorporated. (R. at 46; plaintiff’s exhibit Y.) The parties operated the company out of 309 Main Street, which was next door to the property the parties owned at 307 Main Street, and which was owned by Husband’s mother. (R. at 46.) Wife described the business as “flourishing” during the 1990s; the parties had up to eight drivers working for them at busier times, such as the prom and wedding season. (R. at 46.) Wife provided a photograph of two Cadillacs and a Lincoln Town Car. (R. at 47-48; plaintiff’s exhibit Z.) At separation, the parties had six limousines, a Lincoln Town Car, an antique Austin Rolls Royce, an antique dump truck, and a number of other automobiles. (R. at 48.) The cars were owned either by Crown Limo or K Corp., which was another corporation set up by Husband. (R. at 48.) Wife estimated the value of these vehicles at $50,000. (R. at 49.)

On cross-examination of Wife, Husband challenged Wife as to the make of the “Austin Rolls Royce.” (R. at 82-84.) Husband did not offer any direct testimony as to his estimation of value of the cars. At trial, Husband did not offer the “true equity” value of “less than $3,500” that he now suggests in his third issue raised on appeal. On cross-examination, when Wife’s counsel asked Husband where the cars were stored after separation, Husband testified that “a couple” were in a garage in Carnegie. (R. at 151.) Husband testified that his sister had sold the building with the equipment in it and that litigation was pending as to her alleged wrongful sale. Husband testified that:

“The rest or a lot of them were out on the farm where we grew up, and they’re just in the grass and they rust away. A lot of them were cannibalized, no motor, no transmission, no rear ends, no blocks, some right on the ground.” (R. at 151-52.)

In light of Husband’s failure to provide any sort of accounting or valuation of these vehicles, this court properly accepted Wife’s $50,000 value. See Jacobs, 884 A.2d at 306. Further, Husband’s testimony as to how these cars were literally put out to pasture after separation demonstrated Husband’s dissipation of these marital assets, for which Husband should be charged with the full $50,000 value.

2. Household items

In his sixteenth issue raised on appeal, Husband states that the court erred in failing to award Husband the “many items of personalty to which he is clearly entitled” and in “ignoring such items as household furnishings worth $45,000, silver and china worth $43,000, Husband’s personal furniture and pool table, all of which remain in Wife’s possession.”

At trial, Husband did not even mention household items, let alone specifics such as silver, china and a pool table. Husband did not submit a pretrial statement, and therefore Husband had not provided an accounting of any such items prior to trial. Husband’s first mention of personalty was in an attachment to his proposed order, submitted to this court the day after trial, entitled, “My STUFF from 801 Still in <illegible.>” The “STUFF” list contains a reference to a pool table and a sterling silver tray. However, it would have been improper for this court to distribute items to either party for which no evidence was submitted at trial. Accordingly, this court did not err when it entered an order awarding no items of personalty to either party.

D. Wife’s 401 (k)

In his seventh issue raised on appeal, Husband states that the undersigned erred in failing to split Wife’s 401(k) “since Husband was entitled to one-half.” This court’s September 13 order provided that Wife should retain her 401(k), valued at $3,497.

At trial, Wife testified that the value of $3,497 represented the value of her 401(k) as of the date of separation. (R. at 12; plaintiff’s exhibit A.) Wife testified that the 401(k) plan represented her only retirement asset. This court determined that Wife should retain her 401 (k). In particular, this court considered that, at age 50 and searching for new employment, Wife has a limited opportunity to accumulate additional retirement assets. This court considered that, with his education and business background, Husband could have accumulated (and perhaps still can accumulate) more significant retirement assets than Wife.

Further, in light of Husband’s significant dissipation of this marital estate, there was no basis to award Husband any of Wife’s sole retirement asset. Since Pennsylvania is not a community-property state, Husband misapprehends the law when he asserts that he was entitled to one-half of Wife’s 401(k). Moreover, equitable distribution does not presume an equal division of the marital estate. See Platek v. Platek, 309 Pa. Super. 16, 454 A.2d 1059 (1982).

