author: DOZOR, J.,

text:
    C.C. v. R.W.W.

      C.P. of Delaware County,
    Nos. 2014-001370; 206 EDA 2015; 253 EDA 2015

      Katie Scrivner, for appellant.

      Yalonda Houston, for appellee.
    Jan. 21, 2015-
   DOZOR, J.,

OPINION

This Appeal is considered as a direct appeal from this court’s December 19, 2014 “final custody order.” The nature and history of the case is as follows:

On February 12, 2014, appellee (hereinafter “father”) filed his custody complaint, as a self-represented party, and this court notes that father’s initial custody complaint requested that the court award the parties joint legal and physical custody of minor child. As a result of the custody complaint filed by father, the parties participated in a custody conference before master Freeman on March 17, 2014. Since mother was in Florida on March 17,2014, she was permitted to participate in the master’s conference via telephone. On March 17, 2014, master Freeman issued a temporary custody order which was signed by The honorable Ann Osborne on March 21,2014. This temporary custody order provided the parties with joint legal custody and mother primary physical custody subject to father’s partial physical custody every weekend in Florida. The temporary custody order provided that father’s custody in Florida should be “supervised;” however, master Freeman clarified that the supervision was only implemented because father would be travelling to Florida and would not have the benefit of all the necessary equipment required for the minor child who was just over one year old at the time the order was entered on March 17, 2014.

Father filed an amended custody complaint on June 6, 2014 requesting joint legal custody and amending his request for full/sole physical custody of minor child since mother had improperly relocated to Florida.

On July 15, 2014, this court held a pre-trial conference and thereafter, on July 17, 2014, this court issued a temporary custody order and order confirming jurisdiction in Delaware County, Pennsylvania and determined:

that mother was aware of the custody complaint filed by father at the time she fled to Florida. This court also determines that although she was aware of the custody complaint, mother did not seek consent to move with minor child; rather mother told father she was moving to Florida with minor child. Father did not provide consent for mother and minor child to move to Florida. Thereafter, mother moved to Florida then provided father an address of her new residence. Mother failed to comply with the Pennsylvania Statute regarding relocation 23 Pa. C.S.A. §5337(c).

See trial court order, July 17, 2014, p. 2 ¶ 4. The July 17, 2014 order also determined that “mother still has not complied with the Pennsylvania Statute, 23 Pa. C.S.A. §5337(c), regarding relocation, specifically, mother has not filed a notice of relocation, a petition to relocate or the appropriate affidavit of consent from father.” See trial court order, July 17, 2014, p. 2 ¶ 5. This court also found that “due to mother’s unapproved relocation to Florida, the finances of the parties and minor child’s very young age, father has had no contact with minor child since February of 2014.” See trial court order, July 17, 2014, p. 2 ¶ 6.

This court’s July 17, 2014 order also provided parties with temporary custody as follows, until further order of the court:

a. Mother and father have joint legal custody.
b. Mother and father shall have joint physical custody as follows:
i. Without prejudice and with this trial court scheduling a custody trial in this matter for November 19, 2014. This court notes that since there was no notice of relocation provided to father pursuant to 23 Pa. C.S.A. §5337(c) nor was there a petition to relocate filed of record by mother, this court is not scheduling a hearing on mother’s relocation to Florida at this time.
ii. Temporarily and subject to the conditions as set forth in this order, the minor child may temporarily reside with mother in Florida at, 3200 Broad Street, Brooksville, FL 34604, until further order of this court.
iii. Mother shall have custody from the date of this order until Saturday, July 28, 2014 when father will receive custody of minor child in the area of the Tampa airport in Tampa, Florida, or as otherwise mutually agreed to by the parties. Father shall have custody from July 26, 2014 until August 16, 2014. Father may enjoy his custodial periods of time with minor child in either the Commonwealth of Pennsylvania or the State of Florida.
(a.) Within five days of this order, no later than July 22, 2014, father must provide mother with a complete travel itinerary, including flight numbers, airline name and flight times, if applicable.
(b.) Within five days of August 16, 2014, mother must provide father with an approximate time she will receive custody of minor child on August 16, 2014. Mother is to provide father with flight times, airline name and flight numbers, if applicable. The exchange of minor child shall occur at father’s current residence, unless otherwise mutually agreed upon by the parties.
iv. Thereafter, father is to have three weeks custody of minor child in both September and October. Father’s scheduled September period of custody is to begin after September 8, 2014 at 10:30, so that minor child may attend a well-baby visit with her doctor which has already been scheduled.
v. Father is to provide mother with 10 days notice of his intended start date his custodial time in the months of September and October.
vi. Thereafter, mother has 10 days to inform father of the date and approximate time she will begin her custodial period, keeping in mind that this court had provided father with three weeks (21 days) of consecutive custody of minor child.
vii. Father’s custodial time during the months of September and October are not to thwart or frustrate mother custody. The court determines that father may not elect to take back to back three week periods of time from September into October, thereby essentially having removing custody of minor child from mother. Father’s custodial periods in September and October must provide mother with a minimum of two and a half weeks of custodial time in between father’s custodial periods.
viii. The party receiving custody of minor child is responsible for all travel expenses for themselves and minor child. Either party may elect to drive, fly or travel by train or bus to take custody of minor child.
ix. All travel itineraries must be provided to the other party prior to minor child traveling. That means, both parties shall be informed of how minor child is traveling to and from Florida and Pennsylvania and be provided with the appropriate flight times, flight numbers, bus or train information.
x. Either party may elect to have minor child dropped off or picked up by a responsible family member, mother’s fiancee or a member of finance’s family. However, notice of the name of that responsible person must be communicated to the other party prior to the custody exchange.
c. The parties are to exchange or provide to each other a copy of minor child’s birth certificate and medical/ insurance cards, prior to or during the first exchange of minor child on July 26, 2014.
d. Minor child is to have daily contact with the noncustodial parent via the skype/facetime or any other internet communication at this time due to the young age of minor child. This contact is to occur between 6:30 and 7:00 PM daily, unless otherwise agreed or modified by the parties based upon their schedules.

See trial court order, July 17, 2014, p. 2 ¶¶7-9.

Following the pre-trial conference on July 15, 2014, this court issued a letter scheduling the custody trial in this case for December 9, 2014.

This court notes that was not until October 27, 2014 that mother filed her notice of relocation and it was not until November 5, 2014 mother filed her complaint in custody seeking primaiy physical custody of minor child. On November 14, 2014, father filed his counter-affidavit, objecting formally to mother’s relocation to Florida. On November 19, 2014, this court held the custody and relocation trial.

On December 19, 2014, this court issued a final custody order, which addressed all the relevant custody and relocation factors and ultimately denied mother’s relocation to Florida. The December 19, 2014 final custody order also provided for custody of minor child shall be jointly shared between the parties as long as mother relocated to Delaware County, Pennsylvania. This court further determined that should mother not relocated to Delaware County, Pennsylvania, father shall have primary physical custody of minor child subject to mother’s partial physical custody. Mother was required to return to Delaware County, Pennsylvania, the jurisdiction of this court, within sixty (60) days of the date of the final custody order.

On January 20, 2015, appellant mother filed an “emergency application for stay of denial of relocation petition pending appeal” directly with the Superior Court. Thereafter, the Superior Court issued an order directing appellee to file an answer to the motion pending on or before January 27,2015.

On January 20, 2015, appellant mother also filed her timely “notice of appeal” and her “concise statement of matters complained of on appeal.”

This court notes that no request was made by this court of either appellant pursuant to Pennsylvania Rules of Appellate Procedure 1925(a) for a concise statement of matters complained of on appeal as appellant filed her concise statements contemporaneously with their notice of appeals. On January 22, 2015, this court received a letter from the Superior Court informing this court that the appeals in this case have been designated as a “children’s fast track appeal.”

Appellants’ concise statements of matters raised on appeal alleges that this court committed an abuse of discretion by failing to give the evidence presented the appropriate weight, by improperly analyzing the custody factors set forth in 23 Pa.C.S. A. Section 5328(a)( 1) through (16) and awarded the parties shared physical custody and by denying mother’s petition to relocated to Florida and requiring mother to return to the Commonwealth of Pennsylvania within sixty (60) days.

FACTS:

Father, who is presently 19 years of age, resides on West Chester Pike, West Chester, Delaware County, Pennsylvania 19382 with his father, paternal grandfather. Mother, who is presently 19 years of age currently, resides on Broad Street, Brooksville, FL 34604, with her fiancé and his grandmother. The parties were never married and are the natural parents of one minor child: E.R.W (DOB 1/25/2013), currently, two years old.

During the custody trial, this court heard testimony that mother and father dated while they both attended High School in West Chester, Chester County, Pennsylvania. Father was a senior in high school and mother was a junior in high school when they learned of mother’s pregnancy with minor child. Mother candidly testified that her and her mother have had difficulty in the past getting along and living together and as a result, mother lived with father as well as her own grandmother at times before, during and after her pregnancy. Mother testified that since she was eight (8) years old, she has moved in and out of her mother’s residence.

This court notes that father testified that from S eptember of 2012 until June of 2013 mother and father and then minor child, resided together in father’s family home. This court notes that mother’s testimony was that during the period of time between March/April of 2013 and August of 2013, she resided with her mother in Delaware County, Pennsylvania. Regardless of mother’s testimony it was clear that mother lived with father, with minor child, for at least three months following minor child’s birth. From August 2013 to September 2013, mother and minor child briefly lived in the State of Delaware, in New Castle County, which is a veiy short distance from the border of Delaware County, Pennsylvania, with mother’s grandmother. This court notes that from September 2013 until either late February 2014 or March of 2014, mother and minor child resided with mother’s mother in Delaware County, Pennsylvania. Mother was unable to provide this court with the date in which she moved from her mother’s residence to the residence which she procured in Brooksville, Florida with her now fiancee and his grandmother. From at least March 17, 2014 until the present, mother and minor child have resided in Brooksville, Florida.

