author: TUNNELL, J.,

text:
    Acero Precision v. Bonelli

      C.P. of Chester County,
    No. 2014-05245

      Thomas G. Wolpert, for plaintiff.

      John Guernsey, for defendants.
    Oct. 15, 2014
   TUNNELL, J.,

OnApril 1,2014, James Bonelli resigned as a manufacturing engineer machinist for Acero Precision and went to work for Vistek Medical, Inc., a company which competes with Acero in some aspects of the medical device industry.

Acero brought this action to enforce a non-competition covenant. It filed a complaint for breach of contract and other claims. It also sought preliminary and permanent injunctive relief.

Preliminary injunction hearings were held in September 2014. By stipulation, the parties agreed that these would constitute the final hearing on the merits as to all claims. For the reasons discussed herein, the court finds in favor of defendants and against Acero on all claims, denies Acero’s request for permanent injunctive relief, and awards attorneys’ fees to Bonelli.

Findings of Fact

1. Plaintiff, Acero Precision (“Acero”), and defendant, Vistek Medical, Inc. (“Vistek”), are both contract manufacturers.

2. A contract manufacturer fabricates a part on behalf of an original equipment manufacturer (“OEM”) pursuant to the OEM’s specifications. (See N.T. 9/9, 25-26 (J. Miller).)

3. Acero manufactures and machines parts for the automotive, industrial, analytical, and medical industries. (See N.T. 9/8, 28 (M. Fitzgerald).)

4. Vistek primarily manufactures and machines parts for the medical device industry. (N.T. 9/8,139 (J. Miller).)

5. The manufacturing process for medical devices must meet the standards of the International Standards Organization (“ISO”). ISO standards assure control quality. ISO requirements are not confidential or proprietary. (N.T. 9/8, 83-84 (M. Fitzgerald).)

6. Defendant, James Bonelli (“Bonelli”), has over twenty years of experience as a machinist, engineer, and manager in the manufacturing and machining industry with specialized experience as a computer numeric control (“CNC”) machinist using both Star and Citizen brand Swiss machines. (P-13.)

7. A Swiss machine is a machine that combines the capabilities of both mills and lathes. Star and Citizen are the two main brands of Swiss machines.

8. From approximately November 2010 to April 2014, Bonelli was employed by Acero.

9. Bonelli has been employed by Vistek since April 2014.

10. Just prior to his employment at Acero, Bonelli was employed in western Pennsylvania as an operations manager at Smart Parts, an OEM sports equipment manufacturer, where he oversaw thirty-five Swiss machines and sixty employees. Bonelli was forced to relocate and find new employment when Smart Parts effectively ended operations after declaring bankruptcy. (P-13; N.T. 9/8,163-64 (J. Bonelli).)

Bonelli’s Employment At Acero

11. In November 2010, Bonelli accepted conditional employment at Acero as a Manufacturing Engineer Technician in Newtown Square. (N.T. 9/8, 42 (M. Fitzgerald); 118 (D. Watson); 165 (J. Bonelli).)

12. Bonelli was then hired in 2010 as a full-time employee after successfully completing his trial period and relocated to West Chester, Pennsylvania for his new position. (N.T. 9/8, 42 (M. Fitzgerald), 119 (D. Watson).)

13. Acero provided Bonelli with no formal training; he had to learn on-the-job. (N.T. 9/8, 93 (M. Fitzgerald).)

14. As part of the hiring process, Bonelli was required to sign a restrictive covenant agreement entitled “Employment Agreement/Relating to Confidential Information, Trade Secrets and Non-Competition” (the “2010 agreement”) and dated November 30, 2010. (N.T. 9/8, 167-68 (J. Bonelli).)

15. The 2010 agreement contained the following non-competition provision:

During the period of two (2) years following the date of termination of the employee’s term of employment with the employer, the employee without the express prior written consent of employer will not compete in any way with the employer directly or indirectly, and will not consult with or have any interest in any business, firm, person, partnership, corporation or any other entity, whether as employee, officer, director, agent, security holder, creditor, consultant or otherwise, which engaged in the performance of or provides services to any individual or entity or which competes with employer directly or indirectly, in any aspect of the business of employer at any location within one hundred (100) miles of any location or geographical area which shall have been designated in writing by employer as the Principal Place of Assignment of the employee at any time within the last two (2) years of the employee’s term of employment with employer.

(P-2.)

16. The one hundred mile non-compete radius from Acero’s locations in Newtown Square and West Chester, PA includes such cities as Philadelphia, Harrisburg, Allentown, Scranton, Wilmington, DE, Trenton, NJ, Newark, NJ, New York, NY, and Baltimore, MD.

17. Thus, under this provision, Bonelli would be prevented from being employed in the manufacturing industry for two (2) years after separating from Acero unless he relocated beyond the geographic restriction.

18. The 2010 agreement also contains non-disclosure of confidential information and non-solicitation of Acero customers covenants. (Id.)

19. At Acero, Bonelli led a manufacturing group of eight (8) Star brand Swiss machines and oversaw approximately four (4) to eight (8) machinists contained within the group from time to time. (N.T. 9/8, 91 (M. Fitzgerald); 119 (D. Watson).)

20. Bonelli was also responsible for operating one (1) to two (2) of those machines at a time. (N.T. 9/8, 91 (M. Fitzgerald); 120 (D. Watson).)

21. Bonelli and his group were responsible for determining how to fabricate a customer’s product pursuant to the customer’s specifications articulated on a shop drawing. (N.T. 9/8, 119,121 (D. Watson).)

22. Although Bonelli provided time estimates to develop projected manufacturing costs, Bonelli was not responsible for either sales or pricing at Acero. (N.T. 9/8, 114 (M. Fitzgerald); 131 (D. Watson); 169-70 (J. Bonelli).)

23. Bonelli was eventually given the title of “Manufacturing Engineering Manager,” however, his core job functions remained the same. (N.T. 9/8, 119 (M. Fitzgerald).)

24. Bonelli expressed interest in acting as a training manager, a position that was discussed with Acero but never created for him. (N.T. 9/8, 97 (M. Fitzgerald).)

25. In addition, Bonelli expressed interest in the open position of manufacturing manager in charge of Swiss machining, however, Acero did not promote him to that position, which still remains open. (N.T. 9/8, 97-98 (M. Fitzgerald).)

26. Throughout his time at Acero, Bonelli’s direct supervisor was long-time Acero employee Dave Watson, Director of Operations. (N.T. 9/8, 117-18 (D. Watson).)

Acero revises its Employee Handbook and requires all employees to sign anew Restrictive Covenant Agreement.

27. During the fall of 2013, Acero contracted with an outside human resources (“HR”) company, McCloskey Partners (“McCloskey”), to outsource its HR functions and revise its Employee Handbook (the “Handbook”). (D-60 at 8 (J. Fitzgerald); P-19 at 17-20,27 (H. McCloskey).)

28. Acero had multiple versions of restrictive covenants on file for employees, and some employees had no agreement on file at all. Acero wanted its employees to have one uniform agreement to protect against employee resignations. (D-60 at 15-16 (J. Fitzgerald); P-19 at 76 — 77, 80-82, 105-06 (H. McCloskey).)

29. Thus, as part of the Handbook revision process, Acero directed McCloskey to include a new restrictive covenant agreement in the Handbook and as a separate agreement. (N.T. 9/8, 103-04 (M. Fitzgerald); D-60 at 17, 19-20 (J. Fitzgerald); P-19 at 82-86 (H. McCloskey).)

30. Around December 2013, the Handbook was finalized and distributed to Acero managers, including Bonelli, in a meeting conducted by McCloskey. (N.T. 9/8, 127-28 (D. Watson); 9/9, 68-69 (J. Bonelli); P-19 at 40-41,47 (H. McCloskey).)

31. Acero directed the managers to have their direct reports sign an acknowledgement of receipt of the Handbook. (N.T. 9/8, 126-29 (D. Watson); D-60 at 8-9 (J. Fitzgerald).)

32. In January 2014, Acero held another meeting to present the revised Handbook to all its employees and required all employees to sign a two (2) page document to acknowledge their receipt and understanding of the Handbook. (N.T. 9/8,126-29,132 (D. Watson).)

33. At that time, Acero also directed its employees to sign a separate document entitled a “Confidentiality, Non-Solicitation and Non-Competition Agreement” (the “2014 agreement”) and return their signature pages. (N.T. 9/8, 125-29, 132-34, 137-38 (D. Watson); D-60 at 9 (J. Fitzgerald); P-19 at 99-100 (H. McCloskey).)

34. All 73 Acero employees signed the form of the 2014 agreement, including Mike Fitzgerald, President of Acero, and Dave Watson. (N.T. 9/8, 111 (M. Fitzgerald); 136 (D. Watson); 9/9,54-55 (M. Fitzgerald); D-60 at 9,14 (J. Fitzgerald).)

35. Acero retained the 2014 agreement signature pages for all 73 employees in hardcopy and electronically. (D-60 at 10-11 (J. Fitzgerald).)

36. The terms of the 2014 agreement are less restrictive to the employees as they relate to non-competition and the 2014 agreement even adds a term for payment. (P-7.)

