author: ANDERSON, J.,

text:
    Linde Corporation v. Black Bear Property L.P.

      C.P. of Lycoming County,
    No. 13-01,163

      Tracy Cadzow, for plaintiff.

      Scott T Williams and J. Michael Wiley, for defendants.
    Sept. 23, 2014
   ANDERSON, J.,

— Before the court is the motion for summary judgment filed by defendant Penn Central Corporation on August 4, 2014. Argument was heard September 18, 2014.

Plaintiff filed a Mechanic’s Lien Claim on May 16, 2013, and a complaint to obtain judgment and to Enforce Mechanic’s Lien Claim on September 6, 2013. In the claim, plaintiff contends it provided labor and materials to perform various work on certain property owned by defendants pursuant to a contract with defendant Black Bear, LLC, that it completed the work in a timely and workmanlike manner, that proper notice of the claim had been given and that plaintiff is owed $216,074.38. In the complaint, plaintiff avers proper service of the claim and seeks judgment thereon. In its answer and new matter, and in the instant motion for summary judgment, defendant Penn Central Corporation asserts that it owns only subsurface rights and reservations, that it did not contract with plaintiff, and that it was not the beneficiary of any surface improvements and therefore cannot be subject to the claim.

The right to a mechanic’s lien is set forth in article III of the Mechanic’s Lien Law of 1963:

§ 1301. Right to lien; amount
Every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this act, shall exceed five hundred dollars ($ 500).

49 P.S. §1301. Plaintiff is basing its claim against Penn Central on the fact that Penn Central’s sub-surface rights (to oil and gas) constitute an “estate in the property.” Plaintiff does not dispute that it had no contract with Penn Central, but argues that its work provided a benefit to Penn Central and further, since underground pipes were installed, the sub-surface was affected. The court believes, however, that a fair reading of the Mechanic’s Lien Law clearly provides that only the property owner who has contracted with the contractor can be subject to a mechanic’s lien.

While “owner” means “an owner in fee, a tenant for life or years or one having any other estate in or title to property,” 49 P.S. §1201, and thus could include an owner of sub-surface oil and gas rights, such does not make that owner subject to a mechanic’s lien for work contracted for by only the surface owner. “Contractor” means “one who, by contract with the owner, express or implied, erects, constructs, alters or repairs an improvement”, etc. Id. (emphasis supplied). As the court explained in Murray v. Zemon, 167 A.2d 253, 255 (Pa. Super. 1960), “[t]he right to the lien arises not from the act of furnishing the labor and materials, but rather from the debt arising therefrom: Horn & Bramen Co. v. Steelman, 215 Pa. 187, 64 Atl. 409 (1906). The right to file a mechanics’ lien must have a contract as its basis.” The court in Murray held that a lien could not be maintained against an owner of property where the contract for improvements had been made by only the tenant.

In the instant case, plaintiff did not contract with Penn Central and there is absolutely nothing in the record to support the imposition of an implied contract. Plaintiff therefore has no right to a mechanic’s lien against Penn Central and Penn Central is entitled to have the lien stricken, and the complaint to enforce the lien dismissed, as a matter of law.

ORDER

And now, this 23rd day of September 2014, for the foregoing reasons, defendant Penn Central Corporation’s motion for summary judgment is granted and the Mechanic’s Lien Claim filed May 16, 2013, is stricken as to defendant Penn Central Corporation only.

Further, the complaint filed September 6, 2013, is dismissed as to defendant Penn Central Corporation only.

      . While Murray may pre-date the Mechanic’s Lien Law of 1963, it has been cited with approval for this very proposition even after the passage of that act, which, in any event, was simply a “codification of the substantive provisions of the law of mechanic’s liens”. 49 P.S. Chapter 6 (historical and statutory notes). See, e.g., Kelly v. Hannan, 566 A.2d 310 (Pa. Super. 1989).


source: Caselaw Access Project

author: BUTTS, J.,

license: Public Domain

text:
    Commonwealth v. Caudell

      C.P. of Lycoming County,
    No. CR-330-2014
    Sept. 16, 2014
   BUTTS, J.,

— On April 23, 2014, the Defendant filed a timely Omnibus Pretrial Motion.. A hearing on the motion was held on June 23, 2014.

I. Background

On February 23, 2014, the Lycoming County 911 Communications Center received a complaint that a juvenile pointed a gun at another and then went into the residence at 610 Penn Street, Williamsport, Pennsylvania. At 3:52 P.M., the Communications Center notified police of an incident involving a gun at 610 Penn Street. During the hearing on the Omnibus Pretrial Motion, Officer Joshua Bell of the Williamsport Bureau of Police testified that upon notification of the complaint, he and one or two other officers proceeded to 610 Penn Street, while another group of officers proceeded to the complainant’s location, which was also on Penn Street. While en route to 610 Penn Street, Bell was notified that the juvenile who allegedly pointed the gun was wearing an orange shirt and had cornrows. Bell testified that he arrived at 610 Penn Street between three and seven minutes after police were notified of the compliant. According to Communications Center’s call log, Bell arrived at 610 Penn Street at 3:55 P.M. Bell testified that the complainant was the person at whom the juvenile pointed the gun, but he also testified that he did not talk with the complainant and did not know whether the complainant was reliable.

Upon arriving at 610 Penn Street, Bell went to the residence’s door, which was opened by a juvenile with an orange shirt and cornrows. Officers detained the juvenile on the porch of the residence. No gun was discovered on the juvenile. Eugene Caudell (defendant), who is the juvenile’s father, then came to the door. He was also removed from the residence and detained.

Bell testified that officers then went through the residence to look “for anybody else that might be in the residence.” Bell testified that the officers did this to make sure that “no one else was in there when officers are in there.” While going through the residence, officers noticed a strong odor of marijuana and several items of drug paraphernalia. They did not find anyone else in the residence. The officers exited the residence and applied for a warrant to search the residence for controlled substances and drug paraphernalia.

Although it is unclear exactly when, the juvenile told the officers that a gun was inside the residence in an entertainment center. On direct examination, Bell testified that he asked the juvenile about a gun before the officers entered the residence. On cross examination, Bell testified that he could not remember whether he asked about a gun before or after entering the residence. The juvenile testified that police asked him about a gun after they entered the residence. The juvenile also testified that he told the officers that the gun was a BB gun.

At 5:3 5 P.M., Magisterial District Judge Gary Whiteman (Whiteman) issued a warrant to search 610 Penn Street for controlled substances and drug paraphernalia. At 6:04 P.M., the officers executed the warrant. They found marijuana, drug paraphernalia, Ziploc bags, and an envelope containing cash and checks together totaling $409.75. A BB gun was found in an entertainment center.

The defendant was charged with Possession ofMarij uana with intent to deliver. In his Omnibus Pretrial Motion, the defendant argues that the evidence is insufficient to establish a prima facie case on the element of “intent to deliver.” The defendant also argues that the officers’ initial entry into 610 Penn Street and the search pursuant to the warrant violated the defendant’s rights under the fourth amendment to the United States Constitution and article I, Section 8 of the Pennsylvania Constitution. Specifically, the defendant argues that the initial entry was improper since the officers did not have a reasonable belief that there were occupants of the residence who posed a danger to the officers or others. The defendant argues that since the officers’ observations in the initial entry led to the warrant, the search pursuant to the warrant was also done in violation of the defendant’s constitutional rights. The defendant asks this court to exclude the evidence obtained during the initial entry and the search pursuant to the warrant since it was obtained in violation of the defendant’s rights.

During the hearing on the defendant’s omnibus pretrial motion, the Commonwealth argued that the initial entry did not violate the defendant’s rights because the officers did indeed have a reasonable belief that the residence harbored an individual who posed a danger to the officers or others. The Commonwealth argued that this reasonable belief came from the facts that a gun was used by a suspect who entered a family residence that may have contained other people. Finally, the Commonwealth argued that even if the initial entry violated the defendant’s rights, the evidence obtained during the search pursuant to the warrant would have been inevitably discovered by police; therefore, the evidence should not be excluded.

