text:
    Joy v. Cutler Group, Inc.

      C.P. of Chester County,
    No. 2012-03689-CT

      Jennifer M. Horn and Kathleen J. Seligman, for plaintiffs.

      Joseph P. Walsh, for defendants.
    Nov. 10, 2014
   TUNNELL, J.,

ORDER

And now, this 10th day of November, 2014, upon consideration of “Defendants’ Motion for Summary Judgment to Dismiss All Claims of the Remote Purchasers,” Plaintiffs’ Response thereto, the respective briefs in support, and all other matters of record, it is hereby ordered and decreed as follows:

1. The Motion is granted as to the Remote Purchasers’ claims for Breach of Contract, Breach of Express Warranty, Breach of Implied Warranty of Habitability, and Breach of Implied Warranty of Workmanlike Performance, and the following Counts are hereby dismissed from Plaintiffs’ Complaint:
a. Plaintiffs Margaret Ann Joy and Michael Joy: Counts 1 and 2;
b. Plaintiffs Hetal Christian and Nilesh Christian:. Counts 4 and 5;
c. Plaintiff Janet Colleran: Counts 7, 8, 9, and 10;
d. Plaintiffs Xingye Huang and Qingsong Zheng: Counts 37 and 38;
e. Plaintiffs Timothy Klein and Albany Klein: Counts 40, 41, 42 and 43;
f. Plaintiffs Ruochuan Tang and Shiru Wang: Counts 84 and 85; and
g. Plaintiffs Alison Warner and William Warner: Counts 87, 88, 89 and 90.
2. The Motion is denied as to the Remote Purchasers’ claims for Violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq

Factual Background and Procedural Posture

      . Presently before the court is the motion for partial summary judgment of defendants, The Cutler Group, Inc., David Cutler Group, and David M. Cutler, individually (collectively, “defendants”). At issue is whether subsequent purchasers of residential properties may sue the original builder/vendor of those properties for breach of contract, breach of express warranty, breach of the implied warranties of habitability and workmanlike construction, and for violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL). Upon review of the motion, plaintiffs’ response, and all other matters of record, the motion will be granted in part and denied in part.
      This case arises from alleged construction defects in various properties located in the “Malvern Hunt” residential development in Exton, Pennsylvania. Defendants, The Cutler Group, Inc. and/or David Cutler Group (hereinafter “Cutler Group”), constructed the homes at issue between the years 2000 and 2005. On April 12,2012, forty plaintiffs (representing twenty sets of homeowners) filed suit by way of writ of summons. Approximately one year later, on April 1, 2013, plaintiffs filed a complaint alleging that the improper design and construction of their homes resulted in, inter alia, water intrusion and water damage to various portions of their residences.
      Of the forty plaintiffs initially named in this action, thirteen of them (the “subsequent purchasers”) did not purchase their homes directly from Cutler Group, but instead purchased them from private sellers (the “original purchasers”) who themselves had purchased the properties from Cutler Group. In subsequent filings, plaintiffs’ counsel has represented that eight subsequent purchasers (representing four sets of homeowners) have chosen to voluntarily withdraw from this action. Those plaintiffs are: (a) Janet Colleran; (b) Xingye Huang & Qingsong Zheng; (c) Timothy Klein & Albany Klein; and (d) Ruochuan Tang & Shiru Wang. However, until these individual have entered a formal withdrawal, the court is bound to treat them as party-plaintiffs. See Pa.R.C.P. No. 229(a) (“A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.”).
      On the day the complaint was filed, five of the thirteen subsequent purchasers had obtained an “assignment” of both the agreement of sale and agreement of limited warranty that Cutler Group had entered into and extended to the original purchaser. These assignments purported to transfer from the original purchasers to the subsequent purchasers any “right” and “interest” that the original purchaser/assignors had in the sales agreement and limited warranty to the five subsequent purchasers/ assignees. The five subsequent purchasers/assignees each asserted the following claims against Cutler Group in the complaint:
      1. Breach of contract (based upon the assignment of the agreement of sale entered into between the original purchaser/assignors and Cutler Group);
      2. Breach of express warranty (based upon the assignment of the limited warranty agreement entered into between the original purchaser/assignors and Cutler Group);
      3. Breach of implied warranty of habitability;
      4. Breach of implied warranty of workmanlike construction; and
      5. Violation of the UTPCPL, 73 P.S. § 201-1 et. seq.
      The remaining eight subsequent purchasers had not executed an assignment of the agreement of sale and limited warranty with their original-purchaser counterparts. As a result, they only asserted claims for breach of the implied warranties of habitability and workmanlike construction and violation of the UTPCPL, and excluded any claims of breach of contract and breach of express warranty.
      It is evident from the complaint that, at the time it was filed, plaintiffs took the position that assignments of the agreements of sale and limited warranties were only necessary to support the five subsequent purchasers/assignees’ additional claims for breach of contract and breach of express warranty. When the complaint was filed, the Superior Court of Pennsylvania had held that the implied warranty of habitability exists even in the absence of a contract between a builder/vendor and a homeowner, and that, as a result, the warranty ran to second or subsequent purchasers of newly built residential properties. See Conway v. Cutler Group, Inc., 57 A.3d 155 (Pa. Super. 2012). However, the Superior Court’s holding in Conway was subsequently appealed, and on August 18, 2014, the Pennsylvania Supreme Court issued a unanimous opinion reversing the Superior Court. The court concluded that an action for breach of the implied warranty of habitability requires contractual privity between a builder/vendor and homeowner, and that, consequently, the warranty does not run to second or subsequent purchasers. See Conway v. Cutler Group, Inc., 99 A.3d 67 (Pa. 2014). The complaint herein was filed after issuance of the Superior Court’s opinion in Conway, but prior to the Supreme Court’s reversal. Thus, at the time of filing, the Superior Court’s holding in Conway was the law in Pennsylvania, and all of the Subsequent Purchasers were unequivocally entitled to maintain an action for breach of the implied warranty of habitability regardless of whether they had obtained an assignment of the agreement of sale from their original-purchaser counterparts. Plaintiffs’ complaint also took the position-evident from the subsequent purchasers that did not have Assignments at the time of filing-that an assignment was unnecessary to maintain an action for breach of the implied warranty of workmanlike construction and violation of the UTPCPL. But see, Manor junior Coll. v. Kaller’s, Inc., 507 A.2d 1245, 1249 (Pa. Super. 1986) (Holding that purchaser must be in privity of contract with a builder/vendor to maintain action for breach of the implied warranty of workmanlike performance); Valley Forge Towers S. Condo, v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 647 (Pa. Super. 1990), aff’d, 605 A.2d 798 (Pa. 1992) (Holding only that “strict technical privity” was not required to sustain a cause of action under the UTPCPL). The court notes, in any event, that after the complaint was filed and during the course of discovery, the remaining eight subsequent purchasers did obtain assignments from their original-purchaser counterparts that were either identical or materially similar to those assignments that the five subsequent purchasers had obtained at the time of filing. As a result of the Supreme Court’s decision in Conway, supra, plaintiffs now argue that these assignments permit all of the subsequent purchasers to maintain not only the breach of contract and express warranty claims, but also the claims for breach o f the implied warranties of habitability and workmanlike construction. Plaintiffs have also filed a motion to amend their complaint to bring claims for breach of contract and breach of express warranty on behalf of two sets of homeowners (Plaintiffs Margaret Ann Joy & Michael Joy, and Hetal Christian & Nilesh Christen) who did not have an assignment of the agreements of sale and limited warranties at the time the complaint was filed.
      On motion for partial summary judgment, defendants have set forth three reasons why the court must dismiss all claims asserted by the subsequent purchasers. First, defendants argue that both the agreements of sale and agreements of limited warranty entered into between Cutler Group and the original purchaser contained contractual provisions that either prohibited or limited the original purchaser’ ability to make an assignment of their rights under those agreements. As a result, argues defendants, each of the assignments entered into between the original and subsequent purchasers are invalid and to no effect. Second, defendants claim that, even if these “non-assignment” clauses were held to be unenforceable by this court, the assignments are still ineffective because, at the time they were made, each of the original purchaser had already sold their respective properties to the subsequent purchasers, and therefore had, in essence, “nothing to assign”. Finally, defendants argue that the assignments are invalid because they are not supported by adequate consideration. (See Defs.’ Mot. at ¶¶ 40 — 55).