II. Credibility Determinations

In his fourteenth issue on appeal, Husband states that the court erred in “uncritically accepting the testimony and evidence of the Wife and in rejecting the testimony and evidence of the Husband on virtually all matters in dispute.” Husband further states that this court accepted “speculative and unsubstantiated information” in determining valuation.

This court already has noted Husband’s failure to produce evidence on virtually all matters in dispute. The burden fell on Wife to produce the evidence. She carried that burden. Husband has not suggested any basis for his appellate claim that Wife’s evidence was “speculative and unsubstantiated.” Nor can this court discern any such basis. Accordingly, this court can add nothing further on this issue than it already has in the foregoing discussion.

III. Rulings on Husband’s Evidentiary Objections and Husband’s Opportunity To Offer Proof

In his eighteenth issue raised on appeal, Husband states that the trial court erred in ruling against him during the trial on “evidentiary and related issues and in overruling and disallowing Husband’s attempts to offer proof on the issues.” This court’s rulings on objections made by Husband were proper and this court afforded Husband every opportunity to present his case.

In consideration of Husband’s pro se status, this court explained procedures to Husband at several points during the trial. (R. at 4-6, 106, 114.) On at least two occasions, Husband objected as to the veracity of the testimony that was being offered by Wife via summary. (R. at 16, 19-20.) In overruling Husband’s objections, this court explained to Husband that objections must be based upon a rule of evidence, and that an objection as to the veracity of testimony does not relate to a rule of evidence. (R. at 16.)

Husband objected to the testimony of his sister, Virginia Riegner, who was called by Wife as a witness. (R. at 91-96,99-101.) Husband maintained his obj ection after Wife provided an offer of proof stating that Ms. Riegner, who is the guardian of Theresa Kapton (Husband’s mother), would testify as to Husband’s offers to purchase properties owned by his mother. (R. at 92.) Wife stated that this testimony would tend to prove that Husband is not as destitute as he has portrayed himself to be throughout this divorce litigation. (R. at 92.)

In support of his objection, Husband claimed that the Orphans’ Court case relating to his mother is sealed. When this court noted that the fact that a case is sealed would not prevent Wife from calling Ms. Riegner unless there is a gag order issued by another judge, Husband claimed that the Honorable Lee J. Mazur, Orphans’ Court Division, had issued a gag order. (R. at 94-95.) Husband stated that he would have brought the gag order to the trial if he had known that Wife was going to call Ms. Riegner as a witness. (R. at 95.) When Wife’s counsel noted that Ms. Riegner had been listed on her pretrial statement as a witness, Husband stated that he had not received Wife’s pretrial statement. (R. at 95-96.) However, in response to this court’s question, Husband admitted that he lives at the Cubbage Street address where Wife’s counsel mailed the pretrial statement. (R. at 96.) This court concluded that Husband received the pretrial statement, and therefore had notice that Ms. Riegner could be called by Wife as a witness. Accordingly, this court overruled Husband’s objection. (R. at 96.)

As to Husband’s opportunity to offer proof, Husband was afforded ample opportunity to present his case. Husband failed to file a pretrial statement. This court could have sanctioned Husband for this failure pursuant to paragraph 4 of the October 27,2004 pretrial order. Instead of precluding Husband from offering evidence, this court invited Husband to testify and call witnesses after Wife rested her case. (R. at 141.) At that time, Husband stated, “I didn’t know I could.” (R. at 141.) This court’s October 27,2004 pretrial statement clearly provided Husband with notice that he was required to file a pretrial statement containing, inter alia, the names of each person Husband intended to call at trial as a witness. Accordingly, this court did not preclude Husband from putting on his case. In fact, Husband offered direct and redirect testimony. (R. at 141-50,165-66.) In addition, Husband was given the opportunity to offer a closing argument. (R. at 168-70.)

