author: ANDERSON, J.,

text:
    Turkey Run v. Seneca Specialty Insurance Co.

      Joseph Musto, for plaintiff.

      Peter Deeb, Debra Krebs and Mark Sheridan, for defendants.
    February 13, 2014
   ANDERSON, J.,

Before the court is the motion of defendant Soccer Dome, LLC for Entry of Discontinuance, filed February 7, 2014. Defendant Gleason’s response to the motion was filed February 12, 2014.

Plaintiff, Turkey Run Properties, LP, owns certain real estate on which was situated a dome structure which was leased by defendant Soccer Dome, LLC.. Turkey Run purchased insurance on the dome from defendant Seneca Specialty Insurance Company, using Gleason Agency, Inc. to effectuate the purchase. In February 2011 the dome collapsed. Turkey Run made a claim with Seneca and, after an investigation, Seneca denied the claim, for two reasons: the application for insurance had misrepresented that there had been no losses in the previous five years when in fact there had been a partial collapse in 2007, and faulty or inadequate maintenance (in temperature and pressure levels) excluded the loss from coverage under the policy.

In the instant suit, Turkey Run claims that (1) Seneca breached the insurance contract by failing to diligently investigate the claim and by failing to pay it, (2) Gleason was negligent in filling out the insurance application, and (3) Soccer Dome was negligent in its maintenance of the temperature and pressure in the dome. Turkey Run also seeks a declaration that the damage to the dome “arises out of or is related to use” by Soccer Dome (which would make Soccer Dome liable under its lease with Turkey Run).

All defendants answered the complaint and filed cross-claims against all other defendants; Seneca and Soccer Dome also filed counterclaims against Turkey Run. The cross-claims and counterclaims were answered and the pleadings thus closed without too much wrangling. Discovery proved to run much less smoothly, however, and after significant time in the matter was invested by all counsel, it was decided that mediation might be beneficial. Indeed it was, and following mediation, Turkey Run settled with both Seneca and Soccer Dome. A settlement with Gleason was not forthcoming, however, and the matter proceeded to the pre-trial conference, at which counsel for Gleason objected to the absence of counsel for Soccer Dome who, based on the settlement with Turkey Run, had not appeared. Gleason contended that Soccer Dome was required to participate in the trial based on Gleason’s cross-claim against it. Counsel for Soccer Dome was contacted by telephone and indicated his understanding that only claims for contribution and indemnity had been made and that while any judgment Turkey Run might obtain against Gleason might be reduced because of the settlement with Seneca and Soccer Dome, Gleason could not pursue a claim of negligence against Soccer Dome. Counsel for Gleason disagreed but as the issue was not at that time before the court, the pre-trial conference proceeded and the matter was scheduled for trial. Soccer Dome has now filed the instant motion for entry of discontinuance, seeking an order that the entire matter be discontinued as against it.

Initially, the court notes that counsel for Soccer Dome was correct in his understanding that only claims of contribution and indemnity have been made by Gleason, as follows:

NEW MATTER PURSUANT TO RULE 2252(D) IN THE FORM OF A CROSS-CLAIM AGAINST CO-DEFENDANT, SOCCER DOME, LLC
110. Gleason avers that if plaintiff sustained any compensable injuries or damages as alleged inplaintiff’s complaint, said injuries or damages were caused by co-defendant, Soccer Dome, LLC, for the reasons set forth in plaintiff’s complaint or otherwise, which allegations are hereby incorporated by reference as if each of said allegations were more fully set forth herein at length.
111. As a result, Gleason avers that co-defendant, Soccer Dome, LLC, is jointly or severally liable, or liable over to Gleason for contribution or indemnity on any recovery obtained by plaintiff.
WHEREFORE, defendant, Gleason Agency, Inc. respectfully avers that co-defendant Soccer Dome, LLC, is liable, jointly or severally liable, or liable over to Gleason Agency, Inc. for contribution or indemnity on any recovery obtained by plaintiff.

Gleason argues against dismissal on the basis that the request for indemnity is a valid claim against Soccer Dome. Before reaching that point, however, the court will address Gleason’s preliminary points.

First, Gleason argues that the motion should be denied as an untimely motion for summary judgment. Soccer Dome has filed the motion under Pa.R.C.P. 229, which speaks to voluntary discontinuance by a plaintiff before trial. That is indeed not the case here, and Gleason is thus correct that the motion should be treated as a motion for summary judgment. Since the latest version of the scheduling order in this matter required dispositive motions to have been filed by August 5, 2013, the instant motion is untimely. The court will not dismiss the motion on that basis, however, as to do so would work a manifest injustice: Soccer Dome would be required to defend an invalid claim, one which it reasonably could not have foreseen until counsel for Gleason announced an intent to pursue it, after the dispositive motions deadline had passed.

Second, Gleason argues it would be prejudiced by dismissal of its cross-claim against Soccer Dome. Interestingly, Gleason cites Rule 229 in support of this argument, for the proposition that discontinuance as against some but not all defendants is not appropriate where discontinuance would prejudice the remaining parties. Ignoring the irony in this argument, the court will simply note that as it is determined hereinafter that Gleason does not have a valid claim against Soccer Dome, dismissal of that claim cannot constitute prejudice.

Finally, Gleason argues that encouraging settlement is no justification for depriving it of a valid cross-claim against Soccer Dome. The court wholeheartedly agrees with Gleason on this point, and if Gleason had a valid cross-claim against Soccer Dome the motion would not be granted. As discussed hereinafter, however, the court has concluded that Gleason does not have such a valid cross-claim.

Gleason contends that it has a valid cross-claim against Soccer Dome for indemnity because Soccer Dome was “actually responsible for the collapse” and Gleason was only, if at all, “secondarily liable.” Gleason argues that “the issue is not whether Gleason was itself negligent, but whether Gleason’s alleged negligence ‘contributed to the happening of the accident,”’ and that Gleason “in no way caused this damage,” citing Builder’s Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951). This argument is simply incorrect. While Gleason may not have had anything to do with the collapse, it is alleged that it had much to do with the refusal of the insurance company to pay, and that lack of payment, in addition to the collapse itself, is said by Turkey Run to have caused further injury in the form of mold and mildew which accumulated as the parties wrestled with the claim. Gleason’s negligence is thus indeed an issue and further, Gleason’s focus on the collapse is misplaced, as primary and secondary liability is not defined based on some sort of “which negligence was worse” analysis.

In Builder s Supply, the courtpointed out that secondary, as distinguished from primary, liability “rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.” Id. at 371. Where there is no legal relation between the parties, there can be no “secondary” liability and thus no right to indemnity. Id. The court therefore concluded that the party seeking indemnification in the case before it, a driver who, because of the negligent actions of another driver, collided with a third driver, was not entitled thereto based on the fact that he was himself negligent even though the other driver may have been ‘more negligent.’ Id. As the Court noted, “[t]he difference between primary and secondary liability is not based on a difference in degrees of negligence.” Id. at 370 (emphasis in original).

Here, there is no legal relationship between Gleason and Soccer Dome, nor is there any other basis on which to conclude that Gleason is “secondarily” liable, such that it would be entitled to indemnity from Soccer Dome.

In the motion for discontinuance, Soccer Dome directs this court to TVMS v. Alexander & Alexander, Inc., 583 F.Supp. 1089 (E.D. Pa. 1984), contending such is dispositive. Gleason argues, however, that the case is not binding on this court. True as that may be, the court finds it supports the conclusion that Gleason is not entitled to pursue a claim of indemnification against Soccer Dome.

