author: MINORA, J.,

text:
    Peoples v. Philbin

      C.P. of Lackawanna County,
    No. 2010-CV-6623

      Matthew Slocum, for plaintiffs.

      Timothy E. Foley, for defendants Dr. Joseph Philbin and Physicians Health Alliance.

      Patrick C. Carey and Brad 1. Williams, for defendants Dr. Jamie S. Stallman, Dr. JohnP. Iannone, and Radiological Consultants, Inc.
    Dec. 23, 2014-
   MINORA, J.,

The issue before the court is whether granting a motion for a judgment on the pleadings, in favor of the moving defendants Jamie S. Stallman M.D., John P. Iannone M.D., and Radiological Consultants, Inc. should be granted. For the reasons that follow the motion is granted.

PROCEDURAL AND FACTUAL HISTORY

This case arises out of alleged negligence, specifically the failure to timely detect or diagnose the presence of Hodgkins lymphoma, on the part of the defendants Joseph Philbin, M.D., Physicians Health Alliance, Jamie S. Stallman, M.D., John P. Iannone, M.D., and Radiological Consultants, Inc. Plaintiff alleges that she was seen by Dr. Philbin on August 2, 2006 as a new patient after experiencing a lump in her upper left chest with painful movement in her right chest. Initially, Dr. Philbin diagnosed the plaintiff with “...a mild anterior dislocation of the right rib at the CS Junction” and ordered a chest x-ray. On March 26, 2007, plaintiff underwent a chest x-ray at Advanced Imaging specialists that was read and interpreted by Jamie S. Stallman, M.D., one of the moving defendants who is employed by Radiological Consultants Inc. The finding and impression of Dr. Stallman was that of a “normal chest radiograph...”. Plaintiff alleges that Dr. Philbin never followed up with the plaintiff to discuss the x-ray results or the need for follow up testing.

In the subsequent months, plaintiff alleges that the size and of the lump in her chest increased and the pain on the right chest became more symptomatic. Plaintiff again went to Dr. Philbin on January 31, 2008 complaining of “...a painful lump left upper chest that is spreading to right chest”. Dr. Philbin allegedly did not check plaintiff’s symptoms or conduct an examination. Dr. Philbin ordered an “ultrasound right chest palpable mass soft tissue vs. ribs.” Plaintiff subsequently underwent an ultrasound, as directed by Dr. Philbin, of the soft tissue mass on her chest at advanced imaging specialists on February 4,2008 which was purportedly read and interpreted by John P. lannone, M.D. Dr. lannone’s finding and impression was “no evidence of suspicious mass nor cyst in the region scanned.” On September 29, 2008, plaintiff went to the Mercy Hospital emergency department after allegedly suffering from great abdominal pain. At this point in time, plaintiff was diagnosed with ovarian cysts and deemed to be significantly anemic.

On F ebruary 24,2009, plaintiff fainted at work and went to the Community Medical Center emergency department. An examination revealed a “ ...painful lump in the left side of the neck.” Plaintiff was discharged and the findings of the examination were sent to Dr. Philbin.

On April 17,2009, plaintiff was again allegedly seen in Dr. Philbin’s office where she complained of weight loss, fatigue, abdominal pain, excessive thirst, night sweats and urinary frequency. Dr. Philbin called the plaintiff to inform her that she demonstrated severe anemia. Dr. Philbin directed the plaintiff to go to the Moses Taylor Hospital Emergency Department on April 18, 2009. A blood count study was done which lead to a possible diagnosis of Hodgkins lymphoma the following day. The sites examined by Dr. Philbin and the moving defendants were found to be cancerous.

PROCEDURAL HISTORY

Plaintiff instituted this action by way of writ of summons on September 16, 2010, naming Joseph Philbin M.D. and Physicians Health Alliance as defendants. Plaintiff then filed a complaint on November 18, 2011 against Dr. Philbin and Physicians Health Alliance alleging negligence. Plaintiff then filed a motion to amend her complaint on May 15, 2013, seeking leave of court to add the moving defendants listed below. This honorable court granted the plaintiff’s motion to amend on May 15, 2013. Plaintiff filed an amended complaint the same day on May 15, 2013. moving defendants filed preliminary objections to plaintiffs amended complaint on July 15, 2013. On September 20, 2013, Judge Saxton overruled the moving defendants preliminary objections. Thereafter, Plaintiff filed a second amended complaint on September 20,2013 removing claims for corporate negligence.

Plaintiff’s second amended complaint alleges that Dr. Stallman allegedly misinterpreted an x-ray performed on March 26, 2007. Plaintiff further alleges that Dr. Iannone misinterpreted an ultrasound performed on February 5, 2008, which was a resulted in a delay in the diagnosis of the plaintiff’s Hodgkins lymphoma. Moving defendants filed an answer and new matter on October 4, 2013. Plaintiff filed an answer to moving defendants’ new matter on October 18, 2013. Moving defendants filed the instant motion for judgment on the pleadings on May 5, 2014. Defendants allege in their motion for judgment on the pleadings that: plaintiff did not file her claim with the two (2) year statute of limitations; plaintiff joined the defendants more than four years after her diagnosis; and that the discovery rule is inapplicable to the present suit.

LEGAL STANDARD

Entry of judgment on the pleadings is permitted under PennsylvaniaRule of Civil Procedure 1034, which provides that “after the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185 (Pa. Super. Ct. 2013). When considering a motion for judgment on the pleadings, the court must consider the pleadings and relevant documents, including preliminary objections, and must accept as true all well-pleaded statements of fact, admissions and any documents properly attached to the pleadings presented by the non-moving party. Com., Office of Attorney General ex rel. Corbett v. Richmond Tp., 975 A.2d 607 (Cmwlth. 2009).

In Pennsylvania, a cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion. Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 858 (2005). “[T]he statute of limitation begins to run as soon as the right to institute and maintain a suit arises.” Id. “[I]n a suit to recover damages for personal injuries, this right arises when the injury is inflicted.” Id. (citations omitted). Once a cause of action has accrued and the prescribed statutory period has run, an injured party is barred from bringing his cause of action. Id. Statutes of limitations “are designed to effectuate three purposes: (1) preservation of evidence; (2) the right of potential defendants to repose; and (3) administrative efficiency and convenience.” Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270, 275-76 (Pa. Super. Ct. 2005).

The following actions and proceedings must be commenced within two years:

(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another. 42 Pa.C.S.A. § 5524.

The purpose of the discovery rule has been to exclude from the running of the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware he has been injured, so that he has essentially the same rights as those who have suffered such an injury. Fine at 266-67, 870 A.2d at 858. “[Wjhen a court is presented with the assertion of the discovery rules application, it must address the ability of the damaged party, exercising reasonable diligence, to ascertain that he has been injured and by what cause.” Id. at 267-68, 870 A.2d at 858-859. Since this question involves a factual determination as to whether a party was able, in the exercise of reasonable diligence, to know of his injury and its cause, ordinarily, a jury is to decide it. Id. (citations omitted). Where, however, reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause, the court determines that the discovery rule does not apply as a matter of law. Id.

When the discovery rule applies, the statute of limitations does not commence to run at the instant that the right to institute suit arises, i.e., when the injury occurs. Id. (citations omitted). Rather, the statute is tolled, and does not begin to run until the injured party discovers or reasonably should discover that he has been injured and that his injury has been caused by another party’s conduct. Whether the statute of limitations has run on a claim is a question of law. for the trial court to determine; but the question as to when a party’s injury and its cause were discovered or discoverable is for the jury. Id. at 268, 870 A.2d 859. (emphasis added).

LEGAL ANALYSIS

Given the pleadings presented before us, this court finds that the plaintiff’s amendment is seeking to add moving defendants to this case after the expiration of the statute of limitations and after the “discovery rule” opportunity. Both parties have indicated and agree that the date of the plaintiff’s diagnosis of Hodgkins Lymphoma was in April of 2009. (See def’s br. for mot. for j. on Pleadings at 5); (See pi’s br. in opp’n to def’s mot. for j. on Pleadings at 1). As such, we will discuss the date of diagnosis substantively. After the Hodgkins Lymphoma diagnosis, plaintiff filed a writ of summons on September 16, 2010 and a complaint thereafter and November 18, 2011. Both pleadings named only defendants Dr. Philbin and Physicians Health Alliance. It was not until over two (2) years after the date of the initial filing, on May 15, 2013, that the plaintiff sought to amended her complaint to include the current moving defendants to this case after she conducted further investigations into her claims. There was no impediment, obvious to this court, which barred, blocked or obscured plaintiffs ability to conduct further investigations and inquiry into her claims in a more timely fashion once a proper diagnosis was communicated to her. Once the proper diagnostic information was known to plaintiff, reasonable diligence and/or reasonable inquiry by her would have resulted in timely knowledge of the existence of the new parties within the discovery rule.