IV. Award of Counsel Fees and Enforcement of Prior Award

A. Reasonableness of Wife’s Counsel Fees and Award of $50,000 in Counsel Fees

In his sixth issue raised on appeal, Husband states that this court erred in finding that all of Wife’s counsel fees were necessary and reasonable and due to Husband’s conduct. Husband further states that this court failed to consider that Husband caused postponement of the sheriff sales on at least four occasions. As to the latter issue, there was absolutely no trial evidence presented by Husband that he had postponed sheriff sales on any occasion.

In determining whether an award of counsel fees is appropriate in equitable distribution, the trial court may consider factors such as the payor’s ability to pay, the payee’s financial resources, the reasonableness of the counsel fees incurred, and the conduct of a party in protracting the litigation which would increase the requesting party’s counsel fees. See Nuttall v. Nuttall, 386 Pa. Super. 148, 162-63, 562 A.2d 841, 848 (1989).

At trial, Wife submitted invoices showing a total of $68,829 in counsel fees incurred, a total of $21,000 already paid by Wife, and an outstanding balance of $48,000. (R. at 54-55; exhibits DD and EE.) These fees did not include Wife’s counsel’s work in preparing for trial. (R. at 56.) Wife’s counsel anticipated that Wife would be billed about $5,000 in additional counsel fees for a total outstanding balance of about $54,000. (R. at 56.)

Husband did not object to the admission of Wife’s counsel fees. Husband did not attempt to challenge their reasonableness nor assert that the fees were “erroneously determined” as he now states in his twelfth issue raised on appeal. Wife provided ample evidence on the record to demonstrate how Husband’s conduct in protracting this litigation for over six years led Wife to incur such substantial counsel fees. (R. at 54-65.) Accordingly, this court concluded that an award of counsel fees to Wife in the amount of $50,000 was reasonable.

B. Enforcement of Prior Award of Counsel Fees

In his tenth issue raised on appeal, Husband avers that the trial court erred in finding Husband in contempt for his failure to pay $3,700 in counsel fees.

Wife testified that, on five different occasions, Husband was ordered to pay counsel fees based upon his failure to supply documents or upon findings of contempt. (R. at 64.) Wife testified that these orders were entered on May 23, 2002, September 13, 2002, September 18, 2002 and October 27, 2004. The total of these counsel fees was $3,700. Husband did not dispute that he had failed to pay these counsel fees. Husband did not demonstrate that he lacks the ability to pay. To the contrary, the evidence suggested that Husband has the ability to pay. In particular, this court considered the fact that Husband received sale proceeds from the sale of two pieces of marital property. This court also considered Ms. Riegner’s testimony that, in early 2003, Husband filed a petition in the Orphans’ Court Division offering to purchase his mother’s real estate properties with a value of $344,000. (R. at 103.) Therefore, this court directed Husband to pay the $3,700 in counsel fees that he already owed in addition to the $50,000 in counsel fees awarded to Wife following equitable distribution trial.

For the foregoing reasons, this court’s September 13, 2005 order should be affirmed.

      . Upon motion, Attorney Papa was granted leave to withdraw as Husband’s attorney by order dated December 8, 2004.

      . The word corporation is in quotation marks because it was unclear whether Husband formally set up these corporations or merely put the titles in the names of corporations that did not actually exist.


author: KOUDELIS, J,

text:
    Commonwealth v. Dowling
    C.P. of Delaware County,
    no. 4032-03.

      Katayoun Copeland, for the Commonwealth.

      Eugene P. Tinari, for appellant.
    March 6, 2006
   KOUDELIS, J,

NATURE AND HISTORY OF THE CASE

This is a direct appeal from the judgment of sentence imposed in this matter by the court on December 8,2005. The history of the case is as follows:

A criminal complaint was filed on July 1,2002, charging appellant with possession of a controlled substance, possession of a controlled substance with the intent to deliver (PWID), and possession of paraphernalia.

