author: VAN JURA, J,

text:
    ThyssenKrupp Elevator Corporation v. Humford Equities

      C.P. of Luzerne County,
    no. 18390-2009.

      Katherine Mowll, for plaintiff.

      Michael P. Perry, for defendant.
    August 17, 2010
   VAN JURA, J,

This matter is before the court on the motion for summary judgment of plaintiff, ThyssenKrupp Elevator Corporation, filed May 14, 2010.

The issues have been briefed, and argument was held on July 30, 2010.

On March 6, 2002, defendant, Humford Equities, contracted with plaintiff, Thyssen, for the maintenance of three elevators located in the Wilkes-Barre Center at 39 Public Square, Wilkes-Barre, Pennsylvania, by means of an elevator maintenance agreement.

On December 15,2005, while the said agreement was still in effect, two separate personal injury actions were filed by different plaintiffs against Thyssen, as well as Humford, and other entities, alleging that plaintiff, Thyssen, failed to properly maintain one of the elevators at the Wilkes-Barre Center, allegedly resulting in personal injury to certain of the plaintiffs.

On December 29, 2009, Thyssen filed this action for declaratory judgment pursuant to the Pennsylvania Declaratory Judgment Act, 42 Pa.C.S. §7531 et seq., alleging breach of contract on the part of Humford for failure to provide defense and indemnity to Thyssen in the personal injury actions (Count I) and failure to name Thyssen as an additional insured on Humford’s policy of liability insurance (Count II).

On May 14,2010, Thyssen filed this motion for summary judgment alleging that following the filing of the above two personal injury actions, Thyssen tried, without result or success, to bring to the attention of all parties, the following language found in the elevator maintenance agreement between Thyssen and Humford;

“In consideration of ThyssenKrupp Elevator performing the services herein specified, you expressly agree to indemnify, defend, save harmless, discharge, release and forever acquit ThyssenKrupp Elevator Corporation, our officers, agents, and employees from and against any and all claims, demands, suits, and proceedings brought against us or our employees of any nature whatsoever, including but not limited to loss, damage, injuiy or death that are alleged to have arisen from or alleged to be in connection with the presence, use, misuse, maintenance, installation, removal, manufacture, design, operation or condition of the equipment covered by this agreement, or the associated areas surrounding such equipment, specifically including claims or losses alleged or proved to have arisen from the joint or sole negligence of ThyssenKrupp Elevator Corporation or our employees.
“You expressly agree to name ThyssenKrupp Elevator as an additional insured in your liability and excess (umbrella) liability insurance policy(ies). Such insurance must insure us for those claims or losses referenced in the above paragraph. You hereby waive the right of subrogation.”

Thyssen’s motion for summaiy judgment seeks declarations that Humford is, by virtue of the above provisions: (1) obligated to both defend and indemnify Thyssen in the underlying personal injury actions above referenced; and (2) that Humford breached the maintenance agreement by failing to name Thyssen as an additional insured.

For the reasons set forth below, this court grants that portion of the motion for summary judgment and hereby holds that Humford is required to defend Thyssen in the two underlying actions; dismisses as premature that portion of the motion for summary judgment requesting a declaration that Humford has a duty to indemnify Thyssen; and denies that portion of the motion for summary judgment requesting a declaration that Humford is in breach of the maintenance agreement for allegedly failing to name Thyssen as an additional insured.

The primary goal of a court in interpreting a contract is to ascertain the parties’ intentions as manifested in the contract terms. Courts cannot assume that the language was chosen carelessly. In determining what the parties intended by their contract, the law must look to what they clearly expressed. Kvaerner Metals v. Commercial Union Insurance Company, 589 Pa. 317, 908 A.2d 888 (2006); 401 Fourth St. Inc. v. Investors Insurance Group, 583 Pa. 445, 879 A.2d 166 (2005).

In a declaratory judgment action, just as in civil actions generally, summary judgment may be granted only in those cases where the record clearly shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Hydropress Environmental Services Inc. v. Township of Upper Mount Bethel, County of Northampton, 575 Pa. 479, 836 A.2d 912 (2003).

The defendant, Humford, in opposition to the motion alleges: (1) the indemnity and duty to defend clause in the maintenance agreement is so broad that it is unenforceable, especially since Thyssen, the indemnitee, seeks defense and indemnity against its own claimed negligence; and (2) any duty to defend would not be triggered until the resolution of the two underlying actions.

Humford’s first argument, that the duty to defend and indemnify language is so broad as to run afoul of the Perry-Ruzzi Rule (Ruzzi v. Butler Petroleum Company, 527 Pa. 1, 588 A.2d 1 (1991) reaffirming Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907)) misapprehends the construction and application of that rule as applied to the contract language in question.

Ruzzi, supra at 7, 588 A.2d at 4 holds:

“if parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee’s own negligence, they must do so in clear and unequivocal language. No inferences from words of general import can establish such indemnification.” (citations omitted)

In Ruzzi, supra at 8, 588 A.2d at 4-5, the indemnity clause read as follows:

“[The Zinssers]... exonerate, discharge, and agree to protect and save harmless and indemnify [Butler Petroleum] . . . from any and all liability for claims for loss, damage, injury or other casualty to persons or property ... caused or occasioned by any leakage, fire, explosion or other casualty occurring through any imperfection in, injury or damage to, or by reason of the installation, use, operation and/or repair of the said equipment or of the premises.”

The Supreme Court in Ruzzi, supra at 9, 588 A.2d at 5, concluded that the above language was insufficient to evidence an intent to indemnify for negligent acts of the indemnitee since “words of general import are used.”

The Ruzzi court followed the Supreme Court’s prior holding in Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907) which held that:

“there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No words of general import can establish it.” Perry at 262, 66 A. at 553.

Applying the Perry-Ruzzi Rule, which counsel for the parties agree is both applicable and controlling, this court, after a careful review of the contract language at issue, is constrained to conclude that the Perry-Ruzzi test has been met and that the duty to defend language contained in the elevator maintenance agreement between the parties is sufficiently specific to evidence the clear intent of the parties.

The duty to defend is distinct from, but broader than, the duty to indemnify. General Accident Insurance Company of America v. Allen, 547 Pa. 693, 692 A.2d 1089 (1997).

As the Perry-Ruzzi Rule is applied solely to the duty to defend language in the elevator maintenance agreement, this court finds that the duty to defend language in the elevator maintenance agreement is both clear, unambiguous and specific:

“you expressly agree to .. . defend. . . ThyssenKrupp . . . from and against any and all claims . . . suits, and proceedings brought against us . . . including but not limited to loss, damage, injury or death . . . including claims alleged or proved (emphasis added) to have arisen from the joint or sole negligence of ThyssenKrupp Elevator ...

The duty of defendant, Humford, to defend Thyssen in the underlying lawsuits is articulated with legally sufficient specificity and is a legally binding obligation of Humford.

With respect to Humford’s second argument, as to when the duty to defend is triggered, Humford, relying on Carson/DePaul/Raymos v. Driscoll/Hunt, 2006 WL 2009 047 (Pa. Com PL), argues that the duty to defend in the elevator maintenance agreement will not be triggered until the resolution of the underlying claim against Thyssen. In Carson, however, the indemnitor only contracted to defend the indemnitee where its duty to indemnify was clear.

The relevant language in Carson was the following: “[wjith respect to any obligation of [indemnitor] to indemnify and hold [indemnitee] harmless, [indemnitee], at its sole option, also may tender its defense to [indemnitor].” Id. As the stated by the court, “[i]n other words [the indemnitor] ’s duty to defend [indemnitee] is contingent upon its first having a duty to indemnify [the indemnitee].” Id.

