author: ACKERMAN, J.,

text:
    Lyons v. Parkway Corp.

      Cletus P. Lyman, Michael Feltner, and Maura Lynch, for plaintiff.

      James Haggerty and Robert LaRocca, for defendant.
    April 17, 2001
   ACKERMAN, J.,

This case was tried before a jury which found, inter alia, for the plaintiff, Carolyn Lyons, executrix for the estate of John F. Lyons, and against the Parkway defendants (Parkway Corporation and Parkway Garage Inc.) for unnamed employees as compensatory damages in the sum of $4,750,000, as follows:

Wrongful Death action — $3,750,000
Survival action — $1,000,000

The jury further found for the plaintiff, Carolyn Lyons, executrix for the estate of John F. Lyons, and against said Parkway defendants for punitive damages in the sum of $1,000,000.

The jury on the jury verdict sheet found, inter alia, that the Parkway defendants for unnamed employees were negligent and that such negligence was a substantial factor in bringing about the plaintiff’s harm, and that the conduct of the defendants was outrageous so as to justify punitive damages. No request was made by plaintiff or defendants to indicate a specific verdict on the verdict sheet as to section 314A and/or section 324A of the Restatement.

Defendants filed a motion for post-trial relief in the nature of a motion for judgment n.o.v. motion for new trial and remittitur, and after argument and hearing thereon, this court denied the said motion on March 21, 2001.

Plaintiff filed a motion for Rule 238 delay damages, which was granted on March 2, 2001, in the sum of $1,069,937.50 and which was added to the previously molded total jury verdict for compensatory damages. After adding the punitive damages, the total jury verdict as molded was $6,819,937.50.

Defendants filed the instant appeal from the judgment entered by the prothonotary on March 5, 2001. (Judgment included post-verdict interest from date of verdict, October 26, 2000, at the rate of six percent per annum for per diem interest of $1,121.09 through March 5,2001, for a total addition of $145,741.12 and a total judgment of $6,965,678.62.)

This case involves an incident that occurred on May 23,1996, at the taxi-hold lot at Philadelphia International Airport. On that date, the plaintiff’s decedent, John Lyons, a cab driver, suffered a myocardial infarction and collapsed. The plaintiff contends that a delay in summoning emergency medical assistance led to the plaintiff’s eventual death 10 days later.

The plaintiff brought a cause of action in negligence against the defendants on two theories:

Firstly, under the Restatement (Second) of Torts §314 A, plaintiff claims that a special relationship existed (possessor of land to business invitee) which gave rise to a duty to aid or protect the taxi-driving public, i.e., Mr. Lyons, when he entered the taxi-holding lot, which the defendants held open to the taxi-driving public in response to the defendants’ invitation. Plaintiff asserts that the harm Lyons suffered was a foreseeable, unreasonable risk of harm under the circumstances.

Secondly, under section 324A Restatement (Second) of Torts, plaintiff asserts that defendants were liable to Lyons for the negligent performance of an undertaking, i.e., emergency communication to quickly summon emergency medical assistance which resulted in the harm to plaintiff’s decedent who relied upon such undertaking.

Defendants assert the following errors:

(1) This court erred in holding as a matter of law that defendants owed a legal duty as a matter of law under Restatement (Second) of Torts §314A because of the special relations between the parties.

(2) The Restatement (Second) of Torts §314A, comment f, was not properly applied by the trial court, which should have found that the legal duty was discharged under the circumstances as a matter of law.

(3) The duties assumed by defendants, pursuant to contract, did not require the defendants to provide a safe taxi-hold lot.

(4) Defendants’ conduct did not cause the injury (death) of plaintiff’s decedent.

(5) Defendants’ conduct did not increase the risk of harm to plaintiff’s decedent under the Restatement (Second) of Torts §324A.

(6) The Restatement (Second) of Torts §324A has not been adopted as the law of Pennsylvania in non-medical malpractice cases.

(7) Punitive damages are not sustainable under mere negligence under either the Restatement (Second) of Torts §314A or the Restatement (Second) of Torts §324A.

(8) There was no or insufficient evidence that defendants’ conduct was “outrageous” or “deliberately indifferent” so as to sustain an award for punitive damages.

(9) The evidence was insufficient as a matter of law to support an award of damages for pain and suffering under the survival action.

(10) Punitive damages cannot be awarded under the Wrongful Death Act.

(11) Punitive damages cannot be sustained under the Survival Act where there is no evidence of any other damages.

(12) The verdict was against the weight of the evidence.

(13) The verdict was against the law.

(14) The court committed prejudicial error when it cross-examined plaintiff’s causation expert, Arthur Hayes M.D., by asking leading questions regarding the delay in summoning emergency medical assistance “caused by the Parkway defendants” and by implying that the delay caused the death of plaintiff’s decedent.

(15) Defendants’ motion for remittitur should have been granted.

Restatement 314A provides in pertinent part as follows:

“Section 314A — Special relations giving rise to duty to aid or protect
“(1) duty ... to take reasonable action
“(a) to protect them against unreasonable risk of physical harm and
“(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others....
“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.. ..”

Comment f. to section 314A provides in pertinent part as follows:

“f. The defendant is not required to take any action until he knows or has reason to know that the plaintiff is ... ill... He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill... person, he will seldom be required to do more than ... take reasonable steps to turn the sick man over to . . . those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who . . . are .. . apparently in a position to give him all necessary assistance.”

Restatement 324A provides in pertinent part as follows:

“324A - Liability to third person for negligent performance of undertaking.
“One who undertakes, gratuitously or for consideration, to tender services to another which he should recognize as necessary for the protection of a third person ... is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if
“(a) his failure to exercise reasonable care increases the risk of such harm ...

A. This Court Will Not Consider on the Merits Issues Which Have Been Waived by the Defendants

(1) Defendants did not object at trial to the submission of the issue of punitive damages to the jury on the bases set forth in alleged errors numbers 10 and 11.

Accordingly, defendants have waived the assertion of alleged errors hereinbefore noted as numbers 10 and 11.

(2) Defendants never raised during trial and, therefore, waived any alleged error by this court when it questioned plaintiff’s causation expert, Arthur Hayes M.D.

Accordingly, defendants waived allegation of error hereinbefore noted as number 14.

(3) Defendants have waived the argument that section 324A was not part of the law of Pennsylvania. The court noted to both counsel that the “undertaking” should be determined by the court, “I don’t think that’s a jury question. Do you agree with that?” Mr. Herbst (trial counsel for defendants): “Yes.” (10/20/00 pp. 22-23.)

Accordingly, defendants waived allegation of error hereinbefore noted as number six.

(4) Defendants in their brief argue that the trial court erred in instructing the jury to apply section 314A, and this argument was waived at trial.

At trial, defendants’ counsel stated that “My position is that section 314A is the applicable section of the Restatement.” “It’s a 314A case.” (10/16/00 p. 37; 10/17/ 00 p. 31; 10/24/00 p. 71.) Thus, this court will not consider the merits of this argument set forth on pages 16 and 17 of defendants’ brief.

B. This Court Correctly Determined That the Defendants Owed a Legal Duty As a Matter of Law Under Restatement (Second) of Torts §314A Because of the Special Relations Between The Parties (Alleged Error Number 1)

There was no question that defendants were possessors of land who held the land open to the taxi-driving public, a member of which was plaintiff’s decedent, Mr. Lyons. There was also no question that Mr. Lyons entered the land (taxi-hold lot) at the invitation of the defendants and, thus, the duty arose under section 314A as a matter of law.

Accordingly, there is no merit in the defendants’ allegation of error hereinbefore noted as number 1.

C. This Court Properly Submitted To the Jury the Question of Whether Defendants Breached the Duty They Owed To Plaintiff’s Decedent Under Section 314A

Defendants suggest that comment f. of section 314A relieves the defendants of their duty as a matter of law. The jury properly found from the evidence that defendants had reason to know the plaintiff’s decedent was ill; that Mr. Lyons was not in the hands of those who were in a position to give him “all necessary assistance and that the inaction of the defendants was not reasonable under the circumstances.

Accordingly, there is no merit in the defendants’ allegation of error hereinbefore noted as number 2.

D. This Court Properly Held As a Matter of Law That Defendants Had a Contractually Assumed Duty To Provide a Safe Taxi-Hold Lot (Number 3 of Alleged Error), an Undertaking Under Section 324A

A review of the agreement to manage ground transportation services (exhibit P-3) between the City of Philadelphia and defendants reveals:

(1) That defendants under exhibit A-6 submitted a management plan for personnel and facilities and had a position of “airport dispatcher — project director” who “handles unplanned facility emergencies — project director is on call 24 hours a day, seven days a week, and that the duties and responsibilities,” including “communications — develop good communication skills allowing them to communicate with ... drivers.” (emphasis supplied) See pages 29 and 30 of plaintiff’s trial exhibit 3.

(2) An airport dispatcher — assistant project director who “handles emergencies- — assistant director is on call 24 hours a day, seven days a week.” See page 31 of plaintiff’s trial exhibit 3.

(3) A booth cashier — taxi and non-taxi ground transportation whose job is to “answer telephones as necessary. Uses telephone to place calls of an emergency nature only.” See page 34 of plaintiff’s trial exhibit 3.

(4) The emergencies noted in the contract were not limited to patrons, but extended to emergencies of all types and including patrons as well as taxi drivers such as Mr. Lyons.

Defendant decided to cut the telephone wires in April 1994, and, in doing so, noted that it had unfettered authority to make such a decision. (10/24/00 pp. 45-46.)

The testimony of Thomas Keefer, defendants’ vice-president of operations, was that defendants had undertaken the duty to provide the “solution” to the need to summon aid in emergencies.