On August 14, 2003, this case was assigned to the Honorable George Koudelis. At that time Barry John Much, Esquire entered his appearance on behalf of appellant. On September 22, 2003, this court held a pretrial conference and set a trial date for November 17, 2003. On that date, appellant requested a continuance to January 6,2004. On January 6,2004, appellant again requested a continuance and the court assigned February 23, 2004, as the next trial date. Again on that trial date, the appellant’s attorney was not available and therefore there was a continuance. Appellant’s attorney was unavailable for the next two trial dates assigned, April 5 and May 10. On the May 10, 2004 trial date, this court informed appellant that his attorney had been admitted into a rehabilitation center and encouraged him to meet with the Public Defender’s Office of Delaware County and assigned a new trial date of June 28, 2004. As of June 28, appellant had not complied with the court’s suggestion and this court continued the case again and gave a new date of July 19. On that date, appellant was still unrepresented and this court now ordered appellant to meet with the public defender and assigned appellant a new date of September 7, 2004. On that date, the case was passed until September 9 when this court was informed that Denise McCrae, Esquire, who is a public defender, now represented appellant. Since Ms. McCrae had just entered her appearance, she requested a continuance until October 25, 2004. On that date, the case was placed on a two-hour call for trial.

Appellant’s case remained on call for trial until February 1,2005. On that date, this court heard argument on a motion to dismiss under Pa.R.Crim.P. 600, which was filed on January 27, 2005. This court issued an order denying appellant’s Rule 600 motion on February 2,2005 and informed the parties that the case would remain on the court’s trial list. On March 3, 2005, there was a discussion on the record as to whether or not the case was ready to be tried. After the discussion, this court sent notice on March 28, 2005 scheduling the case for the trial list beginning May 2, 2005. On June 9, 2005, appellant’s counsel filed a motion for compulsory disclosure, discovery and inspection.

On June 15, 2005, appellant signed a waiver to his right to a trial by jury and after doing so, this court presided over the non-jury trial. Both the prosecution and defense waived opening statements at that time and because of the time of day, the trial was to continue the following morning. On June 16, 2005, the following morning, before the Commonwealth called their first witness of the day, defense counsel went on record and informed this court that appellant had changed his mind and now wished to be tried by a jury. Because the trial had commenced the previous afternoon, this motion was denied and the trial continued. On June 17, 2005, this court found appellant guilty on Information A, possession of a controlled substance, Information B, intent to deliver a controlled substance, and Information C, possession of drug paraphernalia.

On December 8,2005, this court sentenced appellant to an aggregate term of 10 to 20 years incarceration in a state correctional institution on Information B, followed by a consecutive term of one year probation on Information C. Appellant was also sentenced to a term of six to 12 months incarceration on Information A, possession of a controlled substance, which is to run concurrent to Information B.

Appellant filed a timely notice of appeal on January 6.2006, and in response to this court’s order on January 27.2006, filed a concise statement of matters complained of on appeal on February 7,2006. From the concise statement, this court determines the following issues to be raised on appeal:

(1) Whether the court erred in denying appellant’s request to be tried by a jury prior to the court hearing testimony in a bench trial.

(2) Whether appellant was prejudiced by the Commonwealth qualifying every fact witness as an expert in narcotics and narcotics trafficking.

(3) Whether the court abused its discretion in sentencing appellant to an effective period of incarceration of 10 to 20 years.

FACTS

On July 3, 2002, Detective John Newell of the Delaware County CID Drug Task Force, while acting in an undercover capacity, met with appellant in the area of Tenth and Barclay Streets near Chester High School in the City of Chester. Detective Newell met with appellant on this date for the purpose of purchasing Phencyclidine (PCP). Detective Newell produced a large sum of money which he gave appellant in exchange for one glass vial of PCP. After the transaction was completed, Newell inquired as to the possibility of other purchases in the near future. In response to this inquiry, appellant handed Newell his cellular telephone number and told Newell to call him whenever he wanted to make another purchase.

Over the course of the next month, Newell placed four telephone calls to appellant for the purpose of purchasing PCP. On July 8, July 11, July 16, and July 31, appellant responded to these calls by meeting Newell in or near the same location he had met him for the previous PCP transaction. After each call was placed to appellant’s cellular phone, within one hour of the call appellant arrived at the designated location and exchanged glass vials of PCP for a sum of money.