Plaintiff’s reliance on the court in Ayers in attempting to persuade this court that the discovery rule should apply to toll the statute of limitations appears misapplied, misguided, and futile. Ayers is distinguishable. In Ayers, the plaintiff underwent an operation and suffered pain in his abdomen for several years after the completion of the surgeiy. Subsequent testing showed that a sponge had been left in his abdomen as a result of the negligence of the doctors who performed the operation nine (9) years earlier. The court held that the discovery rule will toll the statute of limitations until the existence of an injury can be reasonably ascertained or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence. Ayers, 397 A.2d at 288 (emphasis added). Examining the holding in Ayers, upon which the plaintiff so significantly relies, we are left to conclude that the plaintiff’s injury and cause of action against the moving defendants could and should have become knowable or discoverable with the exercise of reasonable diligence at least after proper diagnosis was conveyed to her. The same diligence plaintiff used in filing a claim against the originally named defendants also needed to be exercised in joining the additional defendants.

Plaintiff knew of her illness and became well aware of the possible negligence associated with her illness on the date of diagnosis or alternatively on the date of her initial filing of the writ of summons against Dr. Philbin and Physicians Health Alliance. This point is further illustrated by way of her alleging negligence against her treating doctor, Dr. Philbin and his medical association, Physicians Health Alliance in her original complaint filed on November 18, 2011.

Plaintiff’s assertions that she could not have reasonably known or discovered the abnormal findings earlier in time are unimpressive. The simple fact that a complaint was filed against the initial defendants is proof that the plaintiff knew of some reason that a lawsuit should be initiated regarding the care and treatment of the alleged illness. At this point in time, the plaintiff was under a duty to exercise all reasonable care and diligence available to her in pursuing her claim against any and all other defendants. The plaintiff failed to exercise due diligence in pleading claims against every party that could have been culpable or had a hand in the cause of the negligence. In the time between the plaintiff’s diagnosis of the illness and her filing the complaint, which was over a year and a half, the plaintiff could have and should have explored all possible avenues regarding what parties she may join in her lawsuit. Plaintiff was readily able to examine the opinions and diagnoses made by Dr. Stallman and Dr. Iannone during that time period, in the same way she was able to examine and scrutinize those of Dr. Philbin. Plaintiff’s failure to examine any cause of action against our moving defendants until after the entry of appearance of current counsel should not prejudice our moving defendants.

As stated earlier, the discovery rule merely tolls the statute of limitations until such time as an injury is known or should have been known by the injured party. Plaintiff knew of her diagnosis in April of 2009 and filed writ of summons in September of 2010 and thereafter, a complaint alleging negligence in November of 2011. Further, plaintiff filed her amended complaint against the additional defendants on May 15,2013, over four years after she was informed of her diagnosis. Therefore, the discovery rule, as stated in the Avers decision is inapplicable to the case at bar. As such, it will not allow the statute of limitations to toll, and thus will bar plaintiff’s claim against the moving defendants.

CONCLUSION

Therefore, the moving defendant’s motion for a judgment on the pleadings is granted, as the plaintiff is seeking to bring in additional parties after the statute of limitation for that cause of action has expired.

ORDER

Accordingly, this 23rd day of December, 2014 it is hereby ordered that the moving defendants motion for a judgment on the pleadings is granted, and Jamie S. Stallman, M.D., John R Iannone, M.D., and radiological consultants, Inc. are dismissed from this case and stricken from the caption.


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Marks v. Marks

      C.P. of Berks County,
    No. 13-16305

      Daniel I. Sager, attorney for plaintiff.

      John J. Grenko, Esquire, attorney for defendant.

      Gregory S. Ghen, guardian ad litem.
    Jan. 9, 2015-
   LASH, J.,

The matter before this court is the petition of plaintiff, Andrew Marks, (hereinafter “father”), to modify a custody order of this court entered on August 20, 2013. The parties are the natural parents of four (4) minor children. The parties reached an agreement regarding custody of the eldest minor child, by order of August 22, 2014, but continue to dispute custody of the youngest three (3) children. Trial was held on December 4, and December 16,2014. The court enters the following findings of fact:

I.FINDINGS OF FACT

1. Plaintiff, Andrew Marks, (hereinafter “father”), is an adult individual who currently resides at 119 West Fourth Street, East Greenville, Montgomery County, Pennsylvania 18041.

2. Defendant, Jennifer Marks, (hereinafter “mother”), is an adult individual who currently resides at 1396 Huff’s Church Road, Barto, Berks County, Pennsylvania 19601, but who intends to relocate to 233 Haas Street, Topton, Berks County, Pennsylvania, sometime in December of 2014. Mother’s intention to relocate was initially objected to by father, but the parties then reached an agreement at time of trial permitting mother to relocate.

3. The parties are the natural parents of five (5) children, with four (4) of them being minor children. The minor children include a son, A.M., bom Januaiy 1, 2000, a son, N.M., bom August 22, 2005, a daughter, M.M., bom August 1, 2007, and a daughter, H.M., bom October 6, 2008, (hereinafter “minor children”).

4. The custody order of August 20, 2013, sets forth, among other things, that the parties would share legal custody of the minor children, that mother would have primary custody of the minor children, and that father would have partial custody eveiy other weekend on Saturdays and Sundays, and every Wednesday evening. The order also provided that the parties would participate in co-parenting counselling through Gateway Counseling Services in Pottstown, Pennsylvania.

5. In his petition to modify, father alleges that it is in the best interests of the minor children to award him primary custody because mother has anger issues, as well as difficulty dealing with father and making appropriate accommodations with father for the minor children, that her relationship with the minor children has deteriorated, that the minor children have a greater bond with father, and that father would be better able to provide a stable and safe environment for them.

6. A revised custody stipulation was agreed to by the parties and entered as an order of court on May 30, 2014, making some modifications to the order of August 20, 2013. One of the provisions addressed father’s concern that the maternal grandfather, James Roberts, was exercising corporal punishment on the minor children. The parties agreed that this would no longer take place.

7. In an order entered by agreement on August 22,2014, the parties resolved custody of the eldest son, A.M., setting forth, among other things, that the parties would share legal custody, that father would have primary physical custody, and that mother would initially have supervised visits on either a Saturday or Sunday from 10:00 a.m. to 7:30 p.m., to occur every other weekend. Commencing October of 2014, she would then assume partial custody from Saturday at 10:00 a.m. to 7:30 p.m. and Sunday after Sunday School until 7:30 p.m., unless father or the guardian ad litem appointed believed that it would not be in the best interest to have unsupervised visits and could then petition the court to have the order modified.

8. On August 29, 2014, a temporary order was entered by agreement, setting forth that the parties would share physical custody of the three (3) youngest children on a 50/50, alternate week basis, with transfers to take place on Sunday at 7:00 p.m.

9. In addition to the subject minor children, father currently resides with his girlfriend, Kristen Heebner, the parties’ eldest daughter, Katherine, bom April 21, 1992, the eldest minor child, A.M., and Ms. Heebner’s daughter, Bridgette. Father and Ms. Heebner have resided together since May of 2014.

10. In addition to the subject minor children, mother resides with the maternal grandfather, James Roberts. When mother relocates to Topton, she will then reside with her boyfriend, Dan Adam, and his three (3) children, D.A., Jr., and two (2) thirteen year old twins, a daughter, A.A., and a son, B.A.

11. Both parties currently reside in the Upper Perkiomen School District. When Mother relocates, she will then be in the Brandywine Heights School District.

12. Gregory S. Ghen, Esquire, was appointed guardian ad litem by this Court on January 29,2014. Attorney Ghen has provided a report and recommendation dated April 14, 2014, a supplemental report dated July 18,2014, a second supplemental report dated August 1, 2014, and a third supplemental report, dated December 8, 2014.