II. Discussion

A. The Exigent Circumstances Exception to the Fourth Amendment Warrant Requirement

“The United States Supreme Court has recognized that there are ‘exigent circumstances’ which justify a warrantless search incident to an arrest.” Commonwealth v. Curry, 494 A.2d 1146, 1148 (Pa. Super. 1985). “Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the fourth amendment.” Commonwealth v. Roland, 637 A.2d 269, 270 (Pa. Super. 1994) (citing Payton v. New York, 445 U.S. 573, 583-90 (1980)). Among the factors to be considered [in determining the existence of exigent circumstances] are:

(1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night.

Commonwealth v. Wagner, 406 A.2d 1026, 1031 (Pa. Super. 1979). “Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.” Roland, 637 A.2d at 271.

The exigencies of police during an arrest in a confined area give rise to a protective sweep. A protective sweep is “a quick and limited search incident to an arrest and conducted to protect the safety of police officers or others; it is narrowly confined to a cursory visual inspection of those places in which a person may be hiding.” Commonwealth v. Crouse, 729 A.2d 588, 592 (Pa. Super. 1999). In Maryland v. Buie the Supreme Court of the United States wrote the following:

There is an...interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter.... A protective sweep...occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

494 U.S. at 333.

The Supreme Court held that “the fourth amendment would permit [a] protective sweep undertaken...if the searching officer ‘possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing,’ that the area swept harbored an individual posing a danger to the officer or others.” 494 U.S. at 327 (quoting Michigan v. Long, 463 U.S. 1032, 1049-50 (1983)).

In Commonwealth v. Crouse, the Superior Court of Pennsylvania adopted the Buie test for determining whether a protective sweep is constitutional under article I, section 8 of the Pennsylvania Constitution. 729 A.2d at 597.

B. Cases Dealing with Exigent Circumstances

In Commonwealth v. Curry police officers responded to a reported robbery and shooting incident. 494 A.2d at 1146. At the scene, police talked with an eyewitness, who directed them to the defendant’s apartment. Id. at 1147. Police arrived at the defendant’s apartment, and through a screen door, saw the defendant inside. Id. They noticed that the defendant was sweating and had blood spatter on his shirt. Id. Police asked the defendant to step out onto the porch, and when he did, the eyewitness identified him as the assailant in the robbery and shooting. Id. Police arrested the defendant on the porch and then checked the apartment to make sure nobody was in it. Id. While checking the apartment, police saw a handgun in plain view. Id. The Superior Court of Pennsylvania held that “the particular circumstances of th[e] case justified the police activities in undertaking to secure defendant’s apartment incident to the arrest.” Id. at 1151. The court wrote the following:

[Police] had no way of knowing whether or not anyone else was in the apartment. More importantly, police knew that a shooting incident had just occurred, an eyewitness identified defendant as the assailant, defendant was observed to be sweaty and his shirt was blood-spattered, and the gun used in the shooting incident was not yet accounted for when they arrested defendant on his porch. Under these circumstances, it was not unreasonable for police to enter the apartment and make a brief security check to ensure that no one remained inside the apartment who might use the as yet unaccounted for weapon. Such conduct is perfectly consistent with the rationale underlying the exigent circumstances doctrine, namely: the need to ensure the safety of police officers. In an emergency situation such as this, the potential threat of the unknown can be more dangerous than the threat of the known. We think it is unreasonable to ask police officers arriving at the scene of a shooting incident and arresting defendant on his porch, to assume that nobody else was in defendant’s apartment.

Id. at 1150.

The court also wrote:

It would be stretching the boundaries of logic to hold that the need to ensure the safety of an arresting officer (and, in this case, the people who had gathered near the apartment) is not as great when he arrests a suspect on his porch, in front of the screen door, as when he arrests a suspect inside the apartment, just on the other side of the screen door. Furthermore, it is clear from the facts of this case that police could have legally arrested defendant inside of his apartment. A crime of violence had been committed; it was reasonable to assume that the suspect had a gun; police had probable cause to arrest; and they had a strong reason to believe that the suspect was on the premises.

Id. at 1151.

In Commonwealth v. Norris, a rape victim received a phone call from the rapist, who threatened the victim with more harm if she reported the rape. 446 A.2d at 248. The threats implicated the brother of the rapist. Id. at 249. Police were then notified, and during an interview, the victim said that she had been threatened with a gun and taken at knifepoint to an apartment. Id. at 248 and 252. The victim described the apartment building and told police the number of the apartment to which she was taken. Id. at 248.

After arriving at an apartment building that matched the description given by the victim, police went to the apartment with the number that the victim told them. Id. A women across the hall from the apartment told police that a person fitting the description of the rapist lived with his brother in the apartment. Id. at 248 and 252.

Police entered the apartment and arrested the defendant. Id. at 252. After arresting the defendant, police entered a bedroom and saw a knife in plain view. Id. at 249-50. The Supreme Court of Pennsylvania held that the trial court properly allowed the knife to be introduced into evidence because the police were justified in going into the bedroom. Id. at 250. The court wrote:

[T]he police had every reason to believe a firearm was available to the occupants of the apartment and that one of its usual occupants, [defendant’s] brother, whom defendant had implicated in his threats of harm to the victim, was unaccounted for in the living room. To expect these officers to turn their backs on the bedrooms is to expect too much. They therefore had a right to enter the bedroom to insure their safety from that quarter.

Id. at 249.

In Commonwealth v. Taylor, police conducted a three-week surveillance of a convenience store that they believed was being used to sell narcotics. 771 A.2d at 1264. During the surveillance, police had an informant make a controlled buy in the store. Id. Police then obtained a warrant to search the store for narcotics. Id. Shortly before executing the warrant, police observed the defendant and another individual go into store. Id. at 1268. During the search, police found a large amount of a controlled substance but did not see the defendant or the other individual in the store. Id. Police then went into the store’s basement, where they saw the defendant and the other individual. Id. They searched the defendant and found a controlled substance in his pocket. Id. at 1264.

The Supreme Court of Pennsylvania held that the police had conducted a constitutional protective sweep when they went into the store’s basement. Id. at 1267-68. The court wrote:

[T]here are specific and articulable facts, which “when taken together with the rational inferences from those facts,” would give the police reasonable concerns for their safety. Here, after extensive surveillance and probable cause of unlawful activity, the police entered a building to search for narcotics. Once inside the convenience store, the police apprehended [a person] and located a large quantity of a controlled substance but could not confirm the whereabouts of two individuals who had just entered. As the only accessible area adjoining the first floor, the basement provided a logical hiding place for [the two individuals]. The police entered the basement under a reasonable belief that third parties were present and could pose a threat to them, therefore exigent circumstances legally justified the protective sweep of the basement.

Id. at 1268.

In Commonwealth v. Webb, the defendant’s family reported that the defendant had left a residence after he made threats and displayed a gun. No. 00-10212 at 1. The family told police that the defendant was going to his residence and was with his sister. Id.

When a police officer arrived at the defendant’s residence, he saw the defendant’s sister outside. Id. The sister was detained for investigatory purposes. Id. The officer then made contact with the defendant, who was inside the residence. Id. at 2. Abiding by the officer’s request, the defendant came out of the residence. Id. He was then arrested. Id. A search of the defendant did not yield a gun. Id.

The officer then entered the defendant’s residence for safety reasons. Id. While in the residence, the officer saw drug paraphernalia in plain view. Id. The officer then applied for and obtained a warrant to search the residence for drug paraphernalia. Id. at 2-3. Drug paraphernalia and a BB gun were found during the search. Id. at 3.

The Honorable Kenneth Brown of the Court of Common Pleas of Lycoming County suppressed the evidence obtained from the entry and the evidence obtained from the search. Id. at 5-6. The court wrote, “There was no immediate exigency confronting the officer which would have vitiated the search warrant requirement.” Id. at 5.

C. Law of Police Interaction with Citizens

The above cases show that in order to enter a home because of exigent circumstances, police must have probable cause to make an arrest. “Whether [an] arrest was constitutionally valid depends...upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964).

A court must take into account the “totality of the circumstances” when determining whether an officer had probable cause. See Illinois v. Gates, 462 U.S. 213, 238 (1983).