The language in Carson is, therefore, clearly distinguishable from the duty to defend language in the elevator maintenance agreement language at issue in this case.

Based on the clear and unambiguous language of the elevator maintenance agreement, the duty of Humford to defend Thyssen can only reasonably be construed to have been triggered upon the filing of the two underlying personal injury claims.

Any other interpretation of the language would be illogical and at odds with the clearly expressed and apparent intent of the parties as well as the manifest purpose of a duty to defend clause.

Humford’s position, during oral argument, that Thyssen was intended to have a post-litigation remedy by means of legal action to recoup Thyssen’s self-expended defense costs at the resolution of the two underlying personal injury cases is at odds with the clear language of the duty to defend provision in question and “Where the language of a contract is clear and unambiguous, a court is required to give effect to that language.” Pennsylvania Manufacturers Association Insurance Company v. Aetna Casualty and Surety Insurance Company, 426 Pa. 453, 233 A.2d 548 (1967).

Humford agreed to defend Thyssen from claims or losses alleged or proven to have arisen from the sole negligence of Thyssen or its employees.

Counsel for both parties, at the time of argument, agreed that the portion of Thyssen’s motion asking that the court declare that Humford has a duty to indemnify Thyssen is, at this time, premature. Therefore, the court will deny that portion of the motion as premature. See McClure v. Deerland Corporation, 401 Pa. Super. 226, 585 A.2d 19(1991).

Lastly, Thyssen asks that the court declare Humford in breach of the elevator maintenance agreement for Humford’s failure to name Thyssen as an additional insured on Humford’s policy of liability insurance.

There is insufficient factual evidence of record that Humford did, or did not, name Thyssen as an additional insured. The court is left with the representations of both counsel that they are unaware of any documentation reflecting the fulfillment of that covenant.

What was agreed to by counsel was that Humford has not yet tendered any policy or any information that would indicate that Humford did name Thyssen as an additional insured on any policy of insurance.

That quantum of evidence fails below that standard required to declare a contractual breach in the context of a motion for summary judgment. The reviewing court must review the record in favor of the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Kvaerner Metals v. Commercial Union Insurance, 589 Pa. 317, 908 A.2d 888 (2006).

Compliance with the foregoing is herewith directed.

The prothonotary is directed to serve notice of the entry of this order pursuant to Pa.R.C.P. 236.


source: Caselaw Access Project

author: O’BRIEN, S.J.,

license: Public Domain

text:
    Raintree Homes Inc. v. Birkbeck

      C.P. of Monroe County,
    nos. 3651 Civil 2001, 2358 Civil 2002.

      Marshall E. Anders, for plaintiff.

      Gayle C. Sproul, for defendants.
    August 19, 2010
   O’BRIEN, S.J.,

Plaintiffs Raintree Homes Inc., and Chapel Creek Mortgage Banker Inc. bring this defamation action following a series of articles published in newspaper defendant Pocono Record, a division of defendant Ottaway Newspapers of Pennsylvania LP., including several written by defendant Matt Birkbeck. This series of articles, titled “A price too high,” ran from April 8,2001 and reported on problems facing Pocono homeowners.

Plaintiff’s first complaint, filed May 16, 2001, and docketed at 3651 CV 2001 (Raintree I), was brought on behalf of corporate plaintiffs Raintree and Chapel Creek for the articles in the print format. Plaintiffs’ second complaint, filed April 5,2001, and docketed at 2358 CV 2002 (.Raintree II), was brought on behalf of corporate plaintiffs Raintree and Chapel Creek and individual Gene Percudani for the articles archived online. The articles present in both Raintree I and Raintree II are identical in both print and online medium, save that the headline of the August 8, 2001, article “Dishonest practices increase foreclosures, lower land values” in the print edition was changed to “Unreal deals” when placed online. We further note that, discussions of claims related to Percudani thus relate only to Raintree II.

As a result of a criminal investigation brought by the attorney general of Pennsylvania, a judge of this court ordered a stay of proceeding which lasted from May 23, 2002 through September 9, 2008. These consolidated proceedings were assigned to this judge in 2008 and preliminary rulings were entered by orders filed December 2, 2008, May 5, 2009, May 5, 2010, and May 25, 2010.

Both parties have filed multiple pretrial evidentiary motions, most of which will be deferred for decision at time of trial. Plaintiffs have also filed a motion to determine their status as public figures and defendants have filed a motion for summary judgment, which issues will be addressed first.

Following the closing of pleadings summary judgment may be granted as a matter of law where no genuine issues of material of fact exist. Pa.R.C.P. 1035.2. The moving party has the burden of proving that no genuine issues of material fact exist. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). The court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Id. at 204, 412 A.2d at 468-69. However, the non-moving party may not rely solely on their pleadings, but must set forth specific facts establishing a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Our Pennsylvania Superior Court has held that “if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.” Lewis v. Philadelphia Newspapers Inc., 833 A.2d 185, 190 (Pa. Super. 2003) (citing Basile v. H & R Block Inc., 777 A.2d 95, 100-01 (Pa. Super 2001)). Thus, a plaintiff’s failure to put forward evidence supporting any element of his cause of action entitles the defendant to a grant of summary judgment. Id. (citing Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038, 1042 (1996)).

The burdens of proof in a defamation case are set forth at 42 Pa.C.S. §8343 as follows:

“(a) Burden of Plaintiff — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
“(1) The defamatory character of the communication.
“(2) Its publication by the defendant.
“(3) Its application to the plaintiff.
“(4) The understanding by the recipient of its defamatory meaning.
“(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
“(6) Special harm resulting to the plaintiff from its publication.
“(7) Abuse of a conditionally privileged occasion.
“(b) Burden of Defendant. — In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:
“(1) The truth of the defamatory communication.
“(2) The privileged character of the occasion on which it was published.
“(3) The character of the subject matter of defamatory comment as of public concern.” Kurowski v. Burroughs, 994 A.2d 611, 616 (Pa. Super. 2010).

Defendants primarily argue that summary judgment must be granted as an appropriate sanction as plaintiffs’ actions led to the spoilage of evidence and prejudice to defendants. Our Pennsylvania Superior Court held that summary judgment is an available sanction where a party’s actions have led to the spoilage of evidence. Creazzo v Medtronic Inc., 903 A.2d 24 (Pa. Super. 2006). The Superior Court in Creazzo identified three factors the court must weigh in determining the appropriate sanction for spoilage: (1) degree of fault of the party altering or destroying evidence; (2) degree of prejudice suffered by opposing party; and (3) whether a lesser sanction will avoid substantial unfairness to opposing party, and where offending party is seriously at fault “will serve to deter such conduct by others in the future.” Id. at 29. In evaluating the first prong, the court must look to whether there was a duty to preserve evidence, as well as the presence or absence of bad faith. Id. A duty to preserve evidence is established where: “(1) the plaintiff knows that litigation against the defendants is pending ... and; (2) it is foreseeable that discarding the evidence would be prejudicial to the defendants.” Id. The Creazzo court further held that a potential remedy for loss or destruction of evidence is to allow a jury to apply their common sense and draw an adverse inference against the offending party. Id. The remedy of summary judgment is inappropriate except in the most egregious cases. Id.

While it is undisputed that the plaintiffs’ have disposed of some relevant evidence concerning their transactions with some of their customers at issue in the articles about them, we conclude that summary judgment would be an excessive sanction against the plaintiffs. On the other hand, the defendants will be permitted to seek a sanction of adverse inference at time of trial with respect to the missing documentary evidence. We conclude that such a sanction will avoid substantial unfairness to the plaintiffs and provide reasonable relief to the defendants. Therefore, summary judgment will not be granted with respect to the corporate plaintiffs. However, this does not end our inquiry with respect to defendants’ motion for summary judgment.