On October 23, 2000, Mr. Keefer testified as follows:

“Q. So, was there a time when you made a determination or a judgment that the cell phone was not required for emergency purposes, or for any purposes in the cashier’s booth in the hold lot?
“A. Yes, there was. It was probably subsequent to the memo that I had written to Charles Newkirk regarding the cell phone, getting a cell phone for the lot.
“Q. What was the basis for you making that judgment call?
“A. Any of these operational decisions I would have made after discussing them with Charles Newkirk. We would have discussed the matter, discussed the necessity of a cell phone in the booth as opposed to using walkie-talkies and weighed the advantages and disadvantages of both and came to the conclusion we would cover our operational requirements with the walkie-talkie. There were downsides for us operationally to having a cell phone in the booth....” (P. 90.)
“Q. Are you saying that the recommendations of Nemoy and Baldino were not entitled to weight? What recommendations were they?
“A. As suggested by both Nelson Nemoy and Don Baldino, we may want to consider a cellular phone for immediate needs.
“Q. Yes.
“A. Well, I think from an operating standpoint, we as operators, we get a lot of recommendations from a lot of people on how to run our business. They are all meant to be helpful. At the end of the day, we’ve got to make our own decisions as to how things need to operate and what is best for us. When we make those decisions that is what we go with....” (P. 116.)
“Q. My understanding from your testimony today and also your testimony in deposition on Friday, is that at an unknown time after the issuance of this memo you reversed your position to have a telephone; is that correct?
“A. That is correct.
“Q. You cannot place that in time, even with respect to August 5,1994, the date by which the purchase was to have been made?
“A. That is correct. With all due respect, that is 1994. [I] guess I can estimate the time. My estimation would be probably within two weeks to 30 days after that date of that memo, we would have come up with some solution as to how we were going to handle the communications on the hold lot whether we needed a cell phone.
“Q. There was no other solution ever that came up between that date and Mr. Lyons’ cardiac arrest?
“A. The solution for a hard wired phone? Is that what you are talking about?
“Q. You said you came up with a solution maybe within 30 days of the memo?
“A. I am assuming you are talking about a solution for emergency communications.
“Q. Right. But there was no solution, it was just a continuation of the walkie-talkies, was it not?
“A. I would classify that certainly as a solution. I mean to classify it as anything else would be something which wouldn’t be particularly fair....” (Pp. 119-20.)
“Q. Mr. Keefer, turning now to the situation as it existed on May 23, 1996, how was communication of a medical emergency at the taxi hold lot supposed to be handled so as to get a prompt emergency response?
“A. The cashier at the hold lot has a walkie-talkie, as do approximately eight to 10 other people in the terminal, either greeters at the taxi stands out at the baggage claim areas or managers and supervisors who are on the terminal. At that time of the day, it is starting to get busy, but it’s not really busy yet, but this is the start of the peak, so that the cashier at the hold lot, anytime there would be an emergency, his responsibility would be to call the manager and advise them of what the nature of the emergency was. And the manager in turn would call for police support for the emergency, rescue support, whatever the situation was. It was not uncommon, as I mentioned before, for there to be frequent requests for assistance around the airport because unfortunately there were often disputes of one nature or the other between cab drivers.
“So, from that standpoint, our people were accustomed to dealing with these types of incidents and using the radio to communicate them.
“Q. What was supposed to happen next, the manager was told to call the appropriate emergency number; is that right?
“A. Yes.
“Q. What was supposed to happen after that?
“A. After that, he should relay the message to the appropriate agency as to what he knew of the situation as best he could determine. He was to then proceed to the scene wherever that would be, if it was the hold lot, the west lot, terminals A through E.
“Q. Was the manager supposed to obtain information from the cashier at the hold lot as to the nature of the emergency before he proceeded?
“A. He was to formulate, to get enough information so that he gets a sense of what the emergency is. Once he has that information, he can relay it on.” (Pp. 124-26.)

Accordingly, there is no merit in the defendants’ allegation of error hereinbefore noted as number 3.

E. The Jury Had Sufficient Evidence To Find Causation

It is undisputed that it took the airport medic four minutes from the time of dispatch to arrival at the hold lot. (P-13, 5/23/96, paramedic report.) The time of dispatch was 2:48 p.m.

Edward Ralis testified that it took about 20 minutes for emergency personnel to arrive. (10/17/00 pp. 102-103.)

Sylvester Ekwunife testified that the police were the first to arrive after 15 to 20 minutes and then the ambulance arrived three to four minutes after the police. (10/17/00 p. 166.)

Mahamdou Diallo testified it was more than 20 minutes before the ambulance came. (10/18/00 p. 50).

Bernard Samuels said in his statement read at trial that he was “not sure how long it took for the medical emergency assistance to arrive, but it seemed like a very long time.” (10/20/00 pp. 6-7.)

That it took at least 20 minutes for the ambulance to arrive is fully corroborated by the admissions of defendants Michael Bassett (10/17/00 pp. 122-31; pp. 135-49; pp. 172-91) and Ernest Roy (10/17/00 pp. 195-249; 10/18/00 pp. 4-12).

The testimony of Dr. Hayes fully supported plaintiff on the issue of causation. (10/18/00 pp. 144-46.)

Counsel for the defendants even argued to the jury as follows:

In his closing to the jury on October 24,2000, counsel for defendants Parkway said (p. 106):

“I submit to you on behalf of Parkway, eight minutes is the proper standard, and I submit to you that Parkway did not go through the red light, did not go through the stop sign. On the other hand, if the time was longer than eight minutes, then that window of opportunity to save Mr. Lyons wasn’t there. I would agree, ladies and gentlemen, that if it was longer than eight minutes, because Parkway was negligent, then they did not pass their duty that they owed to Mr. Lyons as a cab driver on their premises.”

There was sufficient evidence that “the time was longer than eight minutes” to summon emergency aid.

Accordingly, there is no merit in the defendants’ allegation of error hereinbefore noted as number 4.

F. The Jury Had Sufficient Evidence To Find That Defendants’ Conduct Increased the Risk of Harm To Plaintiff’s Decedent Under Section 324A.

The defendants colloquy with the trial court (10/17/ 00 p. 32) is informative on this issue:

“The Court: You tell me why it is not an increased risk case under [section] 324.
“Mr. Herbst: Nothing under the facts that my client did increased the risk. In other words, it [sic] there had been a phone there we took out, that would increase the risk.”

Plaintiff submitted evidence that there had been a phone there that defendants removed. Before defendants took over, the hold lot was served by a hard-wired telephone capable of making out calls. (10/24/00 pp. 12-13.) Parkway decided to cut the telephone wires in April 1994. (10/24/00 pp. 45-46.)

The testimony of Arthur Hayes M.D. fully supports the position that defendants’ conduct increased the risk of harm. (10/18/00 pp. 144-46.)

Accordingly, there is no merit in the defendants’ allegation of error hereinbefore noted as number 5.

G. There Was No Basis for Pain and Suffering Under the Survival Action

Mr. Bassett gave a statement dated October 29, 1997 (P-12):

“I remained at scene until they took the cab driver away in the ambulance. The police officer applying CPR did manage to revive to the cab driver and when he left by ambulance he was conscious.”

Mr. Bassett gave a statement dated January 1, 1997 (P-16):

“The driver who had passed out was lying on the ground in the middle of the lot and as soon as Ernest and Jacob arrived, a rescue unit, two Phila. police cars and an airport facility vehicle arrived. The police had arrived first before the rescue unit and one of the officers gave the driver CPR and the driver did regain consciousness. By this time I was done closing out my shift and I had walked over to where the driver was lying. The driver was conscious as he was placed on a stretcher and into the rescue unit. I heard from one of the other drivers a day or two later that the driver was still conscious when he arrived at the hospital but then passed away while at the hospital.”

P-12 and P-16 were admitted into evidence without objection. (10/20/00 pp. 16-17.)

Mr. Bassett also testified that Mr. Lyons was conscious. (10/17/00 pp. 179, 186.)

Mr. Ralis testified that when Mr. Lyons fell to the ground, “He was struggling for air. His face was darkening.” (10/17/00 p. 101.)

There was circumstantial evidence to suggest that Mr. Lyon’s doctors considered him potentially capable of experiencing pain, even after he was hospitalized. According to Dr. Hayes (10/18/00 pp. 156-57), at Fitzgerald Mercy Hospital, Mr. Lyons was given a paralytic agent, Pavulon. This is given because the endotracheal and IV tubes are noxious stimuli and, as a person begins to regain consciousness, he may pull these tubes out through purposeful, or semi-purposeful, movements.

Accordingly, there is no merit in the defendants’ allegation of error hereinbefore noted as number 9.

H.The Jury Properly Found That Defendants’ Conduct Was Not Mere Negligence But Outrageous in Nature

The jury apparently found that cutting the telephone wires under the circumstances was outrageous. Thus, there was not any finding of mere negligence and that argument has no merit.

I.There Was Sufficient Evidence That Defendants’ Conduct Was “Outrageous” Based Upon the Record in This Case

The discussion in Item H of this opinion provides ample basis for finding “outrageous” conduct so as to sustain an award for punitive damages. There is no merit in this argument.

J.The Record Does Not Establish That Remittitur Was Required

Normally, the determination of the amount of damages that a person is to be awarded for pain and suffering, is primarily a jury question. Judicial reduction of a jury award for compensatory damages is appropriate only when the award is plainly excessive and exorbitant in a particular case. Gunn v. Grossman, 748 A.2d 1235 (Pa. Super. 2000) (affirming trial court’s denial of request for a remittitur of jury award in wrongful death and survival actions).