“In order to arrest without a warrant, the officer must have a reasonable belief in the probability of criminal activity by the person to be arrested. However, that belief need not be grounded in the officer’s direct, personal knowledge of the relevant facts and circumstances. It may, instead, rest solely on information supplied by another person where there is a ‘substantial basis’ for crediting that information.” Commonwealth v. Stokes, 389 A.2d 74, 76 (Pa. 1978). “[A]n informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Gates, 462 U.S. at 230. “[Supreme Court] decisions applying the totality-of-the-circumstances analysis...have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.... [I]n making a warrantless arrest an officer ‘may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.’” Id. at 241-242 (quoting Jones v. United States, 362 U.S. 257, 269 (1960)).

If one police officer has probable cause to arrest aperson, other police officers can arrest that person “even though they [are] unaware of the specific facts that established probable cause.” United States v. Hensley, 469 U.S. 221, 230-31 (1985); see also Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971).

“[T]he statement of a victim, identifying the perpetrator of a crime, has been found sufficient to establish probable cause for that person’s arrest.” Stokes, 389 A.2d at 77. In Commonwealth v. Hall, a woman provided police with detailed description of her assailant. 317 A.2d at 892. Approximately three months after the assault, the woman saw the defendant in a police car. Id. at 893. The woman immediately recognized the defendant as her assailant, “but was unable to speak when questioned [by police] because she became frightened and shocked at seeing her attacker again.” Id. The Supreme Court of Pennsylvania held that police had probable cause to arrest the defendant after seeing the woman’s reaction. Id. at 894. The court wrote the following:

The victim’s immediate reaction, even though she made no verbal communication, was a sufficient communication from which reasonable police officers could conclude that the appellant was not a stranger but was the man who had attacked her. The police were observing the victim’s reactions when she first saw the appellant and saw that the victim had lost control of herself. Nothing occurred that would explain her reactions except an inferred recognition of her attacker. We cannot say that at that point the police did not have probable cause to detain the appellant.

Id.

“A detailed citizen’s report of a specific crime in progress is appropriately addressed by a prompt investigatory stop; general information to police about aperson who has broken the law in the past is not.” Commonwealth v. Collazo, 692 A.2d 1116, 1119 (Pa. Super. 1997). Just because an officer can make an investigatory stop does not mean that the officer has probable cause to arrest. “The reasonable suspicion necessary to justify a[n] [investigatory] stop is less stringent than probable cause....” In the Interest of S.D., 633 A.2d 172, 174 (Pa. Super. 1993).

In Adams v. Williams, an informant had a history of supplying a certain police officer with tips. 407 U.S. at 146. On a specific occasion, the informant notified the officer that the defendant had a gun at his waist and was carrying narcotics. Id. at 144-45. The officer investigated the tip and removed a gun from the defendant’s waistband. Id. at 145. The Supreme Court held that the informant’s tip “carried enough indicia of reliability to justify the officer’s forcible stop of [the defendant].” Id. at 147. The court wrote the following:

The informant was known to [the officer] personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene.

Id. at 146. The court noted that the informant’s tip “may have been insufficient for a narcotics arrest.” Id. at 147.

“When...the underlying source of the police department’s information is an anonymous telephone call, the courts have recognized that the tip should be treated with particular suspicion.” Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997). A tip from a known informant can be treated as more reliable than a tip from an unknown informant, because “the known informant places himself or herself at risk of prosecution for filing a false claim if the tip is untrue, whereas an unknown informant faces no such risk.” Id. at 574. However, “there is a vast difference between [a caller who gives police his or her name] and a caller with whom the police are familiar from past experiences.” Commonwealth v. Albert, 767 A.2d 549, 554 (Pa. Super. 2001). In Albert, the police received information from “a named informant that they did not know from the past and who did not personally observe any criminal activity.” Id. Relying on this information, an officer stopped the defendant. Id. at 551. The Superior Court of Pennsylvania held that the police did not have reasonable suspicion to stop the defendant. Id. at 555. The court quoted the following sentence from Commonwealth v. Hayward:

[I]f the police do not even know an informant’s name, or have never had any dealings with the informer on prior occasions, then it cannot reasonably be said that they have any adequate basis to ascertain anything about the informant’s reliability, veracity, or the accuracy of his or her tip.

Id. at 554.

D. The Commonwealth has not Shown that Police had Probable Cause to Arrest a Person at 610 Penn Street.

Under Pennsylvania Rule of Criminal Procedure 581(H), the Commonwealth has the burden of proving by a preponderance of the evidence that challenged evidence was not obtained in violation a defendant’s rights. See comment to Pa. R. Crim. P. 581. After reviewing the circumstances of the entry into 610 Penn Street, this court finds that the Commonwealth has not met its burden. As mentioned above, probable cause can be established through a victim’s statements, but police must necessarily determine that there is in fact a victim of a crime. While in some situations, police can almost instantaneously determine that a person is a victim, when there is no physical evidence, statements of witnesses and the person who claims to be a victim are particularly important in determining whether a crime has occurred. The officers who went to 610 Penn Street did not talk with the complainant or any witnesses. They could have acted on the information possessed by the officers at the complainant’s location, but the Commonwealth did not present the testimony of any of the officers who went to the complainant. This court will not speculate on what was known to the officers who went to the complainant. It is left with only the testimony of Officer Bell.

Bell testified that the complainant was the person at whom a gun was pointed, but Bell could not have made this determination before he entered 610 Penn Street because he did not talk with the complainant or witnesses. At the time of entry, Bell knew only that a person inside 610 Penn Street with an orange shirt and cornrows had been accused by a named person of pointing a gun at another. The Commonwealth presented no evidence that Bell knew the complainant’s reliability or even the complainant’s name. In fact, Bell testified that he did not know whether the complainant was reliable. As Bell did not talk with the complainant or witnesses, he could corroborate only that a juvenile with an orange shirt and cornrows was inside 610 Penn Street. Such knowledge was not sufficient to warrant a belief that a person inside 610 Penn Street had committed a crime.

If Bell had the reasonable suspicion needed to detain the juvenile for investigatory purposes, information obtained from questioning the juvenile could contribute to the establishment of probable cause. This court, however, does not need to decide if Bell had the requisite reasonable suspicion because it is unclear what Bell discovered between the time he detained the juvenile and the time of entry into the residence. On direct examination, Bell testified that before entering the residence, he asked the juvenile about a gun, and the juvenile responded that a gun was inside an entertainment center in the residence. On cross examination, however, Bell testified that he did not remember whether he asked the juvenile about a gun before or after officers entered the residence. In addition, the juvenile testified that he told the officers about a gun in an entertainment center after they went through the residence. The juvenile also testified that he told the officers that the gun was a BB gun. Because of Bell’s uncertain testimony, this court cannot credit Bell with having the knowledge of a gun inside the residence before he entered. Even if Bell knew a gun was in the residence, he still did not have probable cause to arrest the juvenile. As Bell did not talk with the complainant or witnesses, he still could not corroborate that the juvenile had pointed a gun at anybody.

E. Police Entry into the Residence at 610 Penn Street was Unlawful.

Because the police did not have probable cause to arrest anyone at 610 Penn Street, their entry into the residence violated the defendant’s constitutional rights.

F. Evidence Acquired as a Result of an Unlawful Search Must be Excluded Unless the Evidence Would have Been Inevitably Discovered.

In Murray v. United States, Justice Scalia discussed what evidence should be excluded from trial:

The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search and of testimony concerning knowledge acquired during an unlawful search. Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes “so attenuated as to dissipate the taint.”

487 U.S. at 536-37 (citations omitted).

As alluded to in Justice Scalia’s discussion, “evidence that has been illegally obtained need not always be suppressed.” Nix v. Williams, 467 U.S. 431, 441 (1984). “[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.... When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Nix v. Williams, 467 U.S. 431, 443 (1984). “So long as a later, lawful seizure is genuinely independent of an earlier, tainted one...there is no reason why the independent source doctrine should not apply.” Murray, 487 U.S. at 542.