In all, five transactions were made over the course of July 2002. Each of the vials purchased from appellant were submitted to the PSP laboratory and found to contain PCP. Additionally, all of the above transactions took place within 1,000 feet of a school zone. Having the above stated evidence, Chester Police executed a search warrant of appellant’s residence on March 14, 2003. As a result of the search warrant, a small amount of marijuana, bagging material, a scale, PCP residue, and cash were recovered. On that same date, appellant was taken into custody and placed under arrest.

DISCUSSION

A. Request To Be Tried by a Jury

Appellant’s first issue on appeal is whether the court erred in denying appellant’s request to be tried by a jury prior to the court hearing testimony in a bench trial. Under Pa.R.Crim.P 1102, at any time prior to the commencement of trial, a defendant has the absolute right to withdraw his or her waiver of the right to trial by jury. Commonwealth v. Hewett, 380 Pa. Super. 334, 551 A.2d 1080 (1988). However, once trial commences, double jeopardy attaches and appellant is no longer permitted to withdraw such waiver. In a criminal bench trial, jeopardy attaches when the trial court begins to hear the evidence. Commonwealth v. Metzer, 430 Pa. Super. 217, 231, 634 A.2d 228, 234 (1993). In Commonwealth v. Jung, 366 Pa. Super 438, 443, 531 A.2d 498, 500-501 (1987), the Pennsylvania Superior Court explained in greater detail that in Pennsylvania the commencement of trial occurs when the accused has been subjected to a charge and the trial court has begun to hear the evidence. In Jung, the Superior Court found it was beyond dispute that the accused was subjected to a charge. Further, by requesting an offer of proof, the trial court had begun to hear the evidence. According to the Superior Court, “[T]hough the proceeding itself was brief and no witnesses actually testified, a trial in which double jeopardy attached had taken place.” Commonwealth v. Micklos, 448 Pa. Super 560, 569, 672 A.2d 796, 800 (1996) (citing Jung at 443, 531 A.2d at 500-501).

In determining when a trial “commences” for Rule 1100 purposes, the Superior Court has followed the comment drafted by the Criminal Procedural Rules Committee: A trial commences when the trial judge determines that the parties are present and directs them to proceed voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial. Pa.R.Crim.P. 1100 comment. Jung further cited the concurring opinion by former Chief Justice Eagen in Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977), when he interpreted the comment by stating that “the principal concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than a pro forma, event. Moreover, each of the events specifically referred to in the foregoing portions of the comment represents a degree of commitment of the court’s time and resources such that the process of determining the defendant’s guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt-determining process is a ‘first step in the trial’ for the purposes of Rule 1100.” Lamonna, 473 Pa. at 260, 373 A.2d at 1361.

Therefore, in this case the issue becomes, did the trial commence at the point where appellant reversed his initial decision and requested a trial by jury? Like the facts in Jung, appellant in this case was subjected to a charge and waived his right to a trial by jury by both oral colloquy and written waiver forms.

Furthermore, after a determination that there were no pretrial motions, this court directed both parties to proceed with opening statements to which both waived. After waiving opening statements, the Commonwealth was directed to call its first witness, but because of the time of day the Commonwealth chose to preserve its examination of this witness for the next day. Because of the time of day the court agreed with the Commonwealth and directed that the trial would reconvene the next morning at 9 a.m. For the first time at 9 a.m. the next day, appellant attempted to withdraw his waiver to a trial by jury.

By carefully interpreting the current state of the law as it relates to the circumstances surrounding this case, it is clear that the trial had definitively commenced and therefore double jeopardy attached barring appellant from withdrawing his waiver to a jury trial. Because trial had commenced and this court was in the second day of such posture, appellant’s first issue raised on appeal is without merit.

B. Fact Witnesses Qualified As Experts

Appellant’s second issue raised on appeal is whether appellant was prejudiced by the Commonwealth qualifying every fact witness as an expert in narcotics and narcotics trafficking. This claim, like the last, has no basis.