As this court heard the testimony and was able to view the witnesses in this case, in issuing the final custody order, this court did not credit the testimony of mother that she asked father if she could relocate to Florida with minor child and Father refused to provide consent. This court determined that mother simply informed father that she was moving to Florida. This court also notes that at the time of trial, mother was engaged and was living with her fiancé, his grandmother and his mother and two brothers. This court also notes that mother testified, but provided no evidence, that her fiancé’s mother and brothers were moving out of the residence as the custody trial began.

This court heard testimony that mother’s residence in Florida is a three bedroom permanent mobile home in Brooksville, Florida. This court notes that mother, her fiancee and his grandmother, as well as minor child, are all listed on the lease for the Brooksville, Florida residence. This court also notes that mother did have a job when she left Pennsylvania. This court also notes that when mother relocated in Florida, she did so without having a job secured in Florida and mother did so during her senior year of high school and therefore, mother did not have a high school diploma. Upon relocating to Florida, mother entered high school in Brooksville, Florida and graduated from Hernando High school in May of 2014. See defendant’s Exhibit, D-6.

Mother testified that she currently works part time as a companion caregiver at a pay rate of $8/hour. This court notes that mother provided this court with her paystub for her current employment. Mother’s paystub indicated that mother was only hired and began her current employment on October 22, 2014, almost seven months after mother’s relocation in Florida and just one month prior to this custody trial. See defendant’s Exhibit, D-5.

This court also notes that mother is currently engaged, having gotten engaged in May of 2014, to a man, who is eighteen (18) years of age and who does not have a high school diploma or a GED. Mother candidly testified that there is no wedding date set yet and mother also candidly testified that she is currently pregnant and due April 6, 2015. Mother’s fiancé, who is or was her sole means of support prior to mother’s part-time employment began in October, is employed as a general contractor in Florida.

A review of the record and testimony reveals that father’s financial position in life is not significantly different then mother, as both parties are working in low paying part-time jobs. However, this court notes that father’s support system is his father (with whom he lives with), his mother, his sister and various other members of father’s extended family who live in the area. Whereas mother’s support system are virtual strangers to mother, consisting of her fiancee and his grandmother. This court notes that mother’s relationship with her own family is strained. This court notes that mother candidly testified that she relies heavily on her fiancee and his grandmother for financial and childcare assistance. Additionally, this court found it significant that mother’s only support system, her fiancee and his grandmother did not testify on her behalf, nor attended the custody trial, have no obligation or duty to continue to support mother into the future.

Father completed his senior year of high school and graduated in June of 2013. Father is currently attending a school for welding, which is located in Delaware County, Pennsylvania as well as working part time as a bagger at the Giant in Westtown, Chester County, Pennsylvania. Father does not have a driver’s license and takes public transportation, walks or relies on rides from family and friends. Father currently lives with paternal grandfather in a two bedroom apartment. Both father and paternal grandfather candidly and credibly testified that they are planning to move to a three bedroom single family home in Aston, Delaware County, Pennsylvania.

This court heard the candid and credible testimony of mother, father and father’s family that both parties cannot financially continue to fly to and from Florida every three weeks in perpetuity. This court notes that until minor child turned two on January 25, 2015, the parties were only required to purchase one ticket for the trips to and from Florida; however, after January 25,2015, minor child will no longer be able to be a “lap child” according to airline rules and regulations and therefore the parties must now purchase her a ticket.

This court heard credible testimony that father saw minor child every other weekend until just before mother moved to Florida without consent. This court heard credible testimony that prior to mother’s relocation to Florida in March of 2014, father was unable to see minor child during the month of February for his regular alternating weekends as a result of mother withholding minor child from father. This court notes that mother disputed father’s contention that he saw minor child regularly; however, the overwhelming testimony presented demonstrated that father did see and wanted to see minor child regularly. This court found it significant that when mother began withholding physical custody of minor child from Father in February of 2014, father took immediate action and filed his complaint for custody on February 12, 2014. Mother fled the jurisdiction of this court, where she was residing at the time she absconded to Florida, after mother received notification that father had filed his complaint for custody on February 12, 2014.

This court heard credible testimony that despite the fact that minor child had not seen father since February of 2014, minor child reacted positively to seeing her father My 28, 2014.

This court also found it significant that after mother moved to Florida, her family only began seeing minor child routinely while minor child was in father’s custody. This court heard candid testimony that father cooperates with mother’s extended family and while minor child is in Pennsylvania, father makes every effort for mother’s family to spend quality time with minor child. This court was also pleased with the effort of father’s mother and mother’s mother to spend time together with minor child so that minor child would see her extended family in a positive atmosphere.

DISCUSSION:

The appellate courts have consistently determined that

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.
With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.

D.K. v. S.P.K., 2014 PA Super 218, 102 A.3d 467, 478 (2014) citing J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (quoting Durning v. Balent/Kurdilla, 2011 PA Super 90, 19 A.3d 1125, 1128 (2011)); Durning v. Balent/Kurdilla, 19 A.3d at 1128 (2011) quoting A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010) (internal quotations and citations omitted).

In its supreme wisdom, the Pennsylvania legislature has enacted a statue, Title 23 Pa.C.S.A. Section 5328(a) to delineate the “factors the trial court must consider when awarding any form of custody.” J.R.M. v. J.E.A., 33 A.3d at 651. Section 5328(a) sets forth a list of 16 factors that trial courts must consider “in a best interests of the child analysis in making any custody determination.” E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. Super. 2011) (citing 23 Pa.C.S.A. §5328(a)) (footnote omitted).

The sixteen factors listed in section 5328(a) that trial courts must consider when determining a child’s best interest are:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

Additionally, in this case since mother has relocated and wishes to remain in Brooksville, Florida, this court had to address Title 42 Pa.C.S.A. Section 5337(h) which sets forth the relocation factors as:

(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.

23 Pa.C.S.A. § 5337(h).

The legislature has required that the court consider all of the Section 5328(a) best interest factors when “ordering any form of custody” and such consideration must be provided to the parties by the Court on either the record or in a written decision. See 23 Pa.C.S.A. §§5328(a) and (d). The Superior Court has provided the lower court with guidance regarding the Sections 5328(a) and (d) requirements and have determined that a court may not merely provide the parties with a recitation of the factors contained in the statute en masse; rather, the lower court must place the reasoning for the determination of the factors in a written opinion. See C.B. v. J.B., 65 A.3d 946, 950 (Pa. Super. 2013) and J.R.M. v. J.E.A., 33 A.3d at 652. In M.P. v. M.P., the Superior Court determined that the lower court erred where the court merely listed the Section 5328(a) factors but failed to apply them to the case at hand. 54 A.3d 950, 955-56 (Pa. Super. 2012).

A thorough review by the Superior Court will find that this court did not issue a mere recitation of the Section 5328(a) factors; rather, this court issued a lengthy and thorough final custody order in which the factors were applied to the facts, as determined by this court.

Appellant alleges that this court did not give due weight to the fact that she was the primary caretaker of minor child. The appellate courts are clear, that a lower court must give positive consideration to the parent who has been the primary caregiver.” Darning v. Balent/Kurdilla, 19 A.3d at 1129 quoting Collins v. Collins, 897 A.2d 466, 473 (Pa. Super. 2006) (relying upon, inter alia, Wiseman v. Wall, 718 A.2d 844, 851 (Pa. Super. 1998) (stating that the determining factor in a custody determination may be one parent’s role as primary caregiver)). The final custody order belies appellant’s contention, and a review of the final custody order reveals that this court did give due weight to mother’s role as primary caretaker to minor child in rendering a determination that the parties shall share joint physical custody of minor child. This court notes that at the time of the final custody order, minor child was not yet two years old, for the period of time prior to her birth the parties resided together and then continued to reside together until minor child was three or four months old. From the time mother left father’s residence with minor child, until the time that mother improperly moved to Florida and forcibly cut off father’s period of physical custody, father enjoyed physical custody with minor child on alternating weekends. This court also notes that since the court has intervened, at father’s behest, father has had physical custody of minor child for a consecutive three week rotating schedule.

Appellant also contends that that this court did not give due weight to the fact that father did not follow the temporary custody order issued by the master on March 17, 2014 and that father rarely requests to “face time” with minor child. This court finds it absurd that mother has requested the appellate court’s to overturn the final custody order based upon father’s noncompliance with the temporary custody order. This court did consider father’s actions or lack thereof and concluded that it was financially and otherwise impossible for father to have complied with a temporary custody order which required him to fly to Florida, to get a hotel room and to provide all the meals for minor child based upon his part-time salary. This also determined that there was no fault in father’s noncompliance with the custody provision of the temporary custody order, particularly where mother was the person who solely placed the burden on father’s shoulders and inconvenienced father by her unilateral decision to relocate minor child to Florida without court or father’s approval. Additionally, this court is unconcerned with father’s minimal requests to “facetime” minor child. This court is unsure how father’s limited “facetime” requests with a minor child who was barely one year old at the time mother improperly relocated to Florida and has just recently turned two years old is so devastating to father that this court improperly weighed testimony and the custody factors in providing the parties with joint physical custody, should mother follow the final custody order and move back to Pennsylvania or upon determining that father should have primary physical custody if mother does not opt to relocate back to Pennsylvania.