Although, individual plaintiff Gene Percudani, was not named as a plaintiff in the original proceeding, he was added in the subsequent proceeding filed with respect to the same articles archived online. Plaintiffs’ counsel at time of argument could offer no explanation as to why the individual was omitted from the initial complaint and added in the second.

Where a plaintiff in a defamation action is a public figure, Pennsylvania law requires that the plaintiff also prove that defendant published the article with “actual malice.” Joseph v. Scranton Times L.P., 959 A.2d 322, 338 (Pa. Super. 2008). Our Pennsylvania Superior Court in Kurowski v. Burroughs, 994 A.2d 611, 616 (Pa. Super. 2010), held that it is the function of the trial court to first determine whether a statement is capable of defamatory meaning. Relying on the decision in Steaks Unlimited Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980), the Kurowski court held that a statement is defamatory if “it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” Id. It is not enough that the subject of the statements be embarrassed or annoyed. Id. at 617-18. As words standing alone may reasonably be interpreted as defamatory, the Kurowski court held that the court must construe the article as a whole, placing the statement in its proper context. Id. at 617-18. Our Pennsylvania Supreme Court also held that without more, words criticizing a corporation do not defame officers. Volomino v. Messenger Publishing Company, 410 Pa. 611, 612 n.1, 189 A.2d 873, 874 n.1 (1963) (citing Binder v. Daily News Pub. Co. Inc., 33 Pa. Super. 411 (1907) Conclusions that requiring an “extravagant mental excursion” cannot impute defamatory meaning from statements about a corporation to an officer. Volomino, 410 Pa. at 613, 189 A.2d at 874.

Additionally, The United States Constitution and Pennsylvania Common Law require a plaintiff in a defamation action to prove the falsity of statements made where the speech in question regards a public concern. American Future System Inc. v. Better Business Bureau of Eastern Pennsylvania, 592 Pa. 66, 78 n.8, 923 A.2d 389, 396 n.8 (2007) (citing Philadelphia Newspapers v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986)), The ruling in Hepps has been extended by the Pennsylvania Supreme Court to “require a defendant to prove the truth of a matter of public concern even if a public figure is not involved.” Tucker v. Philadelphia Daily News, 577 Pa. 598, 625, 848 A.2d 113, 130 (2004). A plaintiff cannot prove falsehood if the statements are at least substantially true. Dunlap v. Philadelphia Newspapers Inc., 301 Pa. Super. 475, 491-92, 448 A.2d 6, 15 (1982). The test is “whether the [alleged] libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Id.

We first note that none of the plaintiffs are mentioned in the articles “Pocono builders assoc, members: video paints industry in a bad light,” “Saving on attorney’s fees could cost you”, and “Lawmakers, AG discuss fraud probe.” As such, we find that these articles incapable of defamatory meaning to Percudani. Similarly, the article “Blind to justice” does not mention Percudani. Although Raintree is mentioned in the article, no further statements are made that would attribute any type of misconduct to the corporation’s officers. Applying Volomino, we find that this article does not contain a statement capable of defaming Percudani.

Articles “Unreal deals,” “Bloated appraisals key to fraud,” “Chamber to review builders,” and “30 People protest at Raintree Homes Inc.” make brief mention that Percudani is president of Raintree and refused to offer a comment. No statements of misconduct are attributed to him. Statements that Percudani is the president of a company and has no comments on a controversy are not of the type that would harm his reputation in the community. Without further statements indirectly implicating Percudani for any alleged misdeeds of corporate plaintiffs, we cannot find these articles contain statements with defamatory meaning as to Percudani.

Next, article “Freddie Mac warns of Pocono loans” states that Percudani is under investigation by Freddie Mac. Percudani acknowledged receiving a letter from Freddie Mac prior to the publication of the article. Percudani acknowledged that Freddie Mac’s investigation found him to “lack the integrity and/or business competence that Freddie Mac expects from person or organizations with which it does business, directly or indirectly, and which therefore presents it with an undue risk of loss.” (Deposition of Percudani taken June 12, 2010, p. 715 lines 9-21.) Although the publication of Percudani’s dealings with Freddie Mac may cause embarrassment and annoyance, we find the statements are not capable of further tarnishing his reputation. As such we find no defamatory meaning in these statements.

Finally, we turn to the article “Customers, experts describe seller’s bait that slips away from trusting home buyers.” This article again notes that Percudani is president of Raintree and declines to comment. As noted above, this statement is not capable of defamatory meaning. Similarly, the statement that Pocono Haven is Percudani’s first attempt to build homes in the Poconos is not capable of lowering his esteem in the community. As such we do not find it to be capable of defamatory meaning. Therefore, we conclude that summary judgment should be granted with respect to the individual plaintiff Gene Percudani in the proceeding captioned at 2358 Civil 2002.

We now turn to determine whether the remaining corporate plaintiffs are limited-purpose public figures. Mirroring Federal law, Pennsylvania law has held that a plaintiff in a libel case, including a corporation, may be found either to be an all purpose public figure or a limited purpose public figure. American Future Systems Inc., 592 Pa. at 86, 923 A.2d at 401. All purpose public figures are the less common individual who achieves level of pervasive fame or notoriety such that they are a public figure in all contexts. Id. Conversely, the more common limited purpose public figure is one who voluntarily injects themselves or is drawn into a public controversy. Id. The person thus becomes a public figure for a limited range of issues. Id. The court must consider the “nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Our Pennsylvania Supreme Court in American Future Systems Inc. held that a plaintiff may make themselves a limited purpose public figure through their own widespread advertising activities. Id., at 90, 923 A.2d at 403. The Supreme Court held that the appellant’s widespread advertisements demonstrated a voluntary effort to gain public attention. Id. However, merely advertising is not sufficient to establish status as a public figure. Adopting the Fourth Circuit’s decision in Blue Ridge Bank v. Veribanc Inc., 866 F.2d 681, 687 (4th Cir. 1989), our Supreme Court held that there must be a “direct relationship between the promotional message and the subsequent defamation.” American Future Systems Inc., 592 Pa. at 89, 923 A.2d at 403.

In the instant case, Plaintiffs’ marketing techniques were designed to garner public attention. Plaintiff Percudani’s testimony admits that their commercials were marketed to New Jersey, New York, and Pennsylvania, and “received as far south as Puerto Rico and as far north as Vermont.” (Deposition of plaintiff Percudani June 10, 2010 p. 103 lines 13-24.) Plaintiffs spent millions of dollars in promotion of their business through an extensive print, radio, and television campaign. We therefore find that plaintiffs voluntarily thrust themselves into public discussion. The articles giving rise to the instant lawsuit report on plaintiffs’ marketing tactics. As such, we find that a subject-matter nexus exists. As the vast financial resources expended in the marketing campaign gave plaintiffs widespread radio, print, and television publicity, we find that plaintiffs possessed greater access to channels of effective communication than the average private citizen. Consistent with our Pennsylvania Supreme Court’s holding in American Future Systems Inc., we therefore find plaintiffs to be limited-purpose public figures.

While both counsel have filed numerous motions affording us the opportunity to preview numerous evidentiary rulings at trial, we decline to do so. All but one of those motions will be denied without prejudice to the party to raise the issue if in fact the challenged evidence is presented at time of trial. Plowever, one issue needs to be addressed for purposes of trial planning. Plaintiff has filed a motion which provides as follows:

“3. That your movant, at the time of trial will seek to introduce the depositions of the following individuals taken in the Lester vs. Percudani, no. 3:CV 01-1182, United States District Court for the Middle District of Pennsylvania and Acre vs. Spaner, no. 3:CV04-832, United States District Court for the Middle District of Pennsylvania, based upon Rule 804(a)(iv) and (v) and 804(b)(i):
“A. Maureen Perih;
“B. Gerard A. Powell.”