37. The 2014 agreement provides in relevant part:

I agree that, notwithstanding anything herein to the contrary, upon termination for any reason other than “Bad Acts,” of employee’s employment with employer, the employer may, in its sole discretion and by delivery of written notice to employee within thirty (30) days after the time his/her employment is terminated, elect to continue to pay employee, for a period of up to one (1) year, his/her salary at the time of such termination, such payments to be made in accordance with employer’s ordinary and usual payroll practices and procedures (the “non-compete pay”). It is understood however that employer may elect to discontinue such non-compete pay at any time prior to the end of the period initially elected by employer by written notice to the employee no less than fourteen (14) days prior to discontinuation (e.g. if employer initially elects to continue payment for six (6) months but then after nine (9) months into the one (1) year period decides that it no longer desires to pay employee the non-compete pay, then it may elect at such time to discontinue the same with fourteen (14) days prior written notice to employee). The period during which non-compete pay is paid to employee hereunder shall be referred to herein as the “non-compete pay period.” In the event that the Employer elects not to pay Employee Non-Compete Pay, or in the event the Employer elects to discontinue Non-Compete Pay at any time during the Non-Compete period, then all “No Competition ” covenants and restrictions in this Agreement shall no longer be enforceable against the Employee. Employee acknowledges and agrees that: (i) employer has no obligation to pay him/her the non-compete pay; (ii) if employer elects to pay employee non-compete pay then the same is in exchange for the covenants given by employee under this agreement, and employee hereby reaffirms the same; (iii) any non-compete pay paid to employee hereunder will be based upon his/her annual base salary at the time of termination of employment (excluding any commissions, bonuses or other compensation); and (iv) in the event that employee breaches any term of this agreement during a non-compete pay period then, as a result of such breach, employer shall be entitled to discontinue, and/or off set against with respect to any damages incurred, any remaining payments of non-compete pay otherwise owed to employee during such non-compete pay period, however, employee’s obligations during such non-compete pay period shall continue the same as if the non-compete pay continues to be paid.

(P-7 (emphasis added).)

38. The 2014 agreement also provides: “Should the employer or employee file a claim and or lawsuit, the losing party will pay the other parties’ attorney’s fees.” (P-7; N.T. 9/8,103 (M. Fitzgerald).)

39. Bonelli signed and dated the Handbook receipt on January 6, 2014, to acknowledge his receipt and understanding of the Handbook and the policies contained therein. (P-6; N.T. 9/8,133-34 (D. Watson); 9/9, 69-70 (J. Bonelli).)

40. He did not sign the 2014 agreement at that time. (N.T. 9/8, 178-79 (J. Bonelli); 9/9, 72 (J. Bonelli).)

41. His supervisor, Dave Watson, thereafter advised Bonelli to sign the January 2014 agreement on or about January 9, 2014. (N.T. 9/8, 134-35 (D. Watson); 179-80 (J. Bonelli); 9/9, 73 (J. Bonelli).)

42. He also directed Bonelli to obtain the signatures of two (2) of his direct reports who had not signed it. (N.T. 9/8, 134-35 (D. Watson); 180 (J. Bonelli); 9/9, 73 (J. Bonelli).)

43. Bonelli signed the 2014 agreement on January 9, 2014 and obtained his direct reports’ signatures on their agreements. (P-7; N.T. 9/8, 129 (D. Watson); 9/9, 73-74 (J. Bonelli); D-60 at 14 (J. Fitzgerald).)

44. Upon review of the 2014 agreement, Bonelli saw that the non-competition restrictions contained in the 2010 agreement had been replaced with a new non-compete restriction that was contingent upon Acero’s election to provide the employee with non-compete pay and specifically disclaimed any non-compete restriction if the non-compete pay was not provided by Acero. (N.T. 9/9, 76-77 (J. Bonelli).)

Bonelli resigns from Acero to become director of operations at Vistek.

45. In March 2014, Vistek offered Bonelli an open operations manager position and after some routine negotiation, in April 2014, Bonelli resigned from Acero to accept the position of “director of operations” of Vistek, located in Ivyland, Bucks County. (N.T. 9/8, 150-51 (J. Miller).)

46. Bonelli had been contacted about the Vistek position in December 2013, by a recruiting agency, Global Recruiters of Fishers (“Global”), who received Bonelli’s name and contact information from one of Bonelli’s former coworkers. (N.T. 9/8, 181 (J. Bonelli); P-21 at 31 (M. Groves).)

47. Bonelli disclosed the existence of a restrictive covenant agreement to Global and provided a copy of the 2014 agreement when Global so requested. (N.T. 9/8,175 (J. Bonelli); 9/9, 79 (J. Bonelli).)

48. Bonelli relied on the 2014 agreement during the interviewing and negotiation process with Vistek along with his decision to accept the Vistek position. (N.T. 9/9, 77 (J. Bonelli).)

49. At Vistek, Bonelli is responsible for all aspects of operations and oversees approximately 30-35 employees and 23-24 machines. (N.T. 9/8, 162 (J. Bonelli).)

50. Bonelli has no responsibility for programming the machines at Vistek. (N.T. 9/8, 163 (J. Bonelli).)

51. Bonelli does not handle new or experimental projects for Vistek. (N.T. 9/8,163 (J. Bonelli).)

52. Bonelli has not assisted Vistek’s programmers in solving manufacturing problems. (N.T. 9/8, 163 (J. Bonelli).)

53. Vistek uses different approaches to manufacturing than Acero. Although both Vistek and Acero manufacture medical devices, their operations and processes materially differ. For example, their machines (Star versus Citizen), software (Sponge versus Unipoint), manufacturing approaches (one machine versus multiple machines), and clients (only one mutual) essentially differ. (N.T. 9/8, 121 (D. Watson); 9/9, 63-64 (J. Bonelli).)

54. Vistek prefers to fabricate a product on multiple machines in the most efficient manner possible. (See N.T. 9/9, 20-23, 26-27 (J. Miller).)

55. Acero, however, prefers to manufacture a part using just one machine. (N.T. 9/8,121 (D. Watson).)

56. Vistek uses Unipoint software as its electronic filing system, which contains all documents used during the manufacturing process, such as drawings, specifications, quality control, and FDA or ISO correspondence. (N.T. 9/9, 40-41 (J. Miller); 63 (J. Bonelli).)

57. Vistek also uses JobBoss, which is a business operations software that develops price quotes, estimates, invoices, billing, and also tracks payment. (N.T. 9/9, 41-42 (J. Miller).)

58. Acero does not use these software programs. (N.T. 9/8, 74 (M. Fitzgerald); 9/9, 64 (J. Bonelli).)

59. Because Bonelli had no experience with these programs, he has been receiving training on the use of both Unipoint and JobBoss. (N.T. 9/9, 41-42 (J. Miller); 63 (J. Bonelli).)

60. In addition, Vistek uses a variety of CNC machines, such as Swiss, lathes, and milling machines, that differ from Acero’s machines. (N.T. 9/9, 38 (J. Miller).)

61. For example, Vistek uses the Citizen brand Swiss machines. (N.T. 9/8, 173 (J. Bonelli); 9/9 38 (J. Miller).)

62. The operation and programming of Citizen brand Swiss machines materially differs from the operation and programming of Star brand Swiss machines, which are used by Acero. (N.T. 9/9, 38-39 (J. Miller).)

63. The machine controls between the different brands are entirely different. A program from a Star machine would not work on the Citizen machine because they are incompatible. (N.T. 9/9, 64-65 (J. Bonelli).)

64. Acero and Vistek have only one common client, Camber Spine (“Camber”), whose relationship with Vistek pre-dates Bonelli’s employment at Vistek and continues because of a long-standing business relationship between the general manager of Vistek, Jeff Miller, and the president of Camber, Daniel Pontecorvo. (N.T. 9/9, 30-31, 36-38 (J. Miller).)

65. Bonelli never worked on the part produced by Acero for Camber. (N.T. 9/8, 79 (M. Fitzgerald).)

66. Vistek has taken proactive steps to ensure that Bonelli has no contact with Camber. (N.T. 9/9 38, 45 (J. Miller).)

67. Bonelli has not contacted any client of Acero since separating from Acero in April 2014, nor has he disclosed any confidential information or trade secret of Acero to Vistek. (N.T. 9/9,45 (J. Miller); 80 (J. Bonelli).)

68. Bonelli has never taken or disclosed the confidential information obtained from any employer to any subsequent employer. (N.T. 9/9, 62-63 (J. Bonelli).)

69. Acero has no evidence that Bonelli has taken or disclosed any of Acero’s information to Vistek. (N.T. 9/8, 112-13 (M. Fitzgerald).)

70. Acero has no evidence that Bonelli has solicited any of Acero’s customers or employees. (N.T. 9/8, 113 (M. Fitzgerald).)

71. Acero has no evidence that it has a suffered a loss of customer or business as a result of Bonelli’s employment at Vistek. (N.T. 9/8, 78-79 (M. Fitzgerald).)

72. Acero has withdrawn with prejudice any and all claims for damages. (Stipulation, endorsed 9/19/2014.)

73. It would be an economic and personal hardship to Bonelli if he were precluded from working at Vistek. (N.T. 9/9, 189 (J. Bonelli).)

Conclusions of Law

1. In order to establish a claim for a permanent injunction, Acero must establish its clear right to relief as to its claims in addition to harm for which there is no adequate redress at law.

2. Acero has failed to establish its clear right to relief as to its breach of contract claim, count I, because the 2014 agreement replaced the 2010 agreement, and under the 2014 agreement, Bonelli is not restricted by a non-compete covenant and has breached no provision therein.

3. Acero has failed to establish its clear right to relief as to its breach of the covenant of good faith and fair dealing claim, count II, which is not an independent cause of action and is subsumed within the aforementioned breach of contract claim.

4. Acero has failed to establish its clear right to relief as to its misappropriation of trade secret claim, count IV, because Acero did not establish that any legally protected trade secret was disclosed by Bonelli, or any improper knowledge of same by Vistek.

5. Acero has failed to establish harm it has incurred for which there is no adequate redress at law because it proffered no evidence of stolen customers, customer lists, or confidential information or loss of income.

6. Acero has failed to establish that it incurred harm that cannot be compensated at law.

7. Further, pursuant to the terms of the 2014 agreement, as the prevailing party, Bonelli’s reasonable attorney’s fees shall be paid by Acero, the losing party.