“The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” Murray v. United States, 487 U.S. 533, 539 (1988). When dealing with the inevitable discovery doctrine, “[t]he ultimate question...is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence...” Murray v. United States, 487 U.S. 533, 542 (1988). A search is not a genuinely independent source of information and evidence “if the [officers’] decision to seek the warrant was prompted by what they had seen during the initial [unlawful] entry, or if information obtained during that entry was presented to the magistrate and affected his decision to issue the warrant.” Murray, 487 U.S. at 542.

G. The Evidence Obtained from the Residence at 610 Penn Street Should be Excluded as it Would not Have Been Inevitably Discovered.

The officers obtained a warrant to search 610 Penn Street for controlled substances and drug paraphernalia. The decision to seek the warrant was prompted by the officers seeing several items of drug paraphernalia and smelling the strong odor of marijuana during the unlawful entry into 610 Penn Street. These observations were presented to MDJ Whiteman and likely affected MDJ Whiteman’s decision to issue the warrant as there was no other mention of drugs or drug paraphernalia in 610 Penn Street in the affidavit of probable cause. Therefore, the search pursuant to the warrant was not a genuinely independent search. As with any evidence obtained during the unlawful entry, any evidence obtained during the search pursuant to the warrant should be excluded.

III. Conclusion

In order to enter a home because of exigent circumstances, police must have probable cause to make an arrest. Here, the Commonwealth has not shown that police had probable cause to arrest anyone at 610 Penn Street. Therefore, the officers’ initial entry into 610 Penn Street violated the defendant’s constitutional rights. Any evidence obtained during the unlawful entry should be excluded from evidence. In addition, any evidence obtained during the subsequent search pursuant to the warrant should be excluded from evidence.

ORDER

And now, this 16th day of September, 2014, based on the foregoing opinion, the defendant’s motion to suppress evidence is hereby granted. It is ordered and directed that any evidence obtained during the officers’ initial entry into the residence and any evidence obtained during the search pursuant to the warrant be suppressed.

      . Possession of Marijuana with intent to deliver is defined in 35 P.S. § 780-113(a)(30). It is a felony. 35 P.S. § 780-113 (f)(2).

      . 494 U.S. 325 (1990)

      . 729 A.2d 588 (Pa. Super. 1999).

      . 494 A.2d 1146 (Pa. Super. 1985).

      . 446 A.2d 246 (Pa. 1982).

      . 771 A.2d 1261 (Pa. 2001).

      . No. 00-10212 (Brown, J., Oct. 17, 2000).

      . In Roland, the court wrote, “absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the fourth amendment.” 637 A.2d at 270 (emphasis added). In Buie, the Court wrote, “A protective sweep ... occurs as an adjunct to the serious step of taking a person into custody for the purpose ofprosecuting him for a crime. 494 U.S. at 333 (emphasis added). In Crouse, the court defined a protective sweep as “a quick and limited search incident to an arrest.” 729 A.2d at 592 (emphasis added). In Curry, the court noted that police had probable cause and could have legally arrested the defendant inside the apartment. 494 A.2d at 1151. In Norris, police conducted an interview with the victim in order to obtain information before they arrested the defendant. 446 A.2d at 248. In Taylor, police conducted a three-week surveillance and used an informant. 771 A.2d at 1264.

      . 317 A.2d 891 (Pa. 1974).

      . “It is well settled that there are three distinct levels of interaction between law enforcement and the general public. The first level is the mere encounter, which need not be supported by any level of suspicion, but it carries no official compulsion to stop or respond. The second level is the investigative detention, which must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but it does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, the third level is an arrest or custodial detention, which must be supported by probable cause.” Commonwealth v. Daniels, 999 A.2d 590, 596-97 (Pa. Super. 2010) (citations omitted).

      . 407 U.S. 143 (1972).

      . 756 A.2d 23, 35 (Pa. Super. 2000).

      . 487 U.S. 533 (1988).

      . Because of the emphasis on the importance of privacy in Pennsylvania jurisprudence, Pennsylvania’s independent source doctrine is more limited than the federal independent source doctrine. See Commonwealth v. Melendez, 676 A.2d 226, 231 (Pa. 1996). “Application of the ‘independent source doctrine’ is proper only in the very limited circumstances where the ‘independent source’ is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.” Id. at 231 (quoting Commonwealth v. Mason, 637 A.2d 251, 257-58 (Pa. 1993) (Cappy, J., dissenting)). The Supreme Court of Pennsylvania eased the independent police team requirement in Commonwealth v. Henderson, 47 A.3d 797, 805 (Pa. 2012).


author: NEALON, J.,

text:
    Brown v. Leger

      C.P. of Lackawanna County,
    No. 12 CV 298

      Desirea M. Brown, pro se plaintiff.

      Christin L. Kochel, for defneants Lamar Leger and Marilynn Long.

      Gary A. Drakas, for defendant Progressive Insurance Co.
    Sept. 5, 2014-
   NEALON, J.,

ORDER

Defendants, Lamar Leger (“Leger”) and Marilynn Long (“Long”), have filed a motion for summary judgment which the parties have agreed to submit on their briefs and without the necessity of oral argument. By notice dated May 15, 2014, the court administrator for Lackawanna County directed Leger and Long to file a supporting brief by June 5, 2014, with the opposing brief of plaintiff, Desirea M. Brown (“Brown”), being due by June 25, 2014. (Docket entry no. 41). Leger and Long have filed a timely brief, (Docket entry no. 39), but Brown has failed to submit a brief in opposition. Notwithstanding that fact, the motion for summary judgment is ripe for resolution.

On January 13, 2012, Brown filed a complaint against Leger, Long and Brown’s underinsured motorist carrier, Progressive Insurance Company (“Progressive”), as a result of an automobile accident which occurred on January 14,2010. (Docket entry no. 1). Brown averred that Leger was negligent in causing an automobile accident on Keyser Avenue, and that Long negligently entrusted her vehicle to Leger on that date. (Id. at ¶¶ 5-8). Claiming permanent injuries as a result of the accident, Brown demanded compensatoiy damages from Leger, Long and Progressive. (Id. at ¶¶9-13).

On April 23, 2012, Leger and Long served interrogatories and requests for production of documents upon Brown to be answered within thirty days of service. (Docket entry no. 39 at ¶ 4). On August 3, 2012, Brown’s counsel, the Pisanchyn Law Firm, filed a motion to withdraw as Brown’s counsel, which motion was made returnable for a hearing on August 29,2012. (Docket entry no. 23). On that date, visiting Senior Judge Peter O’Brien granted the motion to withdraw, and directed Brown to secure new counsel within thirty days or proceed pro se if substitute counsel was not retained. (Docket entry no. 25). More than eight months later, Leger and Long presented a motion to compel discovery to the special trial master on May 9,2013. (Docket entry no. 36). The motion to compel was granted, and Brown was ordered to file and serve answers to the outstanding interrogatories and requests for production of documents within thirty days. (Id.).

In the absence of any discovery responses from Brown during the ensuing eleven weeks, Leger and Long presented a motion for sanctions to the special trial master on July 25, 2013. An order was filed by the master on that date directing Brown to furnish complete response to the overdue discovery requests within twenty days or suffer the imposition of sanctions. (Docket entry no. 37). After Brown failed to do so during the next five months, Leger and Long filed another motion for sanctions with the special trial master on December 30, 2013, who entered an order granting the motion and barring Brown “from producing any testimony or evidence at the time of trial or arbitration which is directly or indirectly related to any of the topics that were the subject of defendants’, Lamar Leger and Marilynn Long’s April 23,2012, interrogatories and requests for production of documents to the plaintiff.” (Docket entry no. 38). Leger and Long now assert that as a result of this evidentiary preclusion order, Brown cannot possibly satisfy her burden of proof in this case, such that Leger and Long are entitled to judgment in their favor as a matter of law. (Docket entry no. 39).