TVMS suffered a loss as a result of negligence of Showtime Entertainment. TVMS held an insurance policy written by Wausau Underwriters Insurance Company and obtained by Alexander & Alexander, its insurance broker. TVMS made a claim but Wausau refused to pay the claim. TVMS sued Wausau for bad faith and reformation of the policy, and Alexander for negligence in obtaining the policy. Alexander then filed a third-party complaint against Showtime and Showtime moved to dismiss. In evaluating the validity of the claim, the court considered three theories: indemnity, contribution and subrogation, and found none applicable. In evaluating a possible indemnification claim, the court engaged in the following analysis:

Indemnity shifts the entire loss from one defendant to another. Burch v. Sears, 320 Pa. Super. 444, 467 A.2d 615, 622 (1983). In Pennsylvania, indemnity is available only from those who are primarily liable to those who are merely secondarily or vicariously liable. Id. “To evaluate primaiy as against secondary liability courts have focused on factors such as active or passive negligence and knowledge of or opportunity to discover or prevent the harm.” Id. The Pennsylvania Supreme Court has described indemnity as follows:
It is a right which insures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.
Builders Supply Co. v. McCabe, 366 Pa. 322, 325, 77 A.2d 368 (1951). In the present case, plaintiff’s complaint cannot be construed to allege secondary negligence on the part of A & A and primary negligence on the part of Showtime. Furthermore, there is no contractual relationship or other “legal relationship” alleged between A & A and Showtime. If the jury finds against defendant A & A, it will do so based on the theory that A & A was negligent in obtaining the Wausau insurance policy for the plaintiff. This negligence, if found by the jury, would be active fault on the part of the defendant A & A, and A & A could not shift its loss to Showtime because there is no secondary relationship between A & A and Showtime.

Id. at 1091 -1092. In the instant case, if the jury finds against Gleason, it will do so based on the theory that Gleason was negligent in obtaining the Seneca policy for Turkey Run. This negligence would be active fault on the part of Gleason, and there is no basis on which to shift Gleason’s loss to Soccer Dome. Soccer Dome is thus entitled to the requested relief.

ORDER

And now, this 13th day of February 2014, for the foregoing reasons, the motion for entry of discontinuance filed by Soccer Dome on February 7,2014, which the court will treat in part as a motion for summary judgment, is hereby granted. The claim filed by Turkey Run Properties, LP against Soccer Dome, LLC, and the cross-claim filed by Seneca Specialty Insurance Company against Soccer Dome, LLC are hereby discontinued. Summary judgment on the cross-claim filed by Gleason Agency, Inc. against Soccer Dome, LLC is hereby entered in favor of Soccer Dome, LLC.

      . Although Gleason cross-claimed for indemnity and/or contribution, only the claim for indemnity is being pursued in Gleason’s response to the instant motion.

      . It is at this point the court notes with interest that each of the three defendants filed identical, and, in the court’s opinion, invalid, cross-claims for contribution and indemnity against the other two defendants. Seneca and Soccer Dome settled with Turkey Run and did not pursue their cross-claims. Apparently, only Gleason’s boiler-plate boiled over.


source: Caselaw Access Project

author: BUCCI, J.,

license: Public Domain

text:
    Bechtel v. Bechtel

      David S. Sobotka, for plaintiff.

      Marissa Joan Brumbach, for defendant.
    February 19, 2014
   BUCCI, J.,

FINDINGS OF FACT

1. The plaintiff, Jonathan R. Bechtel (hereinafter, “father”), age 39, and the defendant, Christine Bechtel, (hereinafter, “mother”), age 42, are the natural parents of two minor children, Jonathan Bechtel, born November 8, 2008 and Adalin Bechtel, born March 31, 2010, (hereinafter referred to collectively as “the children” or individually by name).

2. The parties were married on September 16, 2006 in Berks County, Pennsylvania, separated in June, 2011 and were divorced in the Court of Common Pleas of Berks County on January 6, 2012.

3. Prior to the parties’ separation they resided together with the children at 436 North Church Road, Wernersville, Berks County, Pennsylvania.

4. After the parties’ separation, father continued to reside in the marital residence from June 11, 2011 to January 2012, at which point he relocated to the children’s paternal grandparents’ residence at 1695 Morgantown Road, Berks County, Pennsylvania.

5. In June 2011, mother relocated her residence to Philadelphia, Pennsylvania, near her extended family.

6. Approximately one year ago, mother again relocated her residence to reside with her paramour in Lehigh County, Pennsylvania.

7. On November 16, 2011, the parties entered into a shared custody agreement for the children generally consisting of a week-on, week-off schedule, which they had been doing since the date of separation in June of 2011.

8. The parties continued to follow the shared custody agreement even after mother relocated to Philadelphia in 2011 and then when she relocated to Lehigh County in January 2013.

9. Both parties acknowledge that the current custody arrangement is not in the children’s best interest because there is a lack of continuity and because the 50/50 shared custody arrangement has come to its natural conclusion given the fact that the children will be starting school in the fall of 2014.

10. Since January 2013, mother has resided in a four bedroom home at 17 Witman Drive, Breinigsville, Lehigh County, Pennsylvania with her paramour, Hugh Gallagher, Mr. Gallagher’s two sons, ages 14 and 16, and mother’s daughter from a previous marriage, Kelsey Cooke, age 16, and the children.

11. Father currently resides with the children, and the children’s paternal grandparents, Douglas and Brenda Bechtel (hereinafter collectively referred to as “paternal grandparents” or individually as “paternal grandfather” and “paternal grandmother,” respectively).

12. Mother’s currently rents her home on a month-to-month basis.

13. Father’s home is owned by paternal grandparents and consists of six acres of land in Cumru Township, a suburb of Reading, Pennsylvania, in the Governor Mifflin School District. The home is 4,200 square feet with separate in-law quarters.

14. Father has been employed as general manager of his family’s business, Rentschler Auto Center, since 1998. The business is located approximately 5-10 minutes from father’s current residence. Father’s work hours are generally Monday through Friday from 8:00 a.m. to 5:00 p.m., with a high degree of flexibility.

15. Mother has been employed on a full-time basis since October 2013 at D.S.S. Computer Company in Wyomissing, Berks County, Pennsylvania, which is approximately 10 minutes from father’s residence. Mother commutes approximately 45 minutes or more from her current residence to work, leaving home by at least 7:00 a.m. and returning home at 5:45 to 6:00 p.m.

16. Mother testified that her daily commute to work usually takes approximately 3 5 minutes. We do not find her testimony credible in this regard. The court is very familiar with Route 222 between Wyomissing, Berks County and Breinigsville, Lehigh County. Route 222 north of Reading is a notoriously congested 2 or 3 lane highway with long bottle neck at key cross-roads. We believe mother’s daily commute time is longer than she claims.

17. From January 2013 to March 2013, mother commuted to work from Lehigh County to Philadelphia Monday through Friday, with a one-hour commute each way.

18. Mother is taking on-line college courses through Cedar Crest College.

19. Mother testified that she intends to obtain an associate’s degree, which will require approximately 160 credits, and she indicated that she is just commencing this education. She will be taking additional classes in the future.

20. The children, while in the custody of father, have been enrolled in the Brecknock Academy day care program located a few minutes from father’s home.

21. The children, if in the primary custody of father, will attend the Governor Mifflin School District.

22. Father has a large extended family in the Berks County area including paternal grandparents, with whom he and the children reside. In addition to paternal grandparents, numerous cousins and an aunt live nearby.

23. Paternal grandmother works part-time as a substitute teacher and spends significant quality time with the children. She is a certified elementary school teacher.

24. Paternal grandfather works as a manager at Threshold of Berks County, which employs persons with disabilities, and there he has a flexible work schedule. As such, he also spends quality time with the children, including making pancake breakfasts for the children every Saturday morning.

25. The children’s ninety-one-year old great-grandmother, father’s paternal grandmother, had resided with father and paternal grandparents until September of 2013, when she passed away. She also spent time with the children.

26. Father’s maternal grandparents, the children’s other great grandparents, reside approximately 15 minutes from father’s residence. Father and the children have dinner with these great grandparents every Wednesday evening. Father testified that he has been doing this since he was a child.

27. The children have other extended paternal family in the area, including an aunt and uncle nearby in West Chester, Pennsylvania.

28. Father has resided in Berks County his entire life. Father has many friends and acquaintances in the area.

29. The children have resided in Berks County their entire lives and have many relatives and friends as a result of their residing in Berks County since their births and attending preschool near father’s residence.

30. Father and the children are very close to his family and they regularly socialize, take family meals together and attend church together every week.

31. Mother’s extended family resides in the Northeast Philadelphia area approximately 1-1 Vi hours from mother’s current residence.

32. Mother relocated to Philadelphia after the parties’ separation in June of 2011 in order to be close to her extended family.

33. Mother now resides more than an hour away from her extended family.

34. Mother’s child from a previous relationship, Kelsey, has been forced to change school districts four to five times due to mother’s having been divorced on two occasions and having relocated her residence on at least six occasions.

