author: LASH, J.,

text:
    Gruver v. Gruver

      December 18, 2006

      Jeffrey R. Boyd, for plaintiff.

      Kathleen D. Dautrich, for defendant.
   LASH, J.,

Defendant, Susan J. Gruver (Wife), has appealed the order of this court entered November 8, 2006, dismissing five of the six exceptions filed by Wife from the recommendation of the special master in divorce, Robert E. Giering, Esquire.

The parties were married on June 29, 2002 and separated on March 29, 2004. Prior to their separation, on March 22, 2004, plaintiff, Karl S. Graver (Husband), filed the within action in divorce. Wife would not consent to the divorce, and as a result, the matter did not proceed to a hearing before the special master until April 10,2006, after the parties had been separated for over two years.

Prior to the marriage, on May 30, 2002, the parties signed an agreement entitled “prenuptial agreement.” This agreement, inter alia, sets forth the rights and duties of the parties to their income and property in the event of a divorce. Section 3.01 of the agreement states:

“The income and property of the parties listed in their respective schedules ..., together with all income from that property that accrues during marriage and all appreciation in value of that property that occurs during marriage, regardless of the reason for the appreciation, shall be owned as the separate property of that party during marriage and shall not be considered marital property in the event of a divorce. However, the parties agree that the increase in value during the marriage of [Husband’s] real property only, located at 631 Walker Road, Macungie, Berks County, Pennsylvania, shall be considered marital property in the event of a divorce.” (emphasis in the original)

Paragraph 3.02, dealing with property acquired during the marriage, states:

“The full value of all property that either party acquires during marriage by way of gift, devise, bequest, or descent shall be the separate property of that party and shall not be considered marital property in the event of a divorce. Also, the full value of any property acquired during marriage by a party that is acquired with the proceeds of any sale, other disposition, or change in form of separate property shall remain the separate property of that party. All other property acquired during marriage shall be deemed to be marital property in the event of a divorce.”

Section 3.04 of the agreement states:

“If the marriage should terminate in the divorce of the parties, and without regard to the fault of either party in causing the termination, all property as set forth in exhibits ‘A’ and ‘B’ to this agreement, and all separate property as set forth in this agreement, shall remain the separate property of the respective parties. Neither shall claim or have any right to compel equitable distribution of any separate property of the other. The parties agree that all marital property shall be divided equally (50 percent to each party) between them.”

Based on his interpretation of the prenuptial agreement, the special master determined that the only property available for equitable distribution was the increase in value of Husband’s residence during the marriage. To reach a value, the special master accepted evidence for the value of the residence as of the date of separation, March 25,2004, and as of the date of the marriage, June 29, 2002. Regarding the date of separation, both parties relied on expert opinions from real estate appraisers. Husband’s expert appraised the residence at $205,000. Wife’s expert reached an opinion of $229,027. The special master averaged the two figures, concluding that a fair value for the property as of separation would $217,500.

Regarding value as of the date of marriage, Husband’s appraiser opined that the value was one $185,000. Wife did not present an appraisal, relying instead on exhibit A of the prenuptial agreement, in which the value of the residence was estimated by Husband to be $151,700. This figure was derived from the tax assessment on the property. The special master rejected Wife’s approach, and accepted Husband’s appraisal. He then subtracted $185,000 from $217,500 to find an increase in value for the property of $32,500. Based on the terms of the prenuptial agreement, specifically section 3.04, the special master divided the sum of $32,500 evenly between Husband and Wife.

Regarding counsel fees, costs and expenses, the special master found that the prenuptial agreement requires the parties pay their own counsel fees, costs and expenses. According to the special master, Husband paid the initial $500 special master’s fee, leaving a balance of $680, which includes “Wife’s share of the stenographer’s fee of $150.” The master recommended that Wife should pay the balance of $680.

On or about May 30, 2006, Wife filed the following exceptions:

(1) There is insufficient evidence on the record to support the findings of fact and conclusions of law to support the distribution recommended by the special master.

(2) The special master erroneously considered an appraisal of Husband’s residence that was not given to Wife at the time the parties entered into their prenuptial agreement.

(3) The special master erroneously calculated the increase in value of Husband’s residence that was incurred from the time of the parties ’ marriage until Husband filed for divorce.

(4) The special master erred as a matter of law when interpreting the agreement entered into by the parties as follows:

(a) The agreement clearly indicated the value of Husband’s home at the time of the signing of the agreement.

(b) It is undisputed that Husband received a lump sum payment from his Social Security claim that was not included in the agreement, nor did the agreement even reference this payment. The failure to disclose this fact in the agreement invalidates the agreement.

(c) The agreement references attorney’s fees and costs in the event of divorce; it is error to attribute the payment of special master fees to the party (Wife herein) that does not file for or seek a divorce.

(5) The special master erroneously calculated the amount of the special master fees he attributed to Wife.

(6) The special master failed to give proper weight to Husband’s contribution to preserving the marital estate by paying for the maintenance of the property, all taxes for five years and all mortgage payments.

In determining an equitable distribution award, the trial court is not bound by the master’s recommendations. Although the master’s report is entitled to great weight, it is the trial judge who has the responsibility for imposing the distribution. Tagnani v. Tagnani, 439 Pa. Super. 596, 654 A.2d 1136 (1995).

We note initially that Wife’s exception number 1 is a general statement complaining of the distribution scheme recommended by the special master. As this objection is adequately addressed through our analysis of exceptions 2 through 6, we make no additional finding regarding exception number 1.

Exceptions 2,3 and 4.a. all attack the special master’s analysis of the calculation of increase in value of Husband’s residence. We find, however, that the special master’s conclusions are supported by the evidence and are proper.

Real estate is appraised on the basis of fair market value. Market value is defined as the price a purchaser, who is willing, but not obliged to buy, would pay an owner, willing, but not obliged to sell, taking into consideration all uses to which the property is adapted and might in reason be applied. Buhl Foundation v. Board of Property Assessment, Appeals and Review, 407 Pa. 567, 180 A.2d 900 (1962). In determining fair market value of real estate, the proper approach is to consider proffered expert opinions of real estate appraisers, who provide their analyses through comparative sales, income and cost approaches.

Both parties hired certified appraisers with extensive experience. Both appraisers relied upon the market data approach, comparing sales of similar properties, then making adjustments, where appropriate, to reach an appraised figure for the subject property. Additionally, both appraisers utilized the cost approach, deriving a square foot reconstruction cost for the property from Marshall and Swift Evaluation Services. The two figures were then reconciled to arrive at a final appraised figure.

The appraisers’ methods were based on well-established principles for real estate appraisals. Their analyses were appropriate.

In reaching his value of $217,500 as of the date of separation, the master states: “Both appraisers appeared and testified and presented similar reports. They each testified that the appraisal of the other was within a reasonable range of the actual value. It should be noted that these two appraisals are about 12 percent apart. It seems reasonable to average them and therefore $217,500 is used herein as the value on the date of separation.”

The special master’s decision to split the difference between the appraisers’ values was reasonable. When a court is presented with conflicting testimony by equally credible experts, the court can, within its discretion, conclude that the fair market value of the property is somewhere between the values presented by the parties. Westinghouse Electric Corporation v. Board of Property Assessment, Appeals and Review of Allegheny County, 539 Pa. 453, 464, 652 A.2d 1306, 1312 (1995).

Turning then to the valuation as of the date of marriage, we find that the special master’s decision to accept Husband’s appraisal value was appropriate. Husband presented an appraiser who determined fair market value based upon comparable sales and from a previous appraisal of the subject residence from 1998. This information provided a sufficient foundation for the appraiser to give an opinion on fair market value.

On the other hand, Wife presented no evidence on the fair market value of the residence as of the date of the marriage, relying on the estimated value placed on the residence by Husband at the time of the execution of the prenuptial agreement, included as part of his disclosure of assets in exhibit “A”. The estimate is based on a property tax assessment, and as such, is not a fair indication of fair market value.

Wife’s argument that Husband is bound by this estimate is without merit. Section 3.01 of the prenuptial agreement specifically states that it is the increase in value of the residence that is subject to distribution, denoting that a fair market value determination should be made. Additionally, section 2.03 of the agreement, requiring each party to give the other a full and complete disclosure of his or her incomes, assets and obligations, specifically states that the “figures and amounts in exhibit ‘A’ and exhibit ‘B’ are approximately correct and not necessarily exact.” Absent an express requirement within the prenuptial agreement, a party is under no duty to obtain fair market value of each of the assets he or she owns at the time of the execution of the prenuptial agreement. A good fair approximation is all that is necessary. As stated in Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990), disclosure of the financial positions of the parties, including value of financial resources, need not be exact, so long as it is “full and fair.” Here, Husband utilized the assessment value accepted by the county for purposes of imposition of property tax. It was reasonable for Husband to use this value to provide a ballpark figure of the value of the residence as of the date of the marriage, rather than require him to pay for an appraisal. His compliance with disclosure requirements is not a basis for binding him to that figure as a statement of fair market value. Exceptions 2, 3 and 4.a. were properly dismissed.