Mother also contends that this court erred in determining that minor child had nosiblings per Section 5328(a) (6). This court has found no case law, nor has appellant provided this court with any case law, that Section 5328(a) (6) required the court to consider a party’s unborn child as a sibling of minor child. A plain reading of the statute and case law suggests that the legislature was requesting that the lower courts consider an existing sibling relationship in rendering a determination of the best interests of the child for primary custody. If the legislature is requiring the courts to consider all unborn children of the parties in determining whether or not a sibling relationship exists, this court could be unduly burdened with parties alleging pregnancies in order to sway the custody factors in their favor.

Appellant alleges that this court improperly weighed the factors related to mother’s improper and contested relocation to Florida. Appellant alleges that this court’s characterization of mother “fleeing the state” improperly and weighted the factors towards father. Appellant contends that this court failed to consider that mother was moving to a residence with her fiancee and his grandmother. This court did not fail to consider mother’s relocation to a residence that was procured by herself, her fiancee and his grandmother. To the contrary, this court repeatedly acknowledged mother’s new residence. What this court found issue with is that mother moved to Florida, without court approval, without the approval of father and without providing any testimony or evidence that mother tried and was unsuccessful in finding a residence or a job in Pennsylvania or even in the State of Delaware where appellant had lived and where her fiancee was also living at the time they moved to Florida.

While appellant focuses her appeal on is what the court failed to consider in denying her relocation, she fails to recognize what the court did consider, the fact that the move to Florida has significantly impacted and impaired the relationship between father and minor child and minor child with the extended family and both parties financial inability to provide father with suitable custodial arrangements. See Section 5337(h)(3). This court heard and considered the credible testimony that father’s current financial, education and career status would negatively impact the quantity of time he would be able to spend with minor child if mother’s relocation were permitted. Appellant fails to consider that the cost and expenses associated with minor child’s transportation to and from Florida would render it nearly impossible for father to spend a significant amount of quality time with minor child if mother remained residing in Florida and that this court found that father candidly testified that he has thus far been able to afford minor child’s transportation to and from Florida since July of 2014 as a result of the kindness of his family’s financial assistance. Additionally, this court took into account, that in order for father to continue working, his sister, paternal Aunt is the person whom father relies on to pick up minor child for his custodial periods since the July 17, 2014. This court took into account that paternal Aunt cannot continue in perpetuity to spend one day every few weeks flying to and from Florida to pick-up minor child for the periods of custody enjoyed by father. This court also heard testimony and carefully considered the evidence that it would not be feasible for father to have visitation with minor child in Florida, if mother is permitted to remain in Florida as father does not have the finances to pay for a the flights, hotels or food and social activities in Florida. Additionally, based on minor child’s young age, father would not have the necessary equipment and accessories for young child if he was able to have partial physical custody of minor child in Florida.

This court recognized that the standard of review of the appellate courts is that “with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses’ firsthand.” D.K. v. S.P.K., 2014 PA Super 218, 102 A.3d 467, 479 (2014) quoting J.R.M. v. J.E.A., 33 A.3d at 650. A thorough review of the record by the Superior Court would enable the court to conclude that there is substantial evidence supporting the findings that this trial court as to each factor contained in Section 5328(a) and Section 337(h). Accordingly, because appellant is requesting that the Superior Court reweigh the evidence and has raised challenges to this court’s findings of fact and credibility determinations regarding the parties as to findings that were supported by competent evidence of record the trial court’s final custody order should not be disturbed and the final custody order should be affirmed. See A.V. v. S.T., 2014 PA Super 48, 87 A.3d 818, 820 (2014); M.E.V. v. F.P.W., 2014 PA Super 204, 100 A.3d 670, 675 (2014); R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)); Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super. 2006). Moreover, a party cannot and should not dictate the amount of weight that a trial court places on evidence presented at trial. R.M.G., Jr. v. F.M.G., 986 A.2d at 1237.

CONCLUSION:

For all of the foregoing reasons, the trial court’s order of December 19, 2014 should be affirmed.

      . This court is unsure why the Superior Court issued two different docket numbers related to mother’s appeal. Although both appeals appear identical, in an abundance of caution this court is referencing both Superior Court docket numbers.

      . This court notes that the case before the trial court is docketed as R. W. W., Jr. v. C. C., as Father was the party who initially filed the custody complaint that began this action, appellant mother has transposed the caption of the underlying case.

      . March 17, 2014 was the date of the custody conference before master Freeman, during which Mother participated via telephone conferencing because she was residing in Florida.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Commonwealth v. Future

      C.P. of Lackawanna County,
    No. 2009 CR 2423

      Terrence J. McDonald, for petitioner.

      Jennifer McCambridge, for Commonwealth.
    Feb. 2, 2015-
   MINORA, J.,

INTRODUCTION

Before the court is petitioner Jeffrey Future (“petitioner”)’s nunc pro tunc Petition for Post Conviction Collateral Relief (hereinafter “PCRA”) for alleged ineffective assistance of trial counsel, the Commonwealth’s violation of the plea agreement, and petitioner’s failure in receiving notice of this court’s dismissal of his PCRA for the reasons set forth in this opinion, petitioner’s nunc pro tunc PCRA is denied, however we grant the reinstatement of petitioner’s appellate rights of the June 2013 order denying his PCRA Petition.

FACTUAL AND PROCEDURAL SUMMARY

Petitioner is currently residing at the State Correctional Institution atRockview, Bellefonte, Pennsylvania, 16823, where he is serving a life sentence without the possibility of parole stemming from criminal charges filed on August 19,2009 for murder of the first degree, criminal conspiracy to commit murder in the first degree, and murder in the second degree.

On or about September 17,2009, petitioner waived his preliminary hearing. Petitioner was arraigned on October 30,2009. On or about January 19,2010, petitioner entered a guilty plea to one (1) count of murder in the first degree and was sentenced to the mandatory life sentence of life in prison without the possibility of parole, and all remaining charges were nolle prossed. Petitioner provided a written Guilty Plea at the time of his sentencing, and an oral colloquy was done on the record. The plea agreement involved three (3) components: that the death penalty was no longer applicable; that the petitioner’s brother, Tonie Future, would not be subject to the death penalty; and that the Commonwealth would exercise its best efforts to have petitioner serve his sentence in a federal prison.

On February 1, 2010, this court issued an order which stated that petitioner was to continue to be housed as a Lackawanna County prisoner at Monroe County Prison until further order of court. On March 10, 2010, the Commonwealth filed a petition to release petitioner to a state correctional institution. The petition stated that petitioner would continue to cooperate with both state and federal authorities, and in return the Federal Bureau of Investigation (FBI) would seek to sponsor petitioner into a federal prison. The Commonwealth maintains that petitioner ceased cooperating on March 8, 2010. On March 11, 2010, this court entered an order granting the Commonwealth’s petition, and petitioner has been housed in a state correctional facility ever since.

On or about November 10, 2010, petitioner filed a pro se PCRA petition. On January 12, 2011, attorney Kurt Lynott was appointed as petitioner’s counsel. On April 12, 2011, this court issued an order granting attorney Lynott’s withdrawal as court appointed counsel, which was accompanied by attorney Lynott’s Tumer/Finley letter. Subsequently, on May 8, 2011, petitioner filed a pro se petition for reconsideration of this court’s order to permit counsel to withdraw. On February 5,2013, petitioner filed a pro se petition seeking the court’s assistance in having new counsel appointed for purposes of his PCRA. On February 6, 2013, this court issued an order appointing attorney Christopher Osborne as new counsel for petitioner for his PCRA.

On June 4, 2013, attorney Osborne filed a petition to withdraw as counsel, along with a Tumer/Finley letter. On June 7, 2013, this court issued an order granting attorney Osborne’s withdrawal. On that same day, this court also issued an order denying Petitioner’s PCRA. Petitioner was not provided with copies of the June 7, 2013 orders denying his PCRA petition or attorney Osborne’s petition to withdraw or Tumer/Finley letter. Petitioner also was not advised of his right to appeal the court’s June 7, 2013 order, nor could he be since he did not receive a copy of the order.

On September 26, 2013, petitioner filed an amended PCRA where he maintained ineffective assistance of counsel related to the entry of the guilty plea and the failure of the Commonwealth to abide by the terms of the plea agreement. On October 10,2013, this court appointed attorney Terrence McDonald, as counsel, to represent petitioner related to the amended PCRA and the current nunc pro tunc PCRA.

On May 29, 2014, a PCRA evidentiary hearing was held before this court on petitioner’s current nunc pro tunc PCRA. Petitioner testified on his own behalf that day, and following his testimony the hearing was continued to August 29, 2014. On that day, the petitioner rested and the Commonwealth called two witnesses, Lawrence Whitehead (hereinafter “agent Whitehead”), special agent with the FBI in Scranton, Pennsylvania, and Gene Talerico, Esq., first assistant district attorney in Lackawanna County.