In response, the Defendants state the following:

“3. Denied. After reasonable investigation, defendants are without knowledge or information to form a belief as to the truth of the averments in this paragraph and therefore deny them. By way of further response, the Pocono Record states that neither Rule 804(a)(iv), Rule 804(a)(v), nor 804(b)(i) permits plaintiffs to introduce deposition testimony of witnesses taken in a different proceeding involving different parties and different issues and in which the Pocono Record did not have an opportunity to question the witnesses.”

The Pennsylvania Rules of Evidence provide in pertinent part as follows:

“(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an adequate opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” (Pa.R.E. 804(b) (I).)

Since the deposition testimony to be offered is from a proceeding in which these defendants were not parties and counsel for defendants did not take part, clearly the hearsay exception claimed by plaintiffs does not apply. Therefore, we conclude that such testimony will be excluded at time of trial. See also Bugosh v. Allen Refractories Company, 932 A.2d 901 (Pa. Super. 2007).

ORDER

And now, August 4, 2010, it is ordered as follows:

(1) Defendants’ motion for summary judgment is granted in part and denied in part. Judgment is granted against individual plaintiff Gene P. Percudani in the action captioned at no. 2358 CV 2002. The motion with respect to corporate plaintiffs is denied.

(2) The court finds that corporate plaintiffs, Raintree Homes Inc. and Chapel Creek Mortgage Banker Inc., are limited purpose public figures for purposes of these proceedings.

(3) Plaintiff shall be precluded at time of trial from introducing the deposition testimony of Maureen Perih and Gerard A. Powell taken in the Lester v. Percudani no. 3; CV 01-1182, United States District Court for Middle District of Pennsylvania proceeding.

(4) A pretrial conference shall be held on September 16,2010 at 10:00 a.m. in a courtroom to be determined, Monroe County Courthouse, Stroudsburg, Pennsylvania.


author: CARPENTER J,

text:
    Commonwealth v. Langerston

      C.P. of Montgomery Courty,
    no. CP-46-CR-0002149-2006.

      Douglas Keith Rosenblum, for Commonwealth.

      Steven Fisher Fairlie, for defendant.
    AUGUST 25, 2010—
   CARPENTER J,

FACTUAL AND PROCEDURAL HISTORY

Appellant, Darryl Langerston, appeals from the June 2, 2010 final order, dismissing without a hearing, his untimely second petition for post-conviction relief brought pursuant to the Post Conviction Relief Act, (PCRA), 42 Pa.C.S. §9541- 9546.

On August 23,2006, appellant was convicted of third-degree murder and possession of an instrument of crime for the February 7, 2006, stabbing death of Roderick Jackson. Appellant was sentenced to 20 to 40 years’ imprisonment. Appellant filed a nunc pro tunc appeal. Subsequently, appellant’s judgment of sentence was affirmed by our Superior Court on November 28,2007. No further appeal was taken.

On August 29, 2007, while appellant’s direct appeal was pending, appellant filed a premature PCRA petition, which we deferred pending the resolution of his direct appeal.

On March 24, 2008, appellant filed a pro se PCRA petition. Counsel was appointed, and having found no merit to appellant’s petition, he issued a “no-merit” letter. After proper notice, a final dismissal order was issued on July 10, 2008. On June 16, 2009, the Superior Court affirmed our dismissal of the PCRA petition. The Pennsylvania Supreme Court denied allocatur on October 27, 2009. Appellant did not seek further review.

On February 18, 2010, appellant filed this untimely second PCRA petition, to which the Commonwealth filed an answer. On April 22, 2010, we issued a 20-day dismissal order. Appellant filed a response entitled “writ of habeas corpus.” Subsequently, we issued a final order on June 2, 2010, from which appellant appealed on July 2, 2010.

As noted, appellant filed a writ of habeas corpus. Not only did we consider it as appellant’s response to our 20-day dismissal order, but also we issued an order on May 20, 2010, dismissing the writ of habeas corpus. Appellant appealed from the May 20,2010 order on June 11.2010. In accordance with Pa.R.A.P. 1925(b), on July 2.2010, we directed appellant to file a concise statement of errors complained of on appeal. Appellant complied on July 22,2010. Subsequently, that appeal was discontinued and withdrawn on August 11, 2010.

Appellant also appealed from the June 2, 2010 final order, dismissing his untimely second PCRA petition, which is the subject of this opinion. Accordingly, we issued an order for a concise statement on July 23,2010, which was docketed on July 27,2010. Appellant has not filed a concise statement in regard to this appeal. However, he did file a concise statement regarding his now discontinued appeal, and we have considered it to have adequately preserved the issues in this appeal. Therefore, we will address the issue of our dismissal of appellant’s untimely second PCRA petition.

ISSUE

I. Whether We Properly Dismissed Appellant’s Untimely Second PCRA Petition

DISCUSSION

I. We Properly Dismissed Appellant’s Untimely Second PCRA Petition

Any PCRA petition, including a second and subsequent one, must be filed within one year of the date the judgment of sentence becomes final. 42 Pa.C.S. §9545(b) (1). Ajudgment of sentence becomes final at the conclusion of direct review, or when the time for seeking such review expires. 42 Pa.C.S. §9545(b)(3). The timeliness requirements are mandatory and jurisdictional in nature, and no court may properly disregard or alter them in order to reach the merits of the claims in an untimely PCRA petition. Commonwealth v. Murry, 562 Pa. 1, 5, 753 A.2d 201, 203 (2000); Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005).

In this case, appellant’s judgment of sentence became final on December 27, 2007, which is 30 days after the Pennsylvania Superior Court affirmed appellant’s judgment of sentence, and the time allowed to seek review with the Pennsylvania Supreme Court expired. See, Pa.R. A.P. 1113. Therefore, appellant had until December 27, 2008 in which to file a timely PCRA petition.

Additionally, the statutory exceptions to the timeliness requirements do not save appellant’s untimely PCRA petition. The PCRA provides for three exceptions to its one-year time bar. A PCRA petition will be deemed timely where a petitioner pleads and proves that (1) the failure to raise the claim earlier was due to the interference of government officials; (2) the claims is predicated on facts that were unknown to the petitioner and could not have been discovered with due diligence or (3) the right asserted was recognized by the United States Supreme Court or the Pennsylvania Supreme Court as a constitutional right after the petitioner’s case was decided and the right has been upheld to apply retroactively. 42 Pa.C.S. §9545(b)(l)(i)-(iii); Murray, supra. A petition alleging one of these exceptions must be filed within 60 days of the date that the claim could have been presented. 42 Pa.C.S. §9545(b)(2). It is the petitioner’s burden to plead and prove that one of the exceptions applies. 42Pa.C.S. §9545(b)(1); Commonwealth v. Bronshtein, 561 Pa. 611, 616, 752 A.2d 868, 871 (2000).