The trial court may grant a request for remittitur only when a verdict that is supported by the evidence suggests that the jury was guided by partiality, prejudice, mistake or corruption. Gunn at 1240, citing Krysmalski by Krysmalski v. Tamsovich, 424 Pa. Super. 121, 147, 622 A.2d 298, 312(1993).

The jury acted properly in rendering the amount of its verdict. Remittitur is inappropriate in the case at bar.

Accordingly, no error was committed by this court as to defendants’ allegation of error hereinbefore noted as number 15.

The record provides sufficient basis for the verdict as to wrongful death and was not against the weight of the evidence.

The record hereinbefore cited makes clear that the verdict was not against the weight of evidence nor against the law. (Numbers 12 and 13.)

Since an appeal was taken with regard to a judgment which included delay damages, and since defendants filed an answer to plaintiff’s motion for delay damages, it should be noted that defendants’ answer was devoid of merit in that plaintiff caused no delay of the trial.

Parkway Garage Inc. and Parkway Corporation were acknowledged by all parties to have identical status as the contract with the city so acknowledged. (See agreement no. 94-6700 of 12/24/93, which purports to be between the City of Philadelphia and Parkway Garage Inc., exhibit P-3, p. 1, and letter from the city to Parkway Corporation, dated October 2,1995, referring to the same agreement no. 94-6700 as being between Parkway Corporation and the City of Philadelphia.) (Plaintiff’s trial exhibit 3.)

Accordingly, no error was committed.


source: Caselaw Access Project

author: PLATT, P.J.,

license: Public Domain

text:
    Commonwealth v. Kargbl

      C.P. of Lehigh County,
    no. 1794 of 1998.

      Tejan Mohamed Kargbl, pro se.
    February 27, 2003
   PLATT, P.J.,

The defendant, Tejan Mohamed Kargbl, a/k/a Terry Johnson, was convicted by a jury in this case of two counts of attempted criminal homicide, four counts of robbery, two counts of aggravated assault, two counts of simple assault, two counts of recklessly endangering another person, one count of possession of an instrument of crime and one count of criminal conspiracy. He was sentenced to an aggregate term of imprisonment of not less than 10 nor more than 20 years in a state correctional institution, ordered to pay the costs of prosecution and to make restitution to his victims. This sentence was to be served consecutively to any other sentence the defendant was then serving. His conviction has been affirmed by the Superior Court of Pennsylvania. Defendant has filed two collateral attacks on this conviction. In the first, I granted relief to permit him to file an appeal nunc pro tunc, because his first direct appeal was dismissed due to inaction by his former counsel. The second, I dismissed as untimely, and the Superior Court affirmed.

On November 1, 2002, defendant filed a pro se “motion to stop Act 8420 percent deductions” with the clerk of courts criminal, and on November 15, 2002, without a hearing, I denied and dismissed that motion. The reason for the denial can be simply stated. If review of the actions of the Department of Corrections under Act 84 is necessary, jurisdiction to do so is vested in the Commonwealth Court of Pennsylvania and not in the courts of common pleas.

On December 10, 2002, defendant filed a notice of appeal to the Commonwealth Court of Pennsylvania, from the order dismissing his motion. On January 16, 2003,1 received a “statement of issues” on appeal from the defendant. In that statement, defendant asserts: (1) that the court dismissed his motion “without a finding ... of his ability to pay;” and, (2) that the clerk of courts “requested collection . . . from his prison account without an order by the court... [in violation of] defendant’s due process rights.”

In ¶3 of his motion, defendant asserted that the Department of Corrections has been making deductions of 20 percent of his prison earnings deposited in his account since November 5, 1998. He did not indicate a total amount of those alleged deductions or anything else with regard to the historical expenditures from or balances in that account over time. Appended to that motion, as exhibit A, was a printout of what defendant asserts is the last monthly statement received for the account. It reflects two “Act 84 transactions.” On June 5, 2002, after prison wages in the sum of $67.20 were credited to defendant’s account, 20 percent of that amount, $13.44, was deducted, leaving a balance of $105.95 in the account. On June 19, 2002, after prison wages in the sum of $1.68 were credited to defendant’s account, 20 percent of that amount, $0.34, was deducted, leaving a balance of $10.18 in the account. The account had a beginning balance of $52.29, and an ending balance as stated above of $10.18. The other monies in the account were spent that month for commissary items and for sneakers. In his in forma pauperis statement, appended to the motion, defendant asserted that his prison earnings equal approximately $67 per month.

A review of the trial court’s official file in this case (this file is maintained by the clerk of courts criminal, and contains all official documents and correspondence relative to the case) reveals that, contrary to the assertions in the defendant’s motion, at ¶¶2 and 7, that the clerk of courts requested a 20 percent deduction from the prison wages deposited in defendant’s inmate account, there is no document in the official file reflecting a request that any deduction be made. The file does contain, however, the sentencing sheets, as well as copies of form DC 300B (court commitment), setting forth the sentence, costs and restitution ordered to be paid by the defendant. These documents are required to be sent with every inmate sentenced to the state. There is only one piece of correspondence in the official file relative to the 20 percent deduction, and that is a letter from the defendant to the clerk dated October 8, 1999. In that letter defendant complains that the deductions under Act 84 are being retroactively, and therefore illegally, applied in his case.

The Department of Corrections on October 14,1998, issued a policy statement, DC-ADM-005, effective October 16, 1998, entitled “Collection of inmate debts,” which provides, at part VI, D, procedures for collection of monies from inmate accounts pursuant to Act 84:

“D. Collection of restitution, reparations, fees, costs, fines and penalties.
“(1) When the county clerk of court provides a copy(ies) of an order(s) for restitution, reparation, fees, costs, fines, and/or penalties associated with the criminal proceedings, the Records Office shall file the original and shall forward a copy of the order to the Business Office of the institution having custody of the inmate. The court order, or supporting information, must indicate the status of the debt including the current balance due and any special conditions which would effect payments.
“(2) The Business Office, through inmate account deductions, makes:
“(a) Initial payments of 20 percent of the inmate’s account balance.
“(b) Subsequent payments of 20 percent of all of the inmate’s monthly income provided that the inmate has a balance which exceeds $10.
“(3) The Business Office shall send the funds deducted to the county probation department or other designated agency.”

The 20 percent deduction is, therefore, clearly and purely a result of Act 84 itself and of this policy statement rather than a deduction or percentage deduction initiated by the clerk of courts. It is the same percentage amount deducted in all of the cases which have been litigated under Act 84. It is also the same percentage as was provided for by our legislature in section 6602(c) of the Judicial Code (prisoner filing fees), 42 Pa.C.S. §6602(c), for deduction from inmate accounts for payments of balances due for filing fees in civil prison condition litigation initiated by inmates. (“Following payment of an initial partial filing fee, the prisoner shall make monthly payments of 20 percent of the preceding month’s income credited in the prisoner’s account. The prison having custody of the prisoner shall deduct payments from the prisoner’s account when the prisoner’s account balance exceeds $10 until the filing fees are paid in full.”) Interestingly, the Pennsylvania Act dealing with prisoner civil filing fees seems to be patterned after the Federal Prison Litigation Reform Act, Pub. L. no. 104-134, 110 Stat. 12321 (April 26, 1996), 28 U.S.C. §1915, which employs a 20 percent standard as well. See Smith v. Urban, 928 F. Supp. 532 (E.D. Pa. 1996).

Section 9728(b)(5) to the Sentencing Code, 42 Pa.C.S. §9728(b)(5), was added by Act 84, and provides:

“(5) The county correctional facility to which the offender has been sentenced or the Department of Corrections shall be authorized to make monetary deductions from inmate personal accounts for the purpose of collecting restitution or any other court-ordered obligation. Any amount deducted shall be transmitted by the Department of Corrections or the county correctional facility to the probation department of the county or other agent designated by the county commissioners of the county with the approval of the president judge of the county in which the offender was convicted. The Department of Corrections shall develop guidelines relating to its responsibilities under this paragraph.”

It is within this factual and legal context that I determined to deny defendant’s motion without a hearing. In his motion, defendant, made the following assertions:

“(1)... that the 20 percent deductions from his prison account creates a financial burden that he is unable to afford in that he only makes $0.42 per hour and that there needed to be a determination before an issuing authority of his ability to pay that amount before the clerk of courts could request 20 percent of his monies. 42 Pa.C.S. §8127(a); 42 Pa.C.S. §9730(b); Pa. R.Crim.P. 706 (setting forth the procedure governing a defendant’s failure to pay fines or costs in a criminal case).” ¶4, defendant’s motion.
“(2).. . the clerk of courts failed to apply to the trial court for an enforcement action for unpaid fines, in which the enforcement is subject to the statutory requirement that the convicted offender be afforded a hearing. 42 Pa.C.S. §9772. See: Commonwealth v. Fleming, [804 A.2d 669 (Pa. Super. 2002)]; Boofer v. Lotz, 797 A.2d 1047 (Pa. Commw. 2002).” ¶5, defendant’s motion.

In these paragraphs of his motion, defendant assumes incorrectly that the deductions from his prison account were made as a result of some action by the clerk of courts who was attempting to collect fines, costs or restitution. This, of course, is not what occurred, and is contrary to the official court files in the within case, as was previously indicated. Nor would that be what would happen in any case of a prisoner sentenced to a state correctional institution, where the deductions are truly made pursuant to Act 84. Act 84 deductions, for state correctional prisoners, are made by the Department of Corrections as the result of the mandate of that legislation itself, and in accordance with the guidelines the Department of Corrections was directed to adopt by that Act, specifically, DC-ADM-005. When the Department of Corrections proceeds under Act 84, there need be no request or collection action by the criminal division of the court of common pleas or its clerk. The documents transmitted by the clerk with the sheriff upon the transfer of a prisoner to a state correctional institution contain all of the information the Department of Corrections needs to commence deductions under Act 84.