LEGAL ARGUMENTS OF THE PARTIES

Petitioner’s Argument

Petitioner argues in his nunc pro tunc petition for PCRA that 1) defense counsel “induced [petitioner] to plead guilty saying it would avoid the death penalty even though the death penalty was not applicable to the case at the time the advice was given”, 2) that petitioner’s “Guilty Plea was unlawfully induced since defendant plead guilty to first degree murder to avoid the death penalty when the death penalty was not applicable at the time”, 3) the “Commonwealth violated the plea agreement by failing to make its best efforts to have [petitioner] housed in a federal penitentiaiy”, and 4) “[petitioner] did not receive notice of the court’s dismissal of his PCRA or his right to appeal same, and if [petitioner’s] nunc pro tunc petition is not granted, he seeks reinstatement of his appellate rights to file a nunc pro tunc appeal to the court’s June 7, 2013 denial of [petitioner’s] petition for post sentence collateral relief.” Joint post evidentiary hearing brief related to defendant, Jeffrey Future’s nunc pro tunc petition for post conviction collateral relief, at 4.

Commonwealth’s Argument

The Commonwealth argues that this court lacked jurisdiction to hear defendant’s PCRA and maintains that the “newly filed nunc pro tunc petition would be treated as a second or subsequent PCRA which is untimely. Id, at 5. However, “[w]hile the Commonwealth [acknowledges] that defendant’s prior counsel’s failure to provide notice of the order dismissing the original PCRA would entitle defendant to reinstatement of his appellate rights to challenge the June 7, 2013 dismissal, it [argues] that the lack of notice does not allow defendant to raise’ additional issues’ before this court. Id., at 5. The Commonwealth further argues that “ [t]he fact that the death penalty was not on the table at the time he plead guilty was by agreement”, and “[h]ad defendant not adhered to the terms of the plea agreement, the Commonwealth maintains it could at that point have sought the death penalty at trial.” Id., at 8. Regarding defendant’s claim that the Commonwealth violated the plea agreement, the Commonwealth argues that it “exercised its best efforts to have defendant housed in a federal prison, but when defendant stopped cooperating with the federal authorities that ultimately prevented any possibility of defendant being housed federally.” Id., at 11.

LEGAL STANDARD

Post-Conviction Collateral Relief and Time-Limitations for Filing a PCRA Claim

The Post-Conviction Collateral Relief Act (“PCRA”) generally provides the sole means of collateral relief from allegedly illegal sentences. 42 Pa. C.S.A. § 9542; Commonwealth v. Martorano, 89 A.3d 301, 306 (Pa. Super. 2014); Commonwealth v. Bennett, 593 Pa. 382, 387, 930 A.2d 1264, 1267 (Pa. 2007). To prevail on a petition for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A. § 9543(a)(2). Commonwealth v. Spotz, 610 Pa. 17, 44, 18 A.3d 244, 259 (Pa. 2011). These circumstances include ineffectiveness of counsel that so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place or a plea of guilty unlawfully induced where the inducement caused the petitioner to plead guilty and the petitioner is innocent. 42 Pa.C.S. § 9543(a)(2)(h)-(iii).

A petition filed pursuant to the PCRA, “including a second or subsequent petition, shall be filed within one year of the date of the judgment becomes final.” 42 Pa. C.S.A. § 9545(b)(1); Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013); Bennett, 593 Pa. at 388, 930 A.2d at 1267. The PCRA time-bar is jurisdictional in nature, and is not subject to equitable exceptions. Commonwealth v. Ligons, 601 Pa. 103, 169, 971 A.2d 1125, 1164 (2009) (quoting Commonwealth v. Rienzi, 573 Pa. 503, 507, 827 A.2d 369, 371 (2003)); Bennett, 593 Pa. at 388, 930 A.2d at 1267; Commonwealth v. Reed, 2014 PA Super 280 (Dec. 19, 2014). “Jurisdictional time limitations are mandatory and interpreted literally; thus a court has no authority to extend filing periods except as the statute permits.” Reed, 2014 PA Super 280 (Dec. 19, 2014). “If the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition.” Id.; Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

There are three exceptions to the one-year limitation contained in 42 Pa. C.S.A. § 9545(b). “These exceptions extend the one-year time limitation under limited circumstances, reflecting that the Legislature also recognized that situations might arise when the one-year time limitation must yield.” Bennett, 593 Pa. at 388, 930 A.2d at 1267. 42 Pa.C.S.A. § 9545 provides in relevant part:

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the constitution or laws of this Commonwealth or the constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa. C.S.A. § 9545(b)(1)(i)-(iii).

PCRA Claims for Ineffective Assistance of Counsel in Connection with a Guilty Plea

A PCRA claim may be made with respect to ineffective assistance of counsel. Counsel is presumed to be effective, unless the petitioner proves otherwise. Commonwealth v. Hanible, 612 Pa. 183, 205, 30 A.3d 426, 439 (Pa. 2011); Commonwealth v. Zaksuk-Deulofuet, 2010 WL 8585488. The petitioner must plead and prove by the preponderance of the evidence that “the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Commonwealth v. Rivers, 567 Pa. 239, 244, 786 A.2d 923, 926 (Pa. 2001). Claims of counsel’s ineffectiveness must be pled with specificity. Commonwealth v. Brian, 744 A.2d 713, 716 (Pa. 2000).

To meet 42 Pa. C.S.A. § 9543(a)(2)(ii)’s standard for ineffective assistance of counsel, Petitioner must demonstrate: “(1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’s interest; and (3) thathe was prejudiced by counsel’s ineffectiveness, i.e., that there is a reasonable probability that, but for the act or omission in question the outcome of the proceeding would have been different.” Commonwealth v. Ford, 570 Pa. 378, 387, 809 A.2d 325, 330-31 (Pa. 2002) (citing Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999)); Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa. Super. 2004). “All three prongs of [the] test must be satisfied. If a [petitioner] fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel.” Gonzalez, 858 A.2d at 1222.

The Superior Court set forth the standard for a guilty plea to be valid in Commonwealth v. Prendes:

To be valid, a guilty plea must be knowingly, voluntarily, and intelligently entered. A manifest injustice occurs when a plea is not tendered knowingly, intelligently, voluntarily, and under standingly. The Pennsylvania Rules of Criminal Procedure mandate pleas be taken in open court and require the court to conduct an on-the-record colloquy to ascertain whether a defendant is aware of his rights and the consequences of his plea. Under Rule 590, the court should confirm, inter alia, that a defendant understands: (1) the nature of the charges to which he is pleading guilty; (2) the factual basis for the plea; (3) he is giving up his right to trial by jury; (4) and the presumption of innocence; (5) he is aware of the permissible ranges of sentences and fines possible; and (6) the court is not bound by the terms of the agreement unless the court accepts the plea. The reviewing court will evaluate the adequacy of the plea colloquy and the voluntariness of the resulting plea by examining the totality of the circumstances surrounding the entry of that plea. Pennsylvania law presumes a defendant who entered a guilty plea was aware of what he was doing, and the defendant bears the burden of proving otherwise.

Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (citations omitted).

“Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). “Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” Id. Therefore, to establish prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013). This is not a stringent test, but instead “refers to a probability sufficient to undermine confidence in the outcome.” Id.

PCRA Claims for Unlawfully Induced Guilty Plea

A PCRA claim may also be made with respect to an unlawfully induced guilty plea. Pa.C.S.A. § 9543(a) (2)(3) “provides that in order to be eligible for PCRA relief, the petitioner’s conviction or sentence must have resulted from [a] plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.” Commonwealth v. Laszcynski, 715 A.2d 1185, 1187 (Pa. Super. 1998); Pa.C.S.A. § 9543(a)(2)(3).

LEGAL ANALYSIS

Petitioner’sjudgment became final on Januaiy 19,2010, and petitioner’s current nunc pro tunc PCRA Petition was filed on September 26,2013. Since a second or subsequent PCRA petition must be filed within one year of the date the judgment becomes final, the current PCRA petition is considered untimely and shall be dismissed unless the petitioner can prove one of the exceptions contained in 42 Pa. C.S.A. § 9545(b). 42 Pa. C.S.A. § 9545(b)(1); Cintora, 69 A.3d at 762; Bennett, 593 Pa. at 388, 930 A.2d at 1267. After review of all and consideration of the pleadings and the arguments of Counsel, we hold that petitioner failed to prove any of the three (3) exceptions contained in 42 Pa. C.S.A. § 9545(b). Petitioner’s petition failed to show any interference by government officials, that the facts upon which the claim is predicated were unknown to Petitioner and could not have been ascertained by due diligence, or that the right asserted is a constitutional right to apply retroactively. 42 Pa. C.S.A. § 9545(b).

However, we find that because of petitioner’s former counsel’s failure to notify him of the June 7, 2013 order dismissing his PCRA or of his right to appeal, petitioner’s appellate rights should be reinstated to appeal the denial of his initial nunc pro tunc PCRA. The rationale of this holding is outlined below.

Ineffective Assistance of Counsel Because of Unlawfully Induced Guilty Plea

Petitioner argues that his “guilty plea was unlawfully induced since [petitioner] pled guilty to first degree murder to avoid the death penalty when the death penalty was not applicable at the time.” Joint post evidentiary hearing brief related to defendant, Jeffrey Future’s nunc pro tunc petition for post conviction collateral relief, at 5. Petitioner further argues that the death penalty was not applicable at the time he pled guilty because Pennsylvania Rules of Criminal Procedure Rule 801 and 802 were not complied with. Id., at 6. The Commonwealth maintains that since the plea deal removed the death penalty from the table at the time petitioner pled guilty, a “Rule 802 notice was not filed because the parties already had an agreement so it was not necessary to file same.” Id., at 8. The Commonwealth also maintains that petitioner had constructive notice of the aggravating circumstances which made his case a capital case, and therefore there was no prejudice for failing to file the Rule 802 even if same was necessary despite the agreement reached.” Id.