In this case, appellant asserts in his petition that he did not receive a copy of the notes of testimony, specifically those regarding jury instructions, until May 1, 2009, qualifying him for an exception to the timeliness requirements. He claims that his PCRA petition is based upon after discovered evidence pursuant to 42 Pa.C.S. §9545(b) (l)(ii). He also claims that because the notes of testimony were not forthcoming from the clerk of courts until May 1, 2009, he also qualifies under the governmental interference exception. We disagree. The notes of testimony relating to jury instructions were entered onto the docket on November 13, 2006, and with due diligence the notes of testimony should have been discovered prior to May 1,2009. Even if May 1,2009 was the earliest that appellant could have received these notes of testimony, he should have filed his PCRA petition within 60 days from that date, i.e., June, 30, 2009; however, appellant’s second PCRA petition was not filed until February 18, 2010 making the exceptions to the timeliness requirements inapplicable. Therefore, because none of the timeliness exceptions apply, appellant’s second PCRA petition is untimely, and we lacked jurisdiction to reach the merits of any of the ineffectiveness claims contained therein.

For the first time on appeal, in his concise statement, appellant argues that the premature PCRA petition he filed on August 29, 2007, while his direct appeal was pending, remains pending and unresolved because we deferred ruling on the petition at that time. He argues that this defect in procedure requires this court to now consider the issues he raised in the premature petition, under the governmental interference exception.

Initially, we find that this issue is waived because it was raised for the first time on appeal. See Pa.R.A.P. 302. Even if this issue was not waived we note that “PCRA provides petitioners with a means of collateral review, but has no applicability until the judgment of sentence becomes final. Therefore, [a] premature petition does not constitute a first PCRA petition.” Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002). Additionally, appellant did properly file a timely PCRA petition, which was reviewed on its merits.

CONCLUSION

Based upon the forgoing analysis, our June 2, 2010 order should be affirmed.

      . 18 Pa.C.S. §2502(c).

      . Id. section 907.


author: VAN JURA, J.,

text:
    Balliet v. Toyota Motor Sales USA, Inc.

      C.P. of Luzerne County,
    no. 358-C 2004.

      Jay Lawrence Fulmer, for plaintiff.

      Gerard Cedrone, Lelandl Kellner, wad Barrí. A. Or low, for defendants.
    July 2, 2010
   VAN JURA, J.,

Before the court are the plaintiff’s motion in limine to preclude evidence of, or references to, (1) Social Security disability benefits and (2) all workers’ compensation benefits; and plaintiff’s motion in limine to preclude the testimony of defense expert witness, John E. Johnson P.E., C.S.P.

The motions were briefed on behalf of all parties, and the matters were argued before this court on June 21, 2010,

This is essentially a products liability action commenced by the plaintiff for alleged injuries claimed to have been incurred on January 11, 2002 at the premises of the plaintiff’s employer, Zapata Innovative Plastics Inc. in Hazleton, Luzerne County, Pennsylvania. The subject Toyota 7FGCU25 Lift Truck (forklift) is alleged to have hit a fixed object, causing the object to strike Mr. Balliet’s head, causing the injuries described in the plaintiff’s complaint. He underwent surgery consisting of an anterior cervical discectomy and interbody fusion using allographed bone and titanium zephyr plate system. The surgery occurred on July 25,2002. Because the incident happened during the course of Mr. Balliet’s employment, he was entitled to and received workers’ compensation benefits for both medical expenses and indemnity for lost wages. The entire workers’ compensation lien was waived by the insurance carrier. Additionally, Mr. Balliet applied for and was awarded Social Security disability benefits.

I. PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF, OR REFERENCES TO (1) SOCIAL SECURITY DISABILITY BENEFITS AND (2) ALL WORKERS’ COMPENSATION BENEFITS

In the “questions presented” portion of the plaintiff’s brief, the plaintiff postures the issue as follows:

“Whether evidence of the amount of Mr. Balliet’s receipt of Social Security disability benefits and workers’ compensation benefits for both medical expenses and indemnity for wage loss are inadmissible under Pennsylvania’s “collateral source rule”? Suggested answer: yes.”

Appended to his motion in limine is a vocational-economic loss report for the plaintiff, Leroy Balliet, prepared by Robert P. WolfEdD., M.B.A. which, at page 3 of the report observes:

“Other: Mr. Balliet has been judged totally disabled by the Social Security Administration based on an inability to perform any competitive work existing in the local, regional or national economies compatible with his educational and experiential background.”

Based on the text of the Wolf report and the argument of counsel, it is the plaintiff who intends to raise the issue of the fact of the plaintiff having applied for and been awarded Social Security disability benefits and workers’ compensation benefits.

The collateral source rule is a rule of evidence that was intended to protect tort victims, and “prohibits a defendant in a personal injuiy action from introducing evidence of the amount of plaintiff’s receipt of any benefits from a collateral source for the same injuries which are alleged to have been caused by the defendant. Simmons v. Cobb, 906 A.2d 582, 585 (Pa. Super. 2006) (citing Collins v. Cement Express Inc., 301 Pa. Super. 319, 322, 447 A.2d 987, 988 (1982)). However, as is noted in Simmons v. Cobb, 906 A.2d at 585, in that case, (and in the present case), it is the appellant, the plaintiff, who wanted the jury to know that he was receiving these benefits, which was the result of a determination that plaintiff was, indeed, disabled within the meaning of the Social Security Act. Thus, the purposes underlying the collateral source rule — protection of the plaintiff and prevention of a benefit to the alleged wrongdoer, simply were not implicated.

That, however, is not an answer fully responsive to the apparent intent of the plaintiff’s motion in limine.

The court agrees that, as a general principle of Pennsylvania law, the amount of plaintiff’s receipt of any benefits from a collateral source for the same injuries which are alleged to have been caused by the defendant are prohibited from being introduced into evidence at trial.

The court is not presently in a position to determine the precise manner or language by which the plaintiff intends to introduce the specific evidence of the plaintiff having been awarded Social Security benefits or workers’ compensation benefits and, therefore, is not in a position to know what the proper scope of cross-examination might be on behalf of the defendants at that time. Beyond holding generally that the defendant cannot initiate the introduction of evidence with respect to the amount of the benefits at issue, and absent the plaintiff “opening the door”, to cross-examination, or if such information is admissible for other purposes, the court cannot speculate further regarding the possible permutations of testimony regarding this issue, and the plaintiff’s motion in limine must be dismissed without prejudice as being premature. This issue may be re-addressed at a subsequent time, most notably at the time of an offer of proof on behalf of the plaintiff’s witnesses who may address either or both of these subjects.

II. PLAINTIFF’S MOTION TO PRECLUDE THE TESTIMONY OF THE DEFENSE EXPERT JOHN E. JOHNSON

The defendants have provided an expert report from the proposed defense expert, John E. Johnson P.E., C.S.P., dated August 22, 2008.

The plaintiff’s motion to preclude the testimony of Mr. Johnson is based on two arguments: (1) The conduct of the plaintiff and his co-workers as described in the Johnson report is inadmissible because it concerns a party’s or his co-workers’ alleged negligent conduct; and (2) those portions of the Johnson report pertaining to industry standards are irrelevant in a 402A strict liability action since such evidence would allegedly improperly inject the concepts of comparative negligence and negligence into a straightforward 402A strict liability action.

It is clear that comparative negligence is not a defense to a 402A strict liability claim. Kimco Development Corporation v. Michael D’s Carpet Outlets, 536 Pa. 1, 637 A.2d 603 (1993).

A claim based on strict products liability requires two (2) elements of proof: (1) that the product was defective; “and (2) that the defect in the product was a proximate cause of the plaintiff’s injury. Toth v. Economy Forms Corporation, 391 Pa. Super. 383, 387, 571 A.2d 420, 422 (1990)

Both the plaintiff’s and the defendant in their briefs cite Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975). A reading oí Berkebile, supra and subsequent cases make it clear that even where negligence is not an issue in the action, facts and/or conduct which could constitute negligence can be relevant and admissible in a strict products liability action under section 402A of the Restatement (Second) of Torts, as adopted in Pennsylvania, where it is introduced to establish that the incident in question was caused solely by the conduct of the user or others and not related in any way to the alleged product defect.