Discussion

Plaintiff failed to establish a right to relief on either its breach of contract or trade secret claim; Bonelli has not violated the 2014 agreement and is entitled to attorney’s fees thereunder.

For Acero to establish a cause of action for its breach of contract claim, it had to present evidence of (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages. Corestates Bank v. Cutillo, 1999 PA Super 14, 723 A.2d 1053, 1058 (Pa. Super. 1999). Acero failed to establish these elements in light of the 2014 agreement.

The evidence presented in plaintiff’s case established that the January 9, 2014 Confidentiality, non-solicitation, and non-competition agreement between Acero and Bonelli was a valid, enforceable agreement and is the controlling agreement in this case. There is no doubt that Acero intended to replace its prior restrictive covenant agreements, including the 2010 agreement, with the terms of the 2014 agreement. The 2014 agreement, therefore, can be viewed as a novation. It replaces and renders unenforceable the 2010 agreement. Under the 2014 agreement, if Acero elects not to pay Bonelli the non-compete pay, Bonelli is not restrained by any non-competition covenant. Acero has not paid Bonelli the non-compete pay and thus Bonelli is not subject to a non-compete restriction. See, e.g., Innoviant Pharmacy, Inc. v. Morganstern, 390 F. Supp. 2d 179, 193 (N.D.N.Y. 2005) (applying Pennsylvania law and finding earlier restrictive covenant unenforceable and replaced by later agreement); Am. Pool. Mgmt. v. Queen, 2013 Pa. Dist. & Cty. Dec. LEXIS 374 (C.C.P. Bucks Nov. 6, 2013) (subsequent restrictive covenant was novation and displaced earlier restrictive covenant), aff’d by No. 2544 EDA 2013 (Pa. Super. Ct. July 22, 2014)(upholding trial court’s finding that subsequent restrictive covenant was novation).

In Pennsylvania, a novation, or substituted contract, is valid and enforceable where the evidence demonstrates “the displacement and extinction of a valid contract, the substitution for it of a valid new contract,... a sufficient legal consideration for the new contract, and the consent of the parties.” Buttonwood Farms, Inc. v. Carson, 329 Pa. Super. 312, 317, 478 A.2d 484, 486 (1984). The party asserting a novation or substituted contract has the burden of proving that the parties intended to discharge the earlier contract. Id. An intention to substitute a prior contract can be shown by “writings, or by words, or by conduct or by all three.” Id. A novation extinguishes all rights and duties under the earlier agreement. Id.

Here, the 2014 agreement is a substitute for the previously valid November 2010 agreement because Acero intended that all of its employees be bound by the confidentiality, non-solicitation, and non-competition provisions of the 2014 agreement. As the testimony presented at the hearing demonstrated, Acero intended for the form of the 2014 agreement to replace prior restrictive covenant agreements, including the 2010 agreement. Mr. Fitzgerald testified that he was using a form of the 2014 agreement at Altus Spine, another manufacturing company for which he serves as managing partner, and that he directed McCloskey to utilize it at Acero. Heather McCloskey testified that Acero wanted to replace its prior forms of restrictive covenant agreements with one uniform agreement and ensure that all employees have a valid agreement on file. Pursuant to that goal, Ms. McCloskey testified that Mr. Fitzgerald directed her to include the form of the 2014 agreement in the revised employee Handbook as well as a separate agreement. In fact, in January 2014 and thereafter, Acero required all of its employees — including Mr. Fitzgerald himself — to sign the form of the 2014 agreement and Acero continues to maintain the signature pages to those agreements on file for all its employees.

That Acero intended the 2014 agreement to replace prior agreements including the 2010 agreement is also corroborated by both Joanne Fitzgerald, who presently oversees the HR functions at Acero, and Dave Watson, director of operations at Acero. They both identified and relied on the agreement signed in January 2014 as the restrictive covenant agreement presently in effect. In fact, it was so important to Acero that Bonelli sign the 2014 agreement after Bonelli initially declined to sign it on January 6, 2014, that Mr. Watson went back to Bonelli on January 9, 2014, and advised him to sign it and further, to obtain the signatures of two (2) of his team members who, like him, had signed the receipt of Handbook form but not the signature back for the stand alone restrictive covenant agreement, the 2014 agreement. There can be no mistake that Acero intended to replace the 2010 agreement with the 2014 agreement.

The other legal requirements of a novation have also been fulfilled. In the context of restrictive covenants, a new or additional covenant “must be supported by new consideration which could be in the form of a corresponding benefit to the employee or a beneficial change in his employment status.” Davis & Warde, Inc. v. Tripodi, 420 Pa. Super. 450, 455, 616 A.2d 1384, 1387 (1992). Here, the 2014 agreement was supported by adequate consideration in the form of more reasonable terms to the employee, Bonelli, which is a corresponding benefit to him in exchange for the new restrictive covenant.

The 2014 agreement reduced the burdensome scope of Acero’s restrictions from an absolute two-year non-compete with a one hundred mile geographic radius of any direct or indirect competitor of any business of Acero, to a much more reasonable and favorable one-year non-compete with pay, which could only be invoked by Acero within thirty days of Bonelli’s departure. (Id.) Not only does this reduction of restriction constitute valuable consideration, it fairly reflects the strictures of Pennsylvania law and public policy which disfavor employee restrictive covenants and unquestionably favors an employee’s right to gainful employment. (Id.)

Despite plaintiff’s argument to the contrary, the lack of a formal signature by a representative of Acero on the 2014 agreement has no bearing on its validity or enforceability, because Bonelli, the party charged with performance, signed it. See Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1963) (upholding validity and enforceability of contract, noting that signature of promisee immaterial as agreement was signed by promisor, “the party to be charged, and his signature to that promise is sufficient.”). Many agreements, such as promissory notes, options, or assignments are signed only by the party charged with performance, but are nevertheless enforceable against that party. In any event, as a general rule, signatures are not required unless such signing is expressly required by law or by the intent of the parties. See, e.g., Shovel Transfer & Storage v. Pa. Liquor Control Bd., 559 Pa. 56, 739 A.2d 133 (1998); L.B. Foster Co. v. Tri-W Constr. Co., Inc., 409 Pa. 318, 186 A.2d 18, 19 (1962). The intent of the parties is determined by the contents of the agreement, Shovel Transfer, 559 Pa. at 67, 739 A.2d at 139, which contains no requirement that Acero’s signature is necessary before the agreement is effective. “In the absence of such term, it is hornbook law that in determining the intent of the parties, ambiguities are to be construed against ... the contract drafter [Acero].” Id.

The overwhelming weight of the evidence supports the court’s finding that the 2014 agreement was intended to replace the 2010 agreement, was supported by adequate consideration in the form of a less restrictive non-compete covenant and was signed by the party charged with performance, Bonelli. Although the 2014 agreement is valid and enforceable, plaintiff presented no evidence that it invoked the non-competition provision of the 2014 agreement by notifying Bonelli within thirty days of his departure and providing to Bonelli his salary in exchange for his noncompetition. Because no actionable conduct has occurred under the 2014 agreement, the court finds in favor of Bonelli and against Acero on the breach of contract claim.

Defendants also prevail on the misappropriation of trade secret claim. Misappropriation of trade secret occurs when one “discloses or uses another’s trade secret, without a privilege to do so . . . if (a) he discovered the secret by improper means, or (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.” Restatement (Second) of Torts § 757; see Den-Tal-Ez, Inc. v. Siemens Capital Corp., 389 Pa. Super. 219, 566 A.2d 1214 (1989) (adopting section 757 of the restatement).

Acero’s purported claim for breach of the Covenant of Good Faith and Fair Dealing (count II) is not an independent cause of action in Pennsylvania and is subsumed within the breach of contract claim.

Acero’s claim that Bonelli breached a covenant of good faith and fair dealing contained in the 2010 agreement by “failing to refrain from competing with plaintiff Acero and by accepting employment with a direct competitor” is not actionable as an independent cause of action. An alleged breach of the covenant of good faith and fair dealing is a breach of contract. See, e.g., Zaloga v. Provident Life & Accident Ins. Co., 671 F. Supp. 2d 623, 630-31 (M.D. Pa. 2009) (citing Birth Ctr. v. St. Paul Cos., 567 Pa. 386, 787 A.2d 376, 385-86 (2001), Gray v. Nationwide Mut. Ins. Co., 422 Pa. 500, 223 A.2d 8, 11 (1966). As such, it must be denied. Further, for the reasons discussed supra, Bonelli has not breached any covenant of good faith and fair dealing, nor would any such alleged breach be actionable.

Acero’s claim for a preliminary and/or permanent injunction (count III) is denied.

Acero has brought a claim for a preliminary and/ or permanent injunction as a separate cause of action in its complaint. Count III will be denied for the reasons discussed herein. As mentioned, the parties have agreed that this is a final order on the merits of all claims.

Acero presented no evidence of either a misappropriation or the existence of protectable trade secret (count IV).

Trade secret law in Pennsylvania is codified at 12 Pa. C.S. § 5301-5308, as part of the Uniform Trade Secrets Act (the “Act”), a model law based on section 757 of the Restatement (Second) of Torts. It defines “trade secret” as “a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process” that “[djerives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use” and “[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” 12 Pa. C.S. § 5302. A “misappropriation” is the “(1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) disclosure or use of a trade secret of another without express or implied consent.” 12 Pa. C.S. § 5302.

“It is not the character of the information that is relevant under Pennsylvania law. Rather, the determination of whether the information is a trade secret must be made on a case-by-case basis.” O.D. Anderson, Inc. v. Cricks, 2003 PA. Super. 13, 815 A.2d 1063, 1070-71 (2003) (citations and internal quotations omitted). The plaintiff bears the burden of establishing the existence of a trade secret. Gilbert v. Otterson, 379 Pa. Super. 481, 490, 550 A.2d 550, 555 (1988).