        Discussion
      “Privity of contract” has been defined as “[t]he relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so.” Black’s Law Dictionary, 1394 (10th ed. 2009); see also Phillips v. Cricket Lighters, 841 A.2d 1000, 1006 (Pa. 2003) (“For parties to be considered to be in privity, a contractual relationship must exist between them.”). Thus, the court begins with the unremarkable premise that, unless a contract confers the status of intended third-party beneficiary, privity of contract is a necessary prerequisite to maintain an action for breach of a residential sales agreement and breach of an agreement of warranty extended in connection with the sale of a residence. See generally Bennett v. A. T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012); Scarpitti v. Weborg, 609 A.2d 147, 149 (Pa. 1992). The Pennsylvania Supreme Court’s recent decision in Conway v. Cutler Group, Inc., 99 A.3d 67 (Pa. 2014) also makes clear that contractual privity is necessary to maintain an action for breach of the implied warranty of habitability. As explained by the court in Conway, the implied warranty is “rooted in the existence of a contract-an agreement of sale-between the builder-vendor of a residence and the purchaser-resident.” Id. at 70. As a result, the warranty does not run to second or subsequent purchasers of newly constructed residential properties because such purchasers were never in privity of contract with the original builder/vendor. Id. at 73. Finally, the court notes, consistent with the Superior Court’s holding in Manor Junior Coll. v. Kaller’s, Inc., 507 A.2d 1245, 1249 (Pa. Super. 1986), that the purchaser of a newly constructed residential home must be in contractual privity with the builder/vendor in order to maintain an action for breach of the implied warranty of workmanlike construction. Thus, four of the five claims that have been asserted by the subsequent purchasers (breach of contract and express warranty, and breach of the implied warranties of habitability and workmanlike construction) require privity of contract as a prerequisite to maintain each of those actions.
      There are, however, circumstances under which a non-contracting party may bring an action in assumpsit against a party to a contract. Under well-settled common law principles, the performance of a contract may be delegated to another party .by way of an assignment — i.e., when one party to an existing contract transfers the contract’s obligations and benefits to another party. See Greater Nanticoke Area Educ. Ass’n v. Greater Nanticoke Area Sch. Dist., 938 A.2d 1177, 1185 (Pa. Cmwlth. 2007); Restatement (Second) of Contracts, § 318(1) (1981). Thus, although “privity of contract is personal privity, and is confined to the persons of the contracting parties”, Deynzer v. Columbia Gas of Pennsylvania, Inc., 875 A.2d 298, 301 (Pa. Super. 2005), a contract validly assigned permits the assignee to maintain an action in assumpsit, despite not being in privity with the other original contracting party.
      In this case, defendants argue that the subsequent purchasers are prohibited from maintaining their actions in assumpsit against them on the basis of two “non-assignment” clauses contained in the agreements

        of sale and limited warranty entered into between Cutler Group and the original purchaser. Each of those clauses provide as follows:

        Agreement of Sale: THIS AGREEMENT SHALL NOT BE ASSIGNED OR TRANSFERRED by Buyer without the written consent of [the] Seller first being obtained. Subject to such limitation upon [the] Buyer’s right of assignment, this Agreement shall bind and inure to the benefit of the heirs, personal representatives, successors and assigns of the respective parties hereto.0

        Agreement of Limited Warranty: This warranty is not transferable. Any obligation under it terminates if the property is resold or shall cease to be occupied by the homeowner to whom it is originally issued.d
      The agreements of sale and agreements of limited warranty entered into between Cutler Group and plaintiffs Margaret Ann Joy & Michael Joys’, and Hetal Christian & Nilesh Christens’, original-purchaser counterparts were not made part of the record in this case until defendants filed their response in opposition to plaintiffs’ motion for leave to amend the complaint. (See Defs.’ Res. to Mot. to Amd. at Ex. “A”). Those documents each contain non-assignment clauses identical to the non-assignment clauses quoted above.
      Defendants argue that this language is clear, unambiguous, and limited the original purchaser’ power to make an assignment of the agreement of sale only upon the consent of Cutler Group, and prohibited the “transfer” of the limited warranty extended by Cutler Group irrespective of whether the original purchaser remained in or sold their properties. Because the original purchaser executed purported assignments to the subsequent purchasers in contravention of these clauses, asserts defendants, each of the subsequent purchasers’ claims that sound in assumpsit must fail. The court is compelled to agree.
      There is a presumption of assignability in Pennsylvania. “[T]he rights and duties under an executory bilateral contract which does not involve personal skill, trust, or confidence may be assigned without the consent of the other party so long as it does not materially alter the other party’s duties and responsibilities.” Smith v. Cumberland Grp., Ltd., 687 A.2d 1167, 1172 (Pa. Super. 1997). However, this presumption does not necessarily operate where contracting parties have expressly prohibited assignment by the terms of the contract itself. See Greater Nanticoke, supra, 938 A.2d at 1185 (Stating that a contract may usually be assigned unless assignment is “contrary to public policy or the terms of the contract) (emphasis supplied); Restatement (Second) of Contracts, § 317(2)(c) (1981) (“A contractual right can be assigned unless assignment is validly precluded by contract”). Thus, the court adheres to the general rule that, where the parties’ intent is clear, a court will enforce non-assignment provisions in contracts. See CGU Life Ins. Co. of Am. v. Metro. Mortgage & Sec. Co., 131 F. Supp. 2d 670, 678 (E.D. Pa. 2001)(Observing that in Pennsylvania, “nonassignment clauses are valid, although the Pennsylvania courts scrutinize them carefully by examining both the specific language used and the purposes for which they have been inserted.”).