Exception 4.b. sets forth Wife’s contention that Husband should be penalized for failing to disclose the existence of a lump sum payment from his Social Security claim. Husband received a lump sum payment in the amount of $60,000, representing payment of Social Security benefits retroactive to the date of his application.

We note initially that Social Security benefits are generally considered income, not assets. See 23 Pa.C.S. §4302. However, whether income or property, the lump sum payment is not to be considered marital property under the terms of section 3.01 of the prenuptial agreement. Additionally, section 4.01 expresses the parties’ decision to waive any rights that either may have to alimony or alimony pendente lite, and so the lump sum benefit cannot be considered within that context either.

Wife urges this court to invalidate the prenuptial agreement for failure to disclose the reception of the lump sum payment. We find, however, that the benefit was contingent because Husband had not received the lump sum benefit at the time of the execution of the prenuptial agreement. Further, his reception of the benefit did not affect the outcome of this case because of the terms of the prenuptial agreement, for the reasons already set forth.

Wife did not establish a proper basis for voiding the agreement, and this court will not do so. Exception 4.b. is dismissed.

In exception 4.c., Wife contends that the special master erred in deciding that the parties should share the costs for the special master and stenographer’s fee evenly. The total costs were $1,180.

Awarding costs is an exercise of the equity powers of the court and is solely within its discretion.

The prenuptial agreement is silent on the apportionment of costs. We note, however, that the agreement contemplates that any debt incurred by one party, including attorney’s fees pursuant to a divorce, shall be borne by that party, while any joint debt incurred during the marriage would be equally divided between the parties. When equally dividing costs, the special master acted consistently with the method the parties chose for disposition of all other debt. We concur that this was appropriate. Exception 4.c. was properly dismissed.

In exception number 6, Wife argues that the special master gave a credit to Husband for his contribution for maintenance, taxes and mortgage payments of the real estate. However, the special master made no such determination. He did give Husband a $ 15,000 credit, but this was required by this court’s order of February 18,2005, by agreement of the parties. Further, there was no basis for the special master to consider giving other credits or offsets, as the terms of the prenuptial agreement precludes such a determination. Exception number 6 was, therefore, properly dismissed.

As stated in its order of November 8, 2006, this court sustained exception number 5 based upon the determination that the special master made a calculation error on the amount of special master fees he attributed to Wife. Our footnote for that order, which we restate here, addresses the matter:

“It appears that the special master credited plaintiff Husband with payment of the initial $500 fee for appointment of a master. In fact, plaintiff Husband admits in his brief that the parties split that cost evenly. Additionally, according to defendant Wife’s brief, she paid one-half of the stenographer fee of $150. As a result, there appears to be a need for an adjustment in favor of Wife to reflect the special master’s determination that these costs should be split evenly by the parties. If the matter cannot be resolved by agreement, counsel shall meet with the special master with evidence of what was paid. The pendency of this matter shall not stay the entry of the divorce decree.”

For the aforesaid reasons, this court requests your honorable court affirm the order entered by this court on November 8,2006, and dismiss the appeal of defendant, Susan J. Graver.

      . On April 11, 2006, Husband filed an affidavit alleging a separation of two years, establishing grounds under section 3301(d) of the Divorce Code. Wife did not dispute that the parties were separated for two years.

      . See 23 Pa.C.S. §3104(a)(l).

      . Section 5.03.


source: Caselaw Access Project

author: GEORGE, J„

license: Public Domain

text:
    Commonwealth v. Milano

      April 20, 2007

      Brian Sinnett, for Commonwealth.

      Karl Rominger, for defendant.
   GEORGE, J„

On June 2, 2006, the defendant, Peter Milano, was convicted by a jury of three counts of delivery of cocaine. The convictions stem from three separate incidents occurring on July 28, 2005, August 3, 2005, and August 25, 2005. At the time of sentencing on September 18,2006, the Commonwealth sought application of the mandatory sentencing provisions of 18 Pa.C.S. §7508 (relating to drug trafficking sentencing and penalties). The court determined that a three-year mandatory sentence was applicable to the first conviction and five-year mandatory sentences were applicable to the second and third convictions. Nevertheless, after reviewing the pre-sentence investigation and conducting a sentencing hearing, the court rejected the Commonwealth’s request to run each of the mandatory sentences consecutive but rather imposed an aggregate sentence of no less than 10 nor more than 20 years in a state correctional institution.

Milano filed timely post-sentence motions which were denied by the court. Thereafter, he has filed a timely appeal to the Pennsylvania Superior Court. In his appeal, Milano raises the following issues:

“(1) The mandatory sentencing scheme under 18 Pa.C.S. §7508 is illegal and unconstitutional;

“(2) The plain language of 18 Pa.C.S. §7508 requires that the mandatory sentences for each of the convictions is three years rather than five years;

“(3) The trial court erred in refusing Milano’s request for a jury instruction on accomplice testimony concerning the testimony of the confidential informant who testified at trial; and

“(4) Evidence at trial is insufficient to support the convictions.”

For the following reasons, it is suggested that Milano has failed to raise an issue justifying appellate relief and, therefore, affirmance of the sentence is requested.

The first issue raised by Milano has been specifically considered, and rejected, by the Superior Court in Commonwealth v. Arriaga, 422 Pa. Super. 52, 618 A.2d 1011 (1993), and Commonwealth v. Logan, 404 Pa. Super. 100, 590 A.2d 300 (1991). In each of those cases, the Superior Court recognized that the mandatory sentencing provisions of section 7508 violate neither the separation of powers doctrine nor any of the other constitutional clauses.

Similarly, Milano’s second issue is easily resolved by a review of controlling precedent. In Commonwealth v. Vasquez, 562 Pa. 120, 123, 753 A.2d 807, 809 (2000), the Supreme Court held that “[i]t is irrelevant that the prior conviction arises from one count within a multiple count complaint, or that the offenses are from a single arrest and charge... as long as at the time of sentencing, a defendant ‘has been convicted’ of another qualifying ‘offense,’ the defendant shall receive the enhanced sentence.” (emphasis in original) At sentencing, I applied the controlling authority of the Vasquez court. Thus, Milano’s second issue is meritless as it has consistently been rejected by our appellate courts. See also, Commonwealth v. Bell, 901 A.2d 1033 (Pa. Super. 2006).

Milano’s third issue challenges this court’s charge to the jury. Specifically, Milano claims that the court erred in not granting his request for a jury instruction on accomplice testimony in regard to the testimony of the confidential informant. In this regard, he claims that the confidential informant, as purchaser of the controlled substances, acted as an accomplice to Milano.

It is the rule in Pennsylvania that the testimony of an accomplice of a defendant given at the latter’s trial comes from a corrupt source and is to be carefully scrutinized by the jury and accepted with caution. Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975). The corrupt source charge is required in cases in which the evidence is sufficient to present a jury question with respect to whether the Commonwealth’s witness is an accomplice. Commonwealth v. Williams, 557 Pa. 207, 234, 732 A.2d 1167, 1181 (1999). Apersonmay be considered an accomplice where the evidence would establish that he knowingly and voluntarily cooperated with or aids another in the commission of a crime with the intent to assist the principal. Id.

Initially, I note that the current confidential informant does not fit within the definition of an accomplice law. Statutory provisions relating to the criminal liability for the conduct of another specifically except from complicity one who terminates criminal involvement prior to the commission of the offense and wholly deprives the complicity of its effectiveness. 18 Pa.C.S. §306(f)(3)(i). Similarly, one who gives timely warning to law enforcement of the anticipated criminal act is exempted from the criminal liability which otherwise attaches to an accomplice. See 18 Pa.C.S. §306(f)(3)(ii). Instantly, the confidential informant fully cooperated with the police throughout the criminal episode. His actions not only gave timely warning to police of an impending crime, but to a large extent were conducted under the supervision of law enforcement. The confidential informant’s cooperation with police unquestionably deprived Milano’s criminal conduct of its effectiveness. Since the confidential informant, under the circumstances of this case, is not an accomplice, Milano was not entitled to an accomplice jury instruction at trial.