Summary judgment is proper when the pleadings, discovery, admissions and affidavits demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bumbarger v. Peerless Indem. Ins. Co., 93 A.3d 872, 875 (Pa. Super. 2014); AJT Properties, LLC v. Lexington Ins. Co., 26 Pa. D. & C. 5th 302, 313 (Lacka. Co. 2012). In making that determination, the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Herder Spring Hunting Club v. Keller, 93 A.3d 465, 468 (Pa. Super. 2014); Sedor v. Community Medical Center, 16 Pa. D. & C. 5th 193, 202 (Lacka. Co. 2010). However, where the nonmoving party bears the burden of proof on an issue, it may not merely rely on its pleadings or answers in order to survive summary judgment. Matharu v. Muir, 86 A.3d 250, 255 (Pa. Super. 2014). Rather, the failure of the nonmoving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof establishes the moving party’s right to judgment as a matter of law. Gilbert v. Synagro Cent., LLC, 90 A.3d 37,42 (Pa. Super. 2014); Lomeo v. Davis, 53 Pa. D. & C. 4th 49, 54 (Lacka. Co. 2001).

The elements of a cause of action in negligence are: (1) a duty recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a failure of the defendant to conform to that standard; (3) a causal connection between the defendant’s conduct and the resulting injury to the plaintiff; and (4) actual damage suffered by the plaintiff. Schemberg v. Smicherko, 85 A.3d 1071, 1073-1074 (Pa. Super. 2014); Sedor, 16 Pa. D. & C. 5th at 202. Except in those instances where the causal connection between the defendant’s negligence and the plaintiff’s harm is obvious and not beyond the common knowledge of the average juror, expert medical testimony is necessary to establish the causal nexus between the plaintiff’s injury and the defendant’s tortious conduct. Kovalev v. Sowell, 839 A.2d 359, 368 (Pa. Super. 2003), app. denied, 580 Pa. 698, 860 A.2d 124 (2004).

The special trial master twice afforded Brown the opportunity to belatedly answer the interrogatories and requests for production of documents that were served by Leger and Long, and on both occasions, Brown failed to provide discovery responses. Those interrogatories and requests for production of documents seek information and records pertaining to the alleged liability of Leger and Long, the injuries purportedly suffered by Brown, and the economic and noneconomic damages being claimed by Brown. (Docket entry no. 39 at ¶4). The sanctions order dated December 30, 2013, precludes Brown “from producing any testimony or evidence at the time of trial or arbitration which is directly or indirectly related to any of the topics that were the subject of’ the interrogatories and requests for production of documents served by Leger and Long. (Docket entry no. 38). Brown did not timely appeal the sanctions order of the special trial master by seeking a de novo review of that order by the Court of Common Pleas in accordance with Lacka. Co. R.C.P. 4019(b). See Fratzola v. Klepadlo, 26 Pa. D. & C. 5th 533, 538 (Lacka. Co. 2012) (stating that under Local Rule 4019(b), “[a]ny order of the special trial master granting or denying a sanction may be appealed de novo” to the Court of Common Pleas within ten days). Therefore, the evidentiary preclusion order dated December 30, 2013, constitutes the law of the case. See Morgan Guar. Trust Co. of New York v. Mowl, 705 A.2d 923, 928 (Pa. Super. 1998), app. denied, 556 Pa. 693, 727 A.2d 1121 (1998).

As a result of the sanctions order of December 30,2013, Brown is unable to adduce sufficient evidence to establish the elements of her negligence claims against Leger and Long. Additionally, by virtue of Brown’s failure to file a brief in opposition to the motion for summary judgment by the deadline of January 25, 2014, as established by the court administrator on May 15, 2014, Brown is deemed not to oppose that motion under Lacka. Co. R.C.P. 211(f). See Wells Fargo Equipment Finance, Inc. v. Knitney Lines, Inc., 2013 WL 5768196, at *1 n.1 (Lacka Co. 2013). Consequently, in light of Brown’s inability to produce any evidence in support of her tort claims against Leger and Long, there is no genuine issue of material fact and the movants are entitled to judgment in their favor as a matter of law.

And now, this 5th day of September, 2014, upon consideration of the motion for summary judgment filed by defendants, Lamar Leger and Marilynn Long, and the exhibits and memorandum of law submitted by those defendants, and the lack of any opposition thereto by plaintiff, Desirea M. Brown, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. The motion for summary judgment filed by defendants, Lamar Leger and Marilynn Long, is granted; and

2. The clerk of judicial records is directed to enter judgment in favor of defendants, Lamar Leger and Marilynn Long, and against plaintiff, Desirea M. Brown, in the above-captioned matter.

      . Progressive had previously secured sanctions orders based upon Brown’s failure to answer its discovery, and thereafter filed a ‘motion for non pros and/or summary judgment” based upon those sanctions rulings. (Docket entry no. 32). On May 8, 2013, visiting Senior Judge Harold Kane granted progressive’s case dispositive motion due to Brown’s “failure to respond to [progressive’s] motion, to appear at oral argument, and failure to respond to discovery requests or conduct any activity on this case since August of 2012.” (Docket entry no. 35).


author: HODGE, J.,

text:
    In re Vlah

      C.P. of Lawrence County,
    No. 21 of 2014 O.C.

      Norman J. Barilla, for petitioner.

      Shawn A. Sensky, for respondent.
    Sept. 8, 2014
   HODGE, J.,

Before the court for disposition is a motion in limine filed on behalf of the petitioner, Patricia A. Rosta, seeking to permit the use of testimony supporting her contention that she and the decedent, Randall M. Vlah, were common-law husband and wife. Prior to analyzing the merits of the pending motion in limine, the court will summarize the relevant procedural and factual background of these proceedings.

On January 22, 2014, the respondent, Ronald Stickle, filed a petition for letters of administration of the Estate of Randall M. Vlah. The Lawrence County Register of Wills granted respondent’s request and issued letters of administration to the respondent. On February 26, 2014, the petitioner requested the court issue a Rule to Show Cause as to why an appeal from probate should not be sustained. On March 13,2014, respondent filed an answer to the rule, and the court scheduled a hearing on the matter. Petitioner subsequently filed the instant motion in limine, wherein Petitioner requested the court permit her to introduce testimony from certain individuals regarding the decedent’s relationship to the petitioner. Petitioner’s motion is properly before the court for disposition.

Pennsylvania adopted the Dead Man’s Act at 42 Pa.C.S.A. Section 5930, (hereinafter, the “Act”). The Act provides:

[I]n any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy, unless the action or proceeding is by or against the surviving or remaining partners, joint promisors or joint promisees, of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors or joint promisees and the other party on the record, or between such surviving or remaining partners, promisors or promisees and the person having an interest adverse to them, in which case any person may testify to such matters; or, unless the action is a possessoiy action against several defendants, and one or more of said defendants disclaims of record any title to the premises in controversy at the time the suit was brought and also pays into court the costs accrued at the time of his disclaimer, or gives security therefor as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness; or, unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy is between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.

42 Pa.C.S.A. § 5930.

The purpose of the act is “‘to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to himself and adverse to the decedent, which the latter’s representative would be in no position to refute.’” Stathas v. Wade Estate, 380 A.2d 482, 483 (Pa.Super. 1977) (internal citation omitted). Before a witness is declared incompetent to testify under the Dead Man’s Act, three conditions must exist: (1) the deceased must have had an actual right or interest in the matter at issue; (2) the interest of the witness, not simply the testimony, must be adverse to that of the decedent; and (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest. Olson v. North American Industrial Supply, 658 A.2d 358 (Pa.Super. 1995).

Petitioner and respondent both cite to the case of In re Estate of Stauffer, 476 A.2d 354 (Pa. 1984) to support their respective positions. Upon thorough review, this court finds the Supreme Court of Pennsylvania’s holding in the Stauffer case to be dispositive of the issue pending before the court. In Stauffer, the decedent, Warren Stauffer, died on December 8, 1979, leaving a will devising his entire estate to his brother. Id. at 355. Bebeann O’Halloran filed an election to take against the will on the basis that she was the wife of the decedent by way of a common-law marriage. Id. The sole issue at trial was whether Bebeann O’Halloran was the common-law wife of the decedent. Id. at 356. At trial, counsel for the estate objected to any testimony of Ms. O’Halloran that would relate to any conversation she had with the deceased prior to his death on the basis of the Dead Man’s Act. Id. The trial judge, basing his decision upon a reading of In re Estate of McClain, 392 A.2d 1371 (Pa. 1978), concluded that Ms. O’Halloran was competent to testify. Id. Testator’s putative common-law widow, after first filing a challenge to testator’s will, subsequently filed an election to take against the will. Id. On appeal, the Superior Court affirmed the trial court’s decision. See, 462 A.2d 750.