        In this case, the intent of the non-assignment clauses is clear and unambiguous, and therefore the court is bound to enforce the plain meaning of those provisions. See Trowbridge v. McCaigue, 992 A.2d 199, 203-04 (Pa. Super. 2010)(“A fundamental rule in construing a contract is to ascertain and give effect to the intention of the parties.”) (internal citation and quotation omitted). In the agreement of sale, Cutler Group, as seller, limited the original purchaser’ power to assign the contract only upon first obtaining Cutler Group’s consent. In the agreement of limited warranty, Cutler Group prohibited the extension of its limited warranty to only the first-purchasers of its newly constructed residences. The clause not only limits the “transfer” of the limited warranty agreement, but also provides that the warranty terminates upon resale of the property, regardless of whether an assignment was made. Despite the clear meaning of these provisions, each of the subsequent purchasers obtained a purported assignment from their original-purchaser counterparts of any right, claim or interest that the original purchaser had in the agreements of sale and limited warranty. These purported assignments must be held ineffective. See Willis v. Soffel, 53 Pa. D. & C.2d 661, 664 (Pa. Com. Pl. 1971)(holding that similarly worded limitation upon assignment of agreement of sale was valid.)On the record before the court, it is undisputed that (a) Cutler Group never consented to the assignments of the agreements of sale; and (b) each of the original purchaser made an assignment of their rights under the limited warranty after the sale of their homes. There is no issue of material fact to be tried. See Pa.R.C.P. No. 1035.2(1). Accordingly, defendants’ motion will be granted as it applies to the subsequent purchasers’ claims for breach of contract, breach of express warranty, and breach of the implied warranties of habitability and workmanlike construction.
      Plaintiffs’ chief argument in opposition to the enforceability of the non-assignment clauses is the Pennsylvania Supreme Court’s decision in Egger v. Gulf Ins. Co., 903 A.2d 1219, 1224 (Pa. 2006). There, the court held that a non-assignment clause in an insurance contract was not enforceable after an insured-beneficiary sustained a loss under the terms of an insurance policy with its insurer. Citing its prior holding in Nat 7 Mem 7 Services, Inc. v. Metro Life Ins. Co., 49 A.2d 382 (Pa. 1946), the court reasoned that restrictions on post-loss assignments are void as against public policy because such assignments do not increase the risk to the insurer associated with an assignee, as the insurer’s payment obligation has already become “fixed”. Id. at 1224. Analogizing from Egger and related cases, plaintiffs argue that the non-assignment clauses in the agreements of sale and limited warranty should also be rendered unenforceable because, just like an insurer, Cutler Group’s obligation to construct a “defect-free” home does not change, regardless of who (a first, second, or subsequent purchaser) owns the property. {See Plfs.’ Res. at ¶37, p.13). The court does not accept this argument.
      It has been observed that “nearly all of the reported Pennsylvania case law on the issue of the enforceability of nonassignment clauses has come in the context of insurance.” CGU Life Ins. Co., supra, 131 F. Supp. at 678; see also Egger, 903 A.2d at 1223 — 27 (reviewing cases). Indeed, every reported Pennsylvania and Third Circuit case that has cited Egger has done so in the context of insurance litigation. To graft the reasoning in Egger to contracts far afield from a policy of insurance would constitute an unwarranted extension of the holding in that case, and would run afoul of the rule that contracts which preclude or limit assignment are generally enforceable. See Cumberland Grp., Ltd., 687 A.2d at 1172; Greater Nanticoke, 938 A.2d at 1185. Acceptance of plaintiffs’ broad reasoning could potentially render an innumerable number of otherwise valid non-assignment clauses in contracts unenforceable. This the court declines to do.
      Because the court determines that the non-assignment clauses in the agreements of sale and limited warranty are valid and enforceable, the court does not consider defendants’ additional arguments that the assignments are ineffective because (1) they lacked consideration; and (2) the original purchaser had already sold their respective properties to the subsequent purchasers.
      Finally, defendants also assert that the subsequent purchasers’ claims for violation of the UTPCPL are subject to dismissal. In support of that argument, defendants state:
      50. Relevant case law dictates that a plaintiff lacking privity with the defendant cannot sustain a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) because there was no commercial activity between them. (Cited cases omitted).
      51. Therefore, the [subsequent] purchaser plaintiffs have no claim under the UTPCPL.
      (Defs.’ Mot. at ¶¶ 50 — 51). In Valley Forge Towers S. Condo, v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641 (Pa. Super. 1990) the Pennsylvania Superior Court held that “strict technical privity” was not always an element of a private cause of action under the UTPCPL, and that liability also extended to third-parties “specifically intended [by the defendant] to rely upon the fraudulent conduct, and those whose reasonable reliance was specially foreseeable.” Id. at 647. In this case, it is undisputed that the subsequent purchasers were not in privity of contract with Cutler Group. Defendants’ motion also establishes that plaintiffs may not “stand in the shoes” of their original-purchaser counterparts by way of assignment. (See discussion, supra). However, the court in Valley Forge held that contractual privity is not necessarily an absolute bar to a UTPCPL claim, and defendants have not set forth any argument — aside from a lack of contractual privity — why the subsequent purchasers’ UTPCPL claims must be dismissed. This is obviously insufficient to justify summary dismissal of the subsequent purchasers’ remaining claims, and defendants’ motion as to these claims must be denied.
      On September 22, 2014, defendants separately filed a motion for partial summary judgment to dismiss plaintiffs’ claims for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Whether plaintiffs’ remaining UTPCPL claims are subject to dismissal pursuant to that motion will be the subject of a separate order.


source: Caselaw Access Project

author: PADILLA, J.,

license: Public Domain

text:
    CMJ Sheffield, Inc. v. Pa. Liquor Control Board

      Edward B. McHugh, for appellant.

      Peter J. Yoon, for appellee.
    Oct. 17, 2014
   PADILLA, J.,

Appellant, CMJ Sheffield, Inc., appeals this Court’s denial of its statutory appeal from the final adjudication of the Pennsylvania Liquor Control Board. This adjudication denied its application for renewal of its liquor license for the term effective November 1, 2012.

FACTUAL AND PROCEDURAL HISTORY

On August 17, 2011, the Pennsylvania Liquor Control Board (“appellee”)’s Bureau of Licensing approved a Conditional Licensing Agreement (“CLA”) regarding the non-renewal of Restaurant Liquor License No. R-8510 for the license period effective November 1, 2010. See Appellee’s Findings of Fact and Conclusions of Law, ¶ 5. Said CLA placed additional conditions on the license and premises, namely that appellant should remain compliant with responsible alcohol management provisions (“RAMP”) of the Liquor Code for training and displaying appropriate signage; that appellant agreed with a citation for providing alcohol to minors; and that license would use a transaction scan device to scan the identifications of all patrons thirty (30) years of age or younger, See Appellee’s Findings of Fact and Conclusions of Law, ¶ 7.

On March 16, 2012, appellant’s RAMP certification expired. See appellee’s brief, p. 3.

On July 11, 2012, appellant renewed its RAMP certification. See appellee’s brief, p. 3.

On September 29, 2011, following the execution of the CLA, minors were sold, furnished, or given alcohol, which resulted in citation No. 12-0173. See Appellee’s Findings of Fact and Conclusions of Law, ¶ 19.

The renewal application was due on or before S eptember 2, 2012 for the licensing period beginning November 1, 2012. See Appellee’s Findings of Fact and Conclusions of Law, ¶1.

On October 29, 2012, appellant filed an untimely application for renewal. See Appellee’s Findings of Fact and Conclusions of Law, ¶ 1.

On October 31, 2012, appellee notified appellant by letter that a preliminary review of its citation history required additional review under 47 P.S. § 4-470 to determine whether the allegations of abuse of licensing privilege merited objection to the renewal application. See Appellee’s Findings of Fact and Conclusions of Law, ¶8. Though appellee conditionally approved the application, it noted the license could be revoked if certain citations were sustained by the Office of the Administrative Law Judge (“ALJ”). See Appellee’s Findings of Fact and Conclusions of Law, ¶ 8-9.