“In Commonwealth v. Fleming, 804 A.2d 669 (Pa. Super. 2002), the trial court had, without a hearing, entered an order directing the Department of Corrections to garnish funds in Fleming’s inmate account for payment of his criminal case costs, fines and restitution. The trial court purportedly did so in reliance upon Act 84 (42 Pa.C.S. §9728(b)(5). The Fleming court held that where a trial court enters such an order, it is, in reality, an enforcement action to collect fines related to a criminal sentence and, under 42 Pa.C.S. §9772, must be preceded by a hearing. However, the Superior Court then specifically noted:

“It merits emphasis, however, that the prerogative for collection of such monies is not solely that of the county district attorney since Act 84 vests such a prerogative in the correction authorities as well:... [Quoting 42 Pa.C.S. §9728(b)(5)].
“Thus it is clear that the statute expressly authorizes correction officials to make deductions from an inmate’s account, and does not impose prior court authorization as a threshold condition. See: Sweeney v. Lotz, 787 A.2d 449 (Pa. Commw. 2001).
“Therefore, although we are compelled to vacate the trial court orders, this opinion must not be construed as affecting the authority conferred by Act 84 upon correction officials to make appropriate deductions and payments from the personal account of appellant.” Id. at 670-71.

As a common pleas judge, I have no jurisdiction over the actions of the'Department of Corrections acting pursuant to Act 84. That includes the department’s actions in adopting DC-ADM-005, or in its collection from the account of any specific prisoner in a state correctional institution. Such review is available only in the Commonwealth Court of Pennsylvania. See 42 Pa.C.S. §§ 761 and 763; Commonwealth v. Baker, 782 A.2d 584 (Pa. Super. 2001); Sweatt v. Department of Corrections, 769 A.2d 574 (Pa. Commw. 2001); Aultman v. Department of Corrections, 686 A.2d 40 (Pa. Commw. 1996).

Additionally, no hearing was required in the common pleas court because there was no action taken by the common pleas court, the district attorney, county solicitor or clerk of courts, warden or any other local agency within this court’s jurisdiction, to collect, or to initiate any collection of, any fines, costs or restitution from defendant’s inmate account. This immediately distinguishes the cáse at bar from Boofer v. Lotz, 797 A.2d 1047 (Pa. Commw. 2002), alloc. granted, (no. 343 WAL 2002, Jan. 17, 2003), where the clerk of courts initiated the collection by specifically requesting that the Department of Corrections deduct 20 percent of Boofer’s prison earnings deposited in his inmate account for payment of costs, fines and restitution. Boofer, 797 A.2d at 1049. Therefore in Boofer, despite the fact that the Department of Corrections could have acted on its own initiative under Act 84, the Commonwealth Court panel apparently found that the action of the local clerk in requesting a 20 percent deduction, triggered a right to a hearing in the Court of Common Pleas of Butler County and treated this as a garnishment proceeding. The clerk’s action in Boofer, it could be argued, was therefore, analogous to the collection action instituted by the court itself in Commonwealth v. Fleming, 804 A.2d 559 (Pa. Super. 2002), where the Superior Court distinguished such action from the action of the Department of Corrections under Act 84 which occurred in the case at bar. Simply stated, the collection in the case before me was initiated, not by the clerk or by the court, but by the Department of Corrections under 42 Pa.C.S. §§9728(b)(5) and DC-ADM-005. Furthermore, in a post-Boofer opinion, Commonwealth v. Ralston, 800 A.2d 1007 (Pa. Commw. 2002), where again apparently the clerk of courts in Butler County “initiated” the collection action without any hearing, but where the Commonwealth Court upheld the deductions nevertheless; and, although in a slightly different context, recognized that the sentencing hearing and order provided the necessary predicate to the clerk’s action (or the process due defendants in their criminal cases):

“Lastly, appellant contends that the clerk had no authority to collect the costs and fines because no judgment had been entered against him. Contrary to the contention of appellant, the trial court entered a judgment of sentence that included payment of the fines and costs. Accordingly, the argument is without merit.” Id. at 1010. (footnote omitted)

I cited both Ralston and Fleming in my order of November 15, 2002, denying the defendant’s motions to stop Act 84 20 percent deductions and for appointment of counsel. The Court of Common Pleas of Lehigh County clearly had no jurisdiction over this matter.

In addition to this clear lack of jurisdiction, the defendant’s motion failed to state a claim warranting a hearing or relief.

Defendant does allege in his motion that the 20 percent deduction from his prison account earnings “creates a financial burden that he is unable to afford in that he makes $0.42 per hour.” That allegation should be briefly addressed. The department’s DC-ADM-005 provides for an initial payment of 20 percent of the inmate’s account balance for restitution, reparation, fees, costs, fines and penalties, and subsequent payments of 20 percent of the inmate’s monthly income provided the inmate has a balance which exceeds $10. The 20 percent deductions and the $ 10 balance, as I previously indicated, coincide with legislation adopted both by the Pennsylvania legislature and the United States Congress for collecting court fees for the filing of prison condition litigation and section 1983 civil rights actions. Deductions of this percentage and with the minimum balance requirement seem reasonable and fair when one takes into consideration precisely the fact that these are prison earnings, which are minimal, and that the defendant is a prisoner, whose necessities are provided to him. What was said in Sweeney v. Lotz, 787 A. 2d 449 (Pa. Commw. 2001), regarding a claim that the $300 exemption for judgment debtors under 42 Pa.C.S. §8123(a), should apply to deductions made by the Department of Corrections from inmate accounts, bears repeating here:

“Appellant points to section 8123(a) of the Judicial Code, addressing a $300 exemption claim for judgment debtors. However,. . . this section applies to civil judgments and other liens. In contrast, section 9728(b)(5) of the Sentencing Code applies to the collection of costs, fines and restitution in the context of a criminal proceeding. Additionally,... the exemption provided for in this section was to afford the judgment debtor the necessities of life, i.e., food, clothing and shelter. See Beneficial Consumer Discount Co. v. Hamlin, 263 Pa. Super. 393, 398 A.2d 193 (1979). Such concerns are not relevant in the present situation, as the individual will continue to be afforded these necessities as a ward of the Commonwealth. Further, our Superior Court has previously indicated that the Commonwealth has a rational and legitimate interest in the rehabilitation of the criminal and in providing compensation to the victim of wrongful conduct. See Commonwealth v. Colon, 708 A.2d 1279 (Pa. Super. 1998).” (footnote omitted)

Under all of the circumstances the deductions seem reasonable, appropriate and non-confiscatory. Were a challenge to be launched, it should be in the form of a challenge to DC-ADM-005 itself, or in its application, which was not done in this case. In addition, and without retreating from my earlier position that section 9728(b) (5) of the Sentencing Code, 42 Pa.C.S. §9728(b)(5), the here relevant portion of Act 84, does not implicate the garnishment and hearing rights set forth elsewhere in the law, I feel compelled to note because it was mentioned in Boofer, that clearly in the case at bar there is no need for a hearing to determine if defendant’s earnings have been attached for alimony, child support, unpaid rent or educational debts. There is no allegation in the defendant’s motion of any alimony, child support, unpaid rent or educational debt owed, and such deductions for same do not appear in exhibit A, appended thereto. See footnote 8, Boofer, 797 A.2d at 1051.

One final point should be discussed. As indicated earlier, the Pennsylvania Supreme Court has granted allocatur in the Boofer case. In its order of January 17,2003, granting allocatur, and filed to no. 343 WAL 2002, our Supreme Court limited the issues under the petition. One of them relates to the fact that “there is no statutory requirement [in Act 84] to hold such a hearing.” As a general proposition, due process hearings are only required, in these situations where state law establishes such aright. Stated differently, if there is no property interest in prison earnings or accounts under state law, then there is no protection of such earnings or accounts under the “due process” clause of the 14th Amendment of the United States Constitution such that there are hearing rights absent an expression of such rights in the statute or the guidelines. See federal court cases cited infra.

Again, in Sweeney v. Lotz, 787 A.2d 449, 452 (Pa. Commw. 2001), the court stated: mechanism for collecting items such as costs, fines and restitution from incarcerated judgment debtors. See Sweatt v. Department of Corrections, 769 A.2d 574 (Pa. Commw. 2001). Furthermore, even if we were to find a distinction in treatment, the Commonwealth has a rational basis for the same that advances a legitimate Commonwealth interest, i.e., rehabilitation of the criminal and compensation to the victim of wrongful conduct. . . . Thus, we cannot say that the trial court erred as a matter of law in failing to find that section 9728(b)(5) of the Sentencing Code was unconstitutional in that it denied appellant the right to equal protection.”

“In sum, section 9728(b)(5) of the Sentencing Code does not treat similarly situated individuals differently. Rather, this section merely provides the procedural

Senior Judge Barbieri, in Mays v. Fulcomer, 122 Pa. Commw. 555, 552 A.2d 750 (1989), a case involving a challenge to a disciplinary assessment against an inmate’s earnings account of $. 10 per hour for restitution for monies he misappropriated from the Graterford Prison Jaycees, made an astute evaluation of the nature of so-called “prison wages.” The court held that “the remuneration which Mays receives for prison labor does not constitute wages for purposes of section 8127 of the [Judicial] Code, [42 Pa.C.S. §8127].” Id. at 560, 552 A.2d at 753. The Commonwealth Court then went on to state:

“In Harris v. Yeager, 291 F. Supp. 1015 (D.N.J. 1968), aff’d per curiam, 410 F.2d 1376 (3d Cir. 1969), the United States District Court for the District of New Jersey granted a motion for summary judgment filed in response to a complaint by an inmate of the New Jersey State Prison. The inmate claimed the prison’s policy of withholding a certain percentage from an inmate’s monthly earnings until the sum of $10 had been accumulated and depositing the funds in the inmate’s account until his release was a violation of his civil rights. There, the court held that the inmate had no legal right to these funds as the remuneration did not constitute wages ‘in a realistic economic employer-employee relationship.’ Id. at 1017. Instead, they were determined to be a gratuitous payment authorized by the state as a rehabilitative tool. See also, Alexander v. Sara Inc., 721 F.2d 149 (5th Cir. 1983), holding that inmates of state penitentiary performing work for a private profit making entity on prison grounds were not covered by the Fair Labor Standards Act of 1938, 29 U.S.C. §§201-219, in part because there was no employer/employee relationship as inmate labor belongs to the prison.