Plaintiff admits that it has no evidence of any disclosure or improper use of a trade secret. In fact, Mr. Fitzgerald conceded at the hearing that he had no evidence that Bonelli disclosed any trade secret or confidential information to Vistek. (N.T. 9/8, 112-13 (M. Fitzgerald).) Both Bonelli and Mr. Miller, on behalf of Vistek, confirmed that no such disclosure had or will occur. It is undisputed that no alleged trade secret has been misappropriated.

For that matter, Acero failed to identify the specific trade secrets allegedly at issue. Defendants contended that Acero has no trade secrets and the information Acero seeks to protect is simply confidential. The evidence at the hearing confirmed that Acero has no trade secrets at issue here and for this reason, Acero’s claim for misappropriation of trade secrets also fails. Of the items and information discussed during Mr. Fitzgerald’s examination and analyzed, infra, none constitute a trade secret as that term is defined under Pennsylvania law.

First, Acero’s ISO certification is not a trade secret because it is a required process of documentation known and utilized within the industry. It is an international set of standards and is in no way secret or specific to Acero.

Second, Acero’s customers are not a trade secret, because the identities of its customers are not secret and are, in fact, advertised on the Acero website. Information known or developed by the employee that could be discoverable by legitimate means is not a trade secret, such as names of customers or a price list. See Wellspan Health, 2005 PA Super 76, 869 A.2d 990, 997 (2005); Iron Age Corp. v. Dvorak, 2005 PA Super 270, 880 A.2d 657, 661 (2005) (finding that confidential information at issue was “available to competitors through legitimate means and cannot be declared a trade secret.”); Renee Beauty Salons, Inc. v. Blose-Venable, 438 Pa. Super. 601, 652 A.2d 1345, 1349 (1995); Tyson Metal Prods, Inc. v. McCann, 376 Pa. Super. 461, 546 A.2d 119, 122 (1988) (“Because the information sought to be kept secret could be discovered through legitimate channels (contacting the suppliers personally) by energetic, conscientious and eager members of the competition, we fail to discern how the prohibition of the disclosure of the identical data through [the employee] renders it trade secret information subject to protection by means of an injunction”).

Third, Acero’s pricing is not a trade secret because it could be discovered and is known by anyone who requests such information from Acero. In any event, Mr. Fitzgerald admitted Bonelli had no daily involvement with pricing and only provided costing information for projects.

Fourth, the “shop drawings,” product specifications, or part numbers supplied by Acero customers, while certainly confidential and proprietary to that customer, are not a trade secret of Acero’s.

Fifth, Acero’s approach to production, referenced in some of the emails presented at the hearing and discussed by Mr. Fitzgerald, is not a trade secret. An approach to production is a strategy — not a method or process for bringing about a result that provides Acero with a competitive advantage. As Mr. Miller explained, there are multiple approaches to fabricating a part using CNC manufacturing. Which “recipe” is used depends on the knowledge and creativity of the programmer, the company’s general strategy as to manufacturing, and the machinery available for fabricating. It is not a secret that Acero prefers to fabricate a part using only one machine. Further, Mr. Fitzgerald admitted that he does not know that the Acero approach to production is more efficient or a competitive advantage over a competitor’s approach; it is simply the way he has decided that Acero should operate.

Sixth, the value Bonelli provided as an employee at Acero is not a trade secret of Acero’s. Plaintiff repeatedly touts its “hundreds of thousands of dollar” training investment in Bonelli, which remains unsubstantiated, however, courts in Pennsylvania have repeatedly said that “[a] trade secret does not include an employee’s aptitude, skill, dexterity, manual and mental ability, or other subjective knowledge.” Shepherd v. Pittsburgh Glass Works, LLC., 2011 PA Super 156, 25 A.3d 1233, 1245 (2011); see, e.g., Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273, 276 (1976); Wexler v. Greenberg, 399 Pa. 569, 160 A.2d 430, 434 (1960); Pittsburgh Cut Wire Co. v. Sufrin, 350 Pa. 31, 38 A.2d 33, 34 (1944); Wellspan Health, 869 A.2d at 997; Christopher M’s Hand Poured Fudge v. Hennon, 699 A.2d 1272, 1275 (Pa.Super. 1997); Oberg Indus., Inc. v. Finney, 382 Pa. Super. 525, 555 A.2d 1324, 1326 (1989). The testimony at the hearing unequivocally establishes that Acero provided no specialized or formal training to Bonelli, who only received on-the-job training. The skill he learned from his on-the-job training or subjective knowledge of his job at Acero is not protectable as a trade secret. See Shepherd, 25 A.3d at 1245.

The court finds in favor of defendants and against Acero on the misappropriation of trade secret claim and any request for any injunction based on it because (1) Acero has identified no protectable trade secret, (2) no confidential information or trade secret has been divulged by Bonelli, and (2) Vistek has not obtained, much less utilized, any confidential information or trade secret of Acero.

An appropriate order follows.

ORDER

And now, this 15th day of October, 2014, upon consideration of plaintiff Acero precision’s complaint and petition for preliminary and/or permanent injunction against defendants James Bonelli and Vistek Medical, Inc., the parties’ legal submissions and supporting evidence, and having held evidentiary hearings on September 8 and 9, 2014, it is hereby ordered as follows:

1. By stipulation of the parties, this is a final order on the merits;

2. Plaintiff Acero precision’s motion for permanent injunction is denied;

3. The court finds in favor of defendants James Bonelli and Vistek Medical, Inc. and against plaintiff Acero precision on all claims contained in the complaint;

4. Pursuantto the 2014 agreement, reasonable attorneys’ fees are hereby awarded to defendant James Bonelli as the prevailing party, to be assessed against plaintiff; and

5. James Bonelli will submit redacted fee bills to the court and to plaintiff within ten (10) days; plaintiff has ten (10) days after receipt to file any written objections, after which the court will issue a separate order.


source: Caselaw Access Project

author: ANDERSON, J.,

license: Public Domain

text:
    Southwest Energy Production Co. v. Forest Resources, LLC

      C.P. of Lycoming County,
    No. 11-02,308
    Oct. 15, 2014
   ANDERSON, J.,

This matter is before the court pursuant to a remand from Superior Court by order dated November 27, 2013.

By orders dated December 18, 2012, this court sustained preliminary objections filed by Southwestern and Lancaster and granted in part a motion for judgment on the pleadings filed by Lancaster, thereby dismissing claims brought by the Thomas E. Proctor Heirs Trust (PHT) and the Margaret O.F. Proctor Trust (MPT) for declaratory judgment and constructive trust. The claim for declaratory judgment sought a declaration that the oil and gas lease between PHT and Lancaster violated the Pennsylvania Guaranteed Minimum Royalty Act (PGMRA) and was thus invalid, and the claim for constructive trust sought to impose a constructive trust on any profits made under the lease. This court dismissed the claim for declaratory judgment after finding it had no basis in law — i.e., the court held that the lease between PHT and Lancaster did not violate the PGMRA and was therefore not invalid. The claim for constructive trust was found to be wholly dependent on the claim for declaratory judgment and was therefore also dismissed.

The Superior Court held, however, that the lease did violate the PGMRA and reversed portions of the orders of December 18, 2012. The court then remanded the matter for further proceedings on “the various motions and preliminary objections [to the extent they] raised other grounds not addressed by the trial court”. This court will therefore address those issues raised by Lancaster’s motion for judgment on the pleadings and Lancaster’s and Southwestern’s preliminary objections, which were not addressed in the December 18, 2012, orders.

In the motion for judgment on the pleadings, Lancaster moved for judgment on count 1 of PHT’s joinder complaint/counterclaim against it, a claim of declaratory judgment which sought a declaration that the lease violated the PGMRA and was thus invalid. In support of that assertion, Lancaster argued that this court’s order of May 24, 2012, which dismissed PHT’s second amended counterclaim against Southwestern (an identical claim for declaratory judgment seeking to declare the lease invalid on the basis of violation of the PGMRA), was the law of the case and acted as res judicata with respect to the issue. This court did not address whether the May 24, 2012, order acted as the law of the case or whether the doctrine of res judicata prevented the court from re-visiting the matter, and instead addressed the merits.

With respect to Lancaster’s “law of the case” argument, the Superior Court’s holding has now become the “law of the case” and is obviously not helpful to Lancaster. With respect to the “res judicata” argument, as the Superior Court specifically found the May 24, 2012, order to not have been a final order, such cannot support Lancaster’s argument either. In effect, there is nothing further to address in the motion for judgment on the pleadings. That motion is therefore considered to have been denied in its entirety.

The preliminary objections filed by Lancaster assert that MPT is not a party to the lease and therefore has no standing to bring its action for declaratory judgment. The declaratory judgments act provides “[a]ny person interested under a ... written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a ... contract ... may have determined any question of construction or validity arising under the ... contract... and obtain a declaration of rights, status, or other legal relations thereunder.” 42 Pa.C.S. Section 7533 (emphasis supplied). In this case, MPT is clearly an interested party as the lease may include MPT’s interest (if that interest has been deeded to PHT). Indeed, Lancaster has pled in Paragraph 27 of its Additional defendant complaint that MPT is an interested party. This objection will therefore be overruled.

The preliminary obj ections filed by Southwestern assert that (1) as no assignments of the royalty have actually been made, the lease does not violate the PGMRA”, (2) the lease extension did not modify the original 1/8 royalty of the lease and therefore does not violate the PGMRA, (3) the challenge to the validity of the lease must be brought as a breach of contract action, (4) a constructive trust cannot be imposed on an expectancy, and (5) a constructive trust can be imposed only where the defendant has no legal right to the property. Each of these assertions will be addressed in turn.

With respect to the first two issues, the court considers the Superior Court’s analysis of the leases, letter agreements and extensions to have covered these matters.