In Foley v. Clark Equipment Company, 361 Pa. Super. 599, 523 A.2d 379 (1987, allocatur denied, 516 Pa. 614 and 641, 531 A.2d 780 and 533 A.2d 712 (1987), the defendant was permitted to prove that the cause of the collision between a forklift and a pedestrian was the inattention of the operator, not any defect in the forklift. Evidence that is inadmissible for one purpose is not necessarily inadmissible for all purposes. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968)

The content of the report of the defense expert, Mr. Johnson, which addresses the conduct of the plaintiff and his co-workers, is not inadmissible where it is introduced solely to rebut the plaintiff’s contentions of defect and causation.

The plaintiff’s motion in limine also seeks to prohibit testimony by Mr. Johnson regarding industry standards based on the theory that they are irrelevant and admissible in a strict products liability action based on Lewis v. Coffing Hoist Division, Duff-Norton Co. Inc., 515 Pa. 334, 528 A.2d 590 (1987).

While that is generally true, in this case, the plaintiff is also seeking punitive damages, and the imposition of punitive damages imports the nature of the defendants’ conduct as well as the element of scienter. The defendants are, under Pennsylvania law, permitted to introduce evidence of industry standards and custom to support the defense that the defendants acted with a non-culpable state of mind that could negate a claim of wanton or reckless indifference to the rights of others.

Evidence of industry standards contained in Mr. Johnson’s report could be admissible solely for the purpose of refuting the plaintiff’s claims for punitive damages. Nigro v. Remington Arms Company Inc., 432 Pa. Super. 60, 637 A.2d 983 (1993).

For the foregoing reasons, the court enters the attached order.

The prothonotary is directed to serve notice of the entry of this order pursuant to Pa.R.C.P. 236.

ORDER

And now, July 2, 2010, at 3:22 o’clock p.m., upon consideration of the plaintiff’s motions in limine and brief in support thereof, the entire record, the argument of the parties and the law of the Commonwealth of Pennsylvania;

It is hereby ordered that the motions in limine of the plaintiff are herewith dismissed.

The prothonotary is directed to serve notice of the entry of this order pursuant to Pa.R.C.P. 236.


author: LASH, J,

text:
    Achenbach v. Montgomery

      C.P. of Berks County,
    no. 06-11309.

      Mary C. Favinger, for plaintiff.

      Dawn M.L. Palange, for defendant.
    August 25, 2010
   LASH, J,

The matter before this court is the petition of plaintiff, Dana G. Achenbach, to modify the child custody order entered by this court on April 16, 2007. Trial was held on August 20, 2010. The court enters the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Dana G. Achenbach (Father), is an adult individual who currently resides at 1652 Prospect Drive, Chesapeake, Virginia 23322.

(2) Defendant, Dianne E. Montgomeiy (Mother), is an adult individual who currently resides at 243 South State Street, Hamburg, Berks County, Pennsylvania 19526.

(3) The parties are the natural parents of a minor child, Kolby D. Arndt-Montgomery, born July 25,1997 (minor child).

(4) The parties were never married nor ever resided together.

(5) Mother has always been the primary custodian of the minor child.

(6) Mother has had several relationships since the birth of the minor child, first with her first husband, Ryan Hartman, then with her second husband, Joseph Narvaez, and currently with her boyfriend, Chad Austerberry. Mother and her current boyfriend have an infant daughter, Kally, bom July 1, 2010.

(7) Mother began living with Ryan Hartman some time in 2000, getting married in 2004. They were divorced one year later in 2005. She met Mr. Narvaez in late 2005 or early 2006 and they eventually married. They separated in August 2008. In April of2009, Mother obtained an emergency protection from abuse order on Mr. Narvaez when he broke into her home. A divorce action is pending. She has resided with her current paramour, Chad Austerberry, since April of 2009.

(8) The within action was initially commenced by Father on September 26, 2006 seeking partial custody. A temporary order was entered on January 17, 2007, providing, among other things, that the parties would share legal custody, with Mother to have primary physical custody, with no specific provisions for partial custody awarded to Father. At that time, Father had had no contact with the minor child. The temporary custody order provided that the parties and minor child would consult with a counselor to determine “whether an introduction between Father and the child is in the child’s best interest and if so, how such introduction should take place.”

(9) After counseling was performed, the parties reached an agreement, which was entered as an order of court on April 16, 2007, providing, among other things, that the parties would share legal custody, that Mother would have primary physical custody, with Father to have partial physical custody during the school year every third weekend from Friday at 7 p.m. until Sunday at 5 p.m., with an extension until Monday at 5 p.m., if the minor child did not have school on the Monday after Father’s weekend. During the summer, Father would have partial custody for one week in the month of June, two weeks in July, and one week in August. To exchange the minor child, the parties agreed to meet in Dover, Delaware.

(10) Father filed the within petition on November 14, 2008, requesting primary custody of the minor child. Father averred that his household was stable and that Mother’s was unstable in that she had been through several relationships, and that Mother was being evicted from her residence. Further, Mother’s second husband, Joseph Narvaez, was accused of assaulting Mother and was arrested for indecent exposure. Father also alleged that Mother is failing to sufficiently address the minor child’s ongoing medical needs.

(11) Father currently resides with his wife, Nicole, the couple’s son, Dakota, born September 12, 2001, and daughter, Ava, born November 22, 2009.

(12) Mother currently resides with Chad Austerberry, their infant daughter, Kally, and the subject minor child.

(13) Father resides in the Chesapeake School District, Chesapeake, Virginia. Mother resides in the Hamburg School District, Hamburg, Berks County, Pennsylvania 19526.

(14) The parties’ residences are approximately six to six and one-half hours apart.

(15) Father is self-employed in his business known as “Custom Home Improvement & Repairs of Hampton Roads” located in Virginia Beach, Virginia. His scheduled work hours are Monday through Thursday from 9 a.m. to 5 p.m., Friday from 9 a.m. to 1 p.m., and Saturday from 9 a.m. to 1 p.m., but the hours are sometimes expanded to accommodate clients.

(16) Mother is currently employed at McCann’s School of Business and Technology, working there since November of2008. She works Monday throughFriday from 9 a.m. to 5 p.m. and some Saturdays.

(17) In accordance with this court’s order, the parties submitted to. an independent psychological evaluation, performed by Alison L. Hill Ph.D., of Berks Counseling Associates P.C. Dr. Hill conducted clinical interviews of the parties, the minor child, Father’s wife and his other son. Dr. Hill also administered the Minnesota multiphasic personality inventory-2 (MMPI-2), the parent awareness skills survey (PASS), and a parent questionnaire. The evaluations took place over a two-month period from April of 2009 to June of2009. A written report was submitted. Dr. Hill then updated her report with an additional clinical evaluation performed on April 27, 2010, providing a written report in May 2010.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, Father’s wife, Nicole, the minor child’s school guidance counselor, Deborah Reilly, an in camera conference with the minor child, the independent evaluation performed by Dr. Hill, a stipulation on the testimony of the maternal grandmother, and the exhibits of the parties.