Nevertheless, the Milano jury was cautioned to carefully view the testimony of the confidential informant. While this court’s instruction did not refer to the witness as an accomplice, the cautionary instruction otherwise mirrored the proposed standard jury instructions relating to accomplice testimony. Such instructions have previously been found to be adequate in the context of accomplice testimony. Commonwealth v. Fodero, 273 Pa. Super. 278, 417 A.2d 648 (1979). Moreover, a review of the jury charge as a whole reveals that the charge was sufficient. Butler v. Kiwi S.A., 412 Pa. Super. 591, 604 A.2d 270(1992).

The final challenge raised by Milano concerns the sufficiency of the evidence. When considering a challenge to the sufficiency of the evidence, it is necessary to determine whether the evidence submitted at trial, and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to establish every element of the offense beyond a reasonable doubt. Commonwealth v. Dailey, 828 A.2d 356, 358 (Pa. Super. 2003). The Commonwealth may sustain its burden of proving every element of the offense beyond a reasonable doubt with evidence which is wholly circumstantial, and the trier of fact, in passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Id. at 358-59.

Instantly, the Commonwealth called the confidential informant to testify at trial. His testimony reflected that, on three separate occasions, he purchased cocaine directly from Milano. He credibly described the circumstances leading up to each of the separate incidents and convincingly described Milano selling cocaine to him. The confidential informant’s testimony was corroborated by surveillance conducted by the Pennsylvania State Police. Specifically, at least two undercover troopers observed Milano and the confidential informant meeting at the time of the drug transactions. Since the confidential informant had consensually agreed to wear an audio receiver, conversations between Milano and the confidential informant concerning the purchase of controlled substances were audio recorded. Video of the transactions linked the voice on the audio to Milano. A laboratory report by the Pennsylvania State Police Forensic Laboratory confirmed that the substance Milano represented to be cocaine, and subsequently transferred to the confidential informant, was in fact cocaine, a Schedule II controlled substance. The evidence at trial was not only sufficient to support the verdict but, in the opinion of this judge, was overwhelming. Accordingly, it is requested that Milano’s request for relief on the basis of insufficiency of evidence be denied.

      . Trial testimony indicated that the July 28, 2005 transaction involved 28 grams of cocaine; the August 3, 2005 transaction involved 13.8 grams of cocaine; and the August 25, 2005 transaction involved 13.9 grams of cocaine.

      . The court sentenced Milano on Count I to serve no less than three years nor more than six years and a concurrent sentence of no less than five years nor more than 10 years on Count II. On Count III, Milano was sentenced to a consecutive sentence of no less than five years nor more than 10 years.

      . Milano’s trial counsel sought to withdraw as counsel following this court’s denial of the post-sentence motions. While that request was pending before the court, Milano timely filed a pro se appeal to the Pennsylvania Superior Court. Counsel’s request to withdraw was denied pending the perfection of an appeal to Superior Court. Trial counsel has subsequently timely appealed to the Superior Court. Additionally, trial counsel has filed a concise statement of matters complained of on appeal. Subsequent to the filing of said statement, trial counsel was granted leave to withdraw and new counsel was appointed to represent Milano by order of court dated March 7,2007.

      . During trial, the Commonwealth introduced an audio/video recording of one of the alleged transactions. Although the recording was not of the quality normally produced by Hollywood, it was sufficient to reveal consistent qualities between the person recorded and Milano. The video equipment was apparently located in a small box in the rear seat of the confidential informant’s vehicle. The trooper who operated the equipment testified that the type of equipment used to record the transaction had never been used by him before. Accordingly, he was not completely familiar with camera angles.


author: KUNSELMAN, P.J.,

text:
    Malarik v. Battalini
    April 13, 2007

      James M. Malarik, pro se.

      Richards. Start, Edward A. Yurcon, Courtney B. Barthelemy and Jeff A. Hollowood, for defendants.
   KUNSELMAN, P.J.,

These matters are before the court on a motion for sanctions filed on behalf of the defendants. The motion seeks orders of dismissal of the actions under Pa.R.C.P. 1023.4 because the plaintiff has filed forged medical records in the three cases. Although the plaintiff has clearly filed forged medical records, we are unable to grant the relief requested for several reasons.

We recognize that a pro se party, by filing a document, certifies that, among other things, it is not being presented for any improper purpose and that the factual allegations have evidentiary support. Pa R.C.P. 1023.1 (c) (1) and (3). Sanctions may be ordered by the court for violations of Rule 1023.1 but are to be limited to that which is sufficient to deter repetition. Pa.R.C.P. 1023.4(a) (1). The sanctions may consist of directives of a non-monetary nature, an order to pay money into court or an order to pay the moving party’s attorney fees and expenses. Pa.R.C.P. 1023.4(a)(2)(i)(ii) and (iii). Notably absent in the list of authorized sanctions is dismissal of the cause of action. In fact, our independent research has disclosed no authority to dismiss a cause of action because the plaintiff submitted forged medical records. Thus, we believe this to be a case of first impression.

We observe that the sanction of non pros is available for the violation of a discovery order. (Pa.R.C.P. 4019(c) (3).) However, the plaintiff’s filing of the forged medical records was not pursuant to a discovery order. We further observe that the court has authority to enter an appropriate judgment against a party upon default or omission. (Pa.R.C.P. 1037(c).) However, there is neither default nor omission. Finally, neither the contempt power of the court nor an order under 42 Pa.C.S. §2503 provide the remedy the defendants are seeking.

Nevertheless, we conclude that the filing of forged medical records to pursue tort claims for personal injuries is so egregious that some sanction must be imposed. Since the defendants are proceeding under Pa.R.C.P. 1023.4 and since that rule authorizes “directives of a nonmonetory nature,” we will make such a directive. We will direct that the plaintiff be precluded from introducing into evidence at trial any medical testimony on the issues of injuries and causation.

We reach this conclusion after considering the egregiousness of filing forged medical records; the willfulness in doing so; the plaintiff’s pattern of filing many frivolous, nonsensical and duplicitous papers in the actions; and the filing of forged papers by the plaintiff in the United States District Court for the Western District of Pennsylvania, the United States Court of Appeals for the Third Circuit and the United States Supreme Court. This court will not permit the plaintiff to benefit from such a pattern of activity. An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the plaintiff, James M. Malarik, is precluded from introducing into evidence any medical testimony as to his injuries and the cause thereof at trial of the above entitled matters.

The court having been advised that the plaintiff is presently confined in the Allegheny County Jail, the prothonotary is directed to mail a copy of the attached opinion and this order to the plaintiff at his mailing address and at the Allegheny County Jail, 950 2nd Avenue, Pittsburgh, PA 15219-3100.


author: EVANS, J.,

text:
    Wachovia Bank N.A. v. Gemini Equipment Co.

      December 5, 2006

      Ira A. Rosenau, for plaintiff.

      Thomas W. Scott, for defendant.
   EVANS, J.,

After more than seven years of litigation, this straight forward collection case concerning defendant Gemini’s default on a loan and a line of credit finally was heard by the court in a non-jury trial on November 30 and December 1, 2005. On May 25, 2006, this court issued detailed findings of fact and an order in favor of the plaintiff Wachovia Bank in the amount of $2,053,557.48. This amount included $1,849,272.83, representing the outstanding balances (principal and interest) owed to the bank as of the time oftrial and attorney’s fees in the amount of $204,284.65. Gemini’s post-trial motions were denied on September 27,2006, and an appeal is now pending before the Pennsylvania Superior Court.

The evidence introduced at trial established that on November 16, 1986, Gemini executed and delivered to the bank an unlimited guaranty in which Gemini agreed to act as the complete and unconditional surety of all monies then or thereafter due to the bank or its successors from Adams County Asphalt (ACA) on account of any loans made to ACA. Amended guarantees were subsequently executed by Gemini in connection with increasing ACA’s line of credit to $3,000,000 and a commercial loan to ACA in the amount of $100,000. When ACA defaulted on the loans, the bank exercised its right to accelerate all amounts due and demanded payment. Thereafter, both ACA and Gemini filed voluntary petitions for Chapter 11 bankruptcy. On July 7, 2005, the automatic stay was modified in the Gemini bankruptcy case, which allowed this litigation to proceed to trial, ultimately resulting in the entry of judgment against Gemini.

On appeal, Gemini claims that the court should have entered judgment in its favor based upon the bank’s failure to present competent evidence to establish the outstanding amount of the debt, as well as Gemini’s failure to pay. In establishing the amounts owed, the bank submitted the testimony of Jay Friedberg, Senior Vice President of Wachovia Bank. Mr. Friedberg testified to the principal and interest owed on the outstanding loans, utilizing the bank’s computer-generated records. Gemini asserts that the bank failed to lay an adequate foundation for this testimony as Mr. Friedberg allegedly had no knowledge as to the manner in which the balances due were created or maintained by bank personnel.