13. Father is employed as a truck driver for Agliano Brothers Trucking, working Mondays through Fridays from 4:00 a.m. — 5:00 a.m. to 3:30 p.m. to 4:00 p.m., and sometimes as late as 6:00 p.m. on weeks he does not have the minor children. He also works some Saturdays.

14. Mother is employed at Southern Wine and Spirits of Pennsylvania located in Pottstown, Pennsylvania, working Mondays through Fridays from 9:00 a.m. to 5:15 p.m.

15. The minor son, N.M., has IEPs or modified instruction on all subjects at school. He has also been diagnosed with ADFED. N.M. had received Wraparound Services from Creative Health Services. Currently, there is family based counseling through PA Counseling, which incorporates counseling for all members of the household.

16. The minor daughter, M.M., has an IEP for speech.

17. The eldest minor child, A.M., has been charged with indecent assault-related offenses. The alleged victim is the youngest daughter, H.M. The incident is alleged to have occurred at mother’s home. Mother contacted children services, who began an investigation. Currently, A.M. is receiving rehabilitative counseling with Commonwealth Counseling. H.M. is counseling with Dr. Alison Hill. The juvenile delinquency petition is pending.

18. Mother had also commenced counseling for A.M. with Gary Law at the Penn Foundation. This began in February of 2014. However, mother ended the counseling after becoming involved in a dispute with Mr. Law. According to mother, Mr. Law lied to her.

19. The parties had attempted to engage in co-parenting counseling at one point, but the co-parenting counselor refused to continue, alleging that mother refused to be cooperative and was belligerent.

II. DISCUSSION

Father seeks primary custody of the subject minor children, while mother requests that the parties continue in a 50/50 arrangement. Because of her relocation, mother has offered to drive the minor children to school, with her boyfriend to pick them up, when she has custody of the minor children.

In making disposition, this court considered the testimony of the parties, father’s girlfriend, Kristen Heebner, mother’s boyfriend, Dan Adam, the parties’ eldest child, Katherine Marks, the maternal grandfather, James C. Roberts, Sr., mother’s sister, Linda Bieber, a targeted case manager from Service Access Management, Natasha Reyes, in camera conferences with all four (4) minor children, and the exhibits submitted by the parties.

The predominate issue raised by father and the reason he seeks primary custody is his concern about mother’s anger and its impact on the minor children. Father reports that mother’s anger problem is constant and of longstanding and can include raging behavior. He reports that the minor children have complained to him and want to spend less time with her because of her disagreeable nature. Father points out that the eldest two (2) children want to have no contact with her. He believes that her corporal punishment is excessive, as she uses wooden spoons, and in one case, she broke the spoon while striking one of the minor children. She was involved in an altercation with Mr. Law and tried to get him removed as A.M.’s therapist. She was angry about the report of the guardian ad litem and wanted him removed. She is in denial about her problem, projecting blame for the parties’ problems on father and other individuals. According to the minor children, there is also alcohol abuse. With all that being said, it appears that if mother would adequately resolve her anger issues, the parties could work together in a 50/50 custodial arrangement.

Mother disputes father’s categorizations. She believes that he and the minor children exaggerate, for what they label as “anger,” she considers appropriate discipline. She relates that the minor children will sometimes refuse to acknowledge her admonitions, causing her, after several warnings, to “raise her voice.” She admits that she does use corporal punishment, occasionally using a wooden spoon, but that the punishment is reasonable, not excessive. She states that father can “press her buttons” causing her aggravation. Nevertheless, she states that she has set up an evaluation to determine whether she does have an anger problem. Until an expert tells her that she has this problem, she will not concede that this is the case. She also denies that she is abusing alcohol.

The reports of the guardian ad litem provide insight. In his first report, the guardian sets forth certain problems he finds with both parties, calling this a “disturbing case.” He states that father downplays or denies the allegations of sexual abuse by A.M. The guardian believes that father thinks that mother has orchestrated these allegations because of the developing enmity between her and A.M. The guardian was also very concerned about father’s housekeeping, as the household is extremely cluttered and sloppy, especially important when considering that A.M., who the guardian believes should be residing with father, has an asthmatic condition.

Regarding mother, the guardian finds extensive turmoil in her household, both with A.M. and with the eldest daughter, Katherine. Katherine provided a list of complaints, including her concern that mother makes her do all the housework, mother has an alcohol problem, mother threatens to hit her, mother tried to get her admitted to a mental hospital, mother is threatening A.M. that she will have him declared a juvenile delinquent, mother physically abuses the minor children, striking them with a wooden spoon, and mother’s temper is extremely bad and can include raging, particularly if she has been drinking alcohol. The guardian notes that there is an “ongoing mental, emotional and physical abuse by mother.”

In his second report, the guardian notes that mother continues to harass A.M. and “target” him for alienation, also refusing to take A.M. to his scheduled therapy with Mr. Law, causing him to suffer emotionally and mentally. Further, mother attempted to have Mr. Law removed as a therapist. She also attempted to have the guardian removed after she obtained a copy of his initial report. He states that mother allows the other minor son, N.M., 8 years old at the time, to shoot firearms with the maternal grandfather, contrary to father’s wishes, and without any professional training. The guardian recommended that father have sole legal custody and primary physical custody, with mother to be restricted to supervised visits.

The second supplemental report discussed the therapy of A.M. with Mr. Law, which father wants to see continue, as he believes that A.M. and Mr. Law have a good relationship, but which mother opposes. From this, the guardian requested that father be granted sole legal custody of A.M.

Finally, in his third supplemental report, the guardian reported on his view of mother’s proposed new home in Topton. He found the house to be appropriate. He was satisfied with mother’s boyfriend, Mr. Adam, and his children, who were well behaved. He then recommends that father be granted primary physical custody and sole legal custody, with mother to have supervised visits only, until she moves into Mr. Adam’s home, and at that time, she would receive partial custody and a 50/50 schedule during the summer months.

The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

Section 5328(a) of Pennsylvania’s child custody law sets forth certain factors which the court shall consider, if relevant, in determining the best interests of the minor children, giving weighted consideration to any factors which affect the safety of the minor children. The first factor addresses “which party is more likely to encourage and permit frequent and continuing contact between the [minor children] and another party.” While mother has been denied access to A.M., this problem was not orchestrated by father, but is primarily due to the estrangement between mother and A.M. and is pursuant to recommendations of the guardian ad litem. Otherwise, both parties appear to recognize that the other parent should have access to the minor children, despite their differences. This factor does not favor either party.

The next factor concerns 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 [minor children] or an abused party and which party can better provide adequate physical safeguards and supervision of the [minor children].” Father claims that mother’s corporal punishment has been abusive. She yells and screams at the minor children. She strikes them with a wooden spoon and has broken one over a child’s behind. On one occasion, she chased one of the minor children with the wooden spoon. The anger and screaming also impacts on the minor children emotionally and psychologically.

Mother claims that father has been abusive to her in the past. She states that he has pushed and shoved her around and was verbally abusive. She claims that he put a choke hold on her approximately nine (9) years ago.

There is also the issue of the juvenile charges against A.M. for his alleged indecent assault of H.M. pending disposition of the juvenile charges, A.M. and H.M. are in counseling.

As will be discussed more fully later in this opinion, mother has a serious problem with managing her anger. Accordingly, it is extremely likely that she acts out of anger when the minor children misbehave, rather than administering the discipline dispassionately. This court finds father’s version of mother’s corporal punishment to be credible. The complaint against father is remote in time. Father does not presently pose a safety problem for mother or any of the minor children.

The problem between A.M. and H.M. will be addressed through the juvenile court proceedings, with safeguards provided in the order for this case. This factor favors father.

The next factor relates to “the parental duties performed by each party on behalf of the [minor children].” Mother testified that she has been the parent who has performed the lion’s share of the day-to-day maintenance for the minor children. When the parties resided together, father was often unavailable due to his employment commitments. Mother would handle feeding, clothing, and oversight of the minor children. She would attend to their educational and medical concerns. After separation, mother continued to perform these functions.

Father complains, however, that mother would often assume control of appointments, not giving father the opportunity to participate. Nevertheless, father has become active with the educational and medical concerns and is involved with the minor children’s maintenance when they are residing with him. At this juncture, both parties adequately address these minor children’s needs and, therefore, this factor does not favor either party.