On January 13, 2013, appellee notified appellant by letter that it objected to the renewal of appellee’s license for the period effective November 1, 2012 due to the fact that the ALJ had sustained Citation Numbers 12-0400 and 12-0173. See Appellee’s Findings of Fact and Conclusions of Law, ¶ 9. A hearing was therefore scheduled to determine whether the objections should result in a non-renewal of the license. See Appellee’s Findings of Fact and Conclusions of Law, ¶9. The objections were: that Appellant had abused its liquor licensing privilege due to six (6) separate citations; that it had breached the CLA; and that the application was filed late. See Appellee’s Findings of Fact and Conclusions of Law, ¶ 9.

On August 15, 2013, a hearing was held before appéllee. At the hearing, David Kalai, co-manager of the premises since 2008 and sole manager since 2011, testified regarding past citations. Notes of Testimony, hereinafter N. T., 8/15/13 at 8-9. He stated that he was unaware that minors had entered the bar and had not been carded; he opined the bouncer must have believed that the girls had been carded. N. T. 8/15/13 at 20-21,24,26-27, 32-33, 46-47. He averred that on the night of the incident, bar servers were RAMP-trained and that one scanner was operative. N. T. 8/15/13 at 25-28,47. Following that incident, which resulted in citation No. 11 -2053, Kalai and his co-manager hired new security personnel, bartenders, and waitresses. N. T. 8/15/13 at 25-26, 59-60. Kalai testified he was not present on the night in which a BCLE raid found two (2) minors with fake identification on the premises, resulting in citationNo. 12-0173, however bartenders were scanning identification. N. T. 8/15/13 at 32-33. A new scanner was purchased and new bouncers hired following that incident. N.T. 8/15/13 at 36-37, 56-59.

Donald and Leigh Jones are, respectively, the supervisor and owner ofthe licensed premises. N. T. 8/15/13 at 62-63. Jones testified he is familiar with the citations, objection letters, and conditional licensing agreement. N. T. 8/15/13 at 65, 79-80. He offered various excuses for citations, including one for citation was his brother’s wedding and that there are “obviously loopholes in the whole ID checking system,” and that it is “common practice in [their] business” to have open bar specials and/or group packages to celebrate New Years’ Eve. N. T. 8/15/13 at 66, 70, 96-97. He stated he did not know the New Years’ events were illegal; although he had received a citation in 2008 for serving drinks at a fixed price, he felt that was “different” because it was for an NCAA basketball special. N. T. 8/15/13 at 97-99. Additionally, he felt that the New Years’ Eve events were “third party contracts” although the promotion company, while a separate entity, was still considered an agent of his. N. T. 8/15/13 at 137-138.

Although Jones understood it was his responsibility to ensure RAMP certification and compliance, he thought appellee’s counsel would handle the matter and he “lost track of time. N. T. 8/15/13 at 80-81. He stated that owner and manager training is required and because classes required travel, he “just kind of dropped the ball.” N. T. 8/15/13 at 81. He stated that RAMP training was all appellant needed to maintain its certification. N. T. 8/15/13 at 83. Following the citations Jones did fire Godfrey and bouncers, and added another scanner and upgraded camera system. N. T. 8/15/13 at 89-91, 154.

On December 18, 2013, appellee issued its final decision, denying appellant’s application for a license renewal.

On December 20, 2013, this case was commenced by timely statutory appeal.

On March 17, 2014 and April 4, 2014, this court received the certified record from appellee, including both the hearing examiner’s proposed conclusions of law and finding of fact, which recommended renewal, as well as the ALJ’s opinion. Said opinion noted the record of six adjudicated citations, the breach of the CLA and specifically for violating the provision requiring RAMP compliance, and appellant’s “inability or unwillingness to acknowledge and accept responsibility for its violations.” See appellee’s opinion at 45. The conclusions of law held that: Appellant had adequate notice of objections; that appellant had accrued six (6) adjudicated citations; that appellant had violated the CLA; that appellant had provided no justifiable reason for its untimeliness in filing its renewal application; and that appellant offered ineffective justifications for violations and took remedial measures without adequate commitment to effectuate them. See appellee’s conclusions of law at 1-7.

On May 5, 2014, appellant filed its brief, arguing that it did take substantial affirmative steps to guard against future unlawful conduct by: firing staff members; writing new policies; purchasing an additional scanner and upgrading its surveillance system; terminating the existing co-manager and hiring a new manager; and posting signage regarding service to minors. Additionally, appellant argued that the board had usurped enforcement functions delegated in the code because it ‘objected to the same incidents that were the subject matter of adjudicated citations...usurping enforcement functions specifically delegated to another Commonwealth agency, i.e. the Bureau of Liquor Control Enforcement. Finally, appellant argued that the board was collaterally stopped from denying the renewal because previous citation matters had already been adjudicated.

On June 2, 2014, appellee filed its brief, restating the procedural history and arguing that appellant’s arguments were without merit because case law specifically allowed it to consider previous adjudications; that appellant’s remedial measures were inadequate; and that the Board did not prosecute previous adjudications.

On July 10, 2014, this court heard oral argument on the merits of the case. That same day, this court denied appellant’s appeal. At the hearing, appellee argued that it made its decision not to renew the license based on six (6) adjudicated citations; the breach of the CLA; and because the application was untimely filed. Notes of Testimony, hereinafter N. T., 7/10/14 at 4. Appellee noted that one of the citations for selling alcohol to minors was six weeks after the signing of the CLA; N. T. 7/10/14 at 4-5. Other breaches of the CLA included failure to scan patrons thirty (30) years or younger and failure to achieve RAMP certification, which expired March 16, 2012, and was not renewed until July 2012. N. T. 7/10/14 at 5. Additionally, appellee argued that appellant had failed to comply with basic requirements of the liquor code, including a timely filed application and change of manager forms. N. T. 7/10/14 at 6.

Appellant argued that although the application was due September 2, 2012, it was filed prior to the expiration of its license on October 31, 2012. N. T. 7/10/14 at 11. Appellant argued that there were “tremendous amounts of mitigating facts on the record” that appellee “completely ignored,” but did not mention what those facts were. N. T. 7/10/14 at 13. Appellant argued that, regard to the citation for serving unlimited alcohol, it “thought it was a legal thing to do.” N. T. 7/10/14 at 14. It argued that because the hearing examiner recommended renewing the license, appellee was in error for finding that said license should not be renewed. N. T. 7/10/14 at 16.

On August 6, 2014, appellant filed a timely notice of appeal to the Commonwealth Court. That same day, this court issued its order pursuant to Pa. R.A.P. 1925(b), directing appellant to file its Concise Statement of Matters Complained of on Appeal within twenty-one (21) days.

On August 26, 2014, appellant filed its “statement of uncontested facts,” averring that this court erred in finding that appellant had failed to take substantial affirmative measures to prevent further violations from occurring; that this court erred in ‘failing to follow established caselaw factually analogous to the present case;’ that this court erred in considering appellant’s full citation history; that this court erred in considering citation 12-0173 because the ALJ had ‘acknowledged [appellant’s] efforts and good faith intentions;’ that this court erred in considering citation 12-0173 as a violation of the CLA; that this court erred in considering citation 12-0400 because appellant ‘held a good faith belief that the event...was lawful;’ that this court erred in failing to rule that appellee had ‘usurped enforcement functions specifically delegated in the Liquor Code to the Pennsylvania State Police; ’ that this court erred in failing to rule that appellee was collaterally stopped from denying appellant’s renewal application; and that this court erred in denying appellant’s application for renewal where Appellant had demonstrated ‘substantial affirmative steps and good faith efforts to comply’ with the Liquor Code.