We adopt the reasoning of the court in Harris and hold that section 8127 of the Code does not prohibit the Commonwealth from withholding a portion of an inmate’s compensation to satisfy a restitution penalty imposed as a result of a prison disciplinary hearing.” Id. at 560-61, 552 A.2d at 753. (footnote omitted)

The federal cases which have analyzed similar claims either do not recognize a property interest in prison earnings, or when they do, find the interest minimal and one which can be trumped by a legitimate government interest in paying costs or restitution. See e.g., Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997) (involving “involuntary” deductions from Berks County inmates prison accounts to pay for medical care); James v. Quinlan, 866 F.2d 627 (3d Cir. 1989) (upholding 50 percent deductions for court ordered restitution, fines and costs, obligations to the United States and the like, and finding no liberty or property interest in job assignments); Dorman v. Thornburgh, 955 F.2d 57 (D.C. Cir. 1992) (no liberty interest within due process protection in prison employment; discretion vested in prison officials to set terms and conditions of prison employment, and hence no right to enjoin program mandating commitment of a percentage of prison earnings to court-ordered obligations); Hrbek v. Farrier, 787 F.2d 414 (8th Cir. 1986) (inmates have no constitutionally protected interest in the wages earned while in prison); Hampton v. Hobbs, 106 F.3d 1281 (6th Cir. 1997) (inmates required to pay fees for filing federal suits under Prison Litigation Reform Act, 28 U.S.C. §1915, provided with due process by the statute limiting deductions for court filing fees and providing for payment from future prison earnings).

The Pennsylvania Act 84 provision vested in the Department of Corrections the drafting of guidelines for the collections of fines, costs and restitution from state incarcerated inmates. Those guidelines recognize aright in the inmate to a certain minimal balance in his account. The guideline amount is patterned after other legislation, both state and federal, in that regard, and would seem under the case law standards to provide the minimal protection to which inmates may be entitled. All restitution, fines and costs, were determined by a court after a hearing. If the inmate still has a legitimate right to be asserted, it seems that the best vehicle for asserting such claim is through the existing prison grievance procedures and not through a court hearing in venue outside the institution. Since there is no indication in the instant case that the defendant grieved the deductions when first made, I would have denied the motion on that basis as well as those previously indicated. It must be remembered as well that the Pennsylvania Legislature did not provide for a right to a hearing concerning these deductions, nor did it create any property rights in prison employment or earnings. Such matters are best left to the sound discretion of correctional authorities.

      . As here relevant that means section 9728(b)(5) of the Sentencing Code, 42 Pa.C.S. §9728(b)(5).

      . See 42 Pa.C.S. §9764. In addition, 42 Pa.C.S. §9728(b)(3) specifically provides that “[t]he county clerk of courts shall, upon sentencing, pretrial disposition or other order, transmit to the Department of Probation of the respective county or other agent designated by the county commissioners of the county with the approval of the president judge of the county and to the county correctional facility to which the offender has been sentenced or to the Department of Corrections, whichever is appropriate, copies of all orders for restitution and amendments or alterations thereto, reparation, fees, costs, fines and penalties.”

      . Defendant asserts: (1) “Act 84 came into affect [sic] October 16, 1998, [after I was sentenced] ... which makes me exempt from Act 84.” (2) “I wrote a letter to the superintendent of the institution that I’m serving my sentence. And he informed me that he must honor all court orders. I would appreciate it very much if you could send me a copy of that court order.”
      The retroactivity argument has been resolved against the defendant. See Commonwealth v. Ralston, 800 A.2d 1007 (Pa. Commw. 2002); Commonwealth v. Baker, 782 A.2d 584 (Pa. Super. 2001); Sweatt v. Department of Corrections, 769 A.2d 574 (Pa. Commw. 2001). The only court order entered in this case regarding costs or restitution, as previously noted, is the sentencing order itself.

      . The guidelines are published on the Department of Corrections website. See http://www.cor.state.pa.us/policiesDC-ADM%20005%20 Collection%20of%20Inmate%20 Debts.pdf.

      . 42 Pa.C.S. §9728(b)(5) specifically requires the department to adopt guidelines for Act 84 collection.

      . A court may take judicial notice of its records in the case under consideration. Hawkey v. Workmen’s Compensation Appeal Board, 56 Pa. Commw. 379, 382 n.3, 425 A.2d 40, 42 n.3 (1981).

      . Because the trial court’s order was an action to enforce a sentence, the court in Fleming at 670 n.3, stated: “Enforcement orders are those directives which attend a criminal sentence. Jurisdiction over appeals from enforcement orders rests with this court under 42 Pa.C.S. §742. Consequently, our consideration and resolution of this appeal is not inconsistent with our comments in Commonwealth v. Baker, 782 A.2d 584 (Pa. Super. 2001), that an action taken by the Department of Corrections that affects an inmate’s account constitutes a civil action, a challenge to which belongs in the Commonwealth Court. See: Baker, id. at 584.”

      . The allegations in ¶4 of defendant’s motion were taken almost verbatim from Boofer, 757 A.2d at 1050: “that the 20 percent deduction from his inmate account creates a financial burden that he is unable to afford and that there needed to be a determination of his ability to pay that amount before Lotz could request 20 percent of his earnings.”

      . Admittedly, I have some inherent difficulty even in those circumstances where a clerk, e.g., would request the department to make deductions, since as I read 42 Pa.C.S. §9728(b)(5), it is still the department and not the clerk making the deduction determinations. To that extent I believe the analysis in Fleming to be more consistent with the statute than that in Boofer. In any event, because of this, and because it is the Department of Corrections that makes the deductions and not the clerk, if review is necessary, it could only occur in the Commonwealth Court rather than the common pleas court.

      . As I read Fleming, the Superior Court clearly recognizes that 42 Pa.C.S. §8127 hearings are not required in true 42 Pa.C.S. §9728(b)(5) deduction cases. It appears equally obvious to this writer that the provisions for the collection of civil judgments (garnishment) entered on criminal sentences pursuant to 42 Pa.C.S. §§9728(b)(l) and (2) would be subject to the statutes and rules applicable to the collection of civil judgments. Act 84 as drafted by our legislature neither contemplates nor requires a hearing prior to the deductions from a prisoner account.

      . Common pleas would have Act 84 jurisdiction over collections from persons sentenced to the county prison.


author: O’NEILL, J.,

text:
    Professional Flooring Co. v. Bushar Corp.

      C.P. of Montgomery County,
    no. 01-10504.

      Shanin Specter, Donald Haviland Jr., TerriAnne Benedetto, Paul Baker Bartle and John A. Gallagher, for plaintiffs.

      Carol Ann Murphy and Debra S. Goodman, for defendants.

      April 14, 2003
   O’NEILL, J.,

I. Procedural History

Plaintiffs, Professional Flooring Co. Inc., Limerick Carpet & Flooring Inc., Rose Line Inc., Salmons Industries Inc. a/t/a Millie Switch, Renu Electronics Inc. and Purdy-Pak Inc. a/t/a Tite Pak Inc. and PPI, commenced the above-entitled action by filing a complaint on or about May 24, 2001, seeking to recover damages on behalf of themselves and other similarly situated entities and individuals in connection with a fire that occurred on May 15, 2001, at the Continental Business Center located in Bridgeport, Pennsylvania. Thereafter, on or about August 22, 2001, plaintiffs filed a second amended complaint, which controls the instant lawsuit.

Defendants, Bushar Corporation, Charles Bushar III and John S. Rittenhouse t/a Continental Business Center, Charles Bushar III and Lauretta V. Bushar t/a Continental Business Center and Charles Bushar III and Lauretta V. Bushar t/a Continental Business Center LP, filed an answer to plaintiffs’ second amended complaint with new matter on or about July 11, 2002. Plaintiffs answered the new matter on or about August 13, 2002.

With the close of the pleadings, plaintiffs filed a motion for class certification pursuant to Pennsylvania Rule of Civil Procedure 1702. The motion for class certification requested that plaintiffs be designated as class representatives and that the law firms of Kline & Specter PC. and High Schwartz Roberts & Seidel LLP be designated as counsel for the class. At that time, plaintiffs also sought to have the class certified as a non-opt out “limited fund” class action pursuant to Pa.R.C.P. 1708(a)(3)(ii).

After extensive briefing by plaintiffs and defendants, this court conducted a class certification hearing on January 22, 2003, in accordance with Pa.R.C.P. 1707. At the class certification hearing, neither party took any testimony. Rather, plaintiffs relied on the pleadings, the affidavit of Donald E. Haviland Jr. Esq., affidavits from several business owners affected by the fire, a diagram of the Continental Business Center, the sworn statement in proof of loss of Scott Lyall to Harleysville Insurance Company, the Montgomery County detective’s supplemental reports by Fire Inspector George L. Wert, the Montgomery County detective’s supplemental reports by James Agnew and the declaration pages of defendants’ insurance policy.