It has long been established that expert opinion testimony is proper only where the formation of an opinion in the subject sub judice requires knowledge, information or skill beyond what is possessed by the ordinary juror. Commonwealth v. Montavo, 439 Pa. Super. 216, 225, 653 A.2d 700, 701 (1995), citing Commonwealth v. Carter, 403 Pa. Super. 615, 617-18, 589 A.2d 1133, 1134 (1991). However, an expert witness may testify to an ultimate issue of fact when such testimony will not cause confusion or prejudice. Id.

The reasoning behind such restrictions on expert testimony is to ensure that the jury’s responsibility to ascertain and assess the facts is not stripped and corrupted by deferring to the expert’s opinion. Here, however, the finder of fact was not a jury but instead the judge. Assuming arguendo that the qualifying of some of the fact witnesses as experts in narcotics and narcotics trafficking was not proper, because the finder of fact was a judge who is well trained and clear in his responsibilities and not a jury who is subject to prejudice, the opinions of such experts are irrelevant. In Commonwealth v. Miller, 426 Pa. Super. 410, 424, 627 A.2d 741, 749 (1993), the Superior Court stated that, “when the court is sitting as the fact-finder, it is presumed that inadmissible evidence is disregarded and that only relevant and competent evidence is considered.”

Here, this court properly considered the evidence and weighed it accordingly in ultimately coming to a conclusion of guilt. Therefore, this issue, like the previous issue, lacks merit and must be dismissed.

C. Sentencing

Appellant’s third and final claim is that this court abused its discretion in sentencing appellant to an effective period of incarceration of 10 to 20 years. This claim, like the previous two, lacks merit.

Sentencing is an issue that is within the sound discretion of the trial court, and will not be disturbed on appeal, absent a showing that the sentence was outside the statutory limits, or the sentence was manifestly unfair. Commonwealth v. Serrano, 727 A.2d 1168, 1169 (Pa. Super. 1999). Moreover, a sentencing court may impose the maximum sentence authorized by law. Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998). A sentence imposed that does not exceed the statutory maximum is not rendered illegal even in cases where the sentencing court considers improper factors in imposing its sentence. Id. at 210.

Appellant’s sentence is in accordance with the guidelines. The standard range on each of the five counts on Information B is 24 months to 48 months for an aggregate term of 120 months to 240 months. Because appellant was sentenced exactly as the guidelines promulgated by the Pennsylvania Commission on Sentencing suggest, this court properly considered the sentencing guidelines in sentencing appellant. Accordingly, this claim lacks merit.

CONCLUSION

For all of the foregoing reasons, the trial court’s judgment of sentence should be affirmed.

      . 35 P.S. §780-113(a)(16).

      . 35 P.S. §780-113(a)(30).

      . 35 P.S. §780-113(a)(32).


author: GEPHART, Member,

text:
    In re Shapiro
    Disciplinary Board Docket no. 74 D.B. 1989.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

February 27, 2006

GEPHART, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

On January 10, 2005, David E. Shapiro filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania. Petitioner was suspended for five years, retroactive to July 25, 1989, by order of the Supreme Court of Pennsylvania dated April 28, 1994. Office of Disciplinary Counsel filed a response to petition for reinstatement on March 9,2005, stating that it did not oppose reinstatement.

A reinstatement hearing was held on April 29, 2005, before a District I Hearing Committee comprised of Chair Steven M. Steingard, Esquire, and Members George D. DiPilato III, Esquire, and Andrew S. Miller, Esquire. Petitioner appeared pro se.

The Hearing Committee filed a report on August 11, 2005 and recommended that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting on September 12, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is David E. Shapiro, who was bom in 1948 and was admitted to practice law in the Common-

wealth in 1972. His address is 1715 A Tracey Street, Philadelphia PA 19115.

(2) Petitioner was suspended from the practice of law by order of the Supreme Court of Pennsylvania dated April 28, 1994, for a period of five years retroactive to July 25, 1989.

(3) Prior to petitioner’s suspension, he practiced commercial law and white-collar criminal defense. Petitioner sub-specialized in defending tax prosecutions.