35. During the parties’ marriage, mother worked part-time and her employment was home-based, which allowed her to be the primary caretaker of the children prior to the parties’ separation in 2011 when their eldest son was 2 Vi years old.

36. Mother’s current paramour, Mr. Gallagher, previously worked in Wyomissing, Berks County, Pennsylvania.

37. Mr. Gallagher worked for Berks & Beyond from April 2013 until November 2013, commuting Monday through Friday from Lehigh County to Wyomissing. Prior to that, he worked in Lehigh County.

38. Mr. Gallagher and mother have indicated they have no intention of relocating their residence.

39. Mr. Gallagher’s two sons, ages 16 and 14, attend school in Lehigh County.

40. Mother’s daughter, Kelsey, currently attends Parkland School District in Lehigh County. Kelsey lived with the parties prior to separation and relocated with mother, requiring her to switch schools.

41. During 2013, mother used a babysitter/private daycare in Lehigh County for not only child care during the day, but in the early morning and evening hours when both mother and her paramour were commuting from Lehigh County to Berks County for their employment.

42. Mother has occasionally left the children in the sole care of the children’s 16-year-old half-sister Kelsey.

43. In July 2013, mother called the police to report that while she took another child to football practice and her car for an oil change, she left the children in the care of Kelsey, who was asleep when mother left. In mother’s absence, then-four-year-old Jonathan went missing from mother’s home for approximately three to four hours.

44. Jonathan was placed in significant danger when he wandered out of mother’s residence totally unsupervised, during which time he apparently walked across the public street to a neighbor’s home and was missing for several hours causing mother to call police.

45. Mother and her paramour improperly discipline the children by causing them to eat hot sauce as a disciplinary measure.

46. Mother fails to inform father about certain fundamental parenting issues about which father has a right to know and decisions in which father has a right to participate, such as mother having the children baptized in the Catholic church.

47. Similarly, mother recently changed the children’s long-standing pediatrician, unilaterally and without notifying father.

48. Father’s extended family life can best be described as the epitome of a stable, harmonious, tranquil life grounded in the family tradition of living and working together.

CONCLUSIONS OF LAW

1. Actions in child custody are decided under the Pennsylvania Child Custody Act, 23 Pa.C.S.A. §5321 et. seq. and the decisional law that flows therefrom.

2. The court has jurisdiction of the parties, the child and the custody issues in this case. See 23 Pa.C.S.A. §5422

3. “It is axiomatic that the paramount concern in any child custody proceeding is the best interests of the child.” Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). Kirkendall v. Kirkendall, 844 A.2d 1261, 2004 Pa. Super. 55 (2004) (“The best interests of the child is our bedrock in this determination”).

4. “Such a determination, made on a case-by-case basis, must be premised upon consideration of all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995)(intemal quotations omitted); Jackson v. Beck. 858 A.2d 1250, 1252 (Pa. Super. 2004).

5. A parent’s ability to care for a child must be determined as of the time of the trial, and not based on past behavior at an earlier point in time. Hall v. Mason, 462 A2d 843 (Pa. Super. 1983); Bresnock v. Bresnock, 500 A.2d 91 (Pa. Super. 1985).

6. The Child Custody Act enumerates sixteen (16) factors that this court must consider in determining whether to grant or deny any form of custody. See 23 Pa. C.S.A. §5328, discussed more fully below.

7. The court is required to consider all the factors set forth in 23 Pa. C.S.A. §5328. See 23 Pa. C.S.A. §5337(h); JRM v. JEA, 33 A.3d 647, 652 (Pa. Super. 2011) (''All of the factors listed in §5328 are required to be considered”).

DISCUSSION

The court conducted a full and thorough custody trial on January 15, 2014. During the trial, we heard and considered the testimony of mother, mother’s paramour, father, and paternal grandparents. We have also read and considered the parties’ answers to the “custody questionnaire” and various email communications between the parties submitted as exhibits. There was no testimony from members of mother’s extended family.

We begin by observing that this is an unfortunate conflict over who should have primary custody between two equally mature, competent, caring parents who are fully committed to the welfare of the children. Both have equally shared childcare responsibilities for the past 2 V2 years. Both parents gave testimony confirming their recognition of the other parent’s admirable parenting skills. For all of these reasons, we see this as a dispute between two equally fit parents. Therefore, because the distance between the parties necessitates the designation of a primary home rather than the continuation of the current 50/50 arrangement, the foremost issue before the court is which parent can best provide the children with a stable, safe, healthy, harmonious home environment, based on the overall circumstances, in which the children can grow, thrive, and flourish in all respects.

The parties were married in September 2006 and separated in June 2011. Mother testified the cause of the breakdown of the marriage was “financial.” This was mother’s second marriage and father’s first and only marriage. Following separation, father continued to reside in the marital residence for six months, after which he moved in with his parents, the paternal grandparents, where he continues to reside today. Father has resided in Berks County his entire life. Following separation, mother, along with her daughter from a previous marriage, relocated to Northeast Philadelphia where mother has extended family.

Mother lived and worked full time in the Northeast Philadelphia area until she and her daughter again moved, in January 2013, to her current paramour’s residence in Breinigsville, Lehigh County. Mother commuted from her paramour’s residence in Breinigsville to Northeast Philadelphia for approximately three months.

Since October 2013, mother has been employed at a computer firm in Wyomissing (a suburb of Reading), Berks County which is an approximately a 45-minute commute from mother’s residence. Father’s residence is approximately 10 minutes from mother’s current employment.

Father has been employed in the family business for many years. Father is the third generation operating the family’s successful automotive business. Father lives ten minutes from his place of business.

Since their separation in June of 2011 when the children were 1 /4 and 2 lA years old, respectively, the parties shared custody of the children on an equal basis, exchanging custody week by week. Therefore, for the past 2 lA years, both parents have performed all parental responsibilities on an equal basis. To date, with some minor glitches, the parties have cooperatively co-parented the children, with only minor discord on occasion.

However, the parties now come before the court because both parties realize that, due to the distance between their residences, the 50/50 custody arrangement cannot continue when the elder of the children begins full-time kindergarten in the fall of 2014. In anticipation of the children enrolling in school, both parties seek primary custody. Continuing the current shared-custody arrangement would be feasible, and perhaps desirable, if mother lived in closer proximity to father’s residence, which, coincidently, is very close to her place of employment.

Unfortunately, rather than remaining close to the children’s father and to their previous residence, mother chooses to reside with her paramour and his teenage children in Lehigh County. Mother testified that she has no intention of returning to Berks County.

Mother contends that she should be granted primary custody of the children so the children can reside with her in Lehigh County with her, their 16-year-old half-sister, mother’s paramour, and his two teenage sons. Mother indicated that she wants the children to attend the Parkland School District rather than the Governor Mifflin School District, which is the school district where father resides. Mother believes that Parkland is a superior school to Governor Mifflin but she presented little, if no, solid evidence to support this contention other than her research on the internet and speaking to other parents. Mother believes that she is the better parent and that she can provide support, encouragement and guidance to help the children thrive and flourish. Mother’s primary argument in support of her bid for primary custody is her claim that she has been the children’s primary caretaker since birth. Mother stated this at trial and several times in her custody questionnaire. However, this is not completely accurate in light of the fact that mother and father have shared all custodial and parental responsibilities on a 50/50 basis since their separation in June 2011. It is true that mother was the children’s primary caretaker prior to the parties’ separation when their eldest son was 2 Vi years old and their daughter was 15 months old. For the past 2 Vi years, however, father has been equally responsible for the care and custody of the children. For example, until very recently, the children’s pediatrician was in Berks County and both parents attended medical appointments with the children.

Father contends that he should have primary custody because he can provide a more stable, supportive, multigenerational family environment in which to raise the children. Father presented compelling evidence that he has the strong support of paternal grandparents and that the children are all part of a very close-knit, traditional family who live together, share family meals together, play together and attend church together. Father points out that he has a stable job in a stable, long-standing family business. He lives with his parents in a 4,500 square foot home on 6 acres only 10 minutes from his work. If father has primary custody the children will attend the Governor Mifflin School District. It is the same school district that father attended school while growing up. In sum, father presents a picture of a secure, stable, safe, traditional multi-generational family life environment, which is far different than the “family life” environment presented by mother. We make this observation for several reasons. First, mother admitted that, as a result of her multiple relocations, her teenage daughter of another marriage has been enrolled in four different school districts. Mother, within the past year, relocated away from her extended family in Philadelphia to take up residence with her current paramour in a recently-rented home, which is rented on a month-to-month basis. Therefore, within the past year, the children began living with two teenage boys with which they had only recently become acquainted. Mother presented no evidence whatsoever that her extended family in Northeast Philadelphia support her and the children in any way, such as providing childcare or otherwise. Mother testified that she and the children visit her relatives in Northeast Philadelphia only about once a month.