Father’s decision to seek primary custody is somewhat unusual, considering he had no quality contact with the minor child until 2006. He states he was unaware the minor child could be his until the minor child was approximately 3 years old, when the maternal grandmother instituted adoption proceedings. At that time, Father submitted to a paternity test which determined that he was the father. The adoption proceedings were never completed, but according to Father, he was not made aware of this and assumed that his rights had been terminated. In 2006, Mother filed for child support and it was at that time that Father first learned that he continued to have duties as a parent. Since that time, he has endeavored to spend as much time with the minor child as possible, in the hope of developing a relationship. As stated, there was a preliminary counseling period designed to help Father and the minor child start off on the right foot, and to help the minor child cope with the idea that his natural Father intends to become involved in his life. Shortly thereafter, the current order was entered, granting Father partial custody.

For a time, Father was satisfied with his role as a partial custodian, seeing the minor child every third weekend and for a few weeks during the summer. However, Father became aware of circumstances which caused him to question whether Mother was properly protecting the welfare of the minor child. According to Father, the maternal grandmother advised him that Mother was being physically assaulted by her fiancé, Joseph Narvaez. Father began investigating and determined that Mr. Narvaez had been charged with indecent exposure and had other criminal involvement. Father then became aware that Mother married Mr. Narvaez within a few weeks after he was charged with the indecent exposure. He also was concerned with the minor child’s grades, with the fact that Mother did not have contact with the school, and apparently was not properly supervising the minor child’s academics. She was also failing to properly address a bowel obstruction condition in which the minor child suffered. Father was also having difficulty obtaining his visits and found Mother to be difficult. Accordingly, he filed the within petition.

Father represents that he has a great deal to offer the minor child. He emphasizes his family, career, and household stability. He has a strong marriage with his wife of nine years and two children by that marriage. He owns his home, which is a second residence, deciding to move to this location because of his preference for the Chesapeake School District. He owns his own business. He and his wife have post-secondary educations, which he believes would assist him and his wife to aid the minor child in his schooling. He also believes he is very active with all his children, willing to participate with them in sports and other recreation. He emphasizes consistent and appropriate discipline, such as sending the minor child to his room, or restricting the minor child from videogames or other recreation. For example, when the minor child disobeyed Father’s rule that the minor child could not text message after 11p.m., Father took the cell phone from the minor child for two days.

Father contrasts his parenting skills with those of Mother’s, which he categorizes as being substantially deficient. Mother lacks stability, having been involved in at least three relationships and being married twice. As stated, Mother’s second husband was involved in criminal conduct and abusive toward Mother. At one point, the minor child contacted Father, being very upset about Mother’s second husband’s assaultive nature.

Mother frequently moves. Generally, she remains within the Hamburg School District, although for a time, she resided with the maternal grandparents in Leesport in the Schuylkill Valley School District, although Mother continued to send the minor child to the Hamburg School District. Father suspects that the minor child has actually resided with the maternal grandparents for substantial periods of time, even while Mother was residing elsewhere. He also believes that the minor child is closer to the maternal grandmother than he is to Mother.

Father believes that Mother does not properly attend to the minor child’s needs. She has no contact with the school district and even has failed to provide them with an updated address. Regarding the medical condition, it was the maternal grandmother who first took the minor child to seek medical treatment. Approximately a year later, Mother took the minor child for medical treatment for the same bowel obstruction condition, advising the physician that the minor child had not previously been treated. Apparently, Mother was either unaware of the minor child’s condition or did nothing to counteract the problem.

Father is concerned that the minor child is beginning to get involved in criminal activity or abuse of drugs. Father has reviewed the minor child’s text messages, which includes conversations about using marijuana, and about hiding from police, also including other inappropriate comments.

Father believes that Mother is unable to discipline the minor child. He also believes the maternal grandmother is indulgent, resulting in the minor child having little or no structure. •

The minor child has failed the seventh grade and will have to repeat. Due to the minor child’s recent record, including tardiness, failure to complete assignments, and plummeting grades, the school district intervened and attempted to determine the problem. There was concern that there could be emotional or substance abuse problems. Mother did not participate or even approve any testing for these problems. Additionally, the minor child has peers who, according to the school guidance counselor, have themselves gotten into trouble and are a bad influence. Father believed that Mother’s inability to supervise the minor child has created his problems at school.

Father states that Mother has denied him his scheduled visits and has been difficult in working with the schedule. She is also inflexible, refusing to accommodate special requests that Father makes. For instance, on one occasion, Father wanted to have time with the minor child for a special event, which was occurring at a time when Mother would normally have custody. Mother advised Father that a change would also work better for her schedule, however, she refused to agree to the change, stating that the parties must follow the terms of the order.

Mother wants to retain primary physical custody. She has been the sole caretaker for the minor child since the minor child’s birth. She believes she has a strong bond with the minor child. The minor child also has a close relationship with the maternal grandmother and had also had a wonderful relationship with the maternal grandfather until his unfortunate passing. Further, the minor child has an ongoing paternal relationship with Mother’s first husband, Ryan Hartman. Mr. Hartman continues to see the minor child, and the minor child has spent time at Mr. Hartman’s home and vacationing with him.

Mother disputes some of Father’s testimony. She contends that Father had known about the existence of the minor child for some time prior to 2006, and even before the adoption proceedings. She wonders why he did not become involved prior to the institution of support proceedings, and argues that avoiding support is a motivation.

Mother contends that Father has made disparaging comments about Mother to the minor child, attempting to convince the minor child of the validity of his position. Father compiled notes in a black notebook, containing issues Father had with Mother’s care of the minor child over the years. He permitted the minor child to have access to this notebook, which he admits was a lapse judgment on his part. He also gave the minor child a cell phone, which, unknown to Mother, had a tracking system to enable Father to know when the minor child was not at Mother’s home.

Mother denies that she is posing obstacles to Father seeing the minor child. She states that she believes it is proper for Father to have a relationship with the minor child and makes every effort to assist. However, she has a great deal of difficulty with the minor child who does not want to travel to Father’s house and who will plead and cry to keep from having to visit Father. Mother takes the position that she cannot force the minor child to see Father. She also contends that Father has been inconsistent in his requests for the minor child, sometimes not asking to see him for weeks at a time. She also does set rules and imposes appropriate discipline, contrary to Father’s implications that she and the maternal grandmother spoil the minor child.

Mother disputes Father’s categorization of her handling of the minor child’s medical problems. She states that she has properly cared for the minor child. On one occasion, she accompanied him to Children’s Hospital to attempt to remedy the problem.

Mother concedes that the minor child has had difficulties in school, however, these are of recent origin. The minor child is intelligent and quite adept at understanding the curriculum. However, he is somewhat lazy in performing projects. Contrary to Father’s assertion, Mother has had contact with the school on these issues, testifying that she and the school district agreed to an “action plan” whereby the minor child would stay for hour after school with the school principal to ensure that his homework would be done before he left the school. Unfortunately, this plan did not work, and the minor child is being required to repeat the seventh grade. As far as peers, Mother does not believe that most of the minor child’s friends are a problem. She has had some difficulties with a couple of the children. There are other children, cited by the school, who are not known to her. She denies that the minor child has any criminal involvement or is abusing drugs.

Mother does admit moving several times during the life of the minor child. Initially, she resided with the maternal grandparents, then she began living with Ryan Hartman. When they separated, she moved back in with her parents for a short time until she could find an apartment. She then moved in with her second husband, Mr. Narvaez. When they separated, she again returned to the maternal grandparents’ home until she could find another place. She denies turning custody of the minor child over to the maternal grandmother at any time, however.

In essence, Mother believes that the minor child’s interests would not be served with Father. She has been the primaiy custodian and can continue to do so. The minor child has no interest in residing with Father. In fact, Mother raised the possibility that the minor child’s plummeting grades were a direct result of Father filing this petition, the two were close in timing. The minor child would miss his friends and his family, particular, the maternal grandmother. When he is with Father, he is constantly contacting his family and friends by text messages and telephone.