(4) The misconduct underlying petitioner’s suspension was his conviction of mail fraud, wire fraud, transferring and concealing property of a bankrupt estate, willful failure to pay tax, willful failure to file tax returns, and aiding and abetting.

(5) Petitioner was sentenced to a term of incarceration of two years. He served 10 months of incarceration at Allenwood Prison and was released on October 1,1990. Petitioner was on probation until May 30, 1995, when Judge Bechtle granted petitioner’s motion for early termination of probation.

(6) Petitioner filed his first petition for reinstatement on August 3, 1994. The Supreme Court denied the petition on March 20, 1997.

(7) On February 4,1999, petitioner filed a second petition for reinstatement, but withdrew it without prejudice on April 6, 1999.

(8) Petitioner filed his third petition for reinstatement on May 23, 2000.

(9) The Disciplinary Board by report filed on June 7, 2002, recommended that the petitioner be denied reinstatement, as the board was not persuaded that he had shown a good faith effort in addressing his tax liability.

(10) By order dated August 8,2002, the Supreme Court accepted the board’s recommendation.

(11) Petitioner filed the instant petition on October 27, 2004.

(12) Office of Disciplinary Counsel completed its investigation and advised the board on March 7,2005 that it did not oppose the petition for reinstatement.

(13) Disciplinary Counsel found that following an extensive investigation of all petitioner’s evidence concerning the tax issue, the documents corroborated that there has been a good faith effort, and continues to be a good faith effort, on Petitioner’s part to address his tax liability.

(14) Petitioner is sincerely remorseful for his past misconduct and has rehabilitated himself.

(15) Petitioner no longer suffers from the mental or emotional disturbances he had previously demonstrated, and for which he had been recommended treatment.

(16) Petitioner has learned to confront and deal with the factors that contributed to his previous behavior patterns and his misconduct.

(17) Petitioner fulfilled his Continuing Legal Education requirements for reinstatement and kept up his currency in the law. Since the last reinstatement attempt in 2000, petitioner has read criminal law opinions from the Supreme Court of the United States, the Third Circuit and the Eastern District of Pennsylvania.

(18) Petitioner paid all costs to the Disciplinary Board associated with his prior discipline and reinstatement matters.

(19) In light of petitioner’s limited income and financial ability, he has exercised good faith and dedication in putting his financial affairs in order.

(20) Between 1990 and 2004, petitioner operated Full Court Press Litigation Support Services. This business stopped functioning in 2004.

(21) From June 2000 to the present, petitioner has made a diligent effort to increase the income of his business, and to seek and obtain full-time employment in either a legal or non-legal capacity.

(22) Petitioner started working full-time as a sales consultant for Brandow Autogroup Inc., on June 1,2004. He is compensated totally on a commission basis. Petitioner’s W-2 form attached to his federal income tax return establishes that total compensation from that employment for 2004 was $12,602.80.

(23) Petitioner has not been and is not currently in a financial position to pay off his federal income tax liability. As of the date of the hearing, there were tax liens exceeding two million dollars recorded against petitioner.

(24) From 1995 to the date of the hearing, other than recording those liens, the IRS has taken no steps to collect any part of petitioner’s outstanding obligation. The IRS has declared the liability uncollectible due to petitioner’s financial situation.

(25) In March 2004, petitioner made a new Offer in Compromise to the IRS and agreed to several additional amendments to the offer.

(26) As part of his now pending Offer in Compromise with the IRS, petitioner provided a submission to the IRS Commissioner entitled A Plea to the Commissioner for Relief. In that submission, petitioner expressed remorse directly to the IRS for his antagonistic treatment of IRS agents when petitioner was a practicing attorney, for his past misconduct, and for not being able to pay.

(27) Pursuant to the pending offer, at the request of the IRS, petitioner agreed to pay $23,000 to be paid as follows: $2,500 within 90 days of receipt of written notice or acceptance; then starting in the month following acceptance, $255 per month on the fifteenth day of the month for 23 months; and, finally, $14,000 on the fifteenth day of the twenty-fourth month.