DISCUSSION

On appeal, appellant raises numerous arguments in opposition to this court’s denial of his statutory appeal. However, in reviewing an appeal from an administrative decision, this court is required to affirm the decision of the agency below unless it determines that “constitutional rights were violated, that an error of law was committed, that the procedure was contrary to the statute, or that necessary findings of fact were unsupported by substantial evidence.” Colville v. Allegheny County Retirement Board, 926 A.2d 426 (Pa. 2007). As a note, this is not a “relitigation” of the citations, but an appeal from the decision not to renew appellant’s liquor license. An application for renewal may be refused “due to the manner in which this or another licensed premises was operated...” 47 P.S. § 4-470(a.l)(4).

With regard to appeals from a Liquor Board decision, this court hears the matter de novo and issues its own findings and conclusions based on the established record; it may sustain, alter, modify, or amend the board’s action even if it does not find materially different facts. U.S.A. Deli, Inc. v. Pennsylvania Liquor Control Bd., 909 A.2d 24, 26-27 (Pa. Commw. Ct. 2006). Specifically, the court may make its own findings concerning the significance of the citation history. I.B.P.O.E. of W. Mount Vernon Lodge 151 v. Pennsylvania Liquor Control Bd., 969 A.2d 642, 648 (Pa. Commw. Ct. 2009). However, the trial court may do so only where its findings are supported by substantial evidence in the record as a whole, Id.

Regarding the issue of timeliness, all applications for renewal of licenses must be filed at least sixty days before the expiration date. 47 P.S. § 4-470(a). However, the board may accept late applications nunc pro tunc upon reasonable cause shown. Id. Renewal of a liquor license is not automatic and the board may refuse to renew a license for several reasons, including because the licensee has one or more adjudicated citations. Goodfellas, Inc. v. Pennsylvania Liquor Control Bd., 921 A.3d 559, 564-565 (Pa. Commw. Ct. 2007); see also 47 P. S. § 4-470(a.1)(2). The entire record may be considered and even a single violation is sufficient grounds to decline license renewal; additionally, all past violations may be considered no matter when they occurred. Goodfellas, 921 A.2d at 564; Pennsylvania Liquor Control Bd. v. Bartosh, 730 A.2d 1187 (Pa. Commw. Ct. 1999). However, the court also has the discretion to renew a license with adjudicated violations where the licensee takes substantial steps to ensure it would operate the establishment in accordance with the liquor laws. Goodfellas, 921 A.2d at 566.

In this case, despite appellant’s arguments to the contrary, based upon the record there was no reason why this court should have overturned appellee’s decision. The case law and code are clear that all past code violations may be considered no matter when they occur. Goodfellas, 921 A.2d at 564. Additionally, the untimely filed application for renewal was not accompanied by good cause; the only explanation was that appellant “lost track of time.” Finally, the record reflects appellant’s continuing pattern of violations and cavalier attitude towards the licensing requirements. Although additional scanners were purchased and staff fired subsequent to each incident, appellant offered excuses such as “loopholes” in the ID system and that certain practices were “common in the industiy” to explain the lapses, or that its manager had lost track of time or “dropped the ball.”

Thus, despite the fact that some efforts were made towards compliance, appellant has not shown how the record reflects a violation of its constitutional rights, an error of law committed, procedure was contrary to statute, or that the findings of fact were unsupported by substantial evidence. The application was untimely filed, appellee properly considered appellant’s past citation history and conduct when denying the application for renewal, and appellant is not entitled to the relief requested.

CONCLUSION

For all of the reasons stated above, this court’s decision should be affirmed and appellant’s appeal dismissed.

      . Appellee had citations in 2008, 2010, 2011, and 2012. See appellee’s findings of fact and conclusions of law, ¶ 8. Citations issued were for various violations including failing to require patrons to vacate after the required time; service of alcoholic beverages after 2:30 a.m.; selling alcohol to minors; and selling an unlimited amount of alcoholic beverages for a fixed price. See appellee’s findings of fact and conclusions of law, ¶ 15-20.

      . Although both appellant and appellee cite to the notes of testimony from this hearing, such notes were not provided in the certified record.

      . Despite Kalai’s assertion that he was sole manager, Steven Godfrey is still listed as the board approved manager for the premises. N. T. 8/15/13 at 13-44.

      . The citations were: 08-0507: failure to require patrons to vacate the premises; 08-0899: for providing an unlimited amount of liquor for a fixed price, and selling alcohol to minors; 10-0340: selling alcohol to minors; 11-0253: selling alcohol to minors; 12-0173: selling alcohol to minors; 12-0400: providing an unlimited amount of alcohol for a fixed price. N.T. 7/10/14 at 4-5.


author: GLAZER, J.,

text:
    Arsenal Inc. v. Armada Transportation Group Ltd.

      James C. Dalton, and John K. Fiorillo, for plaintiff.

      Linda M. Hee, JohnF. Thomas, Jr. and Allen B. Dubroff, for defendants.
    Sept. 8, 2014
   GLAZER, J.,

FINDINGS-OF-FACT AND CONCLUSIONS-OF-LAW

1. Plaintiff, Arsenal, Inc., d/b/a/ Arsenal Associates (“plaintiff or “Arsenal”), is a Pennsylvania entity which owns real property known as the Arsenal Business Center, in Philadelphia, Pennsylvania.

2. Defendants Armada Transportation Group Limited (“Armada”) and Tribute Transportation Company (“Tribute”), are entities engaged in the limousine transportation business with an address in Philadelphia, Pennsylvania.

3. Profile Limousine Service, Inc., d/b/a Profile Transportation (“Profile”), a non party in the instant action, is a New Jersey company also engaged in the limousine transportation trade.

4. At all times relevant to this action, Mr. Philip E. Spitzer (“Spitzer”), a non-party herein, was “president,” “treasurer, secretary,” and “master of all trades” of profile.

5. On May 5, 1999, Arsenal and Profile executed a “lease agreement” whereby profile agreed to lease specific premises within the Arsenal Business Center. The lease agreement contained a warrant of authority enabling Arsenal to confess judgment against profile in the event of default. In addition, the lease agreement contemplated a term of three years. At the end of the period, the lease would automatically renew for another term of three years unless either party provided a written notice of termination one year prior to the end of the term. The lease agreement also specified the space actually leased to profile. The pertinent provision stated: “Lessor hereby demises and Lessee hereby hires from Lessor that certain premises situate in the Arsenal Business Center ... known as Condominium Unit # 39, calculated as 6,349 square feet....”

6. In June 1999, profile sold or transferred its business assets to tribute which was under the control of Spitzer as president thereof. Tribute was neither a party to the original lease agreement between profile and Arsenal, nor an assignee of any rights thereof; nevertheless, tribute occupied the premises at the Arsenal Business Center and regularly paid rent as required under the lease.

7. In June 2004, tribute sold or transferred its assets to Armada Transportation Group Limited (“Armada”), and entity entirely controlled by Spitzer. Armada was neither a party to the original lease agreement between Profile and Arsenal, nor an assignee of any right thereof; nevertheless, Armada occupied the premises at the Arsenal Business Center and regularly paid rent as required under the lease.

8. Armada remained in possession of the leased premises without interruption until 2011.

9. Early in 2011, Arsenal learned that Armada had expressed an intention to vacate the leased premises without providing Arsenal with a one-year notice as required under the lease agreement.