Decedent’s brother, and sole devisee in decedent’s will, appealed the matter to the Supreme Court, which held that a widow who claimed a spouse’s elective share against the will of a decedent could not testify under any exception to the Dead Man’s Act in order to establish her status as a common-law spouse. In its analysis, the Stauffer Court recognized that “the law imposes a heavy burden on one who grounds his or her claim on an allegation of common-law marriage. This is especially so where one of the parties is dead and the claim, so grounded, is to share in the distribution of the estate.” 476 A.2d at 356.

The purpose of the Dead Man’s Act is “to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to [her] self and adverse to the decedent, which the latter’s representative would be in no position to refute.” Id. (quoting Estate of Kofsky, 409 A.2d 1358, 1359 (Pa. 1979).

Similar to the petitioner in the instant case, Ms. O’Halloran, claimed that she was competent to testify based upon the devisavit vel non exception to the Dead Man’s Act. Stauffer, 476 A.2d at 356. This exception permits testimony as to the intent of a testator to be elicited from those who would otherwise be incompetent to testify under the Act. Id. The Stauffer Court succinctly explained that

[i]n Dalbey’s Estate, 192 A. 129 (Pa. 1937), we stated that the exception arises out of the usual lack of qualified testimony in litigation involving a will, the logic being that the usual beneficiaries or legatees who would be incompetent under the act are usually the only ones who have knowledge of the circumstances surrounding the execution of the testator’s will and the contents thereof. Id. In these instances we balance the need for this testimony against its possible self-serving facet and allow the testimony to be heard, leaving the fact finder to determine credibility and weight.
McClain... was an attempt at overruling prior case law holding that the devisavit vel non exception was operable only when the interested parties were all of the same class, either all taking by devise or all taking by descent. McClain held that the exception was operable even where some of the parties involved were claiming by devise and some by descent. Based upon this, the lower court reasoned that [Ms. O’Halloran], claiming by descent, could testify even though the other beneficiary was taking by devise. This arguably would be a reasonable application of McClain were it not for the fact that [Ms. O’Halloran] must first establish her status as a descendant before she can qualify to testify under the exception. In this respect it can be said that [Ms. O’Halloran] is sui generis from those situations covered under the exception, the reason being that in the instant case the testimony of the [Ms. O’Halloran] does not go directly to questions surrounding the will or the decedent’s intent thereof, but rather is an attempt to establish the common[-]law marriage. It is therefore apparent that the purpose behind which we except this class and allow them to testify is not present here.

Stauffer, 476 A.2d at 356-357.

The Stauffer Court went on to state that an individual who election to take against the will on the basis that he or she is a common-law spouse of the decedent must overcome the hurdle of establishing his or her status of descent. Once this hurdle is overcome, the individual falls within the exception and becomes competent to testify. However, this burden must first be met without resort to any exception to the act, since at that point she is not yet within the exception. 476 A.2d at 357 (emphasis supplied).

Based upon the foregoing, it is quite clear that petitioner is prohibited from offering any statements made by the decedent, either through her own testimony or the testimony of a third party. Petitioner may offer testimony of cohabitation and reputation in the community to establish that a common-law marriage existed between herself and the decedent. Specific statements made by the decedent must be excluded until the petitioner can establish her status by some other means.

Consistent with this opinion, the court will enter the following order of court:

ORDER OF COURT

And now, this 8th day of September, 2014, with this matter being before the court for argument on petitioner’s motion in limine, with Norman J. Barilla, Esquire, appearing on behalf of the petitioner, Patricia Rosta, and with Shawn A. Senksy, Esquire, appearing on behalf of the respondent, Ronald E. Stickle, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. The petitioner’s motion in limine is denied.

2. The petitioner is hereby precluded from offering any evidence regarding statements made by the decedent Randall M. Vlah, in her attempt to establish a common-law marriage.

3. Further proceedings are hereby scheduled for the 18th day of November, 2014 at 10:00 A.M. in Courtroom #4 of the Lawrence County Government Center, one-half (1/2) day reserved status.

4. The prothonotary shall properly serve notice of this order of court upon counsel of record for the parties.


text:
    In re Petition for Change of Name of A.S.

      C.P. of Lawrence County,
    No. 10220 of 2014, CA

      Heather M. Papp-Sicignano, for petitioner.

      Phillip L. Clark, Jr., for respondent.
    Sept. 9, 2014
   HODGE, J.,

Before the court for disposition is a petition for name change related to the minor child, Aiden Mitchel Sheffler, bom August 22, 2010. The petitioner, Adam Clark Donnelly (hereinafter, “father”), and the respondent, Tara Anne Sheffler (hereinafter, “mother”) are the natural parents of the minor child. Father is requesting the minor child’s name be changed to include his surname, Donnelly. Prior to addressing the merits of father’s petition, the court provides the following summation of the procedural and historical facts associated with this case.

Mother and father were dating at the time of Aiden’s conception. They were not married and never lived together. Two weeks before Aiden’s birth, mother and father met to discuss his name. At this time, mother told father that she had decided unilaterally that the minor child’s middle name would be Mitchel and the last name would be Sheffler.

On August 22, 2010, Mother gave birth to the minor child in her home at approximately 5:15 a.m.; mother and the minor child were subsequently transported to the Beaver Medical Center by ambulance. Due to the emergency nature of the child’s birth, father was not notified that the minor child was bom until the following day. Consequently, father was not present at the hospital when mother signed the birth certificate. Mother signed the certificate, which formally identified the minor child as Aiden Mitchel Sheffler. Mother was served with a copy of the instant petition for name change on March 13, 2014. Mother filed timely objections, and hearings were scheduled before this court on May 13, 2014 and May 5, 2014.

Father testified about his relationship with Aiden and the reasons he requests the court to change Aiden’s last name to reflect that of his own. Father stated that he made a place for Aiden in his home prior to his birth. Aiden has always been a part of his household and family, and he has a strong relationship with his half-brother and step-mother. Father is concerned that the minor child’s name is not reflective of father or father’s heritage. Father additionally stated that he repeatedly requested to have the minor child’s surname include or be that of his own.

Alternatively, mother stated she provided the minor child with her surname because she was not married to child’s father. Mother contends that her actions conform to the Pennsylvania Code, which provides that “[t]he child of an unmarried woman may be registered with any surname requested by the mother. If no other surname is so requested, the child shall be registered with the mother’s surname.” See 28 Pa.Code §1.6. Mother conceded that father has a good relationship with the minor child, but she does not believe their relationship is contingent upon sharing a common surname.

After considering the testimony and evidence presented by both parties, father’s request to change the minor child’s name of Aiden Mitchel Donnelly or in the alternative to Aiden Mitchel Sheffler-Donnelly is presently before the court for a determination.

When considering a petition to change the name of a minor child, the trial court must consider whether doing so is in the best interest of the minor child. In Re: Change of Name of Zachary Thomas Andrew Grimes-Palaia, 609 A.2d 158 (Pa.1992). The Superior Court of Pennsylvania has further held that

the party petitioning for the minor child’s change of name has the burden of coming forward with evidence that the name change requested would be in the child’s best interest, and that where a petition to change a child’s name is contested, the court must carefully evaluate all of the relevant factual circumstances to determine if the petitioning parent has established that the change is in the child’s best interest.

In Re: Change of Name of E.M.L., 19 A.3d 1068, 1070 (Pa.Super. 2010) (citing In Re: C.R.C., 819 A.2d 558, 560 (Pa.Super. 2003). Relevant factors include the natural bonds between the parent and child, the social stigma relating to or respects afforded to a particular name within the community, and where appropriate, the minor child’s preference. In Re: Grimes, 609 A.2d 158, 161 (Pa. 1992).