The next factor addresses “the need for stability and continuity in the [minor children’s] education, family life and community life.” Mother’s circumstances are less stable, as she is involved in moving from the maternal grandfather’s home to the home of her boyfriend. Mother will now be residing in a different school district and will be residing farther away from father’s residence. That being said, the guardian ad litem was satisfied with mother’s new residence in Topton. There does not appear to be any significant environmental problems. As mother is only seeking shared physical custody, the minor children will continue to attend the same school district regardless of this court’s decision. Father has provided a stable household in the same school district and pledges to continue to do so. This factor favors father but only slightly.

The next factor concerns “the availability of extended family.” Both sides have family members who interact with the minor children. That being said, there are issues with mother’s side of the family. She is estranged from the maternal grandmother. The maternal grandfather has caused concerns for Father and this court. He was involved in an altercation with A.M., which was inappropriate. He apparently sees no problem with taking N.M. out to practice shooting, despite father’s objections, and the fact that N.M. has not had proper safety training. This factor favors father.

The next factor addresses “the [minor children’s] sibling relationships.” The minor children get along with father’s girlfriend’s daughter, Kristen, who watches them periodically, and also gets along with mother’s boyfriend’s two (2) children. The only concern here relates to the allegation against A.M. regarding his illicit involvement with H.M. This factor does not favor either party.

The next factor concerns “the well-reasoned preference of the [minor children], based on the [minor children’s] maturity and judgment.” This court conducted an in camera interview with each of the four (4) minor children separately, with the attorneys present. This court will publish a separate addendum to this opinion, setting forth the minor children’s statements to the court. This addendum is to be sealed from view of the parties and the general public.

The next factor addresses the “the attempts of a parent to turn the [minor children] against the other parent, except in cases of domestic violence where reasonable safety measures are necessaiy to protect the [minor children] from harm.” As stated, mother is estranged from A.M. and the parties’ eldest daughter, Katherine. Mother asserts that this estrangement is due, at least in part, from father’s orchestrations. Father counters that the issues raised by mother regarding A.M.’s contact with H.M. may have resulted from mother’s agenda to separate father and A.M. from the rest of the family. In fact, the parties and the minor children’s hard feelings are not the result of attempts at alienations by either party but results from mother’s continuing anger problem and Father’s response thereto. This factor does not favor either party.

The next factor addresses “which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the [minor children] adequate for the [minor children’s] emotional needs.” There is no doubt that father is much better equipped to foster the minor children’s positive emotional development. He has the capacity to nurture. All of the minor children love him and appear to respect him. Mother, conversely, appears more interested in feeding her desire to be mad at the world. She does not appear to consider the consequences resulting from her outbursts and her undercurrent of anger. The emotional climate in mother’s household cannot be healthy for these minor children. This factor favors father.

The next factor questions “which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the [minor children].” Both have shown that they are capable of doing this. Mother has, as she stated, been very actively involved in the maintenance, education, and medical needs of the minor children. Father has become involved since the parties’ separation. He has been very active in the educational areas and is able to converse regarding the minor children’s progress in school and his discussions with the teachers. This factor favors mother, but only slightly.

The next factor addresses “the proximity of the residences of the parties.” As stated, mother has moved farther away from father’s residence, which has increased the travel time between households. Father initially objected to this, but since mother is not seeking primary custody and since the greater distance is not substantial, the relocation has not adversely impacted on the parties or the minor children. This factor does not favor either party.

The next factor addresses “each party’s availability to care for the [minor children] or ability to make appropriate child-care arrangements.” This has not been a concern. When the minor children are at father’s house, if he is unavailable, the parties’ eldest daughter or father’s girlfriend’s daughter is available to care for them. Father’s girlfriend is also available at certain times. In mother’s household, mother’s boyfriend can assist. This factor does not favor either party.

The next factor relates to “the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. The conflict continues to be high. Mother’s anger issue is the primary concern. Mother presents herself as an unhappy woman, with a constant undercurrent of anger, which comes to the surface anytime something seems to bother her, which is often. This court has observed mother’s anger problems on several occasions. At a previous hearing, mother was barely able to control herself, requiring stem admonition from this court. At trial, she was much more subdued, probably after receiving strong warnings from her legal counsel, but nevertheless the anger issue did manifest itself on occasion, in the form of disdain or arrogance, particularly during times of cross examinations. Because of this anger, she has no relationship with two of her children or her mother, and has been at odds with the guardian ad litem and Mr. Law. Her minor children are under stress when with her and in varying degrees want to spend less time with her and more with father. Although her anger is obvious to anyone whom observes her, she does not appear to recognize the nature or extent of the problem, insisting on waiting for the results of an evaluation before she will conclude that there is something that needs to be addressed.

Because of Mother’s anger problem, this case, which could be handled very simply and by agreement, becomes difficult. The anger is a simple waste of time and energy, with no redeeming value. Instead of trying to draw her minor children and others closer to her, as people generally do, mother appears to prefer pushing them away. The tension in the atmosphere when she is present is palpable and clearly is harmful to the minor children. If Mother could simply learn to accept her responsibility, recognize what she is doing to herself and the minor children, also recognizing the lack of value in her attitude, then change her ways, the minor children would benefit, and would want to spend much more time with her. Setting aside the anger issue, Mother has the capacity to be an excellent mother. She loves the minor children and is very attentive to their daily needs. Father appears to think that a 50/50 arrangement would make sense if mother would simply get past the anger. Mother has not currently shown any capacity to do this and, therefore, this factor strongly favors father.

The next factor addresses “the history of drug or alcohol abuse of a party or member of a party’s household.” There was no allegation of drug abuse. There is an allegation, primarily from the minor children, that Mother has issues with alcohol. Mother admits that she enjoys a drink at the end of the day, particularly after the minor children have gone to bed. She sees no problem with this. Because of medications she is on, she has to limit her intake to a measured out portion.

Whether Mother has an issue with alcohol or whether her use of alcohol affects her problems with anger was not established. In fact, there was no reference to any incidents that did or could have caused harm to the minor children and were directly related to Mother’s use of alcohol. While this court has some concerns about Mother’s commitment to alcohol, at this juncture, this factor does not favor either party.

The last factor concerns “the mental and physical condition of a party or member of a party’s household.” Neither party has any physical conditions that would hamper their ability to care for the minor children. Mother’s anger problem may be related to a mental pathology and, if so, certainly affects her custodial status, for reasons already set forth. Since her anger issue has been addressed previously, however, this court will not weigh this factor against her.

For all the reasons set forth, this court awards primary physical custody to Father. That being said, if mother would recognize her anger problem and address it satisfactorily, the 50/50 arrangement would then become more appropriate, and this court would entertain a modification on informal motion. In essence, this decision is based on a prevalent problem which must be addressed. Either the anger problem is removed through Mother’s own actions or is circumvented through limitations on her time with the minor children. A big part of the issue is her denial, refusing to accept what is obvious to everyone else who is around her. If she does become introspective and recognize what she is doing to herself and the minor children and makes the necessary changes, the minor children’s capacity to thrive would be greatly improved.

This court enters the following order:

ORDER

And now, this 9th day of January 2015, after trial held, custody of the parties’ minor children, N.M., bom August 22, 2005, M.M., bom August 1, 2007, and H.M., bom October 6, 2008, (hereinafter “minor children”), shall be as follows:

1. The parties shall share legal custody of the minor children.

2. Plaintiff, Andrew Marks, (hereinafter “father”), shall have primary custody of the minor children.

3. Defendant, Jennifer Marks, (hereinafter “mother”), shall have partial custody every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.

4. The parties shall alternate the following holidays: Labor Day, Thanksgiving, Easter, Memorial Day, and Fourth of July from 10:00 a.m. to 7:30 p.m.

5. The parties shall share Christmas as agreed. However, it is understood that mother shall have each and every Christmas morning with the minor children. Father shall be entitled to have Christmas Eve with the minor children until 8:00 p.m.

6.Mother shall have Mother’s Day and father shall have Father’s Day each year from 10:00 a.m. to 7:30 p.m.

7.Both parties shall be entitled to one (1) week of vacation with the minor children. They do not need to take a full week if they do not so desire. However, they shall not take any vacation during the other parent’s weekend. The parties shall provide each other with contact information, including the address and telephone number of any hotel where they may be staying while on vacation.