(28) Petitioner’s failure to pay the IRS more money than he has paid is due to his inability to pay, rather than intent not to pay.

(29) Prior to and since, petitioner’s first Offer in Compromise was rejected by the IRS on July 7,2000, and in light of petitioner’s limited income and resources, he has exercised good faith and dedication in addressing his liability to the IRS, and in attempting to negotiate a compromise.

(30) In petitioner’s Commitment to the Supreme Court, the Bar and the Public (contained in exhibit 20-21 A, tab 3), petitioner states that if the IRS does not enter into an Offer in Compromise with petitioner, he will pay to the IRS on a monthly basis 5 percent of his gross income for the first 18 months after he is readmitted to practice, to be applied against the outstanding principal of the tax liability owed from the 1980s, and thereafter 7 percent of the gross monthly income for the remainder of the time he practices, to be applied to the same tax period. He further states that if the IRS enters into an Offer in Compromise, he will comply with the terms of the Offer.

(31) Petitioner offered into evidence numerous recommendation letters written by practicing attorneys and laypersons. These letters support petitioner’s reinstatement to the practice of law.

(32) Petitioner’s two adult children testified at the hearing, in addition to submitting letters of recommendation. Petitioner’s wife and sister submitted letters of recommendation. These letters set forth the financial difficulties and lack of financial resources the family has experienced during the last eight years.

(33) Petitioner expressed sincere remorse for his misconduct.

(34) If reinstated, petitioner intends to engage in a general practice of law in Philadelphia with his son, who graduated from law school in 2005.

III. CONCLUSIONS OF LAW

(1) Petitioner has demonstrated through clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania.

(2) Petitioner’s resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by David E. Shapiro. Petitioner was suspended for five years retroactive to July 25,1989. This is petitioner’s fourth petition for reinstatement. Petitioner’s last attempt at reinstatement was filed in May of 2000 and denied by the Supreme Court of Pennsylvania in August of 2002. The basis for that denial was petitioner’s failure to demonstrate a good faith effort to address his outstanding tax liabilities, which prevented him from meeting his burden of showing he was sufficiently rehabilitated to have the moral qualifications to practice law in Pennsylvania.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

Petitioner presented a substantial amount of evidence by way of his IRS Archive History Transcript, the letters of witnesses, petitioner’s Commitment to the Supreme Court and the facts stipulated to by petitioner and Office of Disciplinary Counsel regarding his financial condition and efforts to compromise with the IRS. This evidence clearly shows that petitioner, despite his poor financial status, has diligently tried to compromise his liability. Petitioner is committed to making regular payments to the IRS if he is reinstated, whether or not he is able to successfully compromise his liability. Through his testimony at the hearing it is clear that petitioner is sincerely remorseful for his past conduct, recognizes the responsibilities and obligations of an attorney admitted to practice in Pennsylvania, and is fully prepared to accept those responsibilities and obligations if reinstated.

The board notes that in a recent matter, a petitioner sought reinstatement after he was suspended for his conviction of three counts of attempting to evade or defeat tax. This petitioner submitted evidence that he made an offer in compromise to the IRS shortly before his reinstatement hearing, but there was no evidence of record that the offer was accepted by the government. Still, the board found that the existence of the offer stood as proof of the petitioner’s good faith efforts to repay his debts and obligations. This petitioner was granted reinstatement by the Supreme Court. In re Weitzman, 563 Disciplinary Docket no. 3 (Pa. Nov. 17, 2004).

Under the circumstances, petitioner has met his burden of proving by clear and convincing evidence that he is entitled to reinstatement. Petitioner has shown that he possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania and has shown that his resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the public interest.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, David E. Shapiro, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Brown recused.

Board Members Newman and Nordenberg did not participate in the September 12, 2005 adjudication.

ORDER

And now, February 27, 2006, upon consideration of the report and recommendations of the Disciplinary Board dated November 7, 2005, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.

Madam Justice Baldwin did not participate in this matter.