In essence, Gemini alleges that the trial court erred in admitting plaintiff’s evidence concerning the amount of the unpaid debt owed to the bank. This evidence consisted of exhibits P-18 and P-19 which were admitted as business records under Pa.R.E. 803(6), based upon the foundational evidence presented through the bank’s witness, Jay Friedberg. Gemini asserts three overlapping claims of error in this regard: (a) Mr. Friedberg lacked sufficient knowledge to be a “qualified witness” to testify as to the foundational elements under Pa.R.E. 803(6); (b) the bank records were not properly authenticated; and (c) the bank failed to lay the proper foundation for admission of the records under Pa.R.E. 803(6). We find Gemini’s allegations to be without merit.

A. The bank’s computerized records establishing the outstanding balances due under the loan instruments were properly admitted under Pa.R.E. 803(6) as records of regularly conducted activity.

Pa.R.E. 803(6) states that records of regularly conducted activity are not excluded by the hearsay rule:

“A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time, by or from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the custodian or other qualified witness, . . . unless the sources of information of other circumstances indicate a lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

Importantly, the official comments to Pa.R.E. 803(6) provide that the term “data compilation” encompasses records kept through “computerized data storage.” Rule 803(6) places the burden on the proponent of the evidence to show circumstantial trustworthiness. The rule places the burden on the opposing party to show that the sources of information or other circumstances indicate that a business record is untrustworthy, and thus does not qualify for exception to the hearsay rule. Official Comments to Pa.R.E. 803(6). See also, Commonwealth v. Schoffi 2006 Pa. Super. 307, 2006 Pa. Super. Lexis 3557 (2006). Thus, under Pa.R.E. 803(6), the foundation for admissibility of business information is that (a) the record was made and kept in the course of regular business activity; (b) the record was made by, or from information provided by, a person who had knowledge of the information recorded; and (c) the record was made at or near the time of the recorded act, event or condition.

The justification for this hearsay exception is that business records have a high degree of accuracy because the nation’s business demands it, because the records are customarily checked for correctness, and because record keepers are trained in habits of precision. Papach v. Mercy Suburban Hospital, 887 A.2d 233, 246 (Pa. Super. 2005). Double hearsay exists when a business record is prepared by one employee from information supplied by another employee. Id. If both the source and the records of the information, as well as every other participant in the chain producing the record, are acting in the regular course of business, the multiple hearsay is excused by Pa.R.E. 803(6). Id.

Herein, we find that the testimony of Jay Friedberg met all of the foregoing requirements. Accordingly, a proper foundation was established for the admission of exhibits P-18 and P-19. Mr. Friedberg explained his history with Wachovia Bank dating back to 1987; his role in connection with the documents being introduced as business records; and his status as custodian of the bank’s records. He has been employed by Wachovia Bank or its predecessors (Hamilton Bank, Corestates and First Union) since 1987. (N.T. 11/30/05 at 17.) Currently, he is a senior vice president. (N.T. 11/30/05 at 17.) He has been involved in the bank’s relationship with defendant Gemini since 1994 or 1995 and is responsible for overseeing the litigation surrounding the defendant’s guarantees following ACA’s default. (N.T. 11/30/05 at 18.) He is the person responsible for maintenance of the Gemini file and is considered the custodian of that file. (N.T. 11/30/05 at 18-19.) He reviewed the bank’s file regarding Gemini before appearing in court and confirmed that the documents he reviewed are kept in the ordinary course of the bank’s business. (N.T. 11/30/05 at 18-19.)

Mr. Friedberg explained his familiarity with the bank’s electronic record-keeping system for each and every loan booked by the bank, and how those records are maintained in the ordinary course of business. In his position as a senior vice president, Mr. Friedberg is familiar with the procedures utilized by the bank in producing the documents. Specifically, after a loan closing takes place, with the signing of obligations, notes and security agreements, the documents are then transferred onto a loan information system by book entry, which involves sending a copy of the note to the bank’s central accounting system. (N.T. 11/30/05 at 37.) A computer profile is set up for every loan and the records are kept on a mainframe computer which is accessed by authorized bank personnel. (N.T. 11/30/05 at 38.) When a payment is received on the loan or line of credit, the payment information is sent through the system via a series of “application tickets” which reflect the amount of the payment and how much is allocated to interest and principal. The entry of debits and credits is routinely performed by a bank specialist. (N.T. 11/30/05 at 38.) The computerized loan records are kept in the ordinary course of business and track payments, interest and adjustments. (N.T. 11/30/05 at 41-42.) The bank is required by law to keep accurate books and records of all loans in the portfolio. The computerized records are utilized to determine compliance and are also utilized for internal and external audits. (N.T. 11/30/05 at 41.)

Based upon the documentary evidence presented, as well as the testimony of Mr. Friedberg, this court determined that the outstanding amount owed on the ACA line of credit, including principal and interest, was $1,773,545.77 and the aggregate balance due on the $100,000 loan was $75,727.07 through the date of the hearing. (Exhibits P-18, P-19 and P-31; N.T. 11/30/05 at 51.) Accordingly, judgment was entered in favor of the bank and against Gemini as the guarantor of ACA’s loans, in the amount of $1,849,272.83.

This court found that Mr. Friedberg properly laid the foundation for the admission of P-18 and P-19. Fie established how the baseline loan balance was established at or near the time of loan origination and how payments were allocated and entered into the system at or near the time they were received. He also established that the computerized data was kept in the regular course of the bank’s business. The bank is required to keep accurate records by law and the records are subject to both internal and external audits, which substantially supports their overall trustworthiness.

Against this foundation, Gemini bore the burden of proving that the records were untrustworthy. Gemini objected to admission of the computerized data on the basis that Mr. Friedberg was not competent to be an appropriate sponsor for the documents because he had no role in creating them and did not oversee their preparation. This objection is entirely without merit. A witness testifying to the foundational elements under Rule 803(6) is not required to have personal knowledge of the circumstances surrounding each and every entry made in the business records. Rather, the witness must have knowledge about how the records are created and maintained in the ordinary course of business.

Contrary to Gemini’s position, the Pennsylvania courts have regularly held that the testifying witness need not have personal knowledge of the facts reported in the business records. It is the business purpose of the record, rather than the employee status of the source, which renders such hearsay evidence especially reliable. Toth v. Workers ’ Compensation Appeal Board (USX Corp.), 737 A.2d 838, 841 (Pa. Commw. 1999). As stated in Boyle v. Steinman, 429 Pa. Super. 1, 631 A.2d 1025 (1993):

“The purpose of Uniform Business Records as Evidence Act is to create an additional exception to the hearsay rule in circumstances where a record of an act, a condition or an event was made in the regular course of business, at or near the time of the act, condition or event and where the sources of information, method and time of preparation were such as to justify its admission. Joseph v. Krull Wholesale Drug Co., 147 F. Supp. 250 (E.D. Pa. 1956), affirmed, 245 F.2d 231 (3d Cir. 1957). The question of whether documents should be admitted under the “business records” exception to the hearsay rule is within the discretionary power of the trial court provided such discretion is exercised within the Uniform Business Records as Evidence Act. Thomas v. Allegheny & Eastern Coal Co., 309 Pa. Super. 333, 340, 455 A.2d 637, 640 (1982). It is not essential under the Uniform Business Records as Evidence Act to produce either the person who made the entries or the custodian of records at the time the entries were made. In re Indyk’s Estate, 488 Pa. 567, 573, 413 A.2d 371, 373 (1979). Moreover, the law does not require that a witness qualifying business records even have a personal knowledge of the facts reported in the business record. Wayne County Board of Assessment v. Federation of Jewish Philanthropies, 43 Pa. Commw. 508, 403 A.2d 613 (1979). As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness for the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. In re Indyk’s Estates, supra, at 573, 413 A.2d at 373.” Id, 429 Pa. Super, at 15, 631 A.2d at 1032-33 (1993), allocatur denied, 538 Pa. 663, 649 A.2d 666 (1994); see also, Commonwealth v. McEnany, 732 A.2d 1263, 1272 (Pa. Super. 1999); Peled v. Meridian Bank, 710 A.2d 620, 625 (Pa. Super. 1998); Fordham v. PennDOT, 663 A.2d 868, 872 (Pa. Commw. 1995); Commonwealth v. Wood, 432 Pa. Super. 183, 212-13, 637 A.2d 1335, 1349-50 (1994); Campbell v. Royal Indemnity Company of New York, 256 Pa. Super. 312, 389 A.2d 1139 (1978).