In reaching a determination, the court acknowledges that it is more frequently being presented with petitions to change the name of a minor child. The commonality between the cases is often the lack of a relationship between the subject child’s biological parents. These cases are often difficult for the court to decide because the court infers that the parents associate some measure of love or parental bond is having similar nomenclature with the minor child. In the court’s own experiences, the two are not mutually exclusive. It is often the love, attention and devotion given, to the child by each parent that is fundamental in solidifying the familial unit.

Furthermore, social norms are not what they were fifty or even twenty years ago, where children typically carried the surname of their biological father, regardless of the parents’ marriage status. The court does not infer a negative connotation will befall the minor child if his last name is different from that of his father’s or even his mother’s if she ultimately chooses to remarry. Both parties have presented themselves as wonderful and capable parents. Both parties have a strong support system and respectable families in the community.

Based upon the positive attributes of mother and father, the court cannot conclude that the father has met his burden of proof that it is in the minor child’s best interest to grant father’s petition for name change. Although the testimony establishes that the minor child is happy in both homes and very healthy, he is still very young. Should the minor child have a preference to change or modify his last name when he reaches maturity, the court will gladly entertain such a request, but given the parties’ present circumstances and the factors presented to the court, it cannot conclude that there is sufficient justification to grant father’s request at this time.

ORDER OF COURT

And now, this 9th day of September, 2014, with this matter being before the court on a petition for change of name, with the petitioner, Adam C. Donnelly, appearing and being represented by Heather M. Papp-Sicignano, Esquire, and with the respondent, Tara Sheffler, appearing and being represented by Phillip L. Clark, Jr., Esquire and after a hearing held, and in consideration of the testimony and evidence presented, the court hereby orders and decrees as follows:

1. Consistent with the attached opinion, the petition for name change is denied.

2. The name of the minor child, Aiden Mitchel Sheffler, bom August 22,2010, shall remain Aiden Mitchel Sheffler.

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


author: TUNNELL, J.,

text:
    In re Adoption of S.L.T.

      C.P. of Chester County,
    No. AD-2014-0035

      Susan M. Potts, for S.L.T.

      Rochelle N. Bobman, for birth parent and adoptive parent.

      Pro se birth parent.
    Sept. 12, 2014
   TUNNELL, J.,

This is a step-parent adoption proceeding. The biological father of S.L.T., Scott Toombs, and his wife, Emily Toombs, the stepmother, seek to terminate the parental rights of S.L.T.’s biological mother, Jessica Puckett. After a hearing by the court sitting without a jury held September 4, 2014, and upon consideration of the testimony of all the witnesses, the court denies the Petition to Terminate Parental Rights (also referred to as “TPR”).

JURISDICTION

A threshold issue in this case concerns jurisdiction.

Although Scott and Emily Toombs (collectively “petitioners”) filed their petition for adoption and a petition for the Termination of Parental Rights in May 2014, there is no certificate that service was ever made on Jessica Puckett. On July 3, 2014, the petitioners filed a revised petition for adoption and revised petition for Termination of Parental Rights. The court appointed Susan Potts, Esquire as counsel for S.L.T. on July 11, 2014. On that date, a preliminary decree issued scheduling the TPR hearing for September 4, 2014. On August 21, 2014, notice and a copy of the revised petition for Termination of Parental Rights was received by Jessica Puckett, two weeks before the hearing.

A prior custody matter pending in the Superior Court of New Jersey, Bergen County, is docketed as Scott Toombs v. Jessica Puckett, No. FM-02-1123-12. Jessica Puckett filed a notice of motion in that court, and Scott Toombs then requested a continuance of any proceeding in New Jersey through the date of September 19,2014, which was granted by the Bergen County Court.

S.L.T. has resided in Pennsylvania for two years.

Pennsylvania and New Jersey are both signatories to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Compare 23 Pa. C.S.A. §5401, et seq., with N.J.S.A. 2A: 34-53, et seq. Adoption cases such as that at bar here are excluded from the UCCJEA, 23 Pa. C.S.A. §5403, because adoption is a specialized area, the jurisdictional provisions for which are found elsewhere. See UCCJEA, §5403, cmt. supra.

This court does not disturb the question of custody and visitation pending in Bergen County. But since the adoption is denied, any further determination of the child’s custody would be subject to the UCCJEA. This court will defer to the Bergen County Court for its determination thereon.

As reasons for terminating the rights of Jessica Puckett, the biological mother,

Petitioners cite the following sections of the Pennsylvania Adoption Act of 1980,23 Pa. C.S.A. §2101, etseq., (“Adoption Act”) as amended:

§2511. Grounds for involuntary termination
(a) General rule — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The 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.
(2) The 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.

APPLICABLE LAW

Substantively, the Pennsylvania Supreme Court has stated that there is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, the Supreme Court has held that the parental obligation is a positive duty which requires affirmative performance. In Re: Burns, 474 Pa. 615, 379 A.2d 535 (1977). A parent must exert himself or herself to take and maintain a place of importance in the child’s life. Id.

Parental rights may not be terminated in the absence of evidence which is clear and convincing. This high standard was formulated by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This principle requires evidence which is so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction without hesitancy of the truth of the precise facts in issue. In Re: Adoption of James J., 332 Pa. Super. 486, 493, 481 A.2d 892, 896 (1984).

The law recognizes that there are situations in which a custodial parent has deliberately created obstacles and has by devious means erected barriers intended to impede free communication and regular association between the noncustodial parent and her child. Therefore, it is incumbent upon a court, before it terminates the rights of a noncustodial parent, to consider carefully the non-custodial parent’s explanation for her apparent neglect. Only when the totality of the circumstances demonstrates clearly and convincingly that a parent has refused or failed to perform parental duties for a minimum period of six months may an order be entered terminating parental rights. In Re: Shives, 363 Pa. Super. 225, 525 A.2d 801 (1987). The pertinent inquiiy is not the degree of success a parent may have had in reaching the child, but whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship. In Re: Adoption of Faith M., 509 Pa. 238, 501 A.2d 1105 (1985).

Even where it is established that a parent has failed to perform parental duties for a period in excess of six months, such a finding does not in and of itself support an order terminating parental rights. Rather, a court then must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination of said parent’s parental rights. In deciding this sensitive question, the Supreme Court has said that it is mindful of the irreversible nature and serious emotional impact which necessarily follow an involuntary termination of parental rights. In Re: Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1975). A court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child, 23 Pa.C.S. §2511(b). Judicial inquiry is thus to be centered on the best interests of the child rather than the fault of the parent. Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986).

In summary, in Pennsylvania when involuntary termination is sought the court first determines if the statutory requirements in §2511 (a)(1) have been satisfied. If they have, the court assesses any explanation or extenuating circumstances made by the parent. Next the court evaluates any post-abandonment contact between the parent and child, and lastly and most importantly the court assesses the effect of termination on the needs and welfare of the child. In Re: Adoption of Hamilton, 379 Pa. Super. 274, 549 A.2d 1291 (1988). The court makes the following:

FINDINGS OF FACT

Scott and Jessica Toombs were married on September 13, 2007. He was 20 and she was 17 when, on March 14, 2008, S.L.T. was bom to them in Bergen County, New Jersey. The parents were not only young, but immature and necessitous. Fortunately, S.L.T.’s grandparents were able to provide some financial and emotional support. Scott and Jessica moved to a studio apartment. Both worked various jobs. S.L.T. was placed in daycare at approximately six months of age. Jessica had issues with her mental health, as she freely conceded. The court attributes the slovenly condition of their living quarters, and her resistance to additional financial and medical help to that condition. Tensions with Scott arose; the couple separated. Jessica moved out and Scott stayed in the apartment with S.L.T. He became the primary caregiver. Jessica was to share physical custody on a 50/50 basis, but over time she saw the child less and less. Jessica was unable to maintain stable housing for herself. Jessica also entered into an unsavory relationship which further plagued her. On January 23, 2012, she signed a consent order in the Superior Court of New Jersey case entitled Scott Toombs v. Jessica Puckett, docket no. FM-02-1123-12. This transferred joint custody of S.L.T. from mother to father. Visitation by mother was referenced. Both parents were exempted from paying or receiving alimony or child support. Jessica then left Bergen County, New Jersey and moved to Alabama. During her absence, her mother, Tina Puckett, regularly continued to see and care for S.L.T. until Scott Toombs moved to Chester County, Pennsylvania.