10. Upon learning of Armada’s intention, Arsenal forwarded to Armada a letter which warned Armada that termination of the lease, without the required one-year notice, would constitute a breach of the lease agreement. The letter specifically stated:

I understand from a second-hand conversation with our driver ... that you thought that your lease terminated at the end of June, 2011 and that it was your intention to vacate the building as of that date. Please be advised that the current term of your lease expires on June 30,2011, but, under the terms of your lease, you were required to give at least one year’s prior written notice for the lease to have terminated as of that date, otherwise, the lease continues for an additional three (3) year term commencing July 1,2011 and expiring June 30,2014.... If you have any questions ... please contact me.... If we do not receive a confirmation of your understanding that the lease has continued for an additional three (3) year term, we may have to take appropriate advance-legal action to protect our interests.

11. Shortly after receipt of this letter, Armada’s owner, Spitzer, held a meeting with a representative of Arsenal. The purpose of the meeting was to clarify whether Armada would be vacating the premises at the Arsenal Business Center. When asked by the Arsenal representative whether Armada would be vacating the premises, Spitzer replied: “Yeah, I will be out of here shortly.” Armada paid rent up to February 2011.

12. On or about March 31, 2011, Armada received a letter from the United States Environmental Protection Agency, Region 3, Philadelphia, Pennsylvania.

13. This letter revealed that demolition work at the Arsenal Business Center had caused a potential violation of the Clean Air Act through the possible release of asbestos particles.

14. Armada vacated the premises in late April 2011.

15. After Armada vacated, the Department of Public Health of the City of Philadelphia posted a notice at the entrance of the basement within the leased premises. The notice enjoined anyone from entering the premises’ basement without respirators and protective clothing. The basement was not part of the premises which had been leased by Armada.

16. On June 7, 2011, Arsenal filed a complaint-in-confession of judgment against profile (the “profile action”). The complaint in the profile action alleged that profile defaulted its obligations as a lessee by failing to make rental payments when due, and by vacating the premises prior to the end of the term. The complaint asserted that Arsenal was entitled to recover from profile the accelerated balance of rent, plus attorney’s commissions, for a total of $223,098.34.

17. On January 10, 2012, Arsenal also commenced the instant action (the “Armada action”). The complaint in the Armada action alleges that while profile has no assets, its “successors and/or alter ego,” Tribute and Armada, “operate as a single entity under the name profile” and have assets recoverable by Arsenal.

18. On July 10,2012, Spitzer was deposed in his capacity as owner of Armada. In the course of this deposition, Spitzer admitted that he had been packing up and had been vacating the leased premises without providing Arsenal with the required one-year notice. Spitzer explained that he did not provide any notice to Arsenal because Armada “did not have a lease” with Arsenal and therefore he had “no standing” to provide any notice of termination.

19. On January 8, 2013, profile sought Chapter 11 protection. However, the bankruptcy action was dismissed by the U.S. Bankruptcy Court for the Eastern District of Pennsylvania, on January 29, 2014.

20. On April 3, 2014, Profile filed a petition to open Arsenal’s confessed judgment.

21. By order dated August 1, 2014, this court denied as untimely the petition to open Arsenal’s confessed judgment. In its order, this court explained that the petition was denied as untimely because profile had challenged Arsenal’s complaint in confession of judgment more than two years after the complaint had been filed.

22. On August 1, 2014, this court issued another order upon Arsenal’s motion for summary judgment in the Armada action. This order granted-in-part Arsenal’s motion and explained that Armada and tribute are successors and alter-egos of profile under the doctrine of de facto merger. However, the order provisionally denied Arsenal’s portion of its motion requiring the court to assess a specific amount of damages against profile. Instead, the court stated in its order that a hearing would be held on August 18, 2014, “to determine the amount of rents due, if any, to [Arsenal].”

23. At the hearing, Spitzer testified that he had been living all along within the leased premises because his limousine business “never closed.” Spitzer explained that living at the leased premises “was a condition of [his] signing the lease.” However, neither Spitzer nor any defendant offered any evidence to support the claim that Spitzer was allowed to live within the leased premises as a condition for his signing the lease. Therefore, the court finds this testimony non-credible.

24. Spitzer also testified that he had received permission from Arsenal to make improvements upon the premises. But when cross-examined, Spitzer admitted that he had never received from Arsenal any written authorization to make such improvements.

25. Spitzer also stated that he had received written authorization from the City of Philadelphia to use the commercially leased premises as his residence; however, he failed to produce any evidence of such authorization.

26. In addition, Spitzer denied that he had already decided to vacate the premises by the early part of February 2011, Nevertheless, when pressed under cross-examination, Spitzer admitted abouttelling arepresentative of Arsenal, at a meeting held in early February 2011, that he was leaving the premises.

27. Finally, Spitzer testified that he vacated the leased premises because he felt the “threat of being evicted,” the burden of “skyrocketed” expenses, and the presence of asbestos released in the air as a result of demolition work at the Arsenal Business Center. However, when asked how he had become aware in particular of the presence of asbestos, Spitzer failed to provide a satisfactory answer and merely replied that “[w]hen... you’ve got dust in your nose and mouth and your black [limousines] are white at the end of five or six hours sitting there, it was crazy.”

28. The court finds the entirety of this testimony muddled, confusing and not credible, and concludes that defendants vacated the leased premises without providing Arsenal with a one-year notice.

29. By vacating the premises without the required one-year notice, and failing to pay rent as due for the remainder of the lease period, Armada breached the lease agreement.

30. At the hearing held on August 18-19,2014, Arsenal presented testimony and evidence to show that it incurred damages amounting to $290,565.85 as aresult of Armada’s improper termination of the lease. Specifically, the court heard testimony from Mr. Louis Hiban (“Hiban”), on behalf of Arsenal, and examined plaintiffs Exhibits 4-17.

31. The court finds the testimony of Hiban and the evidence presented by Arsenal as credible.

Arsenal is entitled to recover from defendants, as alter egos of profile, the amount of $290,565.85.

ORDER

And now, this 8th day of September, 2014, the court having granted summary judgment in favor of plaintiff Arsenal Inc. and against defendants Armada Transportation Group Limited and Tribute Transportation Company, after an evidentiary hearing held on August 18-19,2014, and consistent with this court’s Findings-of-Fact and Conclusions-of-Law issued simultaneously herewith, it is ordered that plaintiff is entitled to recover damages from defendants in the amount of $290,565.85.

      . Deposition of Philip E. Spitzer dated July 10, 2012, plaintiff’s Exhibit 20, pp. 11-20.

      . Lease agreement between Arsenal Associates and Profile Limousine Service, Exhibit A to the complaint on confession of judgment of plaintiff.

      . Id ¶ 20.

      . Id. ¶ 25.

      . Id. ¶ l.B.

      . Testimony of Philip E. Spitzer, notes of testimony dated August 18, 2014, p. 93:20.

      . Deposition of Philip E. Spitzer dated July 10, 2012, plaintiff’s Exhibit 20, p. 48:17-21.

      . Admission of Philip Spitzer, notes of testimony, volume 1, dated August 18, 2014, p. 17:16-20.

      . Letter dated February 2, 2011, plaintiff’s Exhibit P-3.

      . Deposition of Philip Spitzer dated July 10,2012, p. 164:17.

      . Checks showing rental payments for the month of February, 2011, plaintiffs Exhibit P-4.

      . Defendants’ Exhibit 2 produced at the hearing dated August 18, 2014.