Likewise, we find that Gemini is incorrect when it contends that Mr. Friedberg was not a “qualified witness” under Pa.R.E. 803(6). For purposes of the rule, the term “qualified witness” is to be given the broadest interpretation and only requires that the witness understands the system he is describing. United States v. Pellulo, 964 F.2d 193, 201 (3d Cir. 1992). Similarly, we reject Gemini’s contention that Mr. Friedberg’s testimony was insufficient to authenticate P-18 and P-19. Gemini claims that the records were not properly authenticated because the bank’s loan tracking computer systems went through conversions over the years. This argument is meritless for several reasons.

First, Gemini failed to raise an authenticity objection at trial, and therefore, the objection is waived at this juncture. It is axiomatic that an objection to the admission of evidence is waived if not timely raised at trial. Takes v. Metropolitan Edison Company, 548 Pa. 92, 99, 695 A.2d 397, 400 (1997). While Gemini’s counsel raised objections to the admission of the documents as hearsay, there was no objection based on the lack of authenticity of the document. Even if the objection had been properly preserved, this court finds that exhibits P-18 and P-19, which contained the computerized data, were properly authenticated by Mr. Friedberg.

Pa.R.E. 901 sets forth the requirement of authentication or identification and provides in relevant part:

“(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
“(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
“(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be....
“(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”

The bank’s computerized loan records were authenticated under each of the foregoing rules. Mr. Friedberg testified about his knowledge of the conversion of the Hamilton Bank computer system into the current system; his experience that the conversion went smoothly; and that the computer system was audited. (N.T. 11/30/05 at 59-64.) Every loan owned or processed by the bank runs on this same system. Thus, from his own knowledge, Mr. Friedberg testified that the records were what they purported to be and that the documents were reliable.

Based upon the foregoing, Gemini is simply wrong in its assertion that the bank’s witness, Jay Friedberg was not qualified. We also reject Gemini’s contention that Mr. Friedberg’s testimony failed to establish that the data compilation was made at or near the time from information transmitted by a person with knowledge and kept in the ordinary course of business. The testimony established that payments were applied to the outstanding loan balances, by authorized bank personnel, at or near the time the payments were received and that such records were kept on every loan in the bank’s portfolio as part of its regular business practice.

B. The entry of an order precluding Gemini from interposing any defenses to the bank’s claims was an appropriate sanction for defendant’s willful and repeated discovery abuses.

Next, Gemini contends that the court erred in granting plaintiff’s motions in limine essentially precluding Gemini from interposing any defenses to the bank’s claims. Gemini alleges that this was a drastic remedy which resulted in a denial of due process. First, we note that Gemini was given more than due and sufficient notice of the bank’s motions in limine; Gemini was given the opportunity to present its legal and factual response to the motions; and Gemini filed written opposition to each. Thus, no due process was denied Gemini.

Further, the motions were granted based upon Gemini’s long history of willful and repeated discovery abuses. Specifically, on January 27,1999, the bank served Gemini with a request for production of documents in this case, as well as document requests in a related action (against ACA). When no documents were produced, the bank filed a motion to compel. On February 10, 1999, the court entered an order requiring that the requested documents be produced to the bank before March 24, 1999. When Gemini still refused to produce the documents, the bank filed another motion to compel. On June 15, 1999, the court entered another order requiring defendant’s production of all documents by August 16, 1999. Once again, the order was ignored.

After the bank provided informal discovery to defendant and after settlement negotiations broke down, the bank again sought to obtain the documents from Gemini. When those efforts failed, in July 2000, the bank requested that the court order production of the documents. Following a conference with the court, yet another order was entered directing Gemini, among other things, to produce documents which were already in the possession of defense counsel no later than September 15,2000, with the remaining documents to be produced by November 1, 2000.

As before, Gemini ignored the third order. Not a single document was produced to the bank by September 15, 2000. Again, the bank was forced to file another motion with the court on October 2,2000, seeking sanctions for defendant’s discovery abuses. Following another conference on November 8, 2000, the court scheduled a sanctions hearing for December 18, 2000. Facing imminent sanctions, on December 11,2000, after three court orders and two-and-a-half years of delay, Gemini produced three small boxes of documents to plaintiff.

After the sanctions hearing, the court entered an order on January 26, 2001 directing Gemini to pay attorney’s fees in the amount of $3,000, and ordering defendant to file an appropriate affidavit certifying that all available discovery documents had been submitted to plaintiff “no later than seven days from the receipt of this order by defendant’s counsel.” Once again, Gemini refused to comply with the court’s instructions: neither the $3,000 sanction nor the affidavit were delivered as ordered. The bank then filed another motion for sanctions on May 26, 2001.

Despite the imposition of discovery sanctions and four court orders mandating production of all documents, the deposition of Gemini’s corporate designee, Robert Mumma II, revealed that Gemini still had not and would not produce its documents. During the June 5, 2001 deposition, Mr. Mumma admitted that he had 100 boxes of potentially responsive documents that he had never bothered to review. (Mumma depo. at 47-48, 53-54.)

On December 10, 2001, Gemini finally submitted the affidavit required by the fourth court order almost 11 months earlier. In that affidavit, Gemini misrepresented that there were no other responsive documents in its possession. The affidavit was patently false in light of Mr. Mumma’s deposition testimony and Gemini’s admission in response to the sanctions motion that “at the deposition, Mr. Mumma indicated unequivocally that he believed that there were additional documents that related to the merits of the plaintiff’s claims and the Mumma parties’ defenses and counterclaims, but that they were scattered among approximately 100 boxes located in various places, the Mumma parties’ offices having been moved three times since 1993.” (Defendants’ response to rule to show cause why plaintiff’s motion for sanctions should not be granted, filed December 10, 2001.) Thus, the sworn affidavit was directly contradicted by Mr. Mumma’s deposition testimony and Gemini’s subsequent admission that other responsive documents existed within the 100 boxes of documents in the possession of the corporate designee that were never produced.

On April 15, 2002, the court held another hearing on Gemini’s discovery abuses. As a result, on May 6,2003, the court entered a fifth discovery order which, among other things, barred Gemini from seeking any discovery from any party or non-party. Quite unbelievably, after the long and tortuous history set forth above, Gemini continued to violate the court’s orders and withheld discovery to which the bank was entitled. Mr. Mumma’s deposition continued on May 20, 2003, with Mr. Mum-ma refusing to provide information relating to Gemini’s defenses, despite the court’s May 2003 order that Gemini was to provide deposition discovery. The deposition transcript reveals that at virtually every turn, Mr. Mum-ma refused to answer questions about Gemini’s defenses in this case. (Mummadepo. at 4-10,23-29,31-33, 36-37.)

Thus, despite the court’s order, Gemini simply refused to provide any information about its defenses that (a) sums were paid to the bank on account of the loans; (b) collateral was impaired in a 1995 asset transaction; and (c) the bank and Gemini reached an accord and satisfaction relieving any interest obligation in connection with the loans. Faced with repeated discovery abuses, the bank filed motions in limine on December 30,2004, seeking to preclude Gemini from introducing evidence in support of these defenses at trial. Gemini’s response to these motions provided no excuse for the continued violations and instead, asserted that preclusion was too harsh a sanction. While Gemini argued that its repeated failure to obey the discovery orders did not result in any prejudice to the plaintiff, this court found to the contrary. Accordingly, the motions were granted on October 13, 2005.

Pa.R.C.P. 4019(a)( 1 )(viii) authorizes the court to “make an appropriate order if a party or person otherwise fails to malee discovery or to obey an order of court respecting discovery.” Rule 4019(c)(2) authorizes the court to enter an order “refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting such party from introducing in evidence designated documents, things or testimony....” Importantly, the decision whether to sanction a party for discovery abuses and the severity of the sanction imposed are within the sound discretion of the trial court. Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997), alloc. denied, 553 Pa. 689, 717 A.2d 1028 (1998).

Under less severe circumstances than those presented in this case, courts have entered preclusion orders against chronic discovery abusers. In Smith v. Philadelphia Gas Works, 740 A.2d 1200 (Pa. Commw. 1999), the appellate court upheld the trial court’s decision to preclude the plaintiff in a personal injury case from presenting evidence due to his failure to produce documents requested by the defense. In that case, the disobedient party refused to comply with just two discovery orders (unlike the five discovery orders in this case) before the trial court prohibited the plaintiff “from introducing any type of evidence, including evidence of physical condition, at the time of trial.” Id., 740 A.2d 1202.

In Croydon Plastics Co., after the defaulting party ignored three court orders to produce expert reports, the trial court precluded the expert from testifying at trial. In upholding the trial court ruling, the Superior Court’s opinion has particular application to this case:

“Presently, the prolonged tautology of this case demonstrates that the trial court was faced with a situation in which, after repeated discovery violations, it ordered Croydon to file an expert report within 60 days. Further, the court unambiguously stated that the failure to comply would result in a preclusion order. Nevertheless, Croydon failed to comply with the court’s order for over one year. Then when asked by the court to explain its dilatory behavior, Croydon gave answers which were, at turns, implausible, incredible and irrelevant____

“This evidence amply supports a finding that Croydon repeatedly and willfully failed to comply with court orders respecting discovery. If the information was available, Croydon should have furnished it as soon as practicable. ...