To support its argument that MPT must bring a breach of contract action rather than an action in declaratory judgment, Southwestern cites Katzin v. Central Appalachia Petroleum, 39 A.3d 307 (Pa. Super. 2012). There, Katzin argued that his lease might violate the PGMRA depending on how the costs deductible from the royalty payment are defined. The Superior Court noted, however, that the law implies “an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made” and that “a promise to do an act necessary to carry out the contract must be implied.” Id. at 309. Since the lease provided for a one-eighth royalty to Katzin, the court interpreted the lease to show the parties’ intent to comply with the PGMRA and in construing the lease, implied a promise to comply with the mandates of that statute. The court then stated, “[i]t may very well be that Chesapeake Appalachia, LLC’s payments under the lease do not satisfy the requirements of the PGMRA. But that is a matter for a breach of contract action based upon a breach of this implied promise.” Id. (emphasis supplied). Thus, the breach of contract action was referenced to be necessary only if the payments themselves resulted in a royalty of less than one-eighth, which, according to the court’s interpretation, would constitute a breach of the promise to comply with the PGMRA. The court did not state that Katzin had to bring his action to invalidate the lease under the PGMRA as a breach of contract action and in fact, affirmed the trial court’s order granting judgment on the pleadings to central appalachia on Katzin’s action for declaratory judgment. Therefore, this objection will be overruled.

Southwestern’s contention that the claim for constructive trust fails to state a claim upon which relief can be granted has two bases. First, Southwestern argues that a constructive trust cannot be imposed on an expectancy and that, here, no production has yet occurred. The court believes the allegation that drilling has begun, however, is sufficient in the context of the instant suit. It remains to be seen what the circumstances are at the time the final judgment in this matter is entered, and it would be premature to declare that MPT is not entitled to this form of relief before the underlying claim is finally resolved. Southwestern also argues that a constructive trust cannot be imposed where the defendant has a right to the property. Inasmuch as the underlying claim seeks to declare that Southwestern has no right to the property, this argument misses the mark. These remaining objections will therefore be overruled as well.

ORDER

And now, this day of November 2014, for the foregoing reasons, the motion for judgment on the pleadings filed by Lancaster on October 31, 2012, is hereby denied.

The preliminary objections filed by Lancaster on August 14, 2012, are hereby overruled. Lancaster shall file an answer to MPT’s amended counterclaim within twenty (20) days of this date.

The preliminary objections filed by Southwestern on August 9, 2012, are hereby overruled. Southwestern shall file an answer to MPT’s amended counterclaim within twenty (20) days of this date.

      . An application for reargument was denied by the Superior Court on February 4, 2014. Petitions for allowance of appeal were denied by the Pennsylvania Supreme Court on July 30, 2014.

      . 58 P.S. Section 33 etseq.

      . The motion also sought judgment on Lancaster’s Counterclaim against PHT for breach of contract. This portion of the motion was denied, and was not before the Superior Court on appeal.

      . Lancaster also argued the “law of the case” controlled the outcome of the counterclaim, but as noted above, this argument is no longer helpful to Lancaster,

      . Southwestern also argues the “law of the case” but this argument will not be addressed further.

      . Katzin had also raised an issue respecting his lease’s provision for “all taxes, assessments and adjustments on production” to be deducted from the royalties, but the court noted that that issue was resolved in the defendants’ favor by Kilmer v. Elexco Land Services, Inc., 990 A.2d 1147 (Pa. 2010).


author: LASH, J.,

text:
    Oley Valley Development Inc. v. Berks County Board of Assessment Appeals

      C.P. of Berks County,
    No. 13-25217

      Michael Yanoff, for appellant.

      Edwin L. Stock, for appellee.

      John M. Stott, for intervenor.
    Aug. 11, 2014
   LASH, J.,

On August 5, 2014, this court held a non-jury trial on the appeals of Oley Valley Development, Inc., (hereinafter “taxpayer”), from several property tax assessments entered by the Berks County Board of Assessment Appeals (hereinafter “board”). The first case involved eighty-three (83) unsold lots of a subdivision. The second case involves one lot, also part of the subdivision, which has been designated for common use among all lot owners of the subdivision, with a clubhouse to be built on this lot (hereinafter “Clubhouse Lot”).

The primary issue before the court is whether this court should apply a form of the income approach, known as the development approach in assessing the lots. Taxpayer urges that the development approach is the proper approach for the lots are multiple unimproved lots in a subdivision, and the development approach factors into the assessment ongoing subdivision costs continuing to be incurred while lots remain unsold. This issue was previously raised by taxpayer in an appeal before this court which affected tax years 2011 and 2012. On February 27, 2012, this court issued a decision and order declining to employ the development approach. For the same reasons set forth in the decision of February 27, 2012, this court declines to utilize the development approach for tax year 2014 and, therefore, dismisses taxpayer’s appeal. This court enters the following Findings of Fact:

I.FINDINGS OF FACT

1. Appellant, Oley Valley Development, Inc., (hereinafter “taxpayer”), is the owner of real property located in Oley Township, Berks County, Pennsylvania, consisting of a residential subdivision known as “Meadow View Farms” (hereinafter “subdivision”).

2. Appellee, Berks County Board of Assessment Appeals (hereinafter “board”), has an office on the Third Floor of the Berks County Services Center, Reading, Berks County, Pennsylvania.

3. Intervenor is the Oley Valley School District, (hereinafter “School District”), with an address of 17 Jefferson Street, Oley, Berks County, Pennsylvania 19547. School District filed its Notice of Intervention on December 11,2013.

4. These appeals involve eighty-three (83) lots of a one hundred seventeen (117) lot, single family residential subdivision known as Meadow View Farm, plus one additional lot, known as the Clubhouse Lot. The eighty-three (83) lots, which remain unsold, are identified by the following pin numbers:

67-5348-01-27-8220 67-5348-01-37-0015 67-5348-01-37-0051
67-5348-01-36-1953 67-5348-01-36-2845 67-5348-01-36-2881
67-5348-01-36-3738 67-5348-01-36-4720 67-5348-01-36-5481
67-5348-01-36-5344 67-5348-01-36-4299 67-5348-01-36-4264
67-5348-01-36-4129 67-5348-01-36-3185 67-5348-01-36-3150
67-5348-01-36-3015 67-5348-01-36-2071 67-5348-01-35-2936
67-5348-01-35-1991 67-5348-01-35-1846 67-5348-01-26-7030
67-5348-01-26-6094 67-5348-01-26-4267 67-5348-01-26-5752
67-5348-01-26-5787 67-5348-01-26-6822 67-5348-01-26-6867
67-5348-01-26-7902 67-5348-01-26-7947 67-5348-01-27-7083
67-5348-01-26-8843 67-5348-01-26-8708 67-5348-01-26-7763
67-5348-01-26-7638 67-5348-01-26-6694 67-5348-01-26-6558
67-5348-01-26-7417 67-5348-01-26-7552 67-5348-01-26-7587
67-5348-01-26-8622 67-5348-01-26-8666 67-5348-01-26-9701
67-5348-01-26-9736 67-5348-01-26-9870 67-5348-01-36-0699
67-5348-01-36-0664 67-5348-01-36-0529 67-5348-01-26-9585
67-5348-01-26-9540 67-5348-01-26-9405 67-5348-01-26-8461
67-5348-01-26-8336 67-5348-01-26-7391 67-5348-01-26-7256
67-5348-01-26-8149 67-5348-01-26-8284 67-5348-01-26-9219
67-5348-01-26-9353 67-5348-01-26-9398 67-5348-01-36-0433
67-5348-01-36-0478 67-5348-01-36-1503 67-5348-01-36-1547
67-5348-01-36-2637 67-5348-01-36-3566 67-5348-01-36-3511
67-5348-01-36-2476 67-5348-01-36-2432 67-5348-01-36-1397
67-5348-01-36-1362 67-5348-01-36-1228 67-5348-01-36-0283
67-5348-01-36-0158 67-5348-01-36-0113 67-5348-01-26-9078
67-5348-01-36-1131 67-5348-01-36-1176 67-5348-01-36-2210
67-5348-01-36-2245 67-5348-01-36-2380 67-5348-01-36-3325
67-5348-01 -36-3369 67-5348-01 -26-5962

5. The Subdivision is located in the Oley Valley School District and is in the AQRC —Age Qualified Residential Community Zoning District.

6. The lots are subject to zoning and deed restrictions. The subdivision contemplates an “age qualified community” requiring that at least one member of the household be at least 55 years of age. There may not be more than four (4) individuals residing in the household, nor is anyone under the age of 18 permitted to reside there, except during summer months and holidays. Any person not related by blood or marriage to the principal owner must also be 55 years of age or older.

7. In August 2013, taxpayer filed eighty-six (86) assessment appeals for eighty-six (86) undeveloped lots. On September 13, 2013, the board held a hearing and issued a decision on October 11, 2013, setting forth that the assessments would remain the same for the 2014 tax year.

8. On November 8,2013, taxpayer filed its appeal from the decision of the board.

9. Subsequently on June 16, 2014, taxpayer notified the court that some lots were sold, and the appeal was withdrawn as to those lots.

10. On June 19, 2014, this court entered an order consolidating the appeals on eighty-three (83) lots to No. 13-25217. The Clubhouse Lot remained a separate appeal.

11. The common level ratio for Berks County for 2014 is .781%.

II. DISCUSSION

The court is satisfied that its holding in its decision of February 27, 2012 remains valid and is dispositive of the case at bar. Accordingly, this court incorporates its decision of February 27,2012 into this opinion and order.