Mother contends that she and her new paramour now have a new happy “blended family” which may be true. However, this is a relatively new relationship with a man she began dating 1 V2 years ago. Whether or not this will last or whether mother will relocate again as she has done in the past is an issue for the court to consider.

Father and the children are clearly fortunate to be part of and have a close bond with father’s extended family, in particular paternal grandparents. The evidence demonstrates that father’s family places considerable emphasis on having a peaceful, loving family life. They have shown that they place family unity and harmony above pursuit of material things. They impressed this court with their calm, forthright demeanor and their attitude towards each other and the children. We believe this is a family that embraces unity and happiness to the exclusion of other concerns. This is best exemplified by paternal grandfather’s decision to leave the family business and turn over the “reigns” to father to avoid family conflict. Paternal grandfather instead pursued other worthwhile employment: working with handicapped adults. All too often, family businesses are afflicted with internal family competition and resulting family discord. We see just the opposite in father’s family. We cannot think of a better environment in which to raise young children.

Although, in this case as in all custody matters before us, we consider all of the statutorily-mandated factors, stability may be the main issue in this particular case. Here, father presents an outstanding, remarkably stable family, residential and work history in stark comparison to mother, whose history is characterized by upheaval and disruption.

Due in part to father’s stable history, the children have a very strong bond with paternal grandparents, who have been very involved in the children’s lives. To grant mother primary custody would be destructive of this family structure. To remove the children from father’s residence would be very detrimental to the children. Mother has acknowledged by her agreement to 50/50 custody since separation that father is a competent, capable parent and that his close family is a healthy environment for the children. We cannot overstate the importance of father’s extended family in the children’s lives. Paternal grandmother is a strong, positive influence in the children’s lives. She impressed this court with her knowledge of the children’s lives, her contribution to their development, and we are impressed with her teaching credentials.

Paternal grandparents confirmed that, despite their living arrangement, father has performed the primary parenting responsibilities with respect to the children. Demonstrating an unusually harmonious multigenerational living arrangement, paternal grandmother testified that they all sit down to a family meal every day. Paternal grandmother primarily prepares meals, but paternal grandfather said everyone shares in preparing family meals.

Paternal grandparents impressed us as very warm, caring, loving, ■ affectionate people, and paternal grandfather described his role as “mentor” to the children.

Mother testified that she thought that the children needed consistency and stability in their education and friendships, but mother has shown very little consistency or stability in her life and little awareness of how her life impacted her daughter, Kelsey, who has attended four school districts. Mother moved to Philadelphia away from the children and the children’s father. We observe that mother testified that the reason for separation was financial; not abuse, not incompatibility. It is understandable that mother moved to be close to her extended family, but the move nonetheless took the children an hour from father, despite the agreed-upon 50/50 custody agreement. Then, in January 2013, mother moved in with her new paramour which was an hour from her employment in Philadelphia and a great distance from the children’s father in Cumru Township, Berks County. We feel this demonstrates a pattern of mother putting her needs in front of the needs of the children. Her current living arrangement may be just as temporary and uncertain as her previous arrangements, particularly in light of the fact that she rents on a month-to-month basis, that her employment is not close to her current residence, and that she and her paramour are not married. To date, the hallmark of mother’s life is to pick up and move based on her immediate situation.

Conversely, father’s very supportive extended family is a model of a happy, close, loving family who lives together in harmony, plays together, shares family meals daily together, attends church every Sunday together, and even has pancakes every Saturday morning prepared by paternal grandfather. We are convinced that the children will benefit immensely from being raised in father’s household with the support of paternal grandparents.

In reaching our decision, in addition to the above, we have considered all of the above in light of the statutory factors, as set forth in the next section. See 23 Pa. C.S.A. §5328.

STATUTORY FACTORS

1. Which party is more likely to encourage and permit frequent and continuing contact between the children) and another party. There is no evidence to suggest that either party has attempted to prevent the other from having frequent contact with the children in light of their 50/50 shared custody arrangement, which was entered into by mutual agreement. We were impressed by father’s testimony at trial when asked if he regularly allows the children to speak with mother. He replied that he schedules a time, on almost a daily basis, for the children to speak to mother and he ensures that there are no distractions “so they have quality time to speak to their mother.” We were equally impressed with father’ response to Question 38 of the court’s custody questionnaire concerning his view of mother’s future role in the care and upbringing of the children. He wrote: “Christine has played an equally huge part of our children’s upbringing... I see her as an equal partner in the co-parenting of our children.” This confirms our conclusion that if father is granted primary custody he will actively and affirmatively promote mother’s relationship with the children and that he will permit and encourage the children to have quality time with mother, even above and beyond what any court order may dictate. On the other hand, in mother’s response to Question 38, she repeats her inaccurate description that she has been the children’s primary caregiver, though she does acknowledge that father is a “loving, nurturing and attentive father. Based on all the evidence presented, we conclude that father would be more likely to encourage frequent contact between mother and the children than mother would between father and the children.

2. Whether there is past or present abuse by a party or member of the party s household and whether there is a continued risk to the child(ren). There are no allegations of abuse by either party, or member of either party’s household, in this case.

3. The parental duties performed by each party. There is no dispute that mother was the children’s primary caregiver prior to the parties’ separation in 2011. Nor is there any doubt that, post-separation for the past two-and-a-half years, the parties have equally shared all parenting responsibilities, including such things as attending the children’s medical and dental appointments. Father’s position in the family-owned business allows him more flexibility and more time to attend to the children’s daily needs. Mother’s long commute to work and more rigid schedule requires her to leave home early in the morning and return later in the evening. This will become more of an important factor as the children grow older and start participating in extra-curricular activities. In addition to allowing for flexibility, father’s business is in close proximity to cather’s home and schools, and this will facilitate father’s participation in the children’s school and extracurricular activities. For example, father testified that he helps the children dress in the morning, cooks them breakfast, and transports them to and from day care each day. Mother, on the other hand, testified that she will need to rely on her paramour to see the children off to school in the morning.

4. The needfor stability and continuity in the children) s education, family and community life. This may be one of the strongest factors in father’s favor. Father, together with his extended family, can be best characterized as a model of stability which stands in stark contrast to mother’s history. Father is the third generation to manage the family business, where he has worked for the past 16 years. Mother and her paramour have held multiple jobs in multiple cities during just the past several years. Father has resided in Berks County his entire life and will no doubt continue to do so for the foreseeable future. Mother has relocated multiple times, most recently relocating from Northeast Philadelphia to Breinigsville, Lehigh County. As a result of mother’s multiple marriages and relationships, mother’s other daughter, age 16, has had to change school districts four or five times. We are afraid that, despite mother’s best intentions, her current living arrangement may again change and require her to relocate once again. Granting father primary custody gives this court confidence that the children will not live a transient lifestyle and that they will, in all likelihood, remain in the same school district for a long time. If mother would be granted primary custody we would not be so confident that the children would have the same degree of stability they would have in father’s household with respect to their family life, their social and community life, their religious experience and their academic life. The overall, long-term stability we observe in father and his family is clearly an important factor which tips the scales in father’s favor.

We are especially impressed with the testimony of paternal grandmother who is a certified elementary school teacher. She described the creative school-type activities she does with the children such as reading, drawing, coloring, et cetera. In short, she does much more than simply “spend time with them.” Her time with the children is very productive and contributes significantly to their intellectual development. The very important role paternal grandmother plays in the children’s lives cannot be overstated.

5. The availability of extendedfamily. Again, this factor strongly favors granting father primary custody of the children. Father and the children have a strong and close relationship with paternal grandparents and the children’s great grandparents. The fact that father and the children have dinner every Wednesday night with their great grandparents, a tradition than began when father was five, is emblematic of the warm nature of father’s extended family.