8. The holiday and vacation schedules shall take precedence over the regular custody schedule.

9. The minor children, once they are 12 years of age or older, shall be permitted by either parent, with adult supervision, to operate riding lawn mowers, without cutting deck engaged, and sports utility vehicles, provided they are not on the road. While neither party shall permit the minor children to drive any other motorized vehicle, tractor, truck, or farm equipment, until said minor child reaches the age of 16, the minor children shall be permitted by either party, with adult supervision, to operate and ride four-wheeler/ATVs, provided they wear helmets.

10. Due to allergy and asthma concerns with the minor children, neither party shall allow the minor children to unload hay and straw wagons.

11.The paternal grandfather should not be permitted to provide any child with access to firearms or permit the minor children to shoot firearms, without the express consent of both parents, and without prior proper training for firearms.

12. Neither mother nor father shall use corporal punishment of any kind to discipline the minor children, nor shall they allow any other adult in their household or in whose care they entrust the minor children to use corporal punishment to discipline the minor children. The parties shall be solely responsible for disciplinary decisions involving the minor children while in their care or respective households and that while other members of the household may assist in following through and enforcing a disciplinary decision made by mother or father, other members of the household may not impose a disciplinary decision or punishment on the minor children.

13. The parties’ minor child, A.M.’s, contact with the minor child, H.M., shall be supervised by an adult, and shall be in accordance with any order of juvenile court, pending disposition of pending juvenile court proceedings. The appropriateness of unsupervised contact between these minor children shall ultimately be decided by juvenile court.

14. Mother shall engage in therapy to address her problems with anger management, continuing in these sessions until the therapist believes these sessions are no longer necessary or until further order of court. Mother shall pay the costs for these sessions.

15. The parties shall share the transportation for all periods of physical custody as they agree. If the parties cannot agree, each party shall pick up the minor children from the home of the other party.

16. This order shall be considered a final order finally resolving the issues raised in the petition of plaintiff, Andrew Marks, to modify a custody order of this court entered on August 20, 2013.

17. If either party is planning to relocate with the minor children and the relocation will significantly impair any other party’s exercise of custodial rights, the relocating party is obligated to provide a detailed notice and counter-affidavit by certified mail, return receipt requested, to all individuals who have custody rights to the minor children at least sixty (60) days in advance of the proposed relocation in compliance with 23 Pa. C.S.A. Section 5337.

18. The final custody order entered by this court on August 22, 2014 shall remain in full force and effect.

19. The attached appendix shall be made a part of the within order.

APPENDIX TO CUSTODY ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on all parties. Violation of any of these rules could become the subject of contempt proceedings before this court, or could be grounds for modification of this order. The word “child” is used below, but these rules apply to all the children in the order. If any of these general rules conflict with any specific provisions of the order, the order shall control.

1. In addition to the rights in the order, all parties shall also have the following rights with respect to the child:

A. The right to reasonable telephone contact with the child when they are in the other party’s custody.
B. The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain information directly from the child’s school or medical practitioner.
C. The right to be informed in advance before any important decision is made concerning the child and the opportunity to participate in those decisions.

2. In the event of any serious illness of the child at any time, the party then having custody of the child shall immediately communicate with the other parties by telephone or by any other means, informing the other parties as to the nature of such illness. During such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

3. None of the parties shall alienate or permit an attempt by anyone else to alienate the child from the other parties. While in the presence of the child, none of the parties shall make any remarks or do anything which is derogatory or uncomplimentary to the other parties and it shall be the duty of each party to uphold the other parties as ones the child should respect and love.

4. Both parties shall provide each other with the addresses and telephone numbers of where they will be staying anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three (3) days.

5. The parties shall not conduct arguments or heated conversation in the presence of the child or when the child can overhear the argument.

6. The parties shall at all times consider the child’s best interests, and act accordingly. It is in a child’s best interest for the parties to understand that the child is trying desperately to cope with the fact of his or her parents’ separation, and needs help in loving both parents and any other involved parties.

7. Neither party shall question the child as to the personal life of any other party except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on any other party. It is harmful to a child to be put in the role of spy.

8. The parties should remember that they cannot teach the child proper moral conduct if that party is indulging in improper conduct. Children are quick to recognize hypocrisy, and the party who maintains a double standard will lose the respect of the child.

9. Weekend and evening custody shall be subject to the following general rules:

A. Arrangements should be worked out beforehand between the parties without forcing the child to make choices and run the risk of displeasure. However, the child shall be consulted as to their schedules when appropriate.
B. Custodial rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other parties and to the needs and desires of the child.
C. If a party finds himself or herself unable to pick up or drop off the child at the designated or agreed to time, he or she should give immediate notice to the other parties to avoid subjecting the child to unnecessary worry or failed expectations.
D. The party having custody of the child should prepare them both physically and mentally for the transfer of custody to another party and should have them available at the time and place designated in the order or mutually agreed upon.
E. If any party or the child has plans which conflict with their scheduled custodial time and they wish to change their custodial time, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and the parties should be flexible for the sake of the child.
F. If a party shows up to begin their custodial time with the child and the party is under the influence of alcohol or drugs, the custodial time may be considered forfeited on those grounds alone.

10. If any party feels that another party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.

      . 23 Pa. C.S.A. Section 5328(a).


author: MOTTO, P.J.,

text:
    Commonwealth v. Anderson

      C.P. of Lawrence County,
    No. 734 of 2012, CR

      Diane M. Shaffer, for Commonwealth.

      Lawrence J. Keith, for defendant.
    Jan. 12, 2015-
   MOTTO, P.J.,

Before the court for disposition is defendant’s omnibus pretrial motion consisting of a motion to suppress and a motion for writ of habeas corpus. The motion for writ of habeas corpus is premised upon the granting of the motion to suppress.

The criminal information filed in this case consists of fourteen counts; to wit: two unclassified felony counts of possession of a controlled substance with intent to deliver, in violation of §13(a)(30) of the Controlled Substance, Drug Device and Cosmetic Act; two counts of criminal Conspiracy, unclassified felonies, in violation of §903 of the Crimes Code; two counts of possession of drug paraphernalia, unclassified misdemeanors, in violation of §13(a)(32) of the Controlled Substance, Drug Device and Cosmetic Act; and eight misdemeanor counts of criminal conspiracy, in violation of §903 of the Crimes Code, all counts of criminal conspiracy relating to an alleged illegal agreement for possession with intent to deliver or simple possession of various controlled substances.

Defendant contends that the controlled substances and contraband seized from his residence must be suppressed as having been obtained utilizing a warrant that was the fruit of an initial unlawful warrantless entry into defendant’s residence in violation of the fourth amendment of the united states constitution. New Castle City police officers entered defendant’s residence in response to a dispatch reporting a domestic disturbance at defendant’s residence, with the officers responding thereto and entering the residence as the result of the dispatch and what they observed upon their arrival. As the result of the warrantless entiy into the residence, contraband was observed in plain view, which formed the basis for the issuance of a warrant to search the premises.

The dispositive issue in this case is whether, as an exception to the requirement of a warrant, and based upon the totality of the circumstances, exigent circumstances existed that provided to police officers a reasonable belief that an occupant of defendant’s apartment was in danger or in need of immediate aid, justifying the warrantless entry.

Statement of Facts

On June 26, 2012, Corporal Steven Brooks of the New Castle City Police Department received a dispatch for a domestic disturbance that was reportedly occurring at 215 E. Lincoln Avenue, Apartment No. 2, in the City of New Castle. The police dispatcher had received information from an unknown caller that a male and female were arguing loudly, that there was “some banging on the walls” and that the caller “believed that the dispute may have been physical.” The dispatcher had provided this information to corporal Brooks. Corporal Brooks responded to the call and arrived at the apartment on Lincoln Avenue with New Castle City Police Officers Hallowich and Vitale. When the officers approached Apartment 2, they found the front door open. The officers could hear a male voice inside the apartment yelling. The officers could see the male straight through the back of the apartment. The officers walked in, approached the male and made contact with him. The male whom the police officers observed was the defendant. Corporal Brooks directed the defendant to step outside. Defendant complied, and officer Hallowich stayed outside with the defendant.