While she was in Alabama, Jessica telephoned S.L.T. on his birthday and made a few other calls as well. In addition to having Scott’s phone number, Jessica also had his email address. Nonetheless, Jessica’s contacts with S.L.T. were sporadic at best. She was gone for more than six months.

In the fall of 2012, Scott received military orders requiring him to relocate in Pennsylvania. He and his fiance, Emily Sickles, moved from Bergen County, New Jersey to Chester County, Pennsylvania. On October 27, 2012, the parties met in Kennett Square and Jessica signed two consent orders before a notary in which she granted, among other things, parental control of S.L.T. to Emily Sickles. Jessica affirmed that she “understands and agrees this decision is in [S.L.T.’s] best interest and will provide him with a happy, productive, stress-free lifestyle.” The document in question (petitioners’ exhibit 3) further states that Jessica “agrees Emily Sickles will provide a stable and loving environment for [S.L.T.].” During the hearing, Jessica’s testimony was consistent. She recognized that those were things she could not herself provide to S.L.T. at that point in time, and had no problem with S.L.T.’s relocation to Chester County, Pennsylvania under the circumstances. Although neither of the consent orders signed by Jessica on that date were submitted to the Bergen County court, they have evidentiary value for the purposes of the present hearing. One of the consent orders also changed the visitation schedule so that Jessica was authorized one weekend eveiy two months in Pennsylvania, and visitation was also authorized when S.L.T. was visiting his grandparents in Bergen County, New Jersey.

The date of October 27,2012 is also significant as it was the last date on which Jessica saw her son S.L.T. Although the accounts of that visit differed, the court gives credence to Jessica’s version which was it did not go particularly well. Emily Toombs, the stepmother, hovered over S.L.T. and placed a hand on him as if to restrain him. Jessica promised to contact S.L.T. in seven days, but testified she was thwarted by Scott and Emily from making such contact.

Jessica attempted to see S.L.T. on Christmas night. She was a passenger in a car which drove up to the elder Toombs’ house, S.L.T’s grandparents. She demanded to see S.L.T. Scott refused to bring the child out, and stated that the circumstances of this unannounced visit were “scary”. Jessica testified that she had tried to be civil before and that that did not work, and that announced visits could be thwarted.

When Scott and Emily moved in the fall of 2013 to a different address in West Chester, Pennsylvania, they did not give Jessica their new address. Because the telephone and email exchanges between him and Jessica had deteriorated to disparaging remarks, Scott changed his telephone number as well and did not give the new one to Jessica. At this point, Jessica no longer knew where her son was.

Meanwhile, S.L.T. was acting out. He had anger issues and was hitting and yelling in school. Scott and Emily arranged for S.L.T. to be counseled by Seth Rosenberg, a licensed professional counselor in West Chester, Pennsylvania, to learn how to cope with his issues. Mr. Rosenberg was a witness in the hearing and described his approach in his dealings with S.L.T. He was able to help S.L.T. verbalize his thinking and the reasons for his anxiety. Mr. Rosenberg testified that the child had progressed very well, and the hitting and anger issues have largely resolved. Mr. Rosenberg was permitted to state, without objection, that because the child had a history of not seeing his mother, reintroducing her to him “could be a Pandora’s box” and further inconsistency of visits might affect his emotional stability. Inasmuch as Mr. Rosenberg never met Jessica, and never witnessed her interaction with S.L.T., and, frankly, did no kind of bonding assessment, the court discounts his speculation in this respect as just that.

No one, the court included, would want to unnecessarily upset S.L.T.’s emotional environment, nor wish for a repeat of the kind of distress he has experienced. However laudable the idea of “consistency” is for S.L.T.’s world, his father is in the military and testified that he expects to be transferred every three to five years or so which will, as to S.L.T. and all others who are in a military family, be repetitively uprooting and a jolt to consistency. With this S.L.T. must learn to cope. The court believes that no less is true of his being reintroduced to his mother. That should be done obviously properly and by those who have expertise. The court is convinced that Jessica brings her own love and maternal enrichment that will prove to be beneficial to S.L.T., provided that none of the parties try to poison his mind against the others, which would be the quickest way to destabilize him.

This action was filed in Chester County in May 2014. Jessica became aware of its pendency only in mid-August. The court pays no attention, as dictated by the Adoption Act at §2511(b) to her activities, if any, following notice to her of these proceedings. However, her activities prior thereto are to be considered.

Scott and Emily Toombs made contact by Jessica with S.L.T. as difficult as they could. They did not try very hard to give her notice of the proceeding in Chester County. They also conceded that they did not notify Jessica of their new address, giving the reasons that she might show up “out of the blue”, that she had not seen S.L.T., that she was not trustworthy, and that she was “erratic and irrational.”

The court must analyze Jessica’s resistance to the obstacles placed before her. Although she still had the address and telephone number of the paternal grandparents, she did not call them because she perceived they were against her. She also had Emily Toombs’ work number, but felt restrained from contacting Emily at work. Nonetheless, she and her fiance, Jason, drove the distance from Bergen County, New Jersey to Chester County, Pennsylvania more than once to see if they could locate where Scott and Emily Toombs were residing. They drove around several condominiums to try to find their cars. Jessica also used search engines on the internet to search for her child.

For Jessica to accomplish even that much, she had to confront her own health issues, and she finally did so. For the last year and a half she has been on medications, and sees a therapist weekly. She also sees a psychologist once a month. In addition, she has formed a positive relationship with one Jason Mubaideen, who has been a good support for her. They are now engaged, and have a brand new baby. Jessica has mended her fractured relationship with her mother, Tina Puckett, with whom she presently resides.

While the court does not endorse all of Jessica’s decisions and prior behaviors, considering from where she has started, Jessica has impressed the court with her recovery, and her sincerity in desiring to reestablish and maintain a relationship with S.L.T. Jessica is now 24 years old and is taking care of herself and her baby, although presently still with assistance from her mother. The court is ever mindful that the rights of a parent will not be terminated solely on the basis on environmental factors such as inadequate housing, furnishings, income, clothing or medical care if they are beyond the control of the parent. 23 Pa. C.S.A. §2511(b). At an earlier time, Jessica was essentially helpless to alter her environment, occluded as she was by her medical issues. The court agrees with her testimony, and her mother’s testimony, that the past strife is behind them.

Counsel for S.L.T. advocated against terminating the parental rights of his mother. In regard to the alternative basis for termination, under §2511 (a)(2), supra, she argued that Jessica did recognize that she needed psychological help and agreed that S.L.T.’s needs would be taken care of by his birth father. This provided S.L.T. with “essential parental care” even if it was not her own. The court agrees. Jessica testified that she thought that was the best thing to do for S.L.T. at the time, not realizing that the petitioners would block the visitation called for under the various consent orders Jessica signed. Moreover, Jessica has gone a long way to remedy the circumstances which caused her own incapacity.

CONCLUSIONS OF LAW

1. This court has jurisdiction over this adoption proceeding.

2. This court does not disturb the status of custody and visitation between the parties.

3. The elements for termination under §2511(a)(1) and §2511 (a)(2) were not proven by clear and convincing evidence.

4. Denial of termination meets the needs and welfare of S.L.T.

An appropriate order follows.

FINAL DECREE

And now, this 12th day of September, 2014, following an evidentiary hearing upon due notice, for the reasons set forth in the court’s decision of this date, it is ordered and decreed that the petition of Scott Toombs and Emily Toombs for the involuntary Termination of the Parental Rights of Jessica Puckett is denied, and their petition for adoption is duly dismissed.

      . The Pennsylvania Adoption Act confers original jurisdiction over involuntary termination and adoption proceedings to the court of common pleas. 23 Pa. C.S.A. §2301. Venue is proper in the county where the parents, the adoptee, or the person who has filed a report of intention to adopt reside. §2302(1). That county is Chester County, Pennsylvania. It has an Orphans’ Court Division which exercises adoption jurisdiction. See 23 Pa. C.S.A. §2102, cmt. This court has determined that it has jurisdiction over the present adoption proceeding.