Subsequent to the class certification hearing, on February 20, 2003, this court issued an interim order withholding a decision of class certification pending discovery on the “limited fund” issue. In a supplemental motion for class certification filed on March 14,2003, plaintiffs withdrew their request for “limited fund” status and now seek to proceed solely for class certification pursuant to Pa.R.C.P. 1708(a). This court is now in a position to rule on class certification, and issues this memorandum order and opinion in compliance with Pa.R.C.P. 1710.

II. FINDINGS OF FACT

(1) The Continental Business Center is an industrial complex located in Bridgeport, Pennsylvania.

(2) Plaintiffs are business owners and/or operators who were tenants of the Continental Business Center on or about May 15, 2001.

(3) Plaintiffs allege the Continental Business Center is owned and/or operated by defendants.

(4) On May 15, 2001, a fire started in the Continental Business Center in a unit identified as C-158.

(5) Over the course of several hours, the fire spread through three buildings in the center, identified as Building C, Building J and Building M.

(6) An investigation into the fire by Montgomery County detectives indicated that the fire may have originated in an electrical panel box located on the interior side of the north wall of unit C-158.

(7) An investigation by Montgomery County detectives indicated that the fire resulted in the full or partial destruction of at least 36 separate businesses that leased space in the Continental Business Center.

(8) On May 23,2001, the center was declared a disaster area by the U.S. Small Business Administration.

(9) At least one of the businesses affected by the fire, Restoration Station, held the furniture of 24 separate individuals.

(10) At least 59 vehicles ware damaged by the fire.

(11) Plaintiffs sued defendants shortly after the fire on behalf of themselves and all other similarly-situated persons and entities who were harmed as a result of the fire, raising claims against defendants for negligence, negligence per se and private and public nuisance, and seeking the recovery of monetary damages for property loss.

(12) Plaintiffs allege that more than 100 potential class plaintiffs exist, including business owners and/or operators, leaseholders and property owners.

(13) Plaintiffs allege the named class representatives suffered property losses which are typical of the class as a whole.

(14) Plaintiffs allege a single occurrence caused the fire.

(15) Plaintiffs allege defendants are responsible for harm caused by the fire.

(16) Plaintiffs are represented by experienced counsel, have acquired adequate resources to fund the prosecution of a class action and have presented evidence which they claim supports a prima facie finding that class certification will be a fair and efficient method of adjudicating the lawsuit.

III. DISCUSSION

Plaintiffs have moved this court for class certification pursuant to Pa.R.C.P. 1702 et seq. Class actions were established “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate. .. .” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). In considering the propriety of class certification, the trial court must consider all relevant testimony, depositions, admissions and other evidence pursuant to Pa.R.C.P. 1707. Additionally, all well-pleaded class action allegations, if admitted by the class opponent, may be considered as evidence at the class certification hearing. Pa.R.C.P. 1706; Cavanaugh v. Allegheny Ludlum Steel Corp., 364 Pa. Super. 437, 528 A.2d 236 (1987); D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 500 A.2d 1137 (1985).

Pa.R.C.P. 1702 provides that class certification is appropriate where:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims and defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in 1709; and
“(5) a class action provides a full and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.” Pa.R.C.P. 1702.

The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden. Debbs v. Chrysler Corp., 810 A.2d 137 (Pa. Super. 2002); Janicik v. Prudential Insurance Company of America, 305 Pa. Super. 120, 451 A.2d 451 (1982). At the class certification hearing, the class proponent need only present evidence sufficient to make out a prima facie case from which the court can conclude that the five class certification requirements set forth in Rule 1702 are met. Debbs, 810 A.2d at 154. Such a showing will suffice unless the class opponent comes forward with contrary evidence. If there is an actual conflict on an essential fact, the proponent “bears the risk of non-persuasion.” Janicik, 305 Pa. Super, at 130, 451 A.2d at 456. In considering the appropriateness of class certification, our Superior Court has instructed that it is the strong and oft-repeated policy of this Commonwealth that, in applying the rules for class certification, decisions should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 407, 615 A.2d 428, 431 (1992). Our Commonwealth Court further has held that “in doubtful cases any error should be committed in favor of allowing class certification.” Foustv. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). This philosophy is supported by our Superior Court’s acknowledgment that “[t]he court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.” Janicik, 305 Pa. Super, at 129, 451 A.2d at 454.

A. Numerosity

Regarding the numerosity requirement, the class proponent must establish that the proposed class is so numerous that joinder of all members is impracticable. Janicik, 305 Pa. Super, at 132, 451 A.2d at 456. Further, our Superior Court has stated that the class proponent need not plead or prove the actual number of class members, but must “define the class with some precision and afford[] the court with sufficient indicia that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super, at 132, 451 A.2d at 456.

Presently, plaintiffs have alleged that over 100 businesses and/or property owners suffered property damage as a result of the fire. Investigations by the Montgomery County detectives appear to confirm that the number of affected persons and/or businesses could exceed 100.

B. Commonality

Concerning the requirement of commonality, the class representatives must demonstrate a predominance of common issues shared by all class members. A predominance of common issues exist only if the facts underlying each plaintiff’s claim are sufficiently similar so that proof as to one plaintiff would be proof as to all. Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 407, 615 A.2d 428, 431 (1992). “The trial court is vested with broad discretion in determining the definition of the class as based on commonality of issues and the propriety of maintaining the action on behalf of the class.” Hanson v. Federal Signal Corporation, 451 Pa. Super. 260, 267, 679 A.2d 785, 788 (1996).

Presently, plaintiffs allege a predominance of common issues of fact and law, which include:

(a) the origin and cause of the fire;

(b) the cause(s) of the spread of the fire;

(c) whether defendants failed to, among other things, properly design, construct, operate, inspect, manage, maintain and/or repair the center;

(d) whether defendants failed to, among other things, properly design, construct, install, inspect, operate, manage and/or maintain adequate fire detection, alarm, suppression or other appropriate fire protection systems at the center;

(e) whether defendants knew or should have known that the failure to, among other things, properly design, construct, install, inspect, operate, manage and/or maintain the center, and adequate fire detection, alarm, suppression or other appropriate fire protection systems at the center, could cause grave and extensive harm to the property and businesses of plaintiffs and the class in the event of a fire;

(f) whether defendants’ alleged failure to, among other things, properly design, construct, install, inspect, operate, manage and/or maintain appropriate fire protection systems at the center caused, contributed and/or failed to control the catastrophic fire at the center on May 21, 2001;

(g) whether the catastrophic fire caused property damage and/or dangerous and hazardous conditions in the immediate area which resulted in, among other things, the obstruction and closure of public ways and streets and the evacuation of businesses and residences surrounding the center;

(h) whether plaintiffs and members of the class suffered harm of a kind different from that suffered by other members of the general public;

(i) whether plaintiffs and members of the class suffered damages as a result of defendants’ conduct;

(j) whether defendants are liable to plaintiffs and the class for the harm that they suffered; and

(k) whether defendants acted outrageously or with reckless indifference to the rights of others in failing to, among other things, properly design, construct, install, inspect, operate, manage, and/or maintain the center and adequate fire detection, alarm, suppression or other appropriate fire protection systems at the center, thereby warranting the imposition of punitive damages.

These allegations appear to support aprima facie showing that common issues of fact and law predominate over individual claims.

C. Typicality

The purpose of the typicality requirement is to “determine whether the class representative’s overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that her pursuit of her own interests will advance those of the proposed class members.” Cribb v. United Health Clubs Inc., 336 Pa. Super. 479, 483, 485 A.2d 1182, 1185 (1984). For class representatives to satisfy their burden regarding typicality, the overall position of the class representatives must be sufficiently aligned with that of the absent class members to insure that the pursuit of the representatives’ own interests will advance those of the proposed class members. DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 676 A.2d 1237 (1996).

Presently, plaintiffs allege their claims and the claims of the proposed class are typical in that all have been damaged by the same alleged conduct. Plaintiffs further allege the damages suffered by them and the members of the proposed class are typical in that they consist of the loss of and damage to their property and related interruption of and damage to their businesses. This court believes that at this stage, plaintiffs have shown that their claims and the claims of the proposed class are typical.

D. Adequate Representation

To satisfy the representative parties requirement, as set forth in Pa.R.C.P. 1708(4), class representatives must prove that they will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709. Pa.R.C.P. 1709 specifies three requirements for fair and adequate representation. The rule provides that in determining whether the representative parties will fairly and adequately assert and protect the interests of the class, the court shall consider:

“(1) Whether the attorney for the representative parties will adequately represent the interests of the class,
“(2) Whether the representative parties have a conflict of interest in the maintenance of the class action, and
“(3) Whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.” Pa.R.C.P. 1709.

Unless the class opponent demonstrates otherwise, and in the absence of proof to the contrary, there is a legal presumption that the representative parties will fairly and adequately protect the interests of the class members. Janicik, supra.

Presently, plaintiffs have presented evidence that they will fairly and adequately protect the interests of the members of the proposed class by retaining experienced counsel and acquiring adequate financial resources to prosecute the class action.

E. Fair and Efficient Adjudication

To satisfy the final requirement for class certification, plaintiffs must prove that a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708. Pa. R.C.P. 1702(5). Pa.R.C.P. 1708(a) sets forth the criteria for making that determination. Rule 1708(a) provides, in part:

“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would, as a practical matter, be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of the individual class members are insufficient in amount to support separate actions; and
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.” Pa.R.C.P. 1708(a).

Presently, plaintiffs have presented evidence sufficient to sustain a prima facie showing that certification of a class action is appropriate under Rule 1708(a).