Corporal Brooks next made contact with a female located in the bathroom of the apartment. Corporal Brooks walked through the kitchen into the bathroom to make contact with her. The female was identified as Christine Collier. Ms. Collier advised corporal Brooks that the encounter was not physical in nature and that they were just arguing loudly. At this point, officer Vitale advised Corporal Brooks that he observed in plain view a plastic bag with a white powdered substance, a digital scale, a bag of suspected marijuana, and a hollowed out cigar in the kitchen area. As a result, Corporal Brooks instructed Ms. Collier to leave the residence as he was going to secure the residence and obtain a search warrant. Ms. Collier complied and stepped outside.

After Ms. Collier stepped outside, defendant ran away. The police officers engaged in a foot chase with the defendant, and defendant was apprehended. Both defendant and Ms. Collier were then taken to the police station. A search warrant was obtained on the residence. As a result of the search, the police recovered four small rocks of crack cocaine; a bag of heroin, twenty-six individual pieces of tin foil containing heroin; marijuana; and items of drug paraphernalia.

When the defendant ran, all of the officers at the scene, except for New Castle City Police Officer Newton, chased after the defendant. When officer Newton walked to his patrol car, Ms. Collier went back into the apartment and flushed some of the items that were in plain view on the kitchen counter down the toilet.

The police officers observed no blood or sign of injury on defendant or on Ms. Collier, no weapons were observed at any time, the apartment was not broken up nor was there any sign that any physical violence had occurred inside of the apartment. There were no signs that anyone had engaged in a struggle inside the apartment from the officers’ vantage point, looking in from the open door. All that was observed by police that would indicate any kind of disturbance was the defendant yelling in the direction of the bathroom, the room in which Ms. Collier was located.

Corporal Brooks specifically stated that the reason he walked into the apartment through the open door was because of the nature of the call was a domestic and he felt he had to check on all parties that could have been involved for their welfare. Corporal Brooks further testified that officer vítale entered the apartment with him because it is common practice and procedure when responding to a domestic case or an alleged domestic case that another officer accompanies the officer who initially enters the residence because domestics are a volatile potential for violence against another party and the officers.

DISCUSSION

The fourth amendment of the United States Constitution, made applicable to the states by the fourteen amendment to the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The legal standard to be applied where police will be excused from the warrant requirement has been set forth in Commonwealth v. Potts, 73 A.3d 1275 as follows:

Generally, the police will be excused from compliance with the warrant and probable cause requirements of the fourth amendment to the United States Constitution in only limited circumstances. One of these circumstances is whenthepolicereasonablybelievethatsomeone within a residence is need of immediate aid. Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783, 795 (2009), cert. denied, 559 U.S. 1051, 130 S.Ct.2345, 176 L.Ed.2d 565 (2010)(Citations omitted.). Additionally, it is widely recognized that situations involving the potential for imminent physical harm in the domestic context implicate exingencies that may justify limited police intrusion into a dwelling in order to remove an item of potential danger. Commonwealth v. Wright, 560 Pa. 34, 742 A.2d 661, 664 (1999)(citations omitted). The relevant inquiry is “whether there was an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.” Michigan v. Fisher, 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009)(citation and internal quotations marks omitted). “[T]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly involving”. Ryburn v. Huff, _ U.S. _, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012)(Citation omitted).

Commonwealth v. Potts, 73 A.3d at 1280, 1281.

In Commonwealth v. Potts, Supra, the issue before the Superior Court was whether the totality of circumstances justified the police officers’ reasonable belief that they needed to enter defendant’s apartment to ensure that another occupant was not in danger or in need of immediate aid. The facts in Potts were that police officers responded to a 911 call for an alleged domestic dispute. Upon arriving at the subject apartment building, police officers heard screaming and yelling. After entering the apartment building, the police officers realized that the screaming and yelling were coming from what was later determined to be the defendant’s second floor apartment. Police officers knocked on the door of the apartment for approximately twenty seconds, and the screaming and yelling stopped. When nobody answered the door, police officers drew their weapons. After another ten seconds, Ms. Young opened the door. Miss Young was observed to be distraught, her clothes were disheveled and she was sweating, crying, and breathing heavily. Defendant ran into a bedroom and shut the bedroom door. Ms. Young then walked into the living room but left the front apartment door open. The officers then put their guns away and entered the apartment walking behind Ms. Young. Ms. Young identified the defendant as her boyfriend. The officers then directed the defendant to come out of the bedroom while Ms. Young sat on the couch. When defendant came out of the bedroom he was sweating badly, seemed very scared and was shaking. At this point the officers were concerned for their own safety as well as the safety of Ms. Young. The officers therefore, as a precautionary measure, went into the bedroom to do a safety inspection and observed an open black suitcase filled with a large amount of marijuana on the floor in front of a bed. The officers limited their investigation for their own protection to the living room and the bedroom of the apartment. When narcotics officers arrived, they requested a search warrant and secured the premises. Defendant was taken into custody and transported to the police station. A search of the apartment was not conducted until a search warrant was obtained. The search incident to the search warrant yielded additional contraband.

Based upon the foregoing facts, the Superior Court concluded in Potts that the totality of the circumstances justified the police officers’ reasonable belief that they needed to enter the defendant’s apartment immediately and without a warrant to ensure that Ms. Young was not in danger or in need of immediate aid. The court noted that when the officers heard the screams emanating from the defendant’s apartment, this corroborated the report of screaming in the distress call and further indicated that screaming had gone on for “quite some time.” The screaming stopped when the officers knocked on the door. When Ms. Young opened the door she was noticed to be “veiy distraught,” appeared to be crying, and was sweating although it was a cold day in January, and her breathing was “really heavy” and her clothes “disheveled.” From the open doorway the defendant was observed running into a bedroom directly behind the living room and shutting the door behind him.

Although it has been held that the “combustible nature of domestic disputes” provides “great latitude to an officer’s belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute was in danger” as held in Tierny v. Davidson, 133 F.3d 189 (2d. Cir. 1998); nevertheless, federal courts have consistently held that domestic violence situations are not per se exigent and that “there is no domestic abuse exception to the fourth amendment, generally.” U.S. v. Black, 466 F.3d 1143 (9th Cir. 2006) Opinion amended and superseded on other grounds, 482 F.3d 1035 (9th Cir. 2007). As stated in U.S. v. Black, Supra, at 1145, 1146, the exigencies of domestic abuse cases present dangers that may, in an appropriate case, override considerations of privacy (citing United States v. Brooks, 367 F.3d 1128, 1136 (2004) and that although domestic abuse cases do not create a per se exigent need for warrantless entry, the court must evaluate on a case by case basis whether the “total circumstances presented to the law officer...relieved the officer of the customary need for a prior warrant.”

In the recently decided case of Commonwealth v. Davido, _ A.3d _, WL 7182086 (Pa. 2014) filed December 15, 2014, the Pennsylvania Supreme Court found exigent circumstances justifying a warrantless entry into a residence existed in a case where a 911 call reported domestic abuse, in so ruling, the Supreme Court, while acknowledging that it is widely recognized that the potential for imminent physical harm in the domestic context implicates exigencies that may justify a limited police intrusion into a dwelling, (citing Commonwealth v. Wright, 560 Pa. 34, 742 A.2d 661, 664-65 (Pa. 1999), the court specifically stated that domestic abuse cases do not create a per se exigent need for warrantless entry; rather, the totality of the circumstances presented to the officer must be assessed to determine if exigent circumstances existed as to allow entry without a warrant.

In Davido, the 911 call reported with specific detail that a man was beating a woman inside a residence, and a separate report indicated screaming could be heard from the residence; however, when officers arrived, no sound could be heard and no one answered the door. Upon these facts, the court held that exigent circumstances existed to justify a warrantless entry by the police to locate a victim in need of assistance.

Here, the relevant inquiry is whether there was an objectively reasonable basis for believing that medical assistance was needed or persons within the apartment were in danger. Corporal Brooks testified that he walked into the open door of the apartment because the nature of the call was a domestic and that he had to check on all parties that could have been involved for their welfare. This explanation for entry into the apartment suggests a per se exception to the warrant requirement for cases involving reports of domestic disturbances. The court here holds that such standard does not exist in Pennsylvania and that an examination of the totality of the circumstances is necessary to determine whether police officers had a reasonable belief that someone within the apartment was in need in medical attention or was in danger.