The children will benefit immensely growing up in this type of environment surrounded by a close, loving, nurturing extended family. Again, the nature of father’s extended family stands in stark contrast to the children’s relationship with mother’s extended family. Mother’s extended family, of which we know very little, reside an hour away from mother’s current address. Mother testified that she and the children visit her family in the Philadelphia area about once per month. We have not heard any other evidence of mother’s extended family’s involvement or relationship with the children. Mother essentially removed the children from the proximity of their maternal family when mother moved to her paramour’s residence in Lehigh County.

6. Any sibling relationships. The children have an older half-sibling living in mother’s residence. Generally, siblings, even half-siblings should not be separated. However, we do not think this is an important factor given the age difference and the fact that the half-sibling will soon be an adult.

7. The preference of the children), where appropriate. We did not speak to the children in light of their tender ages.

8. Any attempts of a parent to turn the children) against the other party. Both parties have fostered a good relationship with the other. We have heard no evidence of either party disparaging the other in presence of the children. We compliment them on this.

9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the children) adequate for their needs. Both parties are totally committed to their parental responsibilities. Both are mature, competent, capable, caring, loving parents. Mother acknowledged in her trial testimony that father has a “very nurturing” parenting style.

10. Which party is more likely to attend to the daily, physical, emotional, developmental, educational and special needs of the child(ren). Both parents recognize the importance of enrolling the children in church services. Mother very recently, but without father’s knowledge or consent, had the children baptized in the Catholic Church. Father was raised in the Church of the Brethren and he and his parents attend church every Sunday.

Mother sought out a special assessment of son Jonathan because she was concerned about his age appropriate behavior and development. We believe this shows that mother pays close attention to the children’s well-being and development.

Otherwise, this factor favors father because of father’s self-employment, which is located five to ten minutes from father’s residence. The practical reality is that father can be available to attend to the children’s needs much more than mother. For example, father currently prepares breakfast every morning for the children and he drives the children to and from day care. The location of mother’s work and her work schedule will hamper mother’s efforts to do the same.

11. The proximity of the residences of the parties. The proximity of the residences impacts this case to the extent that is renders 50/50 shared custody impossible. Mother, on two separate occasions, made the decision to live over an hour from father’s residence in Berks County. The first time was upon separation in 2011 when she returned to Northeast Philadelphia and again in January 2013 when she moved to her paramour’s residence in Lehigh County. In reaching our decision, we do not intend to punish mother for moving, but we simply note that, as a result of her relocation so far away from father, she has made a continuation of a shared 50/50 custody arrangement impossible.

12. The parties’ respective abilities to care for the children) or to make appropriate child care arrangements. This factor strongly favors granting primary custody to father because paternal grandparents with whom father resides are more than willing to, and eminently capable of, caring for the children in father’s absence. Paternal grandmother, with her background as an elementary school teacher and her especially warm, nurturing personality witnessed by us in court is a particularly important resource for father and the children. Mother must rely on commercial day care providers, her paramour, or her 16-year-old daughter. Neither commercial day care providers or her paramour have the long-standing history or familial bond with the children that paternal grandparents enjoy. And, although the 16-year-old sister is family, we are mindful of the unfortunate, serious incident that occurred in July of 2013 when mother left the children in her care. Mother admits that everyone, including the 16-year-old, was sleeping when she left the house to take her paramour’s son to football practice and their vehicle to have the oil changed. In her absence, and apparently while the children’s half-sister remained sleeping, Jonathan left the residence unattended. When his absence was discovered the police were called to search for him. He had apparently wandered off to a neighbor’s house which required him to cross a public street, and had been missing for approximately two hours. This appears to be an isolated incident but we would be very surprised if such an incident ever occurred at father’s residence considering the responsible care provided by paternal grandparents.

13. The level ofconflict between the parties. Both parties were veiy complimentaiy of each other’s parenting skills at time of trial. Until very recently, the parties mutually agreed to a 50/50 custody arrangement. Thus, we are confident that they will continue to have the willingness and ability to cooperate with each other to continue to co-parent the children in a healthy, constructive manner.

14. Any history of drug or alcohol abuse by the parties. There is no evidence of drug or alcohol abuse by either party, and this is not a consideration in determining custody of the children.

15. The mental and physical condition of the parties. Both parties are vibrant, physically and mentally healthy mature adults. Father suffers from sleep apnea for which he takes physician-prescribed medication to aid sleeping. The health of the parties is not a factor in this case.

16. Any other factor that impacts the best interests of the children). There are no additional factors which have not been addressed, which impact the best interests of the children.

FINAL CUSTODY ORDER

And now, this 19th day of January, 2014, following a custody trial, it is hereby ordered and decreed that Jonathan R. Bechtel, (hereinafter “father”) and Christine Bechtel, (hereinafter “mother”) shall have shared legal custody of the minor children, Jonathan Bechtel, bom November 8, 2008 and Adalin Bechtel, born March 31, 2010, (hereinafter “the children”).

The parents shall share physical custody of the children as follows:

1.Father shall have primary physical custody.
2.During the school year, commencing the date of this order, mother shall have partial physical custody on alternate weekends from Friday after school or, if there is no school or the children are not in school, at 3:30 p.m. until Monday morning when mother transports the children to school or day care. Mother shall also have custody every Wednesday evening and every other Monday evening, for a period not to exceed three hours, and this shall be exercised within 20 minutes of father’s residence in Berks County.
3.During the summer, commencing in June of 2014, the parties shall share custody on a 50/50 basis, exchanging the children every seven days.
4. Mother and father shall alternate custody of the children on the following holidays: Easter, Memorial Day, July 4th, Labor Day and Thanksgiving. Mother shall have custody on Easter 2014, and the parties shall alternate holidays thereafter.
5. For Christmas, father shall have custody on Christmas Eve until 2 p.m. on Christmas Day. Mother shall have custody from 2 p.m. on Christmas day until January 1.
6. Mother shall have custody for Mother’s Day and father shall have custody for Father’s Day each year. Custody shall be from 10:00 a.m. until 7:30 p.m. Both parties shall have custody for at least five hours on the children’s birthday
7. Both parents shall have the right to two nonconsecutive weeks of vacation with the children. Each party shall provide the other party with at least sixty (60) days advance notice of their choice of weeks under this paragraph. Mother’s choice of weeks shall have priority in even years and father’s choice of weeks shall have priority in odd years.
8. The parties shall share transportation. The parent whose period of custody or partial is commencing shall pick up the children at school or the other parent’s residence except when it is the parents’ responsibility to take the children to school in the morning following their period of custody or partial custody as set forth herein.
9. Appendices A, B and C are attached and made a part hereof.
10.This is a final custody order.


author: HERRON, J.,

text:
    In re Bridget T. Hasson

      George Bannon and Alan J. Candell, for accountant

      Michael F. Cotter, for Rita H. Greene and Bridget Hasson.
    October 28, 2013
   HERRON, J.,

On August 9, 2010, Bridget Hasson executed a power of attorney appointing her niece, Mary Bransfield, as her agent. Bridget, who is 85, had been employed as a nurse in Philadelphia for more than thirty years and owned a home at 1605 Frankford Avenue. In late 2011, she returned to Northern Ireland where she presently resides. On November 26, 2012, Rita Greene, on behalf of Bridget Hasson, filed a petition seeking an accounting by Mary Bransfield of her actions as the agent of Bridget Hasson. Ms. Bransfield filed an account on January 30, 2013 covering the period August 2010 through December 31, 2012. In response, Rita Greene filed objections to the account as well as a petition to remove Mary Bransfield as agent for Bridget Hasson. In that petition, Rita Greene stated that on January 23, 2013, she had been appointed by Bridget Hasson as her agent under a durable power of attorney. Ms. Bransfield objected to the petition to remove her as agent, asserting, inter alia, that Ms. Greene has conflicts of interest that are adverse to Bridget Hasson.

A hearing was held on the objections to the account as well as the petition to remove Mary Bransfield as agent. Following that hearing, briefs were filed that identified the issue before this court as whether Bridget Hasson was legally competent in January 2013 to appoint Rita Greene as her agent to assist with the management of her financial affairs.