At petitioner’s PCRA hearing, Gene Talerico discussed the plea agreement between the Commonwealth and petitioner. See N.T. PCRA Hearing, 8/29/14, at 49-52. Mr. Talerico testified that the plea deal involved Petitioner pleading guilty to the charge of first degree murder in exchange for the following: (1) the Commonwealth would not seek imposition of the death penalty on petitioner; (2) the Commonwealth would not seek imposition of the death penalty against petitioner’s brother in a related case; and (3) the Commonwealth would make its best efforts to have petitioner serve his life sentence in a federal penitentiary. Id., at 50-51. First degree murder is punishable by death or a term of life imprisonment in accordance with 42 Pa.C.S.A. § 9711. 42 Pa.C.S.A. § 1102. Petitioner was being charged with first degree murder, which may be punishable by death. Therefore, petitioner’s argument that his guilty plea was unlawfully induced because he pled guilty to first degree murder to avoid the death penalty when the death penalty was not applicable at the time is without merit. Petitioner could have easily been charged with the death penalty had he not entered a plea agreement with the Commonwealth.

However, because part of the plea agreement included that the Commonwealth would not pursue the death penalty against petitioner, the death penalty was not on the table in petitioner’s case. Pa. R.Crim.P. 802 requires that the Commonwealth must file a notice of aggravating circumstances that it intends to submit at the sentencing hearing and to provide the defendant with a copy of the notice in a case where it intends to seek the death penalty. Commonwealth v. Edwards, 588 Pa. 151, 186-87,903 A.2d 1139, 1159-60 (2006). Since petitioner and the Commonwealth reached an agreement removing the death penalty from the case, the Commonwealth was not required to file a Rule 802 notice of aggravating circumstances. Thus, Pa.R.Crim.P 801, requiring the attorney for the Commonwealth to be death penalty certified, is also inapplicable because petitioner was not being charged with the death penalty.

Commonwealth’s Violation of the Plea Agreement Claim

Petitioner argues that the Commonwealth “breached the affirmative duty it had to honor the promises it made to him in exchange for his guilty plea” by “failing to make its best efforts to have [petitioner] housed in a federal penitentiary.” Joint post evidentiary hearing brief related to defendant, Jeffrey Future’s nunc pro tunc petition for post conviction collateral relief, at 9. In exchange for petitioner’s co-operation with the FBI, the Commonwealth agreed to make its best efforts and exercise in good faith to have petitioner housed in a federal prison. However, agent Whitehead testified that petitioner ceased cooperation with federal officials by refusing to go before, a grand jury, refusing to participate in further investigative matters, and refusing to provide testimony against a codefendant in the matter. See N.T. PCRA Hearing, 8/29/14, at 17. We find no merit in petitioner’s claim that the Commonwealth violated the plea agreement. Since petitioner discontinued his cooperation with federal officials, the Commonwealth was no longer required to continue exercising its best efforts to have petitioner housed in a federal penitentiary.

Reinstatement of Appellate Rights

Both petitioner and the Commonwealth agree that petitioner’s former counsel failed to provide petitioner with a copy of the court’s June 7, 2013 order and counsel’s Tumer/Finley letter or petition to withdraw. Joint post evidentiary hearing brief related to defendant, Jeffrey Future’s nunc pro tunc petition for post conviction collateral relief, at 12. As a result, petitioner was unaware of his right to appeal the order. Id. Petitioner and the Commonwealth are in agreement for reinstatement of petitioner’s appellate rights of this court’s June 7, 2013 order dismissing the initial PCRA. Id., at 12-13. The due process clause of the fourteenth amendment provides that no State shall deprive any person of life, liberty, or property, without due process of law. Commonwealth v. Turner, 80 A.3d 754, 763 (2013); Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. 2010). While “there is no constitutional mandate that a state provide a method to collaterally attack a conviction...once a procedure is provided, those procedures are required to meet basic and fundamental due process requirements.” Burkett, 5 A.3d at 1276. We find that failing to provide petitioner with an adequate opportunity to appeal the June 7, 2013 order of this court dismissing his initial PCRA would be a deprivation of his constitutional rights, specifically the due process clause of the fourteenth amendment. Therefore, petitioner’s appellate rights of this court’s June 7, 2013 denial of petitioner’s initial PCRA are reinstated.

Petitioner failed to prove any exceptions contained in 42 Pa. C.S.A. § 9545(b), and since the current nunc pro tunc PCRA was filed on September 26, 2013, much over the one year limitation from the date petitioner’s judgment became final, it is untimely. However, since petitioner’s former counsel failed to notify him of the June 7,2013 order denying his PCRA, We find that petitioner’s appellate rights should be reinstated. Petitioner’s nunc pro tunc petition for post conviction relief is denied, and it is ordered that petitioner’s appellate rights are reinstated for his initial PCRA that was filed on February 5, 2013 and resolved by this court’s order of June 7, 2013. An appropriate order follows.

ORDER

And now, on this 2nd day of February 2015, upon consideration of the nunc pro tunc petition for post conviction relief of petitioner Jefferey Future, the Commonwealth’s response thereto, and arguments of the parties, it is hereby ordered and decreed as follows:

1. Petitioner’s request for nunc pro tunc post conviction relief is denied; and

2. Petitioner’s appellate rights are reinstated to file a nunc pro tunc appeal to this court’s June 7,2013 denial of petitioner’s petition for post sentence collateral relief, due to petitioner never having received notice of this court’s June 7, 2013 order.

      . Under the PCRA, “a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa. C.S.A. § 9545(b)(3); See also Com. v. Johnson, 2008 WL 7279876, at ¶¶2-3; Com. v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006); Com. v. Wharton, 584 Pa. at 584, 886 A.2d at 1124. After the Pennsylvania Supreme Court denies a petition for allowance of appeal, the petitioner has 90 days to seek discretionary review by the United States Supreme Court. U.S. Sup. Ct. R.13; Commonwealth v. Frey, 41 A.3d 605, 2012 Pa. Super. 66 (2012).

      . “When a PCRA petition is notified within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner’s PCRA claims.” Com v. Pollard, 911 A.2d at 1007 (quoting Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)).

      . Pennsylvania Rules of Criminal Procedure Rule 801 states that “before an attorney may participate in any stage of [a capital case] either as retained or appointed counsel, the attorney must meet the educational and experiential criteria set forth in [the] rule.” Pa. R. Crim. P. 801.

      . Pennsylvania Rules of Criminal Procedure Rule 802 states that “[t]he attorney for the Commonwealth shall file a notice of aggravating circumstances that the Commonwealth intends to submit at the sentencing hearing and contemporaneously provide the defendant with a copy of such notice of aggravating circumstances. Notice shall be filed at or before the time of arraignment or the time for filing is extended by the court for cause shown. Pa. R..Crim. P. 802.


author: CARRAFIELLO, J.,

text:
    Roosevelt-Bentman Trust for American Voters

      C.P. of Philadelphia County,
    O.C. No. 608 IV of 2014
    Feb. 2, 2015-
   CARRAFIELLO, J.,

Facts and Procedural History

The Roosevelt-Bentman Trust for American Voters (hereinafter referred to as the “Trust”) was established by the petitioner, 5 9th Republican Ward Executive Committee, on October 4, 2007. Respondent, Republican National Committee, is alleged to be a qualified beneficiary of the Trust. Respondent, however, denies any involvement with or any interest in the Trust.

On May 2, 2014, the petitioner herein filed to confirm an arbitration award alleging that, pursuant to an arbitration hearing held and an award entered in favor of the 59th Republican Ward Executive Committee and against respondent purportedly effective June 12, 2009, this court should confirm the award and enter a judgment against the respondent.

Contemporaneously with the above petition, Peter Wirs, as Trustee of the Roosevelt-Bentman Trust for American Voters, filed his own petition for declaratory judgment on behalf of the Trust (hereinafter referred to as “Mr. Wirs’ petition”). However, his petition was dismissed on May 21, 2014 for the following deficiencies/irregularities:

1. The petition indicated Mr. Wirs was proceeding pro se, while the cover sheet indicated he was represented by counsel.
2. Mr. Wirs failed to give his address.
3. Mr. Wirs failed to request relief and inappropriately attached proposed findings of fact and conclusions of law which identified no issue(s) or any specific request for relief.
4. The petition was not in prescribed paragraph form and, in violation of Rules of Civil Procedure, it was unnecessarily anecdotal, prolix, and devoid of necessary, specific factual allegations which would justify relief.
5. Mr. Wirs failed to identify any respondent(s), even though he made allusions to beneficiaries’ actions which he claimed had been injurious to the Trust.
6. Mr. Wirs failed to append or incorporate by reference or otherwise identify with specificity the Trust and its relevant provisions. Nor did he append a copy of the award of arbitrators or state the exact language of the award.

Mr. Wirs filed Exceptions to the court’s decree on June 6, 2014, and while they were pending, withdrew his petition on July 3, 2014. The exceptions were dismissed on July 9, 2014 before the court received the praecipe for withdrawal.

Following the dismissal of exceptions, this court ordered an on the record conference/hearing be held on October 2, 2014 on the 59th republican ward executive committee’s petition to confirm arbitration award and judgment. Present at the hearing were attorneys Jonathan Goldstein and Britain Henry for the respondent appearing specially to challenge propriety of service. Also present were attorney Lawrence Otter for the petitioner and Mr. Wirs as an officer of petitioner as well as a trustee. At the conclusion of that hearing, the court ordered both petitioner and respondent to each submit a memorandum of law within 60 days of the date of the decree. The parties were instructed to be discrete, concise, and address solely the issues of: 1) whether the Orphans’ Court is the proper venue to confirm the arbitration award and enter a judgment and 2) whether the arbitration forum had obtained jurisdiction over the respondent.