IV. CONCLUSIONS OF LAW

(1) The members of the class are so numerous as to make it impracticable to bring them all before the court;

(2) There exist questions of fact and law common to the class, which common questions predominate over any questions affecting only individual members;

(3) Plaintiffs will adequately represent all members of the class;

(4) Plaintiffs’ claims are typical of the claims of the class;

(5) The certification of the class is the superior method for the fair and efficient adjudication of the controversy, and the class would be manageable;

(6) Plaintiffs, Professional Flooring Co. Inc., Limerick Carpet & Flooring Inc., Rose Line Inc., Salmons Industries Inc. a/t/a Millie Switch, Renu Electronics Inc. and Purdy-Pak Inc. a/t/a Tite Pak Inc. and PPI, are found to be adequate and are designated as the class representatives;

(7) Kline & Specter PC. and High, Swartz, Roberts & Seidel LLP are found to be adequate and are designated as class counsel.

ORDER

And now, April 14, 2003, it is hereby ordered and decreed that plaintiffs’ motion for class certification is granted. Plaintiffs, Professional Flooring Co. Inc., Limerick Carpet & Flooring Inc., Rose Line Inc., Salmons Industries Inc., a/t/a Millie Switch, Renu Electronics Inc., and Purdy-Pak Inc., a/t/a Tite Pak Inc. and PPI, are designated as class representatives and the following class is certified:

“All persons and entities who suffered losses resulting from the fire that started on May 15, 2001, in the Continental Business Center situate in Bridgeport, Pennsylvania. Excluded from the class are defendants, additional defendants which may be named later, and their directors, officers, employees, affiliates and subsidiaries, as well as government entities.”

It is further ordered and decreed that, pursuant to Pa.R.C.P. 1711(a), the court finds that every member of the class as defined herein is included, unless and until a written election to be excluded from the class is received after notice is disseminated to the class and an opportunity to be heard as to any requested exclusion is afforded to all parties. Within 30 days of the date of entry of this order, plaintiffs shall submit a proposed plan and form of notice of the pendency of this class action. Within 10 days thereafter, defendants shall file any objections thereto and, within 10 days thereafter, plaintiffs shall file any reply thereto. Otherwise, the parties may submit a joint proposed plan and form of notice to the court at any time.

This class certification order is conditional pursuant to Pa.R.C.P. 1710(d) and, as such, before a decision on the merits, it may be revoked, altered or amended by the court on its own motion or on the motion of any party.


author: TURGEON, J.,

text:
    Michael L. v. Hilary W.-S.

      C.P. of Dauphin County,
    no. 947 CV 2002.

      Edward J. Minnagh, for plaintiff.

      Kenneth A. Wise, for defendant.
    November 25, 2002
   TURGEON, J.,

Hilary W.-S. appeals from a July 16, 2002 custody order, permitting her former live-in boyfriend, Michael L., to maintain visitation with her son, C.M. This opinion is written in support of that order. Pa.R.A.P. 1925(b), 42 Pa.C.S.

PROCEDURAL BACKGROUND

On February 26,2002, Michael filed a complaint seeking partial physical custody/visitation of Hilary’s son, C.M., bom July 22, 1992, and partial legal and physical custody of Hilary’s daughter, A.L., bom December 15, 1996. Michael is A.L.’s biological father but not C.M.’s. C.M.’s biological father has never been a presence in his life. The parties previously lived together between the spring of 1996 and February 1999. Following separation, Michael maintained partial physical custody of C.M. and A.L., usually on alternating weekends, and some vacations and holidays. This arrangement continued until February 24,2002, when Hilary denied him access to C.M.

At an April 22,2002 custody conciliation conference, Hilary agreed that Michael should have joint legal and physical custody of their daughter A.L., but opposed any further relationship between Michael and C.M. Michael argued he stood in loco parentis. Following a custody hearing, I granted Hilary sole legal and physical custody of C.M., and granted Michael visitation rights on alternating weekends and other times “as C.M. wishes.” Hilary has appealed from the grant of visitation.

FACTUAL BACKGROUND

At the hearing to determine Michael’s standing and potential right to custody/visitation, I heard the following relevant facts: Michael first met Hilary and 3-year-old C.M. in 1995 while photographing the pair at a J.C. Penney studio. They dated and later commenced living together in the spring of 1996. (N.T. 11.) Around that time, they learned Hilary was pregnant with A.L., who was bom December 15, 1996. (N.T. 11.) According to Michael, the parties discussed Michael’s adoption of C.M., but it never came to fruition. (N.T. 17.)

After A.L.’s birth, the four of them lived together for more than two years. (N.T. 13.) During this time, C.M. called Michael “dad,” and referred to Michael’s parents as “grandma” and “grandfather.” (N.T. 73, 104; defendant’s exhibit 5.) Also during their cohabitation, Michael was recognized as C.M.’s father at family birthday parties, by kindergarten teachers and baby sitters. (N.T. 13.) C.M. has recognized Michael’s family as part of his own family, and has spent time with them during vacations, holidays and birthdays. (N.T. 48.)

On June 8, 1997, C.M. and A.L. were baptized in the Roman Catholic Church. (N.T. 15,56-57.) The baptisms were set up by Michael’s parents, who are Catholic. Hilary, who is not Catholic, acquiesced to the baptisms. An original baptismal certificate named C.M.’s biological father as his father. According to Hilary, this greatly upset Michael, who was able to obtain a second certificate from the church indicating that he was C.M.’s father. (N.T. 58; plaintiff’s exhibit 1.)

At some point after A.L. was bom, Hilary began working full-time. Michael, who co-owned a photography business, worked there part-time and was also collecting partial unemployment compensation. (N.T. 28.) During the day, the children were generally cared for by a baby sitter, although, occasionally, Michael would watch them. (N.T. 30.) According to Michael, in October 1998, when the parties were having difficulties, Hilary asked, and Michael agreed, that he would act as C.M.’s father if they split up. (N.T. 17.)

In February 1999, the parties separated and Hilary took primary physical custody of both children. Michael, however, maintained regular contact with C.M. for the next three years, through February 24, 2002. (N.T. 62.) The parties agreed to an arrangement whereby Michael would assume physical custody of C.M. whenever he had physical custody of A.L., usually on alternating weekends, as well as some holidays and vacations. (N.T. 18, 23, 62.) Michael provided almost all the transportation for these visits. (N.T. 64.)

On December 15, 2001, Hilary married her current husband, George. By all accounts, C.M. has developed a positive and loving bond with George, whom he recently began to refer to as “Dad,” and desires to be adopted by him. (N.T. 46-47, 56, 68, 94; George dep. at 7-8, 12; defendant’s exhibit 5.) C.M. currently refers to Michael as “Mike.” (George dep. at 51.) George testified that C.M. told him that Michael gets very upset at C.M. when he refers to George as his “dad.” (George dep. at 16.) Hilary and George have had both C.M. and A.L. “dedicated” into their Baptist Church, which means they have pledged to raise the children in a Christian environment and as members of the church. (George dep. at 11.)

Michael’s contact with C.M. ended abruptly on February 24, 2002, when, upon returning C.M. and A.L. to Hilary following weekend visitation, Michael was told by George that he was no longer welcome there. (N.T. 25, 74.) Hilary also refused to permit Michael to speak with C.M. on the phone. (N.T. 25,76.) Hilary appears to have terminated contact upon learning that Michael permitted his attorney to ask C.M. questions concerning custody issues. Prior to that, she let C.M. decide whether to visit Michael, and that, except for all but a few occasions, C.M. wanted to visit him. (N.T. 58,63.) However, according to numerous accounts, the incident with the attorney appears to have had a great impact upon C.M., who felt pressured to answer questions and thereafter decided he no longer wanted to visit Michael. (N.T. 58; George dep. at 16; defendant’s exhibit 5.) Hilary claims she will adhere to her son’s wishes as to future visits with Michael. (N.T. 77.)

C.M.’s psychologist who began seeing him after February 24, 2002, reported that C.M. appeared ambivalent about resuming visitation with Michael, at one point reporting that he did not desire to visit, and at another, indicating resumed visitation would be okay with him. The psychologist reported that C.M. felt caught in the middle and pressured by all sides. She felt the matter was extremely stressful to him and that he felt he had jeopardized his status within his family (with his mother and stepfather). C.M. was particularly upset because he believed he had made Michael angry at him for having told his mother and stepfather about having talked to Michael’s attorney. C.M. told the psychologist that Michael had set up the interview with the attorney because Michael was afraid of losing C.M. and his sister. (Defendant’s exhibit 5.)

C.M. told me, in chambers, that he would like to visit with Michael if Michael did not lie or talk mean about his mother. He also indicated a desire to visit Michael so he can be with his sister. (N.T. 107-108.) C.M. parroted his mother’s accusations about Michael’s lying, a reference to his bad check conviction and other incidents described below. (N.T. 106-108.)

Hilary presented evidence indicating her belief that Michael is not an appropriate role model for C.M. (N.T. 57.) She testified that when they lived together, Michael was not a productive member of the family, that there were periods when he was not available, including when running from constables and under arrest for bad check charges. (N.T. 51.) Michael previously pled guilty to passing bad checks before he met Hilary. (N.T. 35; defendant’s exhibit 3.) In addition, both she and his former photography partner claimed that Michael had forged her name onto three of her checks which were written to his photography studio against her closed personal checking account. (N.T. 51-53, 88-89; defendant’s exhibit 1.) She claimed he also pocketed money she gave him to pay for the children’s baby-sitting when they were living together. She testified that while cleaning out his items following their separation, she found three trash bags full of pornographic material hidden in their home and in a shed. (N.T. 81.) Michael’s photography partner confirmed that he had found pornographic materials in the same shed. (N.T. 89-90.) According to Hilary, Michael did not pay support for C.M. following their separation, although he offered to do so if she would allow him to adopt C.M. (N.T. 61.) George testified that when Michael had the children, he ran an undisciplined household and that they returned from visits exhausted and sometimes ill. (George dep. at 14-15.)