Legal Analysis

Under Pennsylvania law, the “mental competency of a person who executes an instrument is presumed and the burden of proof is upon the person who alleges incompetency.” In re Meyers, 410 Pa. 455, 468, 189 A.2d 852, 858 (1963). These general principles have been applied in cases where the validity of a power of attorney is challenged:

Written instruments are not to be set aside except upon convincing testimony that their execution was tainted with fraud, either actual or constructive, or that the person so executing them did not have what the law considers sufficient mental capacity to do so...Contracts made with an incompetent before his adjudication as weak-minded are voidable and can be avoided only on proper showing that he was incompetent at the time.... When mental competency is at issue the real question is the condition of the person at the very time... he executed the instrument.... Competence is best determined by a person’s words or acts. The testimony of persons who observed the alleged incompetent on the date in question is generally superior to testimony as to observations made prior to and subsequent to that date. Ordinarily competence is presumed, and the burden of proof is on the person who alleges the incompetence....
Kovalenko Estate, Fid.Rep. 2d 403, 407-08 (Carbon Cty. O.C. 2000), quoting Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 502-03, 556 A.2d 819, 824 (1989) (citations omitted).

In general, courts encounter three classes of testimony as to competency: “(1) the testimony of those who observed the speech and conduct of the person on the day of execution of the instrument whose validity is challenged; (2) the testimony of those who observed the speech and conduct of the person a reasonable time before and after the day of execution of the instrument, (3) the testimony of those who never observed the speech and conduct of the person..” In re Meyers, 410 Pa. 455, 476, 189 A.2d 852, 862 (1963). The last class of testimony is given the least weight. Id.

The nature of the “competency” required for the execution of a valid document, moreover, can vary depending on the type of document at issue. In the case of releases, for instance, a court seeks to determine whether a person had an intelligent understanding of the release by focusing on such factors as (1) the mental and physical condition of the signer; (2) the circumstances in which the release was obtained; (3) the amount paid for the release; and (4) the span of time between the accident and the signing of the release.” Taylor v. Avi, 272 Pa. Super. 291, 297, 415 A.2d 894, 897 (1979). In the case of trusts, in contrast, the requisite mental capacity to execute a trust has been defined as whether a person had an “ability to understand the nature and effect of the trust agreement.” In re Meyers, 410 Pa. at 471, 189 A.2d at 859. The mental capacity for executing a power of attorney has recently been refined by a tripartite analysis in In re Robinson, Incapacitated Person, 28 Fid. Rep. 2d 65 (Mont. Cty. O.C. 2008). In that case, Judge Stanley Ott concluded that at a minimum it was necessary to show that the principal who executed a power of attorney understood the following: (1) the authority he was giving to the agent; (2) the assets that would be subject to that authority, and (3) the plain language of the notice. Id. at 82. Where the mental capacity of someone who has executed a durable power of attorney is challenged, courts require that the lack of capacity be shown by clear and convincing evidence. In re McKinney, 27 Fid. Rep. 2d 359, 360 (Chester Cty. O.C. 2007).

Resolution of this threshold issue of whether Bridget Hasson was legally competent to appoint Rita Greene as her agent is severely handicapped in this case by the failure of Bridget Hasson herself to appear at the hearing. The task is further complicated by her residence since late 2011 in Northern Ireland. Since the account filed by Mary Bransfield states that Ms. Hasson has assets in excess of $600,000 in the United States, control over those assets raises serious concerns.

Instead of direct testimony by the principal, testimony was presented by the two putative agents — Rita Greene and Mary Bransfield — as well as by Bridget’s niece Margaret Thompson. In addition, the parties stipulated to the admissibility of two reports by Dr. T. Flynn, a “consultant psychiatrist specializing in disorders of old age.” In the report dated February 8, 2012, Dr. Flynn diagnosed Ms. Hanson as having “significant anterograde short term memory deficits in the setting of a good social facade” which “is consistent with early Alzheimer dementia.” In more general terms, he noted “I felt at her initial appointment she was incapable of managing her finances correctly but she would be capable of instructing someone to act on her behalf as Enduring Power of Attorney.” Ex. P-6. In the report dated June 15, 2012, in contrast, Dr. Flynn likewise diagnosed Bridget with early Alzheimer dementia but concluded:

She has insight into her memory problems but has inadequate knowledge of her finances to make coherent decisions about them. She would be vulnerable to financial abuse...She lacks capacity to make decisions regarding her finances and her affairs, both in Ireland and in the U.S. These would need to be safeguarded. She is aware that her memory is poor and that her finances would need to be legally supervised.
Ex. P-7.

Dr. Flynn’s observation in his June 15, 2012 report that Bridget “lacks capacity to make decisions regarding her finances and her affairs” and that she would be “vulnerable to abuse” were based on his conversations with her and constitute factual observations. His suggestion in the February report that she “would be capable of instructing someone to act on her behalf as Enduring Power of Attorney,” in contrast, strays into the realm of legal conclusion.

There is no dispute that in 2010 when Bridget asked Mary Bransfield to serve as her agent Bridget was aware that she had memory problems and an increasing inability to handle her financial affairs. In her brief, Rita Greene concedes that in “2010 Bridget Hasson began suffering from short-term memory deficits and retained Attorney George Bannon to prepare a Power of Attorney naming her niece, Mary Bransfield as her agent in order to assist her in paying bills and maintaining her home on Frankford Avenue.” In her testimony, Mary Bransfield fleshed out these points based on personal observations of her Aunt Bridget over the course of forty years after Mary first came to the United States in 1972. In 2010, Ms. Bransfield observed, Bridget “was aware that her memory was failing her. And she had asked me if I would be willing to be Power of Attorney because she was getting confused and she needed somebody to keep an eye on what she was doing.” She noted that there were times when Bridget would call her three times a day without remembering that they had previously spoken. Ms. Bransfield began overseeing Bridget’s mail and finances to make sure all the bills were paid. Bridget confided in Ms. Bransfield about the details of her finances. She had accounts in 5 different banks totaling around $600,000 and owned her Frankford Avenue home. Bridget told Ms. Bransfield that she also had $800,000 in banks back in Ireland and showed the bank statements to Ms. Bransfield. At some point in 2009, the Irish account in Bridget Hasson’s name was closed, and funds were transferred to an account in the name of both Bridget Hasson and Sheila Thompson. According to Ms. Bransfield, Bridget became “upset” in 2011 that she was no longer getting statements from that Irish account and she asked Ms. Bransfield as her agent to check with the bank in Ireland. Bransfield learned that the account was a demand account from which either holder could remove funds. Ms. Bransfield testified that Bridget became very upset when she learned that Sheila Thompson’s name was on the account because she wanted her money ultimately to go to a charity and not a relative. 4/9/13 N.T. at 61-69. In fact, both Ms. Bransfield and Ms. Greene agreed that Bridget was adamant that she wanted her money to go to the needy poor not a greedy relative. 4/9/13 N.T. at 82 (Bransfield); 4/9/13 N.T. at 49-50 (Greene).

In late 2011, Ms. Bransfield flew Bridget back to Ireland for a wedding. Ms. Bransfield described Bridget at that time as being unable to pack for herself and as very confused. Once in Ireland, Bridget went to the bank and was told there was no money left in her account. According to Ms. Bransfield, bank personnel told her they did not think Bridget was competent to manage her finances. 4/9/13 N.T. at 69-74; Ex. D-2. When Ms. Bransfield returned to Ireland in December 2012, she contacted the police about the missing $800,000 and was told there was an ongoing investigation. 4/9/13 N.T. at 78-79 (Bransfield).

Bridget also told Ms. Bransfield about a lawsuit she had filed against Marilyn Hunt to recover on a $106,000 promissory note. She told Ms. Bransfield that “it didn’t matter how much that cost, she wanted the case taken care of to the end. She wanted it played out to see it to the end because it was a severe injustice.” 4/9/13 N.T. at 78 (Bransfield).

In addition to handlingBridget’sfinances, Ms. Bransfield also had Bridget’s Frankford Avenue house cleaned out for which she paid her son, Michael Bransfield, $5,000 after obtaining comparable bids from others to clean out the house. Ms. Bransfield did not seek compensation for her work in 2010. When she took Bridget back to Ireland in 2011, she took compensation for the loss of 6 work days and travel expenses. 4/9/13 N.T. at 76-80. The account Ms. Bransfield filed of her actions as agent under the power of attorney reflects these disbursements. It also states that the amount of $630,979.83 is currently available. It states that because of their concern that unauthorized third parties were attempting to gain access to Bridget’s funds a revocable living trust had been created on her behalf. See Account, Ex. P-8.