“In sum, we find that the trial court acted within the bounds of its permissible discretion in entering the preclusion order against Croydon. While this sanction was certainly severe, it was not imposed hastily or without regard for its ramifications. Although Croydon was allotted 60 days to comply with the court order, it saw fit to sit in silence and disobey the unambiguous edict for over one year. Any complaints that Croydon presently aver prohibited it from compliance should properly have been addressed to the trial court at some point during the 14-month interval between the discovery order and sanction.” Id., 698 A.2d at 629-30.

In Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269 (Pa. Super. 2002) rev ’d on other grounds, 579 Pa. 275, 855 A.2d 818 (2004), the court upheld the trial court’s decision to preclude a witness from testifying because the witness was part and parcel of numerous discovery violations. In a summary reminiscent of the problems in this case, the Superior Court noted that “[t]he violations included withholding critical documents, failure to comply with requests for documents despite the entry of numerous discoveiy orders, production of critical documents on the eve of trial and in the middle of trial, etc.” Id., 797 A.2d at 287.

Herein, notwithstanding five prior orders and the imposition of lesser (including monetary) sanctions, Gemini still refused to produce all of the documents it admits it had its possession. In Gemini’s own words, it believed that there were additional documents relating not only to the merits of the bank’s claims, but also to its defenses and counterclaims that were “scattered among approximately 100 boxes located in various places.” None of these documents were produced, despite being ordered to do so since 1999. Further, even after the court ordered the case to go forward and deposition discovery to be provided, Gemini’s designee refused to answer questions about the defenses it had interposed. In light of the foregoing, we find that the remedy of preclusion appropriately addressed Gemini’s longstanding willful and obdurate conduct.

On appeal, Gemini contends that the court erred by excluding evidence which supposedly contradicted the plaintiff’s complaint and by limiting the topics explored by Gemini’s counsel during cross-examination of Mr. Friedberg. Neither argument has merit.

Under well-established Pennsylvania law, the trial court has considerable discretion and latitude in determining the admissibility of evidence. Indeed, it is axiomatic that a trial court’s evidentiary decisions are not to be disturbed absent a clear abuse of discretion or error of law. See e.g., Eichman v. McKeon, 824 A.2d 305, 319 (Pa. Super. 2003); Concorde Investments Inc. v. Gallagher, 345 Pa. Super. 49, 56, 497 A.2d 637, 641 (1985). Here, Gemini has not shown that the court abused its discretion or committed an error of law. To the contrary, the court properly entered an order barring all of Gemini’s defenses for its unabated discovery abuses and since the “proffered” evidence cited in Gemini’s post-trial brief only went to the barred defenses, preclusion at trial was proper.

Similarly, the court did not err in limiting the scope of Gemini’s cross-examination of Mr. Friedberg. In its brief, Gemini argues only in generalities and fails to identify specific questions or rulings it challenges. Moreover, the alleged errors in limiting defense counsel’s cross-examination into “bank record documents” and the “release of collateral” are not errors. As the notes of testimony demonstrate, the court ruled that the release of collateral issue was irrelevant in light of the earlier order that the impairment of collateral defense was barred at trial. (N.T. 11/30/05 at 93-94.)

C. The award of attorney s fees was specifically authorized in the loan documents and the award in this instance was reasonable.

Finally, Gemini takes issue with the court’s award of attorney’s fees, alleging first that because plaintiff bank failed to establish the amounts due and owing under the instruments through competent, admissible evidence, fees should not have been awarded. For the reasons set forth above, we reject this assertion. In addition, Gemini alleges that the award was not supported by sufficient evidence to establish that the fees were incurred in conjunction with the furtherance of this collection matter or were for services reasonable and necessary to the prosecution of the bank’s claim.

Under Pennsylvania law, attorneys’ fees can be awarded to a party in litigation where there is a specific statute authorizing such an award or an agreement between the parties. See Snyder v. Snyder, 533 Pa. 203, 212, 620 A.2d 1133, 1138 (1993); Lavelle v. Koch, 532 Pa. 631, 638, 617 A.2d 319, 323 (1992). Here, pursuant to the loan documents, Gemini agreed to pay the bank all costs and expenses, including reasonable attorneys’ fees which may be incurred in the enforcement of ACA’s liabilities to the bank or Gemini’s liabilities under the guarantees. (Exhibit P-7 at p. 2; exhibit P-8 at para. 6; and exhibit P-9.)

At trial, the bank presented evidence concerning attorneys’ fees and costs incurred through Morton R. Branzburg, Esquire of Klehr, Harrison, Harvey, Branzburg and Ellers LLP, counsel to the bank. Mr. Branzburg testified about his extensive legal experience; his knowledge of and experience with legal fee rates being charged in Pennsylvania for commercial and insolvency litigation; his familiarity with Klehr Harrison’s legal services rendered in this matter; and his familiarity with Klehr Harrison’s methodology and practice in recording billable time and generating bills for services rendered.

In support of its claim for attorneys’ fees, the bank introduced a document, P-32, outlining the services rendered by Klehr Harrison to plaintiff bank in attempting to enforce and collect on the signed instruments. The exhibit included a description of each service rendered, the value of each service rendered at a discounted rate offered to the bank, and the value of each service rendered at Klehr Harrison’s standard billing rates. Mr. Branzburg testified that Klehr Harrison, from the inception of the retention until November 30, 2000, billed the bank for each service rendered based on its discounted hourly rate on a regular, periodic basis.

Based upon Mr. Branzburg’s testimony and exhibit P-32, the time value of services rendered by Klehr Harrison to the bank at the firm’s standard billing rates through the end of November 2000 was $36,321.70, which amount was paid by the bank. Mr. Branzburg testified that, as of December 1,2000, the firm altered its fee agreement with the bank so that compensation would be on a contingent basis (35 percent contingent fee arrangement), but the bank remained obligated to pay for all costs incurred in attempting to enforce the loan documents. (N.T. 12/1/05 at 12-13.) Additionally, Mr. Branzburg testified about the types of services that were rendered, the extent of counsel’s labor on the case, the time required, and how the rates charged reasonably compared to the prevailing rates in the community during the relevant time. (N.T. 12/1/05 at 14-16, 18.) He also testified concerning the firm’s efforts to keep the amount of time and money spent on these disputes to a reasonable amount. (N.T. 12/1/05 at 17-18.)

Based upon the testimony of Mr. Branzburg, this court concluded that the time value of services rendered by Klehr Harrison to the bank, at the firm’s standard billing rates, was $204,284.65 through the end of October 2005, which amount excluded time for trial preparation as well as the actual trial. This award was based upon the evidence presented, as well as from the court’s own experience and its oversight of this litigation. This court further specifically found that the legal services provided by Klehr Harrison to the bank were of high quality; that the amount of time spent on the matter was reasonable and that the hourly rates were comparable to prevailing rates in the community during the relevant time. Accordingly, we find the award was proper.

      . This action against Gemini was commenced in 1998. After years of litigation, the matter was originally scheduled for a non-jury trial beginning January 18, 2005. On December 21, 2004, Gemini filed a voluntary petition for bankruptcy in the U.S. Bankruptcy Court for the Middle District of Pennsylvania, no. 1:04-07555, which stayed all proceedings in this court. After cancellation of the non-jury trial, Gemini filed a motion to withdraw the voluntary petition and the bankruptcy action was dismissed. The case was then re-scheduled for trial commencing May 26, 2005. Once again, on May 25, 2005, Gemini filed another voluntary petition for bankruptcy under Chapter 11. The stay was eventually modified to allow this litigation to proceed.

      . Defendant Gemini Equipment Business Trust is a successor to Gemini Equipment Co. and the sole shareholder of Adams County Asphalt.

      . Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence of record, discretion is abused. Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006).

      . See also, The Uniform Business Records as Evidence Act, 42 Pa.C.S. §6108(b) which provides that “a record of an act shall be competent evidence if a qualified witness testifies to its identity and the mode of its preparation, if it was made in the regular course of business at or near the time of the act and if the tribunal believes the sources of information, method and time of preparation were such as to justify its admission.”

      . Plaintiff’s motions included (1) a motion in limine to exclude impairment of collateral defense; (2) a motion in limine to exclude accord and satisfaction defense; and (3) a motion in limine to bar all defenses.