Taxpayer contends that this court’s earlier ruling was not consistent with the evidence produced in that this court ruled that Taxpayer was requesting that the court assess the subdivision as one whole, rather than assessing the lots separately. Taxpayer contends that it had then, and continues to now, assess the individual lots separately and that, therefore, this case should be distinguished from the holding in Penn’s Grant Associates v. Northampton County Board of Assessment Appeals, 733 A.2d 23, 28 (Pa.Cmwlth. 1999).

Taxpayer’s argument is misleading. Its “individual lot value conclusions” are based on uniformly applying l/83rd of the continuing subdivision costs to each of the eighty-three (83) lots. Accordingly, the fair market value for all eighty-three (83) lots was estimated by the appraiser for Taxpayer at Twenty-Seven Thousand Nine Hundred Seventy-Five Dollars ($27,975.00). In essence, whether the assessment is Twenty-Seven Thousand Nine Hundred Seventy-Five Dollars ($27,975.00) per lot for eighty-three (83) lots or Two Million Three Hundred Twenty-One Thousand Nine Hundred Twenty-Five Dollars ($2,321,925.00) for one subdivision, subdivided into eighty-three (83) lots, is simply a mathematical exercise. What taxpayer has not considered is that previous sales of lots to third parties constituted a triggering effect, requiring all the lots remaining in the subdivision to be assessed on an individual lot basis, as more fully discussed by this court in its February 27, 2012 opinion, commencing on page 12. Taxpayer also fails to account for the fact that its method would result in non-uniform assessments, with unsold lots being assessed at a far lower value than lots already sold, in violation of the uniformity clause of the Pennsylvania Constitution.

Taxpayer also urges that this court assess a zero value to the Clubhouse Lot because that lot, according to taxpayer, cannot be sold but must be used for its designated purpose as a common area with a clubhouse for enjoyment by the lot owners. At this time, however, the clubhouse has not been built. The lot is not distinguishable from any of the other eighty-three (83) lots and has fair market value. Once the designated use is in place, the lot can be reassessed.

The board having met its burden by introducing the assessments into the record, and the taxpayer having failed to meet its burden to overcome the presumption of the validity of the assessments, this court dismisses taxpayer’s appeals. We enter the following order:

ORDER

And now, this 11th day of August 2014, after trial held, the above-captioned appeals are hereby dismissed.

      . No. 13-25217.

      . No. 13-25400.

      . Article IX, §1, of the Pennsylvania Constitution.


text:
    Pietrusewicz v. Pietrusewicz

      C.P. of Berks County,
    No. 05-2213 #5

      Robert T. Ullman, for plaintiff.

      Eric L.B. Strahn, for defendant.
    Aug. 14, 2014
   LASH, J.,

The matter before this court is the petition of defendant, Paul Pietrusewicz (hereinafter “father”), to Modify a Child Custody Order entered by this court on November 21, 2012. Trial was held on July 21 and 22,2014. This court enters the following Findings of Fact:

I.FINDINGS OF FACT

1. Plaintiff, Teresa Pietrusewicz (hereinafter “mother”), is an adult individual who currently resides at 27 Ridge Drive, Fleetwood, Berks County, Pennsylvania.

2. Defendant, Paul Pietrusewicz (hereinafter “father”), is an adult individual who currently resides at 2359 West Hedding Street, San Jose, California 95128.

3. The parties are the natural parents of four (4) children, two (2) of which are minors. The minor children are a son, M.J.P., bom June 25, 1997, and a daughter, M.P., bom January 23, 2001, (hereinafter “Minor Children”). The parties other children are a daughter, Kaitlyn Pietrusewicz, bom July 16, 1991, and a son, Austin Pietmsewicz, bom September 18, 1993.

4. The parties are husband and wife, having been married on October 10, 1987. The parties separated sometime in October — December 2012 and have remained living separate and apart. A divorce action is pending in Berks County court.

5. Shortly after the separation, father moved to the State of California. Moving with him was the eldest son, Austin. The other three (3) children remained with mother in the marital residence.

6. Upon separation, mother filed the initial custody complaint, which resulted in an agreement, entered as a court order on November 21, 2012, setting forth, among other things, that the parties would share legal custody, that mother would have primary physical custody during the school year, with father having partial physical custody, and that father would have primary physical custody during the summer months, with mother having partial physical custody.

7. In June 2013, father filed the within petition to modify custody, seeking primary custody of both minor children.

8. Pursuant to father’s petition to modify, this court scheduled a trial for July 31, 2013. Some testimony was taken, but then the parties agreed to forgo completion of the trial, reaching an agreement. The agreement set forth, among other things, that father would assume primary custody of the parties’ minor son, with mother to have partial custody for two (2) consecutive weeks in the summer months and for some time during the Thanksgiving holiday, provided that father would be spending Thanksgiving in the Commonwealth of Pennsylvania. This portion of the order was entered as a final order finally resolving custody of the minor son. The order also provided temporary relief regarding the minor daughter, setting forth that mother would retain primary physical custody, with father to have partial custody at such times as agreed by the parties, also providing that all of father’s contact with the minor daughter would be monitored and recorded by mother, including any face-to-face contact through Skype. The minor daughter was also to participate in reunification counseling to facilitate a reconciliation between her and mother. The matter now before this court concerns the custodial status of the minor daughter.

9. Father resides in the San Jose Unified School District. The minor son attends Abraham Lincoln High School in that district. If the minor daughter would reside with father, she would attend the Herbert Hoover Middle School. Both the Abraham Lincoln High School and the Herbert Hoover Middle School are in close proximity to father’s home. Mother resides in the Brandywine Heights Area School District, where the minor daughter is currently attending.

10. On or about October 29, 2012, mother filed protection from abuse petitions against father and the elder son, Austin. On or about November 14, 2012, the petitions were withdrawn by mother, without prejudice.

11. Father is employed as owner/president and sole employee of Market2Go, LLC, a business he founded in 2002. The firm handles telecommunications consultations. Father states his work schedule is flexible due to his autonomy and to enable him to be available for his family. Father conducts most of his business over the internet or by telephone and can operate his business from virtually anywhere.

12.Mother is employed as a school nurse in the Brandywine Heights Area School District.

13. The parties’ respective homes are both suited environmentally for rearing minor children.

14. An independent psychological evaluation was compiled by Arlene B. Ginsburg, Ph.D. She conducted interviews with the parties, and all four (4) children, administered the Minnesota ultiphasic Personality Inventory-2 (MMPI-2) to the parties, administered the Perception of Relationships Test (PORT), partial, Bricklin Perceptual Scales (BPS), partial, to the minor daughter, and Rotter Incomplete Sentence Blank (RISB), high school figure drawings, to the minor son. Dr. Ginsburg prepared a written report dated July 23,2013, and testified at the trial of July 31,2013. Dr. Ginsburg then compiled an updated evaluation, dated April 30, 2014, to be submitted for purposes of the within trial, however, neither party called her to testify, nor moved for admission of her updated report into evidence.

15. The elder daughter, Kaitlyn, is estranged from father.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, reunification counselors, Vanessa Hagen and Amy Alverez, mother’s friend, Christina Becker, and her 13 year old daughter, Samantha, the elder son, Austin, the in camera testimony of the minor children, and testimony taken at the first trial dated July 31, 2013, which included a representative from Children & Youth Services, Lauren Heydt, a neighbor, Diane C. Yoder, and the psychologist, Arlene B. Ginsburg, Ph.D. This court also considered the exhibits of the parties, including Dr. Ginsburg’s report dated July 13, 2013.

While various issues and complaints were raised by the parties, there were a few predominate themes which spoke to the heart of the controversies and which gave this court substantial oncem. Father’s presentation focused on the minor daughter’s strong desire to relocate to California to reside with him. This closely resembled the same desire expressed by the minor son back in July of 2013, which, upon recommendation of the psychologist, and with the agreement of the parties, resulted in the minor son moving to California. Father’s presentation also focused on several significant complaints against mother, including spying on the minor children, as well as on father while he resided in the home, calling the police to attempt to control the minor children’s behavior, videotaping the minor children’s actions while following them around the house, searching their belongings when they came and left the house, having their lockers searched at school, refusing the minor children access to the elder son, Austin, even when he came to the house to visit, locking the minor children out of the house, even during cold weather when they had no coats, and otherwise engaging in actions which demonstrated her mistrust and/or paranoia against father and the minor children.

Mother’s primary contention is that father has orchestrated a campaign of alienating the minor children’s affections against her. She is very aware that the minor daughter, as well as the minor son and Austin, want to reside in California, believing that this has occurred because father has convinced them that she is a bad other. Mother is certain that if the minor daughter moves to California, she will never be able to rekindle any form of relationship with her.

Father urges that he is well capable of caring for the minor daughter and has established this through his parenting over the years. He considers his parenting style one of mentoring and uiding, in contrast to mother who is controlling and authoritarian. He is proactive in the minor children’s lives in all aspects. He assists them with their education. He believes that the minor daughter would thrive at the middle school in California, as it is a magnet school, which features, among other things, drama classes, which is an area of great interest to her. He enjoys recreation with the children, including skiing, bicycling, and mountain biking. He is only 32 miles from the ocean. He likes to take extended travel vacations with the children. He supports the minor daughter’s extracurricular activities, including soccer and girl scouts.

Father claims that during the last stages of the parties’ cohabitation, he was required to do all the shopping for himself and the children, did the cooking and otherwise provided the daily maintenance. According to him, mother essentially abdicated her responsibilities.

According to father, the minor daughter is adamant that she wants to reside with him, not with mother. He believes that she is estranged from mother, afraid of her, and wants to move immediately.

Father notes that the minor daughter loves spending time in California. She gets along very well with her two (2) brothers, in contrast to her estranged relationship with her elder sister.