      . Admission ofPhilip Spitzer, notes of testimony dated August 18, 2014 p. 103:13-17.

         Id.

      . “In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.... The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous.” Walton v. Philadelphia Nat. Bank., 376 Pa. Super. 329, 338-39, 545 A.2d 1383, 1388 (1988). In this case, paragraph l.B. of the lease agreement, when read in conjunctions with Exhibit A thereof, clearly and unambiguously provided that the Lessee was entitled to use and occupy only the first floor of the leased premises, for a total of 6,349 square feet, whereas the basement, comprising additional 3,480 square feet, was not included in the leased premises. In other words, Armada was not entitled to occupy the basement at the time the City of Philadelphia posted its warning upon the door thereof.

      . Complaint, Arsenal. Inc. v. Profile Limousine Service. Inc., case No. 1106-00221.

      . Complaint, Arsenal. Inc., v. Armada Transportation Group Limited and Tribute Transportation Company. Case no. 1201-01098, ¶¶ 17-19.

      . Deposition of Philip E. Spitzer dated July 10, 2012, plaintiffs Exhibit P-20, pp. 164:9-17,166:18-25, 167:3-11.

      . Order dated August 1, 2014, Arsenal. Inc. v. Profile Limousine Service, Inc., Case No. 1106-00221.

      . Order dated August 1, 2014, Arsenal. Inc., v. Armada Transportation Group Limited and Tribute Transportation Company. Case no. 1201-01098.

        . Id.

      . Philip E. Spitzer, notes of testimony dated August 18, 2014, p. 98:21-25, 99:1-2.

      . Id. p. 99:5-6.

      . Id. p. 108:2-5.

      . Id. p. 108: 12-13.

      . Id. p. 110:14-18.

      . Id. p. Ill: 18-23. See also deposition of Philip E. Spitzer dated July 10,2012, plaintiff’s Exhibit P-20, p. 164-166.

         Id. p. 118:15-25,119:1-5.

      . Id.p.l19:24-25,120:1-5.

      . “The findings of a trial judge in a non-jury trial are given the same weight and effect as a jury verdict such that the court’s findings will not be disturbed on appeal absent an abuse of discretion, error of law, or lack of support in the record. L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard. Inc., 2001 Pa. Super. 131, 111 A.2d 1090, 1092 (Pa. Super. 2001).

      . “A party claiming breach of contract must establish (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Ruthrauff. Inc. v. Ravin. Inc., 2006 Pa. Super. 352, 914 A.2d 880, 888 (Pa. Super. 2006). In this case, Arsenal has easily established each element listed above.

      . L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard. Inc., 2001 PA Super 131, 777 A.2d 1090, 1092 (Pa. Super. 2001), see footnote 30, supra.

      . The determination of damages is a factual question to be decided by the fact-finder.... The fact-finder must assess the worth of the testimony, by weighing the evidence and determining its credibility ... and by accepting or rejecting the estimates of the damages given by the witnesses. Delahanty v. First Pennsylvania Bank. N.A., 318 Pa. Super. 90, 117; 464 A.2d 1243, 1257 (Pa. Super. 1983).

      . See order dated August 1, 2014 granting-in-part plaintiff’s motion for summary judgment, finding herein defendants liable to plaintiff, and scheduling an evidentiary hearing for a determination of the amount of damages recoverable by plaintiff.


author: HODGE, J.,

text:
    Matthews v. Fitzpatrick

      C.P. of Lawrence County,
    No. 10272 of 2014, CA

      Pro se plaintiff.

      Pro se defendant.
    Oct. 29, 2014
   HODGE, J.,

Before the court for disposition is plaintiff’s request for primary physical custody of the parties’ minor children, bom October 6, 2004 and born February 9, 2008.

By way of background, the plaintiff, Tanetta Matthews (hereinafter, “mother”), and the defendant, Tyshaan Fitzpatrick (hereinafter, “father”) are the natural parents of the two minor children. Mother and father were never married, but had an extensive relationship beginning in 2002 and ending in 2012. During the course of the parties’ relationship, the minor children were bom. Mother and father were both actively involved in caring for the minor children during their early childhood. In April of 2009, father began a year sentence for a dmg related charge in a state penitentiaiy in Ohio. Mother served as the children’s primary caregiver during father’s incarceration. When father was released in 2010, mother moved to McKees Rocks, Pennsylvania. The children remained with father in New Castle, Pennsylvania. On March 14, 2014, Mother filed a new complaint for custody, notwithstanding the fact that a prior custody action was initiated in the Court of Common Pleas of Lawrence County at Case No. 10768 of 2006, Civil Action. The parties appeared before the Custody Conciliation Officer on April 4, 2014, but were unable to reach an agreement regarding primaiy custody of the minor children. On October 22, 2014, the parties were before this court for a hearing on mother’s request for primaiy custody.

In any custody proceeding, the court’s main concern is the most appropriate custody arrangements for the minor children, 23 Pa.C.S.A. §5327(a); K.B. v. C.B.F., 833 A.2d 767, 771 (Pa. Super. 2003). In a custody contest, such as the case now before the court, where the dispute arises between two parents, the burden of proof is shared equally between the parties, as the court will not presume that custody should be awarded to a particular parent. Id.

In making a determination, the court bases its findings on how the best interests of the child may be served. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). It is axiomatic that the paramount concern in a child custody case is the best interests of the child, and the court makes its determination based upon a consideration of all factors legitimately affecting the child’s physical, intellectual, moral and spiritual well being. Id. Specific factors that a court must consider are set forth in 23 Pa.C.S.A. §5328(a); see also B.K.M. v. J.A.M., 50 A.3d 168 (Pa. Super. 2012) (holding that “best interests of the child” analysis requires consideration of all Section 5328(a) factors). The court will address each of these factors in the following discussion.

(1) Which party is more likely to encourage and permit frequent and continuing contact, between the children and the other party.

Father and mother both encourage and permit contact between the other party and the children. When father has custody of the children, father permits mother to have frequent contact with the minor children when she is in town and available. Father believes that the children enjoy seeing their mother during the weekdays, and father encourages this contact even if it is during his custodial time. When mother has the children-on the weekends, father does not interfere with mother’s custodial time.

Mother did testify to the fact that father will sometimes come to her residence on Sunday evenings to pick up the children at a late hour, specifically after midnight. Mother stated that when this occurs, mother does not permit father to retrieve the children because she does not want to wake them. However, when this occurs during the school year, the children will be late for school the following Monday or be absent altogether. The court is not confident in how frequently this occurs, but the court will direct in the corresponding order of court that custody exchanges take place at a more appropriate time.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the children or an abused party and which party can better provide adequate physical safeguards and supervision of the children.

There is insufficient evidence to warrant a present finding of abuse by either party against the other. Father did make allegations regarding mother’s relationship with her current boyfriend. Father contended that mother and her boyfriend fight in front of the minor children, and that their fighting causes him some concern. Mother denies these allegations.

(3) The parental duties performed by each party on behalf of the children.

The history of this case clearly establishes that both mother and father are capable of performing all the necessary tasks associated with raising the minor children. During the course of the children’s lives, mother and father have each assumed the role of the primary caregiver for extended periods of time.

(4) The need for stability and continuity in the children’s education, family life and community life.