      . The sanctions were finally paid on December 13, 2001, nearly 11 months after the court ordered them to be paid. The affidavit of compliance is discussed below.

      . Even if the impairment of collateral defense was not barred by virtue of Gemini’s repeated discovery abuses, we would have precluded such evidence at trial since the undisputed facts demonstrate that there were express waivers of the impairment of collateral defense in the June 11,1993 guaranty executed by Gemini (exhibit P-8). Pennsylvania statutory and case law is clear that these waivers are binding and enforceable. First National Consumer Discount Company v. McCrossan, 336 Pa. Super. 541, 550, 486 A.2d 396, 400 (1984) quoting Ford Motor Credit Co. v. Lototsky, 549 F. Supp. 996, 999 (E.D. Pa. 1982) (“[the] defense of impairment of collateral, although firmly embedded in Pennsylvania common law, must give way to the equally entrenched proposition that an explicit waiver precludes a guarantor [or a surety] from asserting them in an action to recover under the guaranty.”); McKeesport National Bank v. Rosenthal, 355 Pa. Super. 291, 294, 513 A.2d 434, 436 (1986) (where the guaranty is “absolute and unconditional and does not require the creditor to take any action to preserve the security, the creditor’s failure to do so will not relieve the surety’s obligation to pay upon default”).


author: SCHMEHL, P.W., J,

text:
    In re G.B.S.

      July 10, 2007

      Kelly S. Kline, for Berks County Children & Youth.

      Wendie Ziegler, guardian ad litem for minor child.

      Gary S. Fronheiser, for Father.
   SCHMEHL, P.W., J,

This matter came before the court on petitions filed by Berks County Children & Youth Services (BCCYS) to confirm the consent to adoption of G.M.C. (Mother) and to involuntarily terminate the parental rights of P.T.S. (Father) to the child, G.B.S, date of birth February 18, 2006. The petition to terminate Father’s rights was filed on the grounds set forth in 23 Pa.C.S. §2511(a)(1), (2), (5) and (8). The court granted the petitions, and Father timely filed a notice of appeal.

Paragraph 2511(a)(1) provides that parental rights in regard to a child may be terminated on the grounds that a “parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” Paragraph (a)(2) provides that parental rights may be terminated on the grounds that “[t]he repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.” Paragraph (a)(5) provides for termination of parental rights when a “child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.” Paragraph (a)(8) provides that parental rights may be terminated on the grounds that “[t]he child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.”

A historical review reveals that BCCYS has been involved in the lives of Mother and Father since well before G.B.S.’s birth. InFebruary 2000, Father’s parental rights to a child bom to Mother’s sister in November 1997 were involuntarily terminated, due apparently in part to his providing that child’s mother with drugs. This child was Father’s fourth of seven children, having three with Mother before this child and three with Mother, including G.B.S., after this child.

In March 2006, this court terminated the parental rights of Mother and Father to G.B.S. ’s five older siblings. The termination of Father’s rights was by consent, Mother’s rights were terminated involuntarily. The termination proceedings were brought as a result of the parents’ dmg abuse, lack of supervision, lack of utilities, lack of stable housing, lack of mental health treatment for the children, use of physical discipline, and their own mental health issues.

As for G.B.S., she was placed in foster care three days after her birth. Approximately three weeks prior to her birth, Mother admitted to BCCYS that she was pregnant, had no prenatal care, and used cocaine and marijuana throughout the pregnancy. At least some of the drugs were provided by Father. In a casework session on February 13, 2006, Father stated that he was not taking his prescribed mental health medication and that he felt much better, that he was not in any current treatment for mental health or dmg and alcohol abuse, and that he had not used marijuana for one month. He was willing to submit to urinalysis, and three days later, two days prior to G.B.S.’s birth, he produced a urine screen that tested positive for marijuana. On February 17, 2006, Mother went to the hospital to deliver G.B.S. and produced a urine sample that tested positive for marijuana. G.B.S. was bom on February 18,2006 and, by emergency custody order, placed in foster care on February 21, 2006.

On March 1, 2006, G.B.S. was declared dependent, and custody was transferred to BCCYS for placement purposes with a goal of return to Mother. Father was ordered to cooperate with parenting education, random urine screening, drug and alcohol and mental health evaluations and treatment, individual therapy, establishing and maintaining appropriate housing and income, casework services, and visits with the child.

During the first permanency review period of March 1,2006 to June 6,2006, Father left his residence to move in with friends while he was looking for his own apartment. He also changed jobs at least twice. He participated in three of three scheduled casework sessions and one unscheduled session. Father did not present himself as a resource for the child.

A drug and alcohol assessment found Father to be opioid dependent, but no treatment recommendations were made. He participated in 15 of 15 requested urine screens. Three results were positive for opiates; however, the tests were consistent with his reported use of Tylenol 3, which was prescribed for pain. His mental health evaluation led to a diagnosis of Mood Disorder, NOS and a recommendation for individual out-patient mental health sessions.

Father was offered two-hour visits with G.B.S. on a weekly basis. Father attended five of five scheduled visits through April 3,2006. On April 10, his visits were doubled to twice weekly. Father attended two of three scheduled visits after this change was made. The missed visit was the result of his beginning a new job. Father failed to contact the supervisor in advance that he would not be present. On May 8,2006, visitation was transferred from BCCYS to Open Door Services to better accommodate Mother’s and Father’s work schedules. While Father did assist with feeding and changing G.B.S., he was observed to quickly tire of holding her and interacting with her. On one occasion, he brought a stroller that did not meet the needs of an infant. With all visits being j oint between Mother and Father, Mother performed most of the childcare.

At the first permanency review hearing on June 6, 2006, Mother signed an affidavit of consent for the adoption of G.B.S. Father finally presented as a resource for the child. The court established a new goal of termination of parental rights with a concurrent goal of return to Father.

The second permanency review period ran from June 7, 2006 to November 28, 2006. Although Father previously informed BCCYS that he would have his own apartment on July 1, 2006, he continued to reside with his friends until July 31, 2006. He then resided alone in a one-bedroom apartment. He maintained the same employment through the review period.

On July 31,2006, BCCYS received a report that Father reached up, and looked up, the skirt of a 15-y ear-old female member of the family with whom Father was residing. A BCCYS sexual abuse investigator issued a determination on September 28, 2006 that Father was indicated to be a perpetrator of sexual abuse by molestation, indecent assault, and pornography. The determination was based on Father’s having reached up, lifted up, and looked up a child’s skirt; his having grabbed her breast; and his attempt to pose and take pictures up her skirt. During the investigation, Father was not willing to participate in a sexual offender evaluation.

Father appealed the BCCYS determination, the result of which is still pending. Father also obtained a sexual abuse evaluation at his own expense on November 7, 2006. The evaluator believed that Father was making efforts to be a productive member of society, remain substance free, and be a parent to G.B.S. She believed Father should be given the opportunity to parent the child with supportive services. The evaluation was not complete, however, because the evaluator was not provided with information regarding Father’s history and indicated abuse status.

During the review period, Father participated in the one and only scheduled casework session as well as two unscheduled casework sessions. He had frequent telephonic contact with the caseworker.

Father participated in 17 of 25 requested urine screens. Following the conclusion of the abuse investigation, he indicated to the caseworker there was no point continuing to participate in urine screens as a result of the investigation’s conclusion that he was an abuse perpetrator.

Father successfully completed his mental health treatment on June 22,2006. Father was offered weekly, two-hour supervised visits with G.B.S. until July 31, 2006, when visitation was terminated pending the outcome of the sexual abuse investigation. Father attended all three scheduled visits prior to their cessation.

A second permanency review hearing was held on November 28,2006. The primary goal remained termination of parental rights, but the concurrent goal was changed to permanent and legal custodianship.

The third permanency review period began on December 1,2006 and extended through the date of hearing on February 9,2007. Father continued to reside by himself in a one-bedroom apartment and maintained the same employment through the review period.

Father was offered casework services on an as needed basis. While Father continued to have frequent telephone contact with his caseworker to discuss his disagreement and frustration with the current circumstances, he requested only one casework session approximately one month after the termination petitions were filed. During the review period, he continued to refuse participation in random urinalysis and he failed to become involved in any type of offender treatment. No visitation occurred with the child due to Father’s indicated status as a child sexual abuse perpetrator.

The sexual abuse evaluator resubmitted her report on December 8,2006, after she was provided with Father’s extensive history with BCCYS, including his status as an indicated perpetrator of child abuse. On review of this information, the evaluator recommended that, given Father’s failure to fully disclose the reason for his evaluation referral he should submit to a polygraph regarding the incident. She further recommended that Father be given the opportunity to have contact with G.B.S., subject to his successful completion of parenting classes; his full participation in sex offender treatment so as to recognize thinking errors, appropriate and inappropriate touch, high-risk situations, and to improve decision-making skills; and to attend scheduled supervised visits with a parenting skills worker. The evaluator believed that Father’s failure to comply with these conditions should be grounds for his permanent loss of contact with the child. Father failed to comply with these conditions.