In the cas&sub judice, the information that the dispatcher received was that a male and female were arguing loudly and there was some banging on the walls and that the caller believed that the dispute may have been physical. Arrival by the police at the apartment corroborated only that a male individual was yelling. There was no screaming by anyone within the apartment who could have been considered to be a victim of any domestic abuse nor corroboration of any banging on the walls or corroboration of any assertion that the dispute was physical in nature. The door to the apartment was “wide open” and the defendant could be seen in the apartment and could be heard yelling. There was no sign of a struggle or of physical violence. No blood was observed. No one was observed to be disheveled or breathing heavily. No clothing was ripped and nothing in the apartment was testified to as being out of place.

The court here concludes that based upon the facts of this case, police officers did not have an objectively reasonable basis for believing that any occupant of the apartment was in need of medical assistance or was in danger; therefore, the warrantless entry into defendant’s apartment was unjustified and violative of the fourth amendment to the United States Constitution. The within case is clearly distinguishable from Commonwealth v. Potts, supra, where, in addition to the yelling, the police officers also heard screaming from Young; observed that the screaming and yelling stopped when they knocked on the door and that the door was not answered promptly; further, when Young finally opened the door she was observed to be distraught, her clothes were disheveled and that she was sweating, crying and breathing heavily. Defendant in Potts was then observed to run into a nearby bedroom and shut the door. Davido is also distinguishable in that the 911 report provided specific detail as to a woman being beaten within a residence and a separate report provided information to police that a woman was heard screaming within the apartment, but upon arrival, the police were met with silence and no response to knocking on the door.

The additional factors that existed in thePote and Davido do not exist in the case before the court for consideration. All that exists in this case is that police officers heard yelling within the apartment and eventually observed the defendant yelling within his apartment. Hearing yelling in an apartment simply does not give rise to a reasonable belief that someone within the apartment is in need of medical attention or is in danger. To hold that the police have a right of warrantless entry into a residence in such circumstances would emasculate the privacy protections of the fourth amendment. Although the court recognizes that a determination of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly involving, as held in Ryburn v. Huff, Supra, there does not exist a per se exclusionary rule for reports of domestic violence and the totality of the circumstances test must be applied in cases involving an alleged domestic dispute.

For the foregoing reasons, the court will enter a separate order granting the defendant’s motion to suppress evidence and defendant’s motion for writ of habeas corpus since the Commonwealth cannot establish a prima facie case without the suppressed evidence.

ORDER OF COURT

And now, this 12th day of January, 2015, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s omnibus pretrial motion in the nature of a motion to suppress evidence and a motion for writ of habeas corpus is hereby granted and all evidence seized as the result of the entry into and search of the defendant’s apartment is hereby suppressed and shall not be used against the defendant at any proceeding in this case. Additionally, since the Commonwealth cannot establish a prima facie case without the suppressed evidence, defendant’s motion for writ of habeas corpus is granted and all charges filed against the defendant at the above term and number are hereby dismissed and the defendant is discharged relative thereto.


author: HODGE, J.,

text:
    Whetzel v. Whetzel

      C.P. of Lawrence County,
    No. 11491 of 2008, C.A.

      William M. Panella, for Lewis J. Clinkscale

      Susan M. Papa, for Clint Robinson

      Bradley G. Olson, Jr., for Angel L. Whetzel

      Danelle M. Whetzel, pro se
    Jan. 20, 2015-
   HODGE, J.,

Before the court for disposition is defendant’s petition for relocation. The defendant, Angel Whetzel (hereinafter, “mother”) is the natural mother of five minor children: Lynniah Clinkscale, bom March 27, 2012; Casen Clark, bom September 6, 2009; Donovan Whetzel, bom October20,2006; D’Aliyah Whetzel, bom September 24, 2001; and Chantel Searcy, bom November 26, 1996. Danelle Whetzel is the natural father of Donovan Whetzel and D’Aliyah Whetzel. Lewis Clinkscale is the natural father of Lynniah Clinkscale. The natural fathers of Chantel Searcy and Casen Clark have not been involved in the instant custody proceedings, nor are they involved in the respective children’s lives.

Clint Robinson (hereinafter, “maternal grandfather”) is the maternal grandfather of all of the minor children, maternal grandfather initiated custody complaints at Case Number 11060 of 2012, Civil Division and Case Number 10114 of 2013, Civil Division. At the remaining cases, numbered 11491 of 2008, civil division, and 10671 of 2012, civil division, maternal grandfather petitioned the court to intervene, which request was uncontested by the respective parties.

On June 17, 2014, maternal grandfather filed a petition for special relief, alleging that mother moved from her prior residence in New Castle, Pennsylvania to Campbell, Ohio without providing the requisite notice, pursuant to 23 Pa.C.S.A. §5337. Maternal grandfather requested temporary primary physical custody of the minor children pending a hearing, which was granted by this court. Mother subsequently filed a petition for special relief, wherein mother requested primary physical custody be returned to her pending a final hearing. The court denied mother’s request but preserved her argument for consideration at the hearing on maternal grandfather’s petition for special relief scheduled for August 6, 2014. On August 6, 2014, the parties appeared before the court and requested to brief the issue of whether maternal grandfather had standing to request primary custody of the minor children given mother’s failure to comply with 23 Pa.C.S.A. §5337. On August 29,2014, this court issued an order confirming maternal grandfather’s standing in these proceedings and again directed mother to file a petition for relocation in conformity with 23 Pa.C.S.A. §5337. On September 10,2014, mother filed a petition for relocation. In her petition, mother stated that she moved from New Castle, Lawrence County, Pennsylvania to Campbell, Mahoning County, Ohio. Mother averred that she has a stable and secure residence, which is close to her current employer. Additionally, mother is attending Youngstown State University, and mother’s move would enable mother to maximize her time with her children while maintaining employment and attending school. Maternal grandfather objected to mother relocating with any of the minor children. Lewis Clinlcscale objected to mother relocating with Lynniah. Danelle Whetzel did not oppose mother’s relocation with Donovan Whetzel and D’Aliyah Whetzel.

In 2011, the Pennsylvania Legislature adopted a new Child Custody Act (“Act”), effective on January 24,2011. See 23 Pa.C.S.A. §§ 5321-5340. The new Act applies to “disputes relating to child custody matters” filed after the effective date of the new law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011), we held that the Act applied to any proceeding, including a petition for relocation, initiated by afiling made after the effective date of the Act. Thus, the standards set forth in the Act must be considered by the court in evaluating mother’s request to relocate with the minor children. Section 5337(h) of the Act mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child. The specific factors enumerated by Section 5337(h) are listed in the following discussion and addressed by the court in turn.

(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life.

Mother has been the primary caregiver for all of the minor children since their birth. Mother’s relationship with each of the minor children is strong, and with the exception of the past few months when this court directed that maternal grandfather have primary custody, the children have primarily relied on mother to provide them with all of their daily needs.

It must be noted that mother’s oldest child, Chantel Searcy, will continue to live with maternal grandfather even after a resolution of these proceedings. Mother and maternal grandfather have agreed that it is in Chantel’s best interest to remain with maternal grandfather so she can complete her secondary education in the New Castle Area School District. Given Chantel’s age and academic stability in her current school district, the court accepts this arrangement as being in Chantel’s best interests. The remaining portion of the court’s analysis shall therefore only apply to the remaining four children.

Additionally, mother’s youngest child, Lynniah Clinkscale, has remained with mother despite this court’s June 17, 2 014 Order providing maternal grandfather with primary custody of the minor children. Maternal grandfather provided mother with custody of Lynniah because of her young age. Lewis Clinkscale, Lynniah’s father, continues to object to mother maintaining custody of Lynniah in Campbell, Ohio, but has made arrangements with mother and maternal grandfather to regularly see Lynniah while mother’s petition for relocation is pending before the court.

Alternatively, maternal grandfather also has a close relationship with the minor children, and he stated that he has always tried to make himself available to mother and the minor children. Maternal grandfather stated that his home will always be available to the children, and he remains dedicated to their needs. Lewis Clinkscale also presents himself as a capable and caring father to Lynniah, and the testimony establishes that Lewis Clinkscale has consistently worked to secure a parental bond with Lynniah after being granted partial custody.