LEGAL DISCUSSION

Hilary raises the following issues in her statement of matters complained of on appeal:

(1) To the extent that the court found Michael had standing to seek custody/visitation,

(a) Michael failed to establish that he acted in any significant way in the role of a substitute parent.

(b) Hilary’s current husband has assumed the role of father to C.M.

(c) Michael has never become an integral part of C.M.’s life.

(d) Michael has sought to insinuate himself into the family relationship between Hilary, her husband and C.M., and has engaged in manipulation of C.M. to this end.

(e) Even if Michael stood in loco parentis to C.M. at one point, his status has been lost over time following the parties’ separation.

(2) The evidence showed it was not in C.M.’s best interests to have any visitation with Michael because Michael has demonstrated an inability to manage his personal and business affairs, has manipulated C.M., has potentially exposed C.M. to an unhealthy environment such as pornographic materials, and has been unable to act as a positive role model for C.M.

(3) It is not in C.M.’s best interests to be forced to visit Michael.

(4) The court’s order impermissibly intrudes on the family unit established by Hilary, her husband, C.M. and his half-sister A.L.

Standing

Since he is not C.M.’s biological parent, Michael is considered a “third party” for the purpose of pursuing this custody action. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913, 916 n.6 (2001). In order for a third party to pursue such an action, the party must have standing. Standing for a third party can exist only where the legislature has specifically conferred it, or where the party stands in loco parentis to the child. Id. “A determination of standing simply implies that the party has a substantial interest in the subject matter of the litigation and that the interest is direct, immediate and not a remote consequence.” Id. at 919-20. Such a finding is not decisive as to the merits, but merely affords the moving party the opportunity to fully litigate the issue. Id.

Here, my ultimate finding, that Michael was entitled to visitation, presumed that he stood in loco parentis to C.M. The Supreme Court in T.B. v. L.R.M., supra, elaborated upon the legal requirements for establishing in loco parentis as follows:

“It is well-established that there is a stringent test for standing in third-party suits ... for visitation or partial custody due to the respect for the traditionally strong right of parents to raise their children as they see fit. R.M. v. Baxter, 565 Pa. 619, 777 A.2d 446, 450 (2001)....
“The phrase ‘in loco parentis’ refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties. Id.; Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 241 A.2d 531, 533 (1968). The rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879, 882 (1977). The third party in this type of relationship, however, cannot place himself in loco parentis in defiance of the parents’ wishes and the parent/child relationship. B.A. and A.A. v. E.E., 559 Pa. 545, 741 A.2d 1227, 1229 (1999); Gradwell v. Strausser, [416 Pa. Super. 118, 126,] 610 A.2d [999,] 1003 [(1992)].” T.B. v. L.R.M. at 916-17. (footnote omitted)

Hilary contends that Michael did not adequately prove an in loco parentis relationship. Specifically, she claims he failed to establish that he acted in any significant way in the role of a substitute parent, or ever became an integral part in C.M.’s life. This assertion is contrary to the credible evidence. Between approximately the spring of 1996, through February 24,2002, Michael both assumed a parental status and discharged parental duties. Beginning with the parties’ cohabitation, through February of 1999, a period of approximately three years, the parties lived together with C.M., and later with A.L., as a family unit. C.M. referred to Michael as his “dad” and was treated by Michael’s extended family as their own. Furthermore, Michael was recognized in the community and in his church as C.M.’s father. Following their separation, the parties agreed to continued contact between Michael and C.M., which occurred on a regular basis for another three years.

“An important factor in determining whether a third party has standing is whether the third party lived with the child and the natural parent in a family setting, irrespective of its traditional or nontraditional composition, and developed a relationship with the child as a result of the participation and acquiescence of the natural parent.” Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998). The evidence revealed that Michael lived with C.M. in a family setting and established, with Hilary’s acquiescence, a parental relationship with him. This court further notes that “where a petitioner who is not biologically related to the child, but has established a parent-like relationship with the child, seeks not to supplant the natural parent, but only to maintain his relationship with the child through reasonable visitation or partial custody, his burden to establish standing is easier to meet.” J.A.L. v. E.P.H., 453 Pa. Super. 78, 89, 682 A.2d 1314, 1320 (1996); see also, Bupp at 1281-82 (“where only limited custody rights are sought, the limited nature of the intrusion into the biological family must be considered in deciding whether standing has been made out.”).

In the Bupp case, a case similar to the one sub judice, the Superior Court affirmed the trial court’s decision to confer standing upon the former live-in-boyfriend of the biological mother. Id. Even though the boyfriend there had only lived with the child for one year, the boyfriend had been encouraged by the mother, and assumed and performed parental duties, such as helping raise, feed, and diaper the child, provided guidance to her, played with her, and treated and considered her the same as his natural daughter. Mother conceded she invited Bupp to act as father and that her child referred to him as “Daddy.” Id. at 1282. Here, the evidence of in loco parentis was even stronger, wherein Michael has developed and maintained a parental relationship with C.M. for approximately six years, including three years during which he lived with C.M. as part of a family unit.

Hilary next argues that Michael no longer stands in loco parentis since her current husband has assumed the role of father to C.M. and/or that the in loco parentis status has been lost over time following the parties’ separation. The evidence did indicate that Michael’s in loco parentis role has diminished while George’s role has increased. Nevertheless, between the time of the parties’ separation and February 24, 2002, Michael remained a consistent presence in C.M.’s life, i.e, stood in loco parentis, keeping C.M. on alternating weekends, holidays and vacations. To the extent that there has been a loss of Michael’s in loco parentis status since February 24, 2002, it is solely because Hilary cut off all contact between he and C.M. “[A] biological parent’s rights ‘do not extend to erasing a relationship between her partner and her child which she voluntarily created and actively fostered simply because after the parties’ separation she regretted having done so.’ ” T.B. v. L.R.M. at 919 (quoting J.A.L. v. E.P.H. at 92-93, 682 A.2d at 1322).

Finally, Hilary asserts that Michael has sought to insinuate himself into the family relationship between she, her husband and C.M., and has engaged in manipulation of C.M. to this end. This is not supported by the record, which indicated that at all times, Michael has sought only to keep the status quo, i.e., a custody arrangement whereby he would maintain visitation on alternating weekends plus some holidays and vacations.

Since Michael established that he assumed a parental status and discharged parental duties, with Hilary’s consent, he stands in loco parentis to C.M. and therefore had standing to seek visitation.

Child’s Best Interests

This court’s paramount concern and the polestar of our analysis in any custody case, is the best interests of the child. Deciding a child’s best interests is to be made on a case-by-case basis, considering all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being. S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002). C.M.’s best interests will be served by continuing visitation with Michael, who has been a consistent and important parental presence in C.M.’s life for over six years, including during formative years (from the age of 3 1/2 to 9 1/2). Furthermore, C.M. has indicated he would like to visit with Michael so long as Michael does not lie or talk badly about his mother. C.M. also desires to visit Michael so he can be with his sister A.L. during her visits with him. McMillen v. McMillen, 529 Pa. 198, 203, 602 A.2d 845, 847 (1992) (a child’s preference, although not controlling, is an important factor to be carefully considered in determining the child’s best interests).

Hilary argues that the evidence showed it was not in C.M.’s best interests to have any visitation with Michael because Michael has demonstrated an inability to manage his personal and business affairs, has manipulated C.M., has potentially exposed C.M. to an unhealthy environment such as pornographic materials, and has been unable to act as a positive role model for C.M.

This court is unsure how Michael’s management of his personal and financial affairs is relevant to this court’s inquiry into whether it is in C.M.’s best interests to maintain visitation with Michael. There was no evidence presented as to how Michael’s alleged failures have harmed or will harm C.M. Hilary’s reference to Michael’s manipulation of C.M. would appear to be a reference to Michael having had C.M. interviewed by his attorney. Beyond the fact that the interview took place, there is no evidence how this constituted manipulation. Clearly, this event upset Hilary and disturbed C.M. because of his mother’s reaction. However, this incident, involving C.M. being asked a few questions by an attorney, was a one-time occurrence, motivated by Michael’s desire to retain partial custody/visitation with C.M. There was no evidence of manipulation on Michael’s part. As to the pornographic materials, we certainly do not condone possession of such materials, and they are clearly inappropriate for young children. Nevertheless, the evidence indicated the materials were adult pornography which had been hidden by Michael. There was no evidence that C.M. had or has access to such materials.

Finally, Hilary argues that the court’s visitation order impermissibly intrudes on the family unit she has now established with her husband, C.M. and his half-sister A.L. This court’s initial inquiry and ultimate finding, that Michael stood in loco parentis, resolved this question in the negative. J.A.L. v. E.P.H. at 88-89, 682 A.2d at 1319-20 (while it is presumed that a child’s best interest is served by maintaining the family’s privacy and autonomy, that presumption must give way where the party seeking custody stands in loco parentis).

Accordingly, this court entered an order on July 16, 2002, granting Michael visitation rights.

      . George is a sergeant in the Pennsylvania Army National Guard. He was stationed in Germany on June 25, 2002, and will be there for at least six months. As such, he provided testimony via a June 21, 2000 deposition. (Defendant’s exhibit 4.) Hilary and George recently became parents to their own daughter, born June 11, 2002.

      . The custody order entered requires that both parties refrain from making derogatory comments about each other in the presence of their children.