The BCCYS caseworker testified that the agency sought the termination of Father’s parental rights because throughout Father’s nine-year involvement with BCCYS, several significant issues that would jeopardize the child’s safety and well-being remained unresolved. Despite services from three different agencies, Father continued to lack appropriate parenting skills, he refused to continue participation in random urinalysis to assure the agency that he remains drug-free, he was indicated as a perpetrator of sexual abuse of a child, and had failed to participate in any type of treatment services recommended by the sexual evaluation. Father’s behavior has demonstrated an unwillingness or inability to make significant changes for the benefit of his daughter, a lack of insight, and a pattern of mental health and drug addiction difficulties. BCCYS believes that to return this one-year-old child to Father would place her at great risk. Given these circumstances and the fact that at one year of age the child does not know Father, the agency believes it is in the child’s best interest to terminate parental rights and free the child for adoption.

On cross-examination, the BCCYS caseworker acknowledged that despite Father’s disinterest in infant parenting programs, he was generally cooperative with services and making progress through at least May 2006. Upon the allegations of child abuse and suspension of his visits with G.B.S., Father discontinued his participation in services. The caseworker also shed more light on the fact that Father’s older children were taken from him and Mother due to the parents’ chronic drug abuse. The children had many problems due to their living with Mother and Father, necessitating lots of emotional support, therapy and, in one instance, even hospitalization. Even with services, Father never reached the point of being able to get his older children back. Given this set of historical circumstances and the new credible report of sexual abuse of the 15-year-old daughter of the people with whom he was living, BCCYS believed there was no reason to grant Father visitation with G.B.S. or to disturb her attachment to the foster family with which she had been since birth.

Father acknowledged that his older children have had their problems, but believed that they handled living with him well, even during his relapses, and that their problems developed after their placement. Fie believed the children’s behavioral issues during the time that they resided with him were nothing more than sibling rivalry. He acknowledged that he had a 15 -to-16-year drug problem and that he supplied Mother with drugs during her pregnancy with G.B.S.

Father acknowledged that Mother is also a drug addict, yet agreed with the goal of returning the child to Mother because at the time he was just starting to get into church and his employment.

Father acknowledged failing to participate in a refresher infant parenting course because G.B.S. was becoming a toddler. He acknowledged cessation of his random urinalysis and further acknowledged that while participation would look good to the agency and the court, he believed there was no point because such participation would not allow him to visit G.B.S. He believes the only reason for BCCYS’ filing the termination petition is the investigation of the sexual abuse allegation. While he could not agree to the termination of his rights pending the reinvestigation on appeal, he did agree that if the appeal is affirmed the court should terminate his rights.

“[Pjarental rights may not be preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities.” In re D.J.S., 737 A.2d 283, 287 (Pa. Super. 1999). The long-standing law of the Commonwealth is that the inability of a parent to perform parental duties makes him or her just as parentally unfit as a parent who refuses to perform these duties. In re B.L. W, 843 A.2d 380, 388 (Pa. Super. 2004). Regardless of inability or refusal, once a parent demonstrates a failure to fulfill his or her parental duties, the child’s right to fulfillment of his or her potential in a permanent, healthy, safe environment with proper parenting supersedes the parent’s basic constitutional right to custody and rearing of the child. Id. In terminating the rights of a parent, the court must give “primary consideration to the developmental, physical, and emotional needs and welfare of the child.” 23 Pa.C.S. §2511(b).

Clearly grounds exist to terminate Father’s parental rights to G.B.S. Fie has failed to perform his parental duties for well more than the six months immediately preceding the filing of the petition to terminate his rights. He has caused the child to be without essential parental care, control, and subsistence necessary for her physical and mental well-being, and has failed to participate in services to restore his right to visit with, care for, or obtain custody of the child.

While Father may have attained stability in residence and employment, the court has no way of knowing whether he has remained free of drugs due to his refusal to participate in random urinalysis, using the convenient excuse that such participation would not lead to his renewed visitation with the child. He is quick to blame others for his situation and accepts no responsibility for the conditions that led to the placement of not only this child but all of his children. Even when given the opportunity to make good on his duty to this child, G.B.S., Father was initially willing to have Mother, an acknowledged drug addict, be the return resource for G.B.S. The time for him to step up to the plate simply was not convenient.

Father’s actions have spoken louder than his words. He has not been willing to do what it takes to be a parent. The court will not wait around for Father to decide to prove himself and put this child’s rights to a permanent, safe environment on hold indefinitely.

Given the above circumstances and the child’s attachment to her foster family, who is an adoptive resource, the court is of the opinion that termination of Father’s parental rights is in the best interest of G.B.S.

For the foregoing reasons, the court entered its order of May 11, 2007 terminating Father’s parental rights to the child, G.B.S.


author: GRINE, J.,

text:
    Commonwealth v. Hockenberry
    November 15, 2007

      Karen Kuebler, for Commonwealth.

      Deborah Lux, for defendant.
   GRINE, J.,

Presently before the court is a motion for relief under Rule 573(E) of the Pennsylvania Rules of Criminal Procedure brought by Frederick C. Hockenberry (defendant). Defendant claims that a copy of a report written by Agent David Jordan after a joint interview of defendant with Officer Thomas Thai has essentially not been provided to him since the copy he and his counsel received of the report was almost entirely redacted. The Commonwealth claims that the report contains no information material to the crime which defendant is currently being prosecuted for, and additionally that the material contained in the report is confidential and sensitive. After hearing arguments on the motion and reviewing the applicable law and defendant’s motion, the court denies defendant’s motion for relief under Rule 573(E) of the Pennsylvania Rules of Criminal Procedure.

PRELIMINARY DISCUSSION

Defendant was arrested by Officer Thai on December 20,2006. Defendant was charged with forgery, 18 Pa.C.S. §4101(a)(2); theft by deception, 18 Pa.C.S. §3922(a)(l); andreceiving stolen property, 18 Pa.C.S. §3925(a). These charges resulted from three checks written from a bank account in the name of Michael A. Brooks Sr., which are alleged to have been cashed on July 9, July 10, and July 13, 2006 at the Bilo Market, 821 E. Bishop St., Bellefonte, Centre County, Pennsylvania. Defendant waived his right to a preliminary hearing in Centre County Central Court before Magisterial District Judge Jonathan Grine on January 31, 2007. On February 27, 2007, defendant waived formal in-court arraignment.

Also on February 27, 2007, a motion was filed with the office of the district attorney in compliance with and pursuant to the informal request provision for pretrial discovery and inspection in Pa.R.Crim.P. 573(A). The Commonwealth provided defendant with several of the items requested. At issue in this motion is a report written by Agent Jordan which was almost entirely redacted.

DISCUSSION

Pennsylvania Rule of Criminal Procedure 573 deals with discovery issues in criminal cases. Rule 573(B) states:

“Disclosure by the Commonwealth.
“(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
“(a) Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth;
“(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth ...
“(2) Discretionary with the court.
“(a) In all court cases, except as otherwise provided in Rule 230 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
“(i) the names and addresses of eyewitnesses;
“(fi) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
“(iii) all written and recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; and
“(iv) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice ...

The report at issue in this motion does not fall under any of the mandatory discoveiy items in Rule 573(B)(1). Rule 573(B)(2) gives the court discretionary power to order discovery of certain items. Relevant in this case is Rule 573(B)(2)(a)(iv) which gives the court discretionary power to compel discovery of evidence which is specifically identified by the defendant as evidence whose disclosure would be in the interest of justice. The court finds that the evidence at issue here does not meet the criteria of Rule 573(B)(2)(a)(iv) as evidence whose disclosure is in the interest of justice. Here, the information contained in the report at issue was taken almost entirely from statements made by defendant. As such, defendant already possesses the information contained in the report. Also, the information contained in Agent Jordan’s report is not information which is relevant to defendant’s current criminal trial. Therefore, withholding the information contained in Agent Jordan’s report will in no way hinder defendant’s ability to present a competent defense to his current criminal charges.

In addition for the reasons stated above for withholding Agent Jordan’s report, the Commonwealth has shown that the information contained within the report is sensitive material relating to ongoing investigations. Therefore the court denies defendant’s motion for relief under Rule 573(E) of the Pennsylvania Rules of Criminal Procedure.

ORDER

And now, November 15,2007 defendant’s motion for relief under Rule 573(E) of the Pennsylvania Rules of Criminal Procedure is denied.