The minor children have consistently lived in the residence currently occupied by father. They attend the Union Area School District, and have strong connections to their, community. Mother’s request for primary custody would remove the children from their present location and place them in an unfamiliar school district, where they would not have the benefit of their paternal family, whom they are accustomed to being around. Furthermore, if mother were awarded primary custody, the mother would have to make arrangements to have the children placed in day care during periods of time when she worked. The children would lose the benefit of their family and secure home life they presently enjoy. Therefore, the court concludes that the current custody arrangement, where father serves as the primary caregiver, promotes the most stable lifestyle for the minor children.

(5) The availability of extended family.

Both mother and father testified to having extended family available to help care for the minor children. Mother takes great issue with the fact that father relies heavily on the parental grandparents to help him care for the minor children at the present time. Mother believes that the paternal grandmother is raising the children, and argues that, as the natural parent, she is better suited to raise the children.

Alternatively, father testified that he performs the majority of the parental duties on a daily basis. He admittedly relies on his parents to assist him with the minor children, and watch the children when he is working or otherwise unavailable. Father believes that his support system is appropriate. Father stated that his family is actively involved in raising not only his children, but also the children of his siblings. Father stated that this arrangement only supports his contention that he has a stronger support system to care for the minor children.

(6) The children’s sibling relationships.

The minor children are close siblings. They have consistently lived together as brother and sister. Any custodial arrangement would have to foster the children’s relationship by keeping them together.

(7) The well-reasoned preference of the children, based on the children’s maturity and judgment.

The children did not testify in these proceedings. Therefore, the court will not consider this factor in its determination.

(8) The attempts of a parent to turn the children against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the children from harm.

The testimony presented did not include evidence to support a finding regarding a party’s attempt to turn the children against the other parent. The court will not consider this factor in its determination.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the children adequate for the children’s emotional needs.

*and*

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the children.

The court considers factors nine and ten concurrently because the analysis under each element is consistent.

Both mother and father present themselves as loving and nurturing parents. Mother and father each want to maximize their time with the minor children so that they can attend to the children’s daily needs. Mother’s request for primary custody is premised upon her desire to play a more influential role in the children’s daily lives and upbringing. Father expresses a similar desire.

Furthermore, each parent testified to the fact that mother tries to make herself available for the minor children as much as possible during the week. Father encourages this contact, and mother frequently takes advantage of these opportunities. Despite the parties’ inability to communicate, it is very clear to the court that mother and father demonstrate a sincere desire to be available for the children as much as possible.

(11) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the children.

Similar to the court’s analysis in the ninth and tenth factors, the court believes both mother and father are likely to attend to the children’s physical, emotional, developmental and educational needs of the children.

(12) The proximity of the residences of the parties.

The parties reside approximately one hour apart. They live in different school districts. While the court does not believe the distance between mother’s residence and father’s residence creates a substantial impairment to either party’s ability to exercise custody, it does require the court to award mother or father primary custody during the academic year.

(13) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

The court is satisfied that both parties are able to care for the minor children. Father relies on his extended family to assist him with the children, and mother acknowledged the necessity of day care if she were awarded primary custody. While the court prefers to see the children cared for by a parent or family member, the court does not discredit mother’s alternative given her work schedule. The court just believes that its in the children’s best interest to maximize the time spent with parents and family versus day care. Additionally, the court gives mother great credit for consistently visiting with the minor children during the weekdays. Mother consistently tries to make herself available, and mother’s actions are a testament to her sincere desire to care for her children.

(14) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

There is a high level of conflict between the parties. Mother and father exhibit a complete inability to communicate, even regarding issues involving the minor children. For this reason, the corresponding order of court shall require the parties to attend co-parenting counseling.

(15) The history of drug or alcohol abuse of a party or member of a party’s household.

Mother has no history of drug or alcohol abuse. Father has a prior drug conviction, and served a one-year sentence for his conviction. Father stated that when he was released, he made the decision to assume a different lifestyle and began attending barber school. The court finds father’s testimony to be credible given his forthcoming testimony and sober appearance before the court. The court will not discredit father for his past conviction, given the fact that father has attempted to make a better life for himself and his family.

(16) The mental and physical condition of a party or member of a party’s household.

Mother and father did not present any evidence to this court that questioned the mental and physical condition of the opposing party. Mother and father both appear physically healthy and emotionally stable. Therefore, this factor will not be included in the court’s determination.

After considering each of the statutory factors, the court finds that it is in the minor children’s best interest to remain in the primary custody of father during the academic year. The court bases its determination on the fact that the minor children have consistently lived in their’ present community and are excelling in their current situation. Despite mother’s beliefs, the court finds no fault in mother’s decision to move to McKees Rocks, Pennsylvania. In fact, the mother has made herself available to the minor children on a consistent basis, and this fact helps provide the children additional security in their daily lives. If Father and mother overcome their communication barriers, the court strongly believes that the children will continue to thrive and excel with the positive support of both mother and father.

Given the foregoing analysis, the court will enter the following order of court, denying mother’s request for primary custody, and implementing a custody order consistent with the prior order of court.

ORDER OF COURT

And now, this 29th day of October, 2014, with this case being before the court on plaintiff’s request for primary physical custody, with the plaintiff and defendant each appearing pro se, and after a hearing held, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. The plaintiff, Tanetta Matthews, and the defendant, Tyshaan Fitzpatrick, are awarded shared legal custody of the minor children, born October 6, 2004 and bom February 9, 2008. Legal custody is the legal right to make major decisions affecting the best interest of the children. Major decisions affecting the children include, but are not limited to, health, medical, dental, orthodontic, mental health treatment and/or counseling, education, religious training and upbringing. Except in the case of medical or mental health emergencies, the custodial party shall consult with the non-custodial party. Shared legal custody does not give one party final authority in the event of a dispute. The parties shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/or releases for school reports, medical reports, mental health and/or counseling reports, insurance documents and documents required by state, local or federal authorities. Both parties shall have the right to obtain and review all information records of the children, including medical, dental, psychiatric, educational, and religious record and documents, in accordance with 23 Pa.C.S.A. §5309. The parties shall not enroll the children into curricular or extra-curricular activities without prior notice to and consent from the other party. The parties shall keep the other informed of the children’s activities, school events and medical appointments. The parties shall keep the other notified of all important issues regarding the minor children. This order shall serve as a release to any medical, mental health and counseling, educational or religious provider to release reports/information to all parties. Pursuant to 23 Pa.C.S.A. §5336, all parties have access to the children’s records and information.

2. Defendant/father is awarded primary physical custody of the minor children subject to the partial custody rights of plaintiff/mother as outlined below. The custodial party has the obligation to foster and encourage a healthy relationship between the minor children and the non-custodial party.

3. The plaintiff/mother shall have partial custody of the minor children every weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.

4. The party retrieving the minor children is responsible for providing transportation. Father shall retrieve the minor children on Sunday evenings at 6:00 p.m. If father is not available at that time, he must provide advance notice to mother regarding what time he will be picking up the minor children.

5. During the summer months, the aforementioned custody schedule shall alternate with plaintiff/mother enjoying primary custody during the weekdays and defendant/father enjoying partial custody on the weekends.

6. The custodial holiday schedule shall occur as mutually agreed upon by the parties.

7. Transportation may be provided by a family member or someone well known to the children. However, the court strongly encourages the plaintiff and the defendant to personally effectuate all custody exchanges. All parties and anyone else involved with transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania, including those regarding child safety restraint apparatus in any vehicle used to transport the children.

8. The parties are additionally directed to contact Mr. Brian Dick, LPC