On December 4, 2014, the Republican National Committee filed its memorandum in response to the court’s October 6th decree. On December 9, 2014, the 59th republican ward executive committee filed its memorandum.

On December 11, 2014, the respondent filed a motion to strike petitioner’s memorandum of law as filed untimely and without just cause. In response, petitioner filed a motion requesting that its memorandum be deemed filed on December 8,2014. Respondent filed an answer to this motion on January 8th, 2015.

Discussion

I. The purported arbitration “award” in a forum lacking jurisdiction renders it a nullity.

An arbitration award in a nonjudicial arbitration is, binding and may not be vacated or modified “unless it is clearly shown that a party was denied a hearing or fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable, or unconscionable award.” 42 Pa.C.S. §7341. The type of irregularity “refers to the process employed in reaching the result of the arbitration, not the result itself.” Gwin Engineers v. Cricket Club Estates Development Group, 555 A.2d 1328 (Pa. Super. 1989) citing Chervenak, Keane & Co., Inc. v. Hotel Rittenhouse Assoc., Inc. 477 A.2d 482 (Pa. Super. 1984).

In the present matter, the court ordered petitioner to address the issue of jurisdiction and venue. Not only did it fail to do so, it failed to supply the most essential of information, not only in its petition but also in its memorandum. It failed to identify the arbitrator, the date and place of the arbitration hearing, and the details of notice and/or service to establish jurisdiction.

While petitioner failed to specifically identify the arbitrator, since Mr. Wirs is the only Trustee ever mentioned or identified, this leads to the inescapable conclusion that Mr. Wirs was in fact the arbitrator for the arbitration hearing. Given his position as trustee, as well as an officer of the petitioner 59th republican ward executive committee and the party initiating the arbitration and seeking confirmation of the award, he was anything but impartial.

In addition to petitioner’s failure to provide indication of even the semblance of a hearing, it is unquestionable that the arbitration forum lacked in personam jurisdiction over respondent. In order for an arbitration forum to have jurisdiction over an entity, it must be proven that the entity was properly served. Reco Equip., Inc. v. John T. Subrick Contracting, Inc., 780 A.2d 684, 687 (Pa. Super. 2001). Where service has not otherwise been agreed to, service pursuant to our Rules of Civil Procedure (which are applicable in Orphans’ Court matters) is required.

Petitioner willfully failed to disclose facts which would have constituted service, thereby establishing jurisdiction over respondent. Instead, petitioner chose to make the bold, unsupported assertion in its memorandum that jurisdiction had been waived.

Petitioner’s factual allegations, scant as they are, depict a proceeding which is foreign to our concept of due process. Except for the 1960’s television comedy about the fictional town of “Mayberry,” no one, learned in the law or not, believes that in America, a judge, party, and prosecutor who all share the same identity can render a decision that is given the weight of law. Even in “Mayberry,” the fact that the sheriff was also the justice of the peace and the mayor was part of the ridiculous scenario that made the show laughable.

Petitioner’s failure to disclose all pertinent facts leaves the court with the conclusion that the apparent identity of forum, moving party, and arbitrator renders the award unjust, inequitable, and unconscionable.

Despite being given a second opportunity by this court’s decree of October 6,2014 to provide specific facts concerning jurisdiction, and upon petitioner’s complete failure to do so, we conclude that the arbitration forum never obtained jurisdiction over respondent by either actual service or by voluntary submission.

While the trustee in this matter, Mr. Wirs, has exhibited great knowledge of legal terminology, nowhere has he or his attomey(s) attempted to address the question of jurisdiction and service, except to offer the untenable representation that neither is applicable. The failure to render an explanation as required by this court’s order is fatal to the claim and this court cannot give the arbitration hearing any legal recognition whatsoever.

This court is greatly concerned that an astute petitioner and more than one lawyer have failed to render what is, in our country a universal right, due process of law. Due process protects an entity from being subject to the binding judgments of a forum with which there are no meaningful “contacts, ties, or relations.” Kubick v. Letteri, 614 A.2d 1110, 1113 (Pa. 1992); Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 319, 66 S. Ct. 154, 160 (1945). “At a minimum, due process requires notice and right to be heard.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493(1985).

Further, an arbitration hearing is “not a wholly informal process and requires for its validity the observance of certain minimum standards indispensable to the securing of a fair and impartial disposition of the merits of the controversy.” Andrew v. CUNA Brokerage Servs., Inc., 976 A.2d 496, 501 (Pa. Super. 2009) quoting, Scholler Bros v. Otto A.C. Hagen Corp., 44 A.2d 321, 322 (Pa. Super. 1945). These minimum standards require that all parties are provided with proper notice, all the arbitrators sit at the hearing, each side is entitled to be heard and to be present when the other party’s evidence is being given, and, unless the submission allows a decision by a majority of the arbitrators, all must join in the award. Id.

Respondent Republican National Committee was never given an opportunity to be heard at the arbitration hearing. The only notice it received was an email notification sent two days before the alleged award was to be effective. The email notification failed to provide the specific details of the alleged arbitration hearing, such as the actual date the hearing was held, the place where the arbitration hearing was held, the arbitrators of the hearing, as well as the parties present at the hearing. The petitioner’s failure to provide this information further illustrates the lack of fundamental fairness and shows that the arbitration hearing was not a “fair and impartial disposition of the merits of the controversy.” Id. In summary, petitioner cannot raise an issue, give the respondent no notice of the hearing, prosecute that issue, decide in his own favor, and then expect a court to give it judicial recognition and enforceability by entering a judgment on its decision.

2. Petitioner’s Memorandum failed to comply with the Court’s Decree and provide the required information.

In its October 6th decree, the court ordered both parties to address only two issues: 1) whether the Orphans’ Court is the proper venue to confirm the arbitration and enter a judgment and 2) whether the arbitration forum had obtained jurisdiction over the respondent. Petitioner’s memorandum only briefly and summarily addressed the first issue. Then, instead of discussing the second issue of jurisdiction as directed, the petitioner avoids it by concluding that jurisdiction had been waived by the respondent five years ago. Contrary to the court’s decree and the court’s specific instructions to the parties on the record, the petitioner redefined the issue by answering that the court had no need of asking the question in the first place, since, for purposes of entering the requested relief, it only had a “ministerial duty.” In more gracious terms, petitioner has told the court to mind its own business.

Considering the lack of information in petitioner’s memorandum, the court cannot determine whether the arbitration forum had jurisdiction to enter the award and the court is left with no other choice but to find that petitioner failed to obtain jurisdiction over the respondent.

3. The Petitioner failed to timely comply with the Court’s Decree.

The court’s decree ordered that within 60 days of the date ofthe decree, bothparties were to submitmemoranda. Petitioner untimely filed his memorandum 64 days after the date ofthe decree. While this court will not dismiss the petition for this reason and shall make its decision on the merits, it is significant that petitioner has failed to comply, once again, with this order of court.

4. Petitioner failed to comply with the Court’s Decree by not addressing the issue of whether the Orphans’ Court had jurisdiction over this matter.

The court ordered the parties to concisely address whether Orphans’ Court is the proper venue to confirm the arbitration award and enter judgment. Just as with questions of jurisdiction over the person, questions as to subject matter jurisdiction are ones of utmost importance. Despite the petitioner’s failure to address this issue, this matter cannot be concluded without an analysis of the court’s authority to act in this matter.

Section 711 of the Pennsylvania Consolidated Statutes, states as follows: “...the jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division: ...(3) Inter vivos trust — the administration and distribution of the real and personal property of inter vivos trusts and the reformation or setting aside of any such trust...” 20 Pa. C.S. § 711(3).

The petition currently before this court was originally filed in Orphans’ Court but obviously does not fall within the grant of the jurisdiction to this court. With the dearth of facts, we are forced to assume that the inter vivos trust here was the arbitration forum, and the only property sought to be distributed was the property of respondent, who is obviously not a trust. Therefore, at first glance, this is not a matter of trust administration and/or distribution.

However, since this court is confronted with an inter vivos trust acting ostensibly outside its sanctioned usual activities with a cavalier disregard for propriety and legality, this court has jurisdiction to see that its administration conforms to law. It is certainly within the province of Orphans’ Court to prevent inter vivos trusts from being illegally used for improper purposes.

Conclusion

Few times has this court seen a petitioner write so much while informing so little. The basics as to the transaction, the entities involved, the forum’s award, and other vital information, despite this court’s best efforts, have been kept guarded secrets. The unwillingness of petitioner to let the tribunal’s actions be viewed with transparency, and the failure to prove the necessary elements of due process leave this court no recourse but to dismiss this matter. If an arbitration award is to be given the effect of and force of law, then the award itself must be demonstrated to have been obtained without violating our most basic legal beliefs. Since petitioner has been given an opportunity to cure its defects but has responded by defining our duties as only “ministerial”, we have no recourse but to dismiss this petition with prejudice, and therefore enter a decree as follows, to that effect.

DECREE

And now, this 2nd day of February 2015, upon consideration of petitioner’s petition to confirm arbitration award, hearing thereon, post hearing memoranda, and the court’s memorandum issued this date,

It is hereby ordered and decreed that the petition is dismissed with prejudice.

      . Petition to confirm arbitration award, p. 2.

      . Petition to confirm arbitration award, p. 3.

      . On The tecord conference, N.T. 10/02/14, p. 13-15.