Dr. Hill provided some helpful insight. Regarding Father, she states that Father has established, himself as a positive male role model and positive influence in the minor child’s life. Although limited by the years he missed with the minor child and by the distance between residences, Dr. Hill finds Father to have “ accepted the circumstances in a very positive and forthright manner,” being assertive in attempting to maintain regular contact with the minor child. Dr. Hill finds that a positive bond has developed between Father and the minor Child. He would provide a good family atmosphere, consistency, and flexibility in his schedule to enable him to spend quality time with the minor child. He is currently invested in the minor child and concerned about his well-being.

Father spoke to Dr. Hill of the minor child’s deteriorating behavior, productivity at school, and the fact that he appears willing to “give up easily.” Father has made contact with the school district where he resides, in the event that the minor child is permitted to relocate. Dr. Hill also found Father’s wife to be an excellent influence for the minor child.

Regarding Mother, Dr. Hill finds her to be more of a “part-time parent,” believing that most of the parenting has been done by the maternal grandparents and now the maternal grandmother. Mother was found to display “inconsistent parenting and discipline skills” and a “minimal understanding of child developmental issues.” Dr. Hill primarily blames Mother for the estrangement between Father and the minor child and believes she continues to interfere with their relationship. In sum, Dr. Hill states: “There is no doubt that [Mother] cares about the [minor child], but it appears that she has been more concerned about her own life all along than she has about [the minor child] and focusing on meeting his needs and what would be best for him.”

Dr. Hill recommends that Father have primary physical custody, with Mother to have partial physical custody every third weekend and additional time during school vacations, in essence, a reversal of the current schedule. Dr. Hill also recommends counseling and also warns the parents to keep the minor child from being involved in the discussions about him or in giving him the freedom to choose how the custody schedule and transitions will take place.

Dr. Hill’s updated evaluation provided her analysis on matters that occurred since she last saw the parties, the most important being the death of the maternal grandfather. She noted that the minor child wants to remain in Hamburg to continue to attend his school and be with his friends and also noted a level of estrangement between he and Father. Clearly, the custody action and the death of the maternal grandfather have exacerbated the stress in the minor child’s life. She continues to recommend that Father have primaiy custody, emphasizing that individual counseling for the minor child is important and that it is also important that the custody matter be resolved as soon as possible.

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).

This is an unfortunate situation where the minor child presents several of the symptoms attributable to an “at risk youth.” Fie clearly lacks interest in school, desiring only to “hang out” with his friends. The friends he has, including several females, talk about adult matters, substance abuse, and criminal activity. Whether the minor child is actually involved in any of these activities or is merely “talking big,” he nevertheless has his mind in the wrong place.

The minor child’s problems stem in large part due to the lack of participation from both parents, albeit from different circumstances. In Father’s case, his participation did not begin until 2006, when the minor child was 8 or 9 years old. Dr. Hill blames Mother for this but, in reality, it appears that both parents can share the blame. Mother perceived that Father did not want to become involved and therefore, she did not want him to be involved, at least until she needed money for support. For his part, Father likely suspected that he was the Father of the minor child, initially taking on a “don’t ask, don’t tell” position. We also note that when his paternity was established, he did not immediately seek time with the minor child, agreeing instead that the adoption could be processed. We also note that Mother’s involvement as primary caretaker was insubstantial, although she was not quite the minimalist Father would suggest.

Fortunately, Father’s perspective has changed. Since 2006, he appears to have made every effort to be a Father to this minor child and to invest his time and effort in his well-being. Father has been handicapped by the estrangement of the first eight years, the distance between the residences, and Mother’s reluctance, as well as her inability to maintain authority over the minor child. Father has nevertheless persevered, continuing to plug along to maximize his relationship with the minor child and the minor child’s well-being.

Currently, Father provides a very attractive environment. He does have a stable household with two other children. His wife has an excellent perspective and desire to be a stepmother to the minor child and will be a good influence for him. Father appears to be “hands on,” willing to commit his time and resources to educational assistance and recreational activities, even providing him with some vocational training in his job while the minor child was visiting him during the summer. What was lacking in the minor child’s life up to this point, stability, structure, discipline, and consistency, can now be provided.

We believe that Mother loves the minor child a great deal and wants the best for him. However, she has not been willing to this point to do the difficult things required of a parent, such as discipline, supervising his curriculum, and requiring him to do things he doesn’t want to do. If he remains at Mother’s house, a lot of the decisions he makes will be his own decisions, which friends he spends time with, what commitment he makes to school, and whether he continues to dabble in the counterculture in which he appears to be interested.

It is significant that neither Mother’s current paramour, nor Mr. Hartman, with whom the minor child has a good relationship, came to court to speak up on behalf of helas a mother. It is also significant that both Dr. Hill and the school district pronounced that a fresh start would apparently be what is best for this minor child.

That being said, we must also note that Mother was the one who accepted the role as primary custodian, not Father, whom we believe could have assumed responsibility at a much earlier juncture. If Mother had to rely on her parents for substantial assistance, that is not inappropriate. In some ways, Mother did the best she could, with limited means and opportunities. At this juncture, however, it appears best to release her from further responsibility as primary custodian and transfer that responsibility to Father.

Both parties agree that the non-custodial party should have extensive time in the summer. During the school year, rather than have every third weekend, the parties both suggested that long weekends, where the minor child does not have school on a Monday due to a holiday or in-service day, should be the days for partial custody. Accordingly, Father shall provide Mother with the school schedule. All holidays during the school year where there is an extended weekend, including Thanksgiving, as well as any in-service days, shall be Mother’s weekends. This does not include Christmas, which the parties shall split as more fully set forth in the court’s order. Mother shall be entitled to six weeks during the summer. At Father’s request, the transfer shall take place in Seaford, Delaware, which is approximately midway between the parties’ residences.

We enter the following order:

ORDER

And now, August 25,2010, after trial held, custody of the parties’ minor child, Kolby D. Amdt-Montgomery, born July 25, 1997, (minor child), shall be as follows:

(1) The parties shall share legal custody of the minor child.

(2) Plaintiff, Dana G. Achenbach (Father), shall have primary physical custody of the minor child.

(3) Defendant, Dianne E. Montgomery (Mother), shall have partial physical custody of the minor child as follows:

(A) During the school year, any weekend where the minor child is excused from school on the Friday before the weekend or the Monday after the weekend due to a holiday or in-service day. This shall include Thanksgiving, but shall not include Christmas;

(B) During the minor child’s spring break, commencing at 1 p.m. the day following the minor child’s last day of school until 1 p.m. on the day prior to the minor child’s return to school;

(C) For six weeks during the summer months, the weeks to be consecutive or nonconsecutive, the times to be agreed upon by the parties, but in lieu thereof, to commence one week after the expiration of the minor child’s school year; and

(D) At such other times as the parties may mutually agree.

(4) For the Christmas holiday, the parties shall alternate such that during even-numbered years, Mother shall have custody of the minor child, commencing one day after the minor child’s school break begins through December 27 at 1 p.m. Father shall then have the remainder of the Christmas holiday, with the schedule to reverse on odd-numbered years.

(5) The parties shall permit the minor child to maintain a cell phone to permit him to have frequent contact with the non-custodial parent and the maternal grandmother. A webcam on the computer may also be set up, if financially feasible.

(6) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’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 the necessary information directly from the child’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are 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, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and 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) Neither party shall alienate nor permit to attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncompli-

mentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

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

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

(6) The parties shall, at all times, consider the child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7) Neither party shall question the child as to the personal lives of the other parent 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 the 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 their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.

(D) The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.