The court is unsure of Danelle Whetzel’s relationship with the minor children, Donavan and D’Aliy ah. The testimony only inferred that Danelle Whetzel is involved to some degree and that he does not oppose mother’s relocation.

(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.

The children range in age from two years, five years, eight years and thirteen years old, respectively. If the relocation is granted, Donovan and D’Aliy ah will have to change school districts, which became a contentious factor during the hearings. Maternal grandfather presented considerable testimony regarding mother’s tendency to move whenever she faces obstacles in her personal life. Maternal grandfather stated that D’Aliyah has attended four different school districts during the course of her life. Donavan has only attended the New Castle Area School District and Casan is currently in preschool.

Maternal grandfather proposes that the court direct mother to return to New Castle so that the minor children can continue in their currently scholastic placements. However, the court views this proposal to be completely unrealistic given the fact that mother moved more than six months ago and is established in her current residence.

Alternatively, if mother’s request to relocate is denied, and the children remain with maternal grandfather, they may ultimately have to change school districts because maternal grandfather resides in the Mohawk Area School District. While these proceedings have been pending, the New Castle Area School District permitted the children to continue to attend school in its district because the disposition of the children’s residence was uncertain.

Maternal grandfather also raised serious concerns about the fact that mother will have to place two of the minor children in daycare while she works and attends school. Maternal grandfather argued that, given mother’s schedule, on some days, the children may be in daycare for nine hours. While the court would prefer that the children be cared for in a familiar setting, the court understands that daycare may be the only viable option for some parents. Additionally, maternal grandfather permitted mother to maintain custody of Lynniah, and she has attended daycare for several months, without issue.

Given maternal grandfather’s extensive testimony regarding his desire to care for the minor children and his extensive support system, the court believes that mother and maternal grandfather should overcome the differences bred by this litigation and work together to care for the minor children.

(3) The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

Under the prior custody orders, maternal grandfather enjoyed partial custody as agreed upon by the parties. Mother and maternal grandfather both stated that maternal grandfather had a liberal visitation schedule and that mother rarely denied his requests to see the minor children. Given the close proximate between maternal grandfather’s residence and mother’s current residence, the court sees no reason why this arrangement could not continue.

With respect to Lewis Clinkscale’s ability to effectuate a partial custody schedule with Lynniah, for the same reasons set forth above, the court does not believe mother’s relocation creates a barrier to father exercising custody.

(4) The child’s preference, taking into consideration the age and maturity of the child.

The preferences of the children were not presented to the court given their young age.

(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.

Maternal grandfather and Lewis Clinkscale both believe that mother’s desire to relocate was in response to Lew Clinkscale being awarded partial custody of Lynniah. Maternal grandfather stated that, both he and mother had serious concerns about Lewis Clinkscale becoming involved in Lynniah’s life because he has a prior criminal conviction from the state of Florida. Lewis Clinkscale completed all of the statutory requirements necessary prior to being awarded custody by this court, but mother’s concerns resonated even after the court determined that Lewis Clinkscale was not a threat to his daughter.

The court believes that his argument has merit. However, since moving, mother has demonstrated an ability to communicate with Lewis Clinkscale and has not attempted to prevent Lewis Clinkscale from visiting with Lynniah. The court hopes that any concerns mother has previously fostered are now diminished, and that mother can continue to communicate appropriate for their mutual benefit as well as their child’s benefit.

(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.

Mother stated that her move to Campbell, Ohio was prompted by the fact that she obtained employment in the area. Prior to mother’s relocation, mother was unemployed for a period of six months. Additionally, mother’s relocation enabled mother to attend classes part-time at Youngstown State University without a long commute. Mother acknowledged that when she is working or at school the children will have to attend day-care if they are not in school themselves, but mother testified that by relocating, she can work and attend school while maximizing her time with the minor children. If mother stayed in New Castle, mother would face an hour commute to school on top of a considerable commute to work. The court finds that mother’s relocation alleviates a lot of stress mother would otherwise incur, while giving mother the ability to spend more time with her children. These factors are clearly an enhancement to mother’s quality of life.

(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.

The court believes that mother’s proposed relocation will benefit the minor children because it will enable the minor children to resume the lifestyle previously enjoyed by the children with mother as their primary caregiver. Maternal grandfather has done an exceptional job caring for the minor children will mother’s request to relocate was pending, but the court cannot ignore the fact that mother has been the primary caregiver for all the children since their birth.

Additionally, mother’s relocation will not interfere with maternal grandfather’s ability to maintain his relationship with the minor children, nor will it interfere with Lewis Clinkscale’s ability to maintain his relationship with Lynniah.

(8) The reasons and motivation of each party for seeking or opposing the relocation.

As previously stated, mother’s motivation in moving was to minimize her commute while she worked and attended school. Mother stated that her move enables her to spend as much time as possible caring for the minor children in light of her work and school schedule.

Maternal grandfather and Lewis Clinkscale oppose the relocation because they are concerned that mother has a history of moving. Maternal grandfather and Lewis Clinkscale believe that mother’s pattern of relocation inhibits the children’s need for stability and continuity.

(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.

The court was not presented with any allegations of abuse committed by the parties or sustained by the children. This factor shall not be incorporated by the court in its analysis.

(10) Any other factor affecting the best interest of the child.

The court cannot complete its discussion without addressing mother’s attempt to relocate with the minor children without the consent of the parties or permission of the court. On one hand, mother’s relocation is not drastic. Furthermore, after a full hearing, the court can reasonably conclude that mother’s relocation will not substantially impact the custody rights of the non-relocating parties. However, mother’s failure to properly communicate her intentions with maternal grandfather and Lewis Clinkscale has unnecessarily upset the children’s lives for the past six months. The court’s June 17,2014 order, granting maternal grandfather temporary custody was not an attempt to punish mother for failing to comply with Pennsylvania’s relocation statute, but rather an attempt to ensure that the children’s best interests would be served by permitting them to move to Campbell, Ohio with mother. The court in good consciousness cannot reach such a conclusion without an agreement by all parties or a full evidentiary hearing.

After thoroughly reviewing all the testimony and evidence presented, the court concludes that it is appropriate to grant mother’s petition to relocate. Consistent with this opinion, the court will enter the following order of court:

ORDER OF COURT

And now, this 2nd day of January, 2015, this matter being before the court for a hearing mother’s petition to relocate, with the maternal grandfather, Clint Robinson, appearing and being represented by Susan M. Papa, Esquire, the natural mother, Angel Whetzel, appearing and being represented by Bradley G. Olson, Jr., Esquire, the natural father at Case No. 10671 of 2012, C.A., Lewis Clinkscale, appearing and being represented by William M. Panella, Esquire, and with Danelle M. Whetzle, not appearing, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. Mother’s petition to relocate, filed on September 10, 2014 is granted.

2. The court finds that mother’s request to relocate with the minor children is in the children’s best interests, and that the relocation will not result in a substantial impairment to the interested parties’ partial custody rights.

3. Mother is therefore permitted to relocate to Campbell, Mahoning County, Ohio with the minor children, Lynniah Clinkscale, bom March 27, 2012; Casen Clark, bom September 6, 2009; Donovan Whetzel, bom October 20, 2006; and D’Aliyah Whetzel, bom September 24,2001.

4. Pursuant to the agreement of the parties, maternal grandfather, Clint Robinson the minor child, is awarded primary custody of the minor child, Chantel Searcy, bom November 26, 1996.

5. The temporary custody order entered on June 17, 2014 is hereby vacated.

6. All custody orders entered prior to June 17,2014 are hereby reinstated and reaffirmed.

7. A Review conference shall be scheduled upon motion of any interested party.

8. The prothonotary shall properly serve notice of this order of court and opinion upon counsel of record for the parties and upon any unrepresented party at their last known address as contained in the court’s file.

      . Lynniah Clinkscale is the subject minor child of the custody action initiated at Case Number 10671 of 2012, Civil Division.

      . Casen Clark is one of two subject minor children of the custody action initiated at Case Number 10114 of 2013, Civil Division.

      . Donovan Whetzel is the subject minor child of the custody action initiated at Case Number 11491 of 2008, Civil Division.

      . D’Aliyah Whetzel is one of two subject minor children of the custody action initiated at case number 10114 of 2013, Civil Division.

      . Chantel Searcy is the subject minor child of the custody action initiated at Case Number 11060 of 2013, Civil Division.