      . Petition to confirm arbitration award, p. 3-4.

      . Petition to confirm arbitration award, p. 4.

      . Decree Dated 05/21/14, Control #14 1401.

      . Decree Dated 07/9/14, Control #141401.

      . Decree Dated 10/06/14, Control #14 1397.

      . Decree Dated 10/06/14, Control #14 1397.

      . Respondent’s motion to strike, Control #144010.

      . Petitioner’s motion for filing to be deemed as filed as of submission date, Control #150022.

      . On the record conference, NT. 10/2/14, p. 21, Exhibit P-I.

      . Decree Dated 10/06/14, Control #141397.

      . Respondent’s memorandum of law in response to court decree entered at the bar of court at I.

      . Id.

      . Petitioner’s memorandum of law in response to court decree entered at the bar of court at 1-3.

      . Decree Dated 10/06/1 4, Control #14 1397.


author: TUNNELL, J.,

text:
    Apex Community Federal Credit Union v. Arasin

      C.P. of Chester County,
    No. 2013-11073

      Robert L. Stauffer, for plaintiff.

      Brian J. Smith and Joseph A. Diorio, for defendants.
    Feb. 23, 2015-
   TUNNELL, J.,

On July 22, 2008, defendants Sandra Arasin and Randy Stetler borrowed $77,000.00 from Apex Community Federal Credit Union (“Apex”). In order to secure the Loan, Arasin executed a mortgage in favor of Apex on two properties located at 874-876 Cedarville Road, Pottstown, PA. After defendants admittedly defaulted under the terms of the Loan, Apex filed a complaint in mortgage foreclosure. Defendants answered the complaint and asserted the following defenses: (1) Apex cannot prevail on its claim because it provided defendant Arasin with a defective Act 6/91 notice and (2) the defense of recoupment, i.e. any damages Apex is entitled to recover must be reduced by the amount owed by Apex to defendants as a penalty for its violation of the Truth in Lending Act (“TILA”) and the amendment thereto, the Homeownership Equity Protection Act (“HOEPA”).

The matter came to trial on January 23, 2015.

For the reasons discussed herein, the court finds in favor of Apex.

FINDINGS OF FACT

1. Plaintiff, Apex Community Federal Credit Union (“Apex”), is a registered federal credit union doing business at 540 Old Reading Pike, Stowe, PA 19464.

2. Defendants, Sandra Arasin and Randy Stetler, reside at 874 Cedarville Road, Pottstown, PA 19454.

3. Arasin owns the real property located at 874 Cedarville Road, Pottstown, PA 19454. (PL’s. Ex. A.)

4. Arasin also owns the land located at 876 Cedarville Road, Pottstown, PA. (Id.)

5. On July 22, 2008, defendants borrowed $77,000.00 from Apex (the “Loan”).

6. In order to secure the Loan, Arasin executed a mortgage in favor of Apex on the property located at 874-876 Cedarville Road, Pottstown, PA (the “Mortgage”). (Id.)

7. The mortgage was filed and recorded in the Office of the Recorder of Deeds, Chester County, Book Number 7510 at page 91. (Id.)

8. At the time of the Loan’s inception, Apex provided Arasin and Stetler with closing documents. The loan documents included the Mortgage, a promissory note, a Form HUD-1, a note and fixed rate disclosure statement and a notice of the right to cancel.

9. Apex did not tender or deliver to defendants any other disclosures regarding the Loan.

10. Defendants concede they defaulted on the mortgage payments. (Def.’s FOF No. 5.)

11. Prior to instituting its foreclosure action, on March 1, 2012, Apex sent Arasin a combined Act 6 and Act 91 Notice (“Act 6/91 Notice”). (Pl.’s. Ex. D.)

12. The Act 6/91 Notice on page 2 incorrectly identified the address of the property subject to the mortgage and foreclosure, but correctly identified such property on page 4 under the section “How to Cure Your Mortgage Default.” (Id.)

13. Following their default and in order to avoid foreclosure, defendants filed several bankruptcies. The bankruptcy cases were unsuccessful.

14. A trial on this matter was held on January 23, 2015. All of the parties appeared and were represented by counsel.

DISCUSSION

Defendants concede that that they defaulted on their mortgage payments. (Def.’s FOF No. 7 and COL No. 10.) Notwithstanding these admissions, defendants argue that Apex’s claim fails as a matter of law because (1) the combined Act 6/91 Notice sent by Apex to defendant Arasin was defective and (2) defendants are entitled to statutory damages, pursuant to the TILA and HOEPA and asserted as a defense of recoupment, which would nullify any recovery.

Although both of these asserted defenses can implicate any number of legal issues and provisions of the TILA/ HOEPA, whether or not these defenses prevent Apex from recovering in this case turns on an initial question: does this foreclosure action involve a mortgage subject to these statutes, i.e. is it a “residential mortgage” securing a principal dwelling? If it is, then (a) the notice requirements of ACT 6 and 91 apply and an analysis of whether Apex’s Act 6/91 Notice was defective becomes necessary, and (b) the duties, obligations and remedies provided for in the TILA/HOEPA may be implicated, requiring further analysis of these statutes by this court. The court, therefore, begins with this threshold question.

1. Which mortgages are subject to the notice requirements of ACT 6/91?

Act 6 and Act 91 both delineate the notice requirements for a residential mortgagee seeking to institute a foreclosure action against a mortgagor. Wells Fargo Bank v. Spivak, 104 A.3d 720 (Pa. Super. 2014).

Pennsylvania’s Loan Interest and Protection Act, also known as “Act 6”, is a “comprehensive interest and usury law with numerous functions” that offers protection for homeowners with residential mortgages from “overly zealous residential mortgage lenders.” Beckett v. Laux, 395 Pa. Super. 563, 577 A.2d 1341, 1343 (1990) (internal quotations omitted); 41 Pa. Stat. Ann. § 101 (West 1999 & Supp. 2012), et seq. Act 6 requires that certain notice be given “[bjefore any residential mortgage lender may accelerate the maturity of any residential mortgage obligation, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation....” 41 Pa. Stat. Ann. § 101. The statute defines a “residential mortgage lender” as any person “who lends money...and obtains a residential mortgage to assure payment of the debt....” (Id.) A “residential mortgage” is defined as “an obligation to pay a sum of money in an original bona fide principal amount of the base figure or less, evidenced by a security document and secured by a lien upon real property located within this Commonwealth containing two or fewer residential units or on which two or fewer residential units are to be constructed and shall include such an obligation on a residential condominium unit.” {Id.).

The Homeowners Emergency Mortgage Assistance Program, also known as “Act 91”, requires a mortgagee who desires to foreclose to send notice to the mortgagor “advis[ing] the mortgagor of his delinquency...and that such mortgagor has thirty (30) days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to attempt to resolve the delinquency....” Beneficial Consumer Disc. Co. v. Vukman, 621 Pa. 192, 77 A.3d 547, 550 (2013); 35 P.S. § 1680.403c(a)-(b)(1), amended by P.L. 841, No. 60, § 2 (July 8, 2008)). “[T]he purpose of an Act 91 notice is to instruct the mortgagor of different means he may use to resolve his arrearages in order to avoid foreclosure on his property and also gives him a timetable in which such means must be accomplished.” Wells Fargo Bank, N.A. ex rel. Certificate Holders of Asset Backed Pass-through Certificates Series 2004-MCWI v. Monroe, 966 A.2d 1140, 1142 (Pa. Super. 2009).

Act 91 provides in pertinent part:

(a) The Pennsylvania Housing Finance Agency, hereinafter referred to as the “agency,” may make loans secured by liens on residential real property located in Pennsylvania... The provisions of this article shall not be applicable if:
(1) The property securing the mortgage is not the principal residence of the mortgagor.
(2) The property securing the mortgage is not a one or two-family owner-occupied residence.

Unlike Act 6, the terms included above and applicable in this case are undefined in the statute. See 35 P.S. §1680.103.

2. Which mortgages are subject to the provisions of the TILA/HOEPA and permit the defense of recoupment?

In 1968, Congress enacted the TILA, which governs the terms and conditions of consumer credit and requires lenders to disclose certain loan information such as loan fees and costs. 15 U.S.C. § 1601 et seq.; In re Crisomia, 2002 WL 31202722, at *3 (Bankr. E.D.Pa. Sept. 13, 2002). Congress enacted HOEPA in 1994 as an amendment to TILA. Pub.L. 103-325 (amending TILA at 15 U.S.C. §§ 1601-02, 1604, 1610, 1639-41, 1648); see also In re Jackson, 245 B.R. 23, 25 (Bankr. E.D.Pa. 2000). HOEPA requires lenders to provide borrowers with additional disclosures, in conspicuous type size, with respect to certain home mortgages. 15 U.S.C. § 1639(a)(1). Regulation Z was issued to implement TILA and HOEPA. 12 C.F.R. § 226.1 et seq.; Lopez v. Delta Funding Corp., 1998 WL 1537755, at * 7 (E.D.N.Y. Dec. 23, 1998).

The HOEPA requires certain disclosures at the time of the loan origination for “high cost” mortgages that reach certain designated triggers or thresholds. 15 U.S.C. § 1602(aa); 12 C.F.R. § 226.32(a). A “high cost” mortgage covered by HOEPA is a consumer credit transaction with a creditor:

3) that is secured by the consumer’s principal dwelling
4) and is a second or subordinate residential mortgage, not a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open credit plan

For such loans, a failure to satisfy the requirements of TILA/HOEPA can result in civil liability for the lender, which may be asserted as a matter of defense by recoupment. See 15 U.S.C.A. §1640.