Bridget’s other niece, Margaret Thompson, likewise testified that by 2011 she had observed a serious deterioration in Bridget’s mental condition. She confirmed that Bridget had discovered upon her return to Ireland that her money had been moved. Out of concern for Bridget’s risk of financial abuse, Margaret contacted Dr. Flynn to do a memory and competency assessment. According to Ms. Thompson, “Dr. Flynn talked to me on the phone after that examination and he said that she had really very little grasp of how much money she had or of her active financial affairs. He felt that he needed to be protected by law for her.” 4/9/13 N.T. at 125-26 (Thompson).

This testimony that Bridget was confused about her financial affairs was inadvertently confirmed by the often befuddled testimony of Rita Greene who claimed to have been granted a viable power of attorney by Bridget executed on January 23, 2013. Although the power of attorney was granted in January 2013, Ms. Greene testified that the last time she had seen Bridget was months before in September 2012. 4/9/13 N.T. at 42 (Greene). At that time, Bridget had wanted “to go bank to bank to bank of the banks that Bridget could remember she had accounts in to see if she had any accounts left.” 4/19/13 N.T. at 43 (Greene). When asked if Bridget was capable of “understanding the nature and extent of her financial affairs,” Ms. Greene replied: “I don’t know if I’m capable of understanding the extent of her financial affairs, Mr. Candell.” 4/9/13 N.T. at 25 (Greene). In contrast to the credible testimony by Ms. Bransfield that Bridget had confided in her the number and extent of her bank accounts in the United States, Ms. Greene testified that Bridget was unable to give her that type of detailed information. When asked about the nature of Bridget’s accounts in Ireland, Ms. Greene replied:

A: Haven’t been there. Don’t do the books,. Can’t say for sure what she has there, Mr. Candell.
Q: So you’ve never discussed how much she has in Northern Ireland?
A: It’s not necessary for me to do that with her, Mr. Candell, because it’s not about money for me.
Q: Are you aware of an account allegedly containing $800,000?
A: The first time I heard of that was from you, and that was the last time that I spoke to you this arena.
4/9/13 N.T. at 26 (Greene)

Ms. Greene acknowledged that she had never gone over Bridget’s finances nor taken part in her decisions of daily living. 4/9/13 N.T. at 37 (Greene). When asked who is looking after Bridget’s money now, Ms. Greene testified: “I believe she and Geraldine wonder if she has any.” 4/9/13 N.T. at 45 (Greene). Ms. Greene also testified in a deposition that Bridget had told her in effect “my memory isn’t working” and that she had “accidentally sold her house.” 4/9/13 N.T. at 34-35 (Greene).

In the absence of direct testimony by Bridget that would give insight into her understanding of the nature of the authority she was giving to Ms. Greene as well as the extent of the assets that would be subject to that authority, Ms. Greene’s testimony is alarming. It is clear from that testimony that neither Ms. Greene — and by extension Bridget Hasson — understood the nature of the authority granted under the power of attorney nor the extent of the assets subject to it.

A further disturbing aspect of Ms. Greene’s testimony is her admission that she had voluntarily testified against Bridget in her lawsuit against Marilyn Hunt to recover on a $106,000 promissory note. Her deposition answer as to why she testified on Marilyn Hunt’s behalf is at once befuddled and revealing as to a profound conflict of interest. “I’m here because I think that Marilyn is being slandered beyond belief.” When asked to elaborate, Rita stated: ‘I don’t know what has happened. I don’t know what took place, but I do know that there was never a time when Marilyn Hunt ever had any intention or ever in any way would take advantage of Bridget Hasson.” 4/9/13 N.T. at 31-32 (Greene).

Based on this record, the power of attorney claimed by Rita Greene is invalid. It would be reckless for this court on this record to give her authority and control over Bridget Hasson’s assets. Rita Greene’s testimony displayed an ignorance of the most basic economic details. It was often incoherent, cavalier and combative especially when contrasted to Mary Bransfield’s careful marshaling of economic details in her testimony and the account showing a balance of $630,979.83 available for Bridget Hasson.

On this record, however, the account may not be confirmed. Rita Greene’s objections to the account cannot be considered first because she has no standing to object to the account since her power of attorney is invalid. Second, and more importantly, the account cannot be confirmed on the present record because the right of someone with standing to object to the account needs to be preserved. Although Ms. Greene raised objections to Mr. Bannon’s attorney fees, for instance, her attorney appears to have waived those objections by failing to depose Mr. Bannon who was unable to attend the hearing due to illness and by sending a letter dated April 15, 2013 which states: “Regarding Mr. Bannon’s answer to our objections to the account of Mary Bransfield, the information contained within the twenty four page itemized billing speaks for itself throughout. It is quite a Reply.” The account therefore shall not be confirmed and will be returned unaudited.

      . Ms. Greene sought to introduce into evidence 2 letters from Bridget Hasson: one to George Bannon (Ex-P-3) and one to Mary Bransfield (P-4). Ex. P-4 was not admitted on the grounds of an inability to cross examine. The admissibility of the letter to Mr. Bannon was held under advisement until counsel deposed him, but since that deposition never took place, Ex. P-4 is likewise inadmissible. See 4/9/13 N.T. at 53-54.

      . The 11/26/12 Petition seeking an accounting was filed by Rita Greene, pro se, on behalf of Bridget Hasson. The 2/28/13 petition to remove Mary Bransfield as well as the objections to the account Bransfield filed were filed by attorney Michael Cotter on behalf of Rita Greene. On July 18, 2013 — after the hearing and briefing schedule was closed — Mr. Cotter entered his appearance “on behalf of petitioner, Bridget T. Hasson, who recognizes and approves of my continuing to represent her agent, Rita H. Greene, in this matter.”

      . 6/18/13 Rita Green Brief at 1; 7/12/13 Mary Bransfield Brief.

      . Ex. P. 7; See also Ex. P-6. The reports are dated June 15,2012 and February 8, 2012 but there is some confusion as to which was the first report. Counsel for Mary Bransfield, for instance, stated that the February 8, 2012 report was actually “supposed to be after the first report.” 4/9/13 N.T. at 8 (Candell). In fact, there is a handwritten notation on Ex. P-6 of “13” after the date 02/08/2012. During the hearing, counsel for both parties agreed this report was actually done in February 28, 2013. See 4/9/13 N.T. at 41 (Cotter and Candell).

      . 6/18/13 Rita Greene Brief at 2.

      . 4/9/13 N.T. at 58.

      . Towards the conclusion of the hearing, counsel for Ms. Greene was given the option to depose Mr. Bannon as to his fees or to stipulate to the “Bannon time reference” by letter within fourteen days. 4/9/13 N.T. at 139-40.


author: HESS, J.,

text:
    Havice v. Erie Insurance Company

      Douglas G. Miller, for plaintiff.

      Stephen L. Banko, for defendants.
    January 21, 2014
   HESS, J.,

OPINION and ORDER

Before the court are the preliminary objections of the defendants Erie Insurance Company, Erie Insurance Exchange, and Erie Insurance Property & Casualty Company, Members of Erie Insurance Group (hereinafter “Erie”) to an amended complaint filed by the plaintiff, J. Audrey Havice (hereinafter “Havice”). (Prelim, objs. of defs. to pl.’s am. compl., filed Sept. 20, 2013). Plaintiff’s amended complaint contains three counts: at Count I, breach of contract; at Count II, bad faith; and at Count III, common law fraud and deceit. (Am. compl., filed Sept. 3, 2013). Count III of the amended complaint has been preliminarily objected to for failure to conform to law or rule of court. (Prelim, objs. of defs. to pl.’s am. compl, filed Sept. 20,2013). Defendants argue that Count III should be stricken as a whole and that, in any event, the request for consequential damages within Count III should be stricken.