Father complains that mother has engaged in paranoic, abnormal behavior, which has burdened the minor daughter with severe stress. While father still resided in the home, mother began surreptitiously videotaping the family. Father believes that this was done to enable mother to “set him up,” to get him out of the house through a protection from abuse order. Ultimately, she did file a petition for protection from abuse against both he and the elder son, Austin. After father left, the surreptitious videotaping continued. Mother would also follow the minor children around, even following the minor son when he would leave the house on his bicycle.

On one occasion, after the minor son had already begun residing with father, he was scheduled to return to visit with mother. He anticipated coming to the marital home, relaxing in his former bedroom and spending time with his friends. However, mother never allowed him anywhere near the home, instead travelling to a beach area in Delaware for what she called a “vacation.” The minor son and the minor daughter, who was also there, opposed this, to the extent that the minor son became petulant and was ordered out of the house by the owner of the house with whom the family was staying, resulting in the minor son spending time alone on a highway in the State of Delaware, with no means to care for himself. Ultimately, mother and her friend, the homeowner, allowed him to come back to the house.

Father accused mother of refusing to turn over personal items belonging to him. Mother denied, even in court, that she had those items. According to father and the neighbor, Diane Yoder, these items were discovered by the minor children and some of the items were taken to Ms. Yoder’s house. Father acknowledges that he instructed the minor children to take the items to Ms. Yoder’s house. Mother contended that the minor children were stealing from her so she began searching backpacks, even on one occasion having the minor son’s school search his locker. Mother also resorted to calling the police against the minor children for allegedly stealing things and also for such things as turning the house lights on and off. There was an incident at a bowling alley where mother confiscated the minor son’s backpack and gave it to a friend who took off with it.

Father claims that mother lies about him and about the minor children, and also lies in front of the minor children, totally undermining her authority and credibility with them. The minor son says her actions are “fake.” On the incident where the minor son took items to Ms. Yoder’s house, both the minor son and Ms. Yoder claim they saw father’s wallet. Mother denied having the wallet, and denied that the wallet was present at Ms. Yoder’s house. Another time, Austin came to the house to see his brother and sister. Mother refused to allow Austin to see the minor children, then told the minor children, when they asked who was at the door, that it was a florist.

Mother’s paranoic actions included restricting the minor children from access to the house. On one occasion when the minor son wanted to use the bathroom, he found that he was locked from the house. Another time, during cold weather, the minor children were locked from the house without coats. Eventually, mother opened the door and threw winter coats out for them but would not allow them in the house. She would sometimes barricade the doors with furniture, and sometimes would sleep on a recliner in a spot in the kitchen providing sight lines to all areas of the house.

Father states he was thwarted from telephone contact with the minor children, as mother would confiscate the cell phone, and would refuse to allow internet access, either at home or at a neighbor’s house.

Father avers that mother engaged in abusive behavior. He believes that she slapped the minor daughter on at least four (4) occasions. On one occasion, he took a photograph of the minor daughter’s face, showing a red mark. That slap occurred because the minor daughter could not find toilet paper in any of the bathrooms that she was allowed to use, so she attempted to go to mother’s bathroom for toilet paper and was punished. Mother has also threatened the minor children, including threatening them with calling the police, and has periodically cursed at them. On one occasion, she exclaimed to her minor son that she anticipated that one day he could do something like “put an ax in her back.” This comment was very stressful to the minor children.

Mother acknowledges that her relationship with the minor daughter is strained, but blames this on father’s orchestrated alienation of the minor children from her. She notes that in prior years, she and the minor children, especially the minor daughter, had a wonderful relationship. She was very active in their education and recreation. They roller and ice skated together, went bowling, did pottery, and watched television series together.

Mother alleges that father began spying on her, accessing her computer to gain information, particularly on finances. Ultimately, he restricted her from receiving any of the marital income, which is why she stopped shopping for groceries. After father left the house, he instructed the minor children to spy on her, and to take personal property from the house. Her response was to lock access to the house, search backpacks, and involve the police. She denied having personal items belonging to father, claiming that this was another allegation used to turn the minor children against her. Mother also states that father would prohibit the minor children from contacting her by phone during his periods of custody.

In support, she points to the fact that when father separated and moved to California, he allowed both of the minor children to continue to reside with mother. If she was as bad as he claims, why would he do this. Additional evidence comes from the reunification counselling. There have been two (2) counsellors involved since September of 2013, both of whom noted that the minor daughter’s relationship with mother was at first difficult, if not nonexistent, but after several sessions, the minor daughter would warm up and mother and daughter would begin demonstrating a “normal mother-daughter relationship.” Unfortunately, when the minor daughter spent some time with father, she would regress, and the counsellors would have to start all over.

Mother argues that father should not be rewarded for turning the minor children against her, for using the minor children to spy on her, and to steal things from her. She loves the minor children and wants an excellent relationship with them. She is fearful that if the minor daughter moves to California, the relationship will be forever lost. The reunification counseling, which has been successful, would also be compromised, due to the geographic limitations.

Dr. Ginsburg’s report and testimony were quite extensive, and in large part provided a reiteration of the same issues and conflicts raised by the parties at trial. Her test results set forth that both parties were considered within normal limits. Dr. Ginsburg does note, however, that both parties in the MMPI-2 profile showed a tendency to feel victimized and to distrust others.

On pages 3 and 4 of her report of July 23, 2013, Dr. Ginsburg provides a synopsis of the dynamics of the parties:

Both parents are estimated to be of above average intelligence. They both clearly love their children, are concerned about their well-being, and have helped them with their school work. [Father] and [mother] have consistently involved all four of their children inappropriately in their many years of marital conflict. Both have shown extreme paranoia about the other parent. Both have hidden their important possessions in their locked vehicles to prevent the other parent from stealing them. Both parents have gained access to the other parent’s car without permission in order to retrieve allegedly stolen items. The children have been exposed to innumerable police incidents. In addition to police reports about father mother has called in complaints about both of her sons. Each parent alleges being physically harmed or controlled by the other in the past but the history primarily suggests mutual involvement due to intense marital conflict rather than either parent having a personality pattern predisposed to physical abuse. Both parents acknowledged occasional use of physical discipline with their four children, but not to an extent that would constitute physical abuse. (Father acknowledged hitting, using duct tape, grabbing Kaitlyn’s cell phone. Mother acknowledged slapping [minor daughter] once, pushing [minor son], and damaging Austin’s bedroom door.) Both parents have downgraded the other parent to the children (mother in the past telling the younger children it was not right to be giving their father back rubs and father telling the children that what mother was doing when she videotaped him was “the kind of thing that gets you put in a mental asylum”). This examiner did not find evidence that mother or father suffer from a major mental illness independent of their reaction to high marital and custody conflict. Mother currently appears to be the parent more encouraging of the children’s relationship with the other parent.
Father reported a clear increase in his quality of life in California — the cost savings of living in a home he already owns, the proximity to business and leisure opportunities, and greater comfort with the people he meets. Delaying reunification therapy and putting aside the problems the children have reported in their relationship with their mother as father suggested would be likely to result in more entrenched alienation from mother less amenable to professional intervention. If [minor son] and [minor daughter’s] positive relationships with mother are not restored with the help of reunification therapy their self-esteem and ability to form future healthy and lasting close interpersonal relationships are likely to suffer significantly. It is this examiner’s professional opinion that [minor son] and [minor daughter’s] alienation from mother results from the inappropriate behavior of both parents who have perhaps inadvertently responded in ineffective or damaging ways to the children’s rebellion, fear, and anger. Mother has called the police too often (for example inappropriately seeking the help of the police in early 2010 to get Austin to return her personal journal to her), has tried to force her way into Austin’s or [minor son’s] room when they were too angry to respond reasonably rather than back away to defuse the situation, and made one statement to [minor son] (suggesting that if he continues to be so out of control what would stop him from going further and doing something like putting an ax to her back) that it seemed to justify [minor son’s] reported fear of her. (Father has also called the police about his wife’s behavior on multiple occasions but not nearly as often and not for help controlling his sons.) During evaluation interviews father more extensively put mother in a bad light than mother put him in a bad light when interviewed with the children. Father has discussed his interpretations of mother’s words and behavior with the children, influencing them to share his opinions. “[Minor son] feels, as I do, that [mom’s comment about the ax] was so far reaching [that]...she may be justifying in her head striking out at [minor son] [physically].” contact with his father and older brother, and also noted that the minor son saw “his mother in an exaggerated negative manner because of mother’s and father’s inappropriate behavior.” Regarding the minor daughter, Dr. Ginsburg recommended that she continue to reside in Pennsylvania with her mother, at least until December 2013. She notes that the minor daughter had had a close relationship to her mother which deteriorated sometime in January 2013, although she notes that the negative feelings against mother began intensifying in 2010 after mother had filed for divorce and then again in 2012 when mother falsely accused father and Austin of improper behavior causing him to be removed from the house through a PFA. Nevertheless, Dr. Ginsburg saw no safety concerns with mother and believed that the developing estrangement between mother and the minor daughter could be remedied through reunification therapy. If the minor daughter would immediately move to California, the therapy would be compromised, and the estrangements between mother and daughter would likely be cemented. Dr. Ginsburg’s recommendation was in part the basis for the parties reaching the agreement on July 31,2013, which provided that the minor son would be permitted to move to California with his father, that minor daughter would remain with mother, and that reunification therapy would commence.

As of July 2013, Dr. Ginsburg recommended that the minor son relocate to California to live with his father. She noted that the minor son benefited from continuous

At issue is primary physical custody. 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).

Under Pennsylvania’s custody statute, the general assembly listed several factors the court must consider, when relevant, in awarding custody of a child, giving weighed consideration to those factors which affect the safety of the minor child.

The first factor addresses “which party is more likely to encourage and permit frequent and continuing contact between the child and another party.” Neither party appears capable of supporting the other for reasons already set forth. There is, of course, the geographic limitations which greatly restrict personal access by the non-custodial parent. Additionally, the parent having custody has thwarted the non-custodial parent from having phone or internet access to the child. This factor does not favor either party.