The HOEPA, therefore, does not apply to credit transactions unless such transactions are secured by a property used or intended to be used as the mortgagor’s principal dwelling. 15 U.S.C. § 1603; see also Antanuos v. First Nat’l Bank, 508 F. Supp. 2d 466 (E.D. Va. 2007) (holding “TILA applies only to credit transactions secured by real or personal property used or expected to be used as the principal dwelling of the debtor”).

3. Is the subject mortgage a residential mortgage securing a principal dwelling and thus covered by Acts 6 and 91 and TILA/HOEPA?

In order to answer this question, the court must consider the transaction at issue and the properties subject to the mortgage.

On July 22, 2008, defendants borrowed $77,000.00 from Apex. In order to secure the Loan Arasin executed a mortgage in favor of Apex on the properties located at 874-876 Cedarville Road, Pottstown, PA. (Pl.’s Ex. A.)

The mortgage reads as follows:

Borrower does hereby mortgage, grant and convey to Lender the following described property located in CHESTER County, Pennsylvania:
*See Copy of legal description attached hereto as “Exhibit A” and made a part hereof.
Parcel#: 17-3-206 AND 17-3-205
whichhas the address of874-876 WEST CEDARVILLE ROAD POTTSTOWN
Pennsylvania 19645

{Id.)

Each parcel identified above has its own deed. The grantee named in each deed is Arasin. Both deeds were executed on June 26, 2008. The deed for Parcel 17-3-205 (876 Cedarville Rd.) was recorded in the Office of Recorder of Deeds of Chester County at Mortgage Book 6887, page 2125. The deed for Parcel 17-3-206 (874 Cedarville rd.) was recorded in the Office of Recorder of Deeds of Chester County at Mortgage Book 6887, page 2129. The mortgage was filed and recorded in the Office of the Recorder of Deeds, Chester County, Book 7510, page 91. {Id.)

Arasin and Stetler reside at 874 Cedarville Road, Pottstown, PA 19454. (Def.’s FOF, at ¶2.)

During closing argument at trial, defendants argued as defenses Apex’s alleged violations of the notice provisions required under Act 6/91 and the TILA/HOEPA. At the close of trial, the court requested that the parties brief the issue of the applicability of the TILA/HOEPA to this transaction and also to submit proposed findings of fact and conclusions of law for the case. The parties did so.

Plaintiff contends in its post-trial brief that the statutory defenses raised by Arasin pursuant to the TILA/HOEPA do not apply here because this foreclosure action does not involve a loan secured by a consumer’s principal dwelling. (Pl.’s COL, at ¶32; Pl.’s Brief, at pp. 1-2). It also argued that its Act 6/91 Notice, as provided, was sufficient. According to Apex, the subject of this mortgage foreclosure action is only Parcel No. 17-3-205 (876 Cedarville Rd.), unimproved land consisting of 5.480 acres. (Pl.’s FOF, at ¶6.) Although defendants challenge this argument and contend that it was not pled in the complaint, Apex did identify Arasin as the record owner of the real property and the land in separate paragraphs of its complaint. It averred that each was secured by the mortgage at issue. (Pl.’s Complaint at ¶¶5,6). If Apex now chooses to proceed against only one property, to the exclusion of the other, and in essence not prosecute a part of its claim, it may do so.

Considering all of the facts in this case, the court concludes that this loan transaction is a hybrid — partly secured by a principal dwelling and partly secured by unimproved land. The court was unable to locate any binding precedent which addressed a similar transaction. The court, however, found persuasive the reasoning of the Superior Court of Connecticut, which tackled a similar issue under the TILA, in the case of Bainer v. Citicorp Mortgage, Inc., 44 Conn.Supp. 148, 672 A.2d 541 (1994).

In Bainer, the Connecticut court was asked to consider whether a loan transaction that consisted partly of financing to acquire or construct a residence and partly of financing for other purposes would be exempt from the right of rescission provided for under the TILA — an exemption reserved for residential mortgage transactions. The court reasoned as follows:

Where a loan transaction is a hybrid, consisting partly of financing to acquire or to construct a residence and partly of financing for other purposes, the official staff interpretation of the Federal Reserve Board, Consumer Credit Guide ¶ 3416.03, comment 23(f)-3 (CCH 1994), indicates that the entire loan is exempt from the right to rescind as long as the two purposes are part of one transaction. If they are divided into separate transactions, such as a loan for acquisition and a subsequent loan for improvements, then only the loan for acquisition of the existing residence is exempt, and the right to rescind applies to the advances for improvement. Id.

Bainer, 44 Conn. Supp. at 154, 672 A.2d at 544.

Similarly in this case, there is a single loan transaction secured partly by a principal dwelling/residence and partly by land. The mortgaged property/land at 876 Cedarville Rd. is not a principal dwelling and defendants do not reside at that property. (Def.’s FOF, at ¶2.) Although argued by defendants, the fact that Apex provided a TILA document to them does not control whether or not this hybrid mortgage is covered by the statutes at issue. That conclusion of law is one left for the court, not the parties.

The court concludes that the mortgage securing 876 Cedarville Rd. is deemed to be other than a “residential mortgage” and is not a mortgage securing a principal dwelling as contemplated by the applicable statutory provisions. As such, the Mortgage does not fall within the parameters of Acts 6 and 91 or the liability provisions of TILA/HOEPA. See also, ROLAND E. BRANDEL, ET AL., TRUTH IN LENDING, A COMPREHENSIVE GUIDE § 4.03 [24] (2d Ed. 1994) (“The definition of dwelling under [TILA] includes all real and personal property that is used as a residential structure and that contains one to four units.”) (emphasis added).

4. Even if the provisions of Act 6 and 91 applied, Apex’s notice was not defective.

If the court had found that this action involved a residential mortgage, the Act 6/91 Notice sent to Arasin by Apex was not defective. Although it mistakenly listed Apex’s address on page 2 (Pl.’s Ex. D), the information allegedly omitted (the property address) was included in a later section of the Act 6/91 Notice at page 4. This section specifically discussed the steps defendants could take in order to avoid default. The typographical error identified did not result in a “defective” notice which precludes Apex from recovering on its claim.

5. Even if HOEPA applied, defendants are not entitled to assert the defense of recoupment.

Similarly, if the court had found that TILA/HOEPA applied in this case and the required disclosures were not made, defendants still would not be entitled to damages as a claim for recoupment.

Recoupment is only available under TILA as a “defense” in “an action to collect a debt”, 15 U.S.C. § 1640(e). In New York Guardian Mortgage v. Dietzel, 524 A.2d 951, 953 (Pa. Super. 1987) the court held:

An action in mortgage foreclosure is strictly an in rem proceeding, and the purpose of a judgment in mortgage foreclosure is solely to effect a judicial sale of the mortgaged property. Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964). A judgment in a mortgage foreclosure action is not a judgment for money damages and therefore cannot be “an action to collect amounts owed” or “an action to collect the debt” as required under § 1640(h) and (e) of the Truth-In-Lending Act.

See also, Green Tree Consumer Discount Co. v. Newton, 909 A.2d 811 (Pa. Super. 2006)(acknowledging that while recoupment may be a defense in some actions, party may not assert such defenses when seeking remedies under TILA and section 1640 in mortgage foreclosure action).

Based on the above, the court makes the following

CONCLUSIONS OF LAW

1. The court has jurisdiction over this matter pursuant to 41 Pa. C.S.A. §931(a).

2. Venue is properly set in the Court of Common Pleas of Chester County.

3. The court has concurrent jurisdiction with the federal district court to determine this claim. See 15 U.S.C. § 1640(e).

4. The mortgage was recorded properly at the book and page referenced above.

5. All necessary and required parties have been named, served and have participated in this case.

6. Defendants defaulted on the note and mortgage at issue.

7. Apex’s mortgage was not subject to the requirements of Act 6/91 and its Act 6/91 Notice, nonetheless, was not defective.

8. Defendants’ new matter included the defense of recoupment.

9. Apex’s mortgage was not subject to the requirements of TILA/HOEPA. Even if Apex’s Loan was subject to TILA/HOEPA, the defendant would not be entitled to a reduction of Apex’s judgment by virtue of the defense of recoupment.

An appropriate order follows.

ORDER

And now, this 23rd day of February, 2015, following a bench trial on January 23, 2015 and post-trial briefing by all parties, it is hereby ordered that

1. An in rem judgment only is entered in favor of plaintiff Apex Community Federal Credit Union in the amount of $98,360.29, identified as follows,

Principal: $76,083.84
Interest: $19,417.48
Late Charges: $ 858.97 (plus interest at 14.49%)

and other costs and charges collectible under the mortgage for foreclosure and sale of the mortgaged premises.

2. Plaintiff may foreclose only against the real estate located at 876 Cedarville Road, Pottstown, PA 19454, Parcel 17-3-205 recorded in the Office of Recorder of Deeds of Chester County at Mortgage Book 6887, page 2125 secured by the mortgage dated July 22, 2008 and recorded in the Office of the Recorder of Deeds, Chester County, Book Number 7510 at page 91.

      . To the extent defendants’ argument suggests that they have been prejudiced by Apex’s decision to move forward only against the land, the court concludes otherwise. First, Apex’s position removes defendants’ home from this foreclosure action. Second, defendants filed a reply brief challenging Apex’s arguments and that brief was considered by the court.

      . It should also be noted that although a TILA disclosure may have been required for the 874 Cedarville Rd. property, the same would not apply to the mortgage securing the land.