Plaintiff’s amended complaint may be summarized as follows: Havice is an eighty-six year old woman residing at 11 South Thrush Drive, Carlisle, Pennsylvania 17015. (Am. compl, ¶ 1). Havice’s house at said property was constructed in 1994. (Am. compl, ¶ 7). Havice purchased an insurance policy that covered the property at 11 Thrush Drive and the personal property therein from Erie, who is qualified to transact business in the Commonwealth of Pennsylvania and maintains offices at 100 Erie Insurance Place, Erie, Pennsylvania 16530. (Am. compl., ¶¶ 2-4). Havice’s insurance through Erie was in effect at all times relevant. (Am. compl., ¶ 11). In April of 2010, Havice hired a contractor to repair some loose shingles on her roof, however, she avers that her roof had no leaks at that time or beforehand. (Am. compl., ¶¶ 8-10).

On May 26, 2011, there was a hail storm in the area where Havice lived. (Am. compl., ¶ 13). Several months after the storm, Havice discovered water leaking into a window, damage to window screens, shingles that were dislodged from her roof, damage to her porch, and marks on the outside of her home and on mechanical equipment. (Am. compl., ¶ 14). As a result, Havice contacted Erie. She also asked roofing contractors to provide estimates for the cost of repairs. (Am. compl., ¶ 15). Subsequently, Havice learned that twelve other houses in her neighborhood, including neighbors on both sides of her house and directly across the street from her house, sustained damage from the May 26, 2011 hail storm that required roof repairs. (Am. compl., ¶¶18, 38).

The same company that performed the 2010 repairs to Havice’s roof, Biniek Specialty Contractors, LLC (hereinafter “Biniek”), prepared an estimate for the damage that was caused by the hail storm. (Am. compl., ¶ 27). Biniek found that the roof was in significantly worse condition than when repairs were made in 2010, and their estimate for repairs totaled $30,686.10. (Am. compl., ¶¶27,28). Additionally, Havice received an estimate from Premier Siding & Roofing (hereinafter “Premier”) to make repairs. (Am. compl., ¶ 29). Havice avers that Premier estimated a total amount of repairs of $36,100.23. (Am. compl., ¶ 31).

Erie inspected Havice’s home in the presence of at least one of the roofing contractors that provided Havice with an estimate. (Am. compl., ¶ 20). Erie later compensated Havice for damage to gutters, downspouts, fascia, screens, and lawn ornaments. Erie determined, however, that there was no hail damage to the roof. (Am. compl., ¶¶19, 21). On November 3,2011, Havice inquired as to why Erie was denying any damage to her roof. (Am. compl., ¶ 22). In the course of her inquiry, an Erie agent informed her that submitting false information to an insurer or submitting a false claim to an insurance company is a crime; statements that Havice interpreted as a threat and an attempt to deter her from pursuing the insurance claim. (Am. compl., ¶ 22). Further, Havice asserts that similar statements were made by Erie to her contractors, in an attempt to dissuade them from preparing their reports. (Am. compl., ¶ 50). As a result, Havice contends that she had to secure additional experts to support her claims. (Am. compl., ¶ 67). Havice suggests that the Erie agent would not have threatened her about submitting false claims if she were not an elderly woman who lived alone. (Am. compl., ¶ 68). Havice further avers that her health and well being has suffered as a direct result of Erie’s actions, (Am. compl., ¶ 70) stating, specifically, that she is “less mobile, is on oxygen to assist in her breathing, and was admitted to the hospital in February 2012 for pulmonary issues.” (Am. compl., ¶ 71).

Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be filed by any party to any pleading on several limited grounds, including the “failure of a pleading to conform to law or rule of court....” Pa.R.Civ.P. 1028(a)(2).

The standard of review for preliminary obj ections in this Commonwealth is well settled. Preliminary objections are properly granted only when, “based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief.” Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008) (internal citations omitted). In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A2d 403, 407 (Pa. Cmwlth. 1990). However, the trial court “need not accept as true conclusions of law, unwarranted inferences from fact, argumentative allegations, or expressions of opinion.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa.Cmwlth. 1995). An appellate court will only reverse a trial court’s ruling on a preliminary objection when “there has been an error of law or abuse of discretion.” Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 936 A.2d 111, 113 (Pa. Super. 2007).

Initially, defendants seek the dismissal of Count III, common law fraud and deceit, based on the gist of the action doctrine. The gist of the action doctrine seeks to maintain the conceptual differences between breach of contract and tort claims. eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d. 10, 14 (Pa. Super. 2002). “Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals....” Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. 1992) (superseded on other grounds) (citing Iron Mountain Sec. Storage Corp. v. American Specialty Foods, Inc., 457 F. Supp. 1158, 1165 (E.D. Pa. 1978)). Accordingly, the gist of the action doctrine acts to foreclose tort claims (1) which arise solely from the contractual relationship between the parties; (2) which allege that the duties breached were grounded in the contract itself, (3) where any liability stems from the contract; and (4) which essentially duplicate the breach of contract claim or where the success of the tort claim is dependent upon the success of the breach of contract claim. Hart v. Arnold, 884 A.2d 316, 340 (Pa. Super. 2005) (citing eToll, 811 A.2d at 19). “[Although mere non-performance of a contract does not constitute a fraud, it is possible that a breach of contract also gives rise to an actionable tort. To be construed in tort, however, the wrong ascribed to the defendant must be the gist of the action, the contract being collateral.” Bash, 601 at 829 (internal citations omitted). More specifically, when applied to allegations of fraud:

[W]here fraud claims are intertwined with breach of contract claims and the duties allegedly breached are created and grounded in the contract itself, the gist of the action is breach of contract. Thus, claims of fraud in the performance of a contract are generally barred under the gist of the action doctrine.

Hart, 884 A.2d at 340 (internal citations and quotations omitted). Thus, “[t]he test is not limited to discrete instances of conduct; rather, the test is, by its own terms, concerned with the nature of the action as a whole.” Pa. Mfrs.’Ass’n Ins. Co. v. L.B. Smith, Inc., 831 A.2d 1178, 1182 (Pa. Super. 2003) (citation and quotations omitted).

Applying the foregoing, we find that Count III is barred by the gist of the action doctrine. The purported misrepresentations that are the bases for Count III are alleged to have been committed in an attempt to avoid performing a duty that was created by the insurance policy. But for showing a breach of contract under the insurance policy — that the claim for roof damage should have been paid — the statements made by Erie’s agent regarding submitting a false claim would lose their significance.

Our holding does not mean that Havice has no redress outside of a breach of contract action. If Havice can establish that Erie sought to avoid paying the claim in bad faith, Havice may seek interest, punitive damages, and costs under 42 Pa.C.S. 8371, which she has chosen to do.

In support of her position, without mentioning the gist of the action doctrine in her brief, plaintiff cites to the plurality opinion of Dercoli v. Pennsylvania National Mutual Insurance. Co., 554 A.2d 906 (Pa. 1989). However, Dercoli was decided before the gist of the action doctrine was first recognized by the Pennsylvania Superior Court in eToll. With that in mind, we find its persuasiveness limited and conclude that the alleged misrepresentations are so closely intertwined with the breach of contract claim that the gist of the action lies in contract. Accordingly, Count III of plaintiff’s amended complaint is stricken. The issue of consequential damages contained within Count III thus becomes moot.

ORDER

And now, this 21st day of January, 2014, upon consideration of defendants’ preliminary objections to plaintiff’s amended complaint, and after oral argument, heard November 8, 2013, the preliminary objections of defendant are sustained in part and dismissed in part.

For reasons contained in the opinion filed of even date herewith, defendants’ preliminary objection to Count III as barred by the gist of the action doctrine is sustained.

The defendants’ preliminary objection to plaintiff’s claim for consequential damages in Count III is dismissed as moot.

ORDER

And now, this 21st day of January, 2014, upon consideration of defendants’ preliminary objections to plaintiff’s amended complaint, and after oral argument, heard November 8, 2013, the preliminary objections of defendant are sustained in part and dismissed in part.

For reasons contained in the opinion filed of even date herewith, defendants’ preliminary objection to Count III as barred by the gist of the action doctrine is süstained.

The defendants’ preliminary objection to plaintiff’s claim for consequential damages in Count III is dismissed as moot.

      . We note that this figure includes the cost of repairing items such as gutters, downspouts, and fascia that Havice avers elsewhere Erie did cover. See Am. Compl., ¶19.

      . Likewise, this figure contains some costs that Havice avers Erie did cover.