The next factor considers 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.” Each party claims abusive contact against the other in the past. Father contends that mother has been physically abusive to the minor daughter, with the slapping incidents, and causes emotional and psychological damage through her clear mistrust of the child, as well as her lies, cursing and engaging in other inappropriate conduct. This court finds that father is correct that mother’s behavior has been detrimental to the child’s welfare. Assuming for the sake of argument that mother had to protect herself and her relationship with the minor children from father’s actions, she nevertheless overreacted. Under no circumstances should she be locking minor children from the house, particularly in cold weather, blockading doors, calling the police for non-criminal matters, directing the school to search a locker or a friend to search a backpack, or surreptitiously videotaping the family. Considering these events, and the fact that mother has been caught in lies by the minor children and by this court, as will be discussed further, it is a wonder that she would have any credibility with the child whatsoever. The reunification counsellors’ well placed efforts notwithstanding, the child has been detrimentally affected. This factor favors Father.

The next factor concerns “the parental duties performed by each party on behalf of the child.” According to both parties, father performed the majority of the maintenance for the child during the later stages of the parties’ residence together, although each blames the other for mother’s abdication.

One of the few positives in this case is Father’s commitment to providing for his minor children. He does provide good oversight and supervision, and is genuinely interested in their daily activities. Were it not for the alienating attacks against mother, his parenting record would be acceptable.

Mother appears to have the capacity to properly perform all parenting duties but has compromised this capacity by engaging in aberrant behavior. Further, she has been less involved overall than father. This factor favors father.

The next factor concerns “the need for stability and continuity in the child’s education, family life and community life.” As mother resides in the marital home, and in the school district where the child has matriculated, there is a measure of continuity in mother’s favor. While moving to California would represent a reuniting of her with her two (2) brothers and her father, she would find herself in a new curriculum and having to meet new friends. That being said, in reviewing the two (2) households, father appears better able to provide a stable home environment. This court anticipates that the child would soon develop into a steady routine at father’s home, with father providing appropriate structure and support. This factor favors father slightly.

The next factor concerns “the availability of extended family.” Neither party focused on this issue. There was some evidence that mother is estranged from members of her family due to some financial dealings. Certainly, to the extent there is extended family involvement, it would more likely occur in Pennsylvania. Based on the lack of evidence, this court affords no weight to this factor.

The next factor addresses “the child’s sibling relationships.” The minor daughter has a very strong relationship withherbrothers in California. Herrelationship with her older sister is strained. Mother contends that the state of these relationships is due to father’s persuasions, even to the point that he enlisted the minor son to assist him in recruiting his sister to “their side.” It is apparent to this court, however, the minor daughter has always been very close to the minor son and to Austin. This factor favors father.

The next factor involves “the well-reasoned preference of the child, based on the child’s maturity and judgment.” The minor daughter is very intelligent and articulate. She was able to answer questions directly and also volunteered additional information. This court finds her to be competent and will give some weight to her comments. This court issues an addendum to this opinion, to be viewed by counsel but to be sealed from view of the parties, setting forth in greater detail this court’s analysis of the child’s statements made by her during the in camera conference.

The next factor addresses “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.” There is no doubt that father has engaged in behavior designed to further his objective, that is to obtain primary custody of both minor children. He has disparaged mother in front of the minor children. He has used the minor children against mother, including employing them to take items from her house, which though rightfully belonging to him, should have been addressed through the attorneys or by the court. He has used the minor children to get information about mother, although in some cases, the minor children may have volunteered this information, as they have completely aligned themselves with him. The minor daughter perceives that mother is responsible for the divorce, partially because it was she who sought the divorce, but also partially due to father’s weeping, sad demonstrations before the minor children, while mother was trying to get him to leave the house. Father is cajoling and pandering. Partly due to these actions, and partly due to mother’s behavior, the minor daughter now does not want to reside with mother, mistrusts her, and wants to start a new life with father in California. This court also notes that mother has also attempted to alienate the minor children against father, but these actions had no chance for success. This factor favors mother.

The next factor concerns “which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.” This factor strongly favors father. He is loving and nurturing. He has a strong relationship with the minor daughter. Mother, conversely, is so preoccupied with her paranoiac behavior that she is without capacity to provide the nurturing required for minor daughter.

Minor daughter has suffered emotionally, with both parties being responsible. The reunification counselling needs to continue, with father supporting this counselling. If he continues to undermine the counselling, mother will never have any type of relationship with the child, at least until the child reaches a level of cognition that she can analyze all aspects of this complicated relationship. At present, father is better able to provide the love and nurturance.

The next factor concerns “which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.” Father is better able to perform these tasks, for reasons already set forth. This factor favors father.

The next factor addresses “the proximity of the residences of the parties.” This factor greatly impacts the schedule, for it eliminates the possibility of frequent contact, and inhibits the ability of reunification counselling. Father chose to move to California and create this issue. This factor favors mother.

The next factor addresses “each party’s availability to care for the child or ability to make appropriate childcare arrangements.” Father is available, with child care concerns not being necessary. Father works from home with a flexible schedule. Mother works part time and has made arrangements when necessary with neighbors. This factor favors father, but only slightly.

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.” As is clear, the parties have little, if any, ability to cooperate. Each have at times taken aggressive actions against the other. Each mistrusts the other. Unless the parties find a way to mend fences, at least to the point where they can work in concert on behalf of their children, the children will continue to suffer. This factor does not favor either party.

The last two (2) named factors, relating to “the history of drug or alcohol abuse of a party or member of a party’s household” and “the mental and physical condition of a party or member of a party’s household,” are not factors in the case, based on the report of Dr. Ginsburg and because any other evidence regarding these matters is inconsequential.

One final factor is mother’s lack of credibility which has compromised the minor children’s ability to trust her. It is apparent that mother, on occasion, did not hesitate to lie directly to the minor children. The minor son is aware that she has lied to all involved, including the court, about her retention of father’s wallet, even denying that she had the wallet after Ms. Yoder testified that she saw mother with the wallet in her hand at Ms. Yoder’s house. This court ultimately found it necessary to caution her about perjuring herself. After the warning was given, she nevertheless made statements regarding the videotaping which were clearly contradicted by physical evidence produced by father’s attorney. Her testimony, as a whole, cannot be considered trustworthy. Further, her dishonesty lends support to father’s belief that mother may have been orchestrating the separation by attempting to “set him up” and get a protection from abuse order against him. If so, father’s own wrongful actions may have been responsive, not simply coming from father’s own bad intent. This factor strongly favors father.

It appears necessary for the sake of the minor child to transfer custody to father. Father will provide a loving and nurturing household. He will make certain that her educational, medical, and other needs are properly met. The sibling relationship is also a basis for the change, as the minor daughter and the sons, with father, have developed a very close bond, which would be further enhanced by her moving to California. The child’s preference is also a factor which this court weighed in favor of granting father primary custody.

One of the stronger factors in support of this decision is mother’s improper behaviors, and the resulting loss of credibility with the children. Mother’s conduct has exasperated her minor children. While she points to Father pulling them from her, in fact, she has driven them away. If she had chosen to perform properly as a loving, caring parent, providing a safe and secure environment, father’s machinations would have had difficulty succeeding.

Mother will receive four (4) weeks in the summer months with both minor children, and to the extent it is logistically feasible, reunification therapy should continue, even if done by telephone or videoconferencing, and should certainly continue during the four (4) weeks mother has custody of the minor children. This court enters the following order:

ORDER

And now, this 14th day of August 2014, after trial held, custody of the parties’ minor son, M J.R, bom June 25, 1997, and daughter, M.R, bom January 23, 2001, (hereinafter “minor children”), shall be as follows:

1. Defendant, Paul Pietrusewicz (hereinafter “father”), shall have sole legal custody of the minor children. That being said, plaintiff, Teresa Pietrusewicz (hereinafter “mother”), shall be provided all information regarding legal custody issues, including, but not limited to, education, medical, and extracurricular activities.

2. Father shall have primary physical custody of the minor children.

3. Mother shall have physical custody of the minor children for four (4) consecutive weeks during the summer months. The weeks shall be determined by agreement of the parties, but upon failure thereof, shall be during the month of July.

4. Mother shall be entitled to visits with the minor children in the State of California upon giving at least two (2) weeks’ notice to father of her intention to travel to California for the visits. At no time during these visits may mother remove the children from California.

5. Whenever father travels to Pennsylvania with the minor children, he shall give mother notice of the days he intends to be in Pennsylvania, and shall provide her with partial custody block of time equal to at least one (1) hour for every day he is in Pennsylvania, unless otherwise agreed.

6. Mother and the minor children shall continue to engage in reunification therapy. The reunification therapist currently employed may continue to assist. Reunification therapy shall take place when the minor children are present in Pennsylvania. The therapy may also be permitted through the use of telephone or videoconferencing. The cost for the counseling shall be shared equally by the parties.

7. This order shall be considered a final order finally resolving the issues raised in the petition of defendant, Paul Pietrusewicz, to modify a child custody order entered by this court on November 21,2012.

8. If either party is planning to relocate with the 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 children at least sixty (60) days in advance of the proposed relocation in compliance with 23 Pa. C.S.A. Section 5337.

9. 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.

      . Mother filed a divorce on February 16,2005 but withdrew the divorce action on March 10, 2005. The current action, docket no. 05-2213 No. 5, was filed on July 21,2010.

      . For reasons already set forth, this court did not consider the updated evaluation of Dr. Ginsburg dated April 30,2014.

      . July 23, 2013, Report at p. 4.

      . July 23, 2013, Report at p. 4.

      . July 23, 2013, Report atp. 10.

      . 723 Pa.C.S.A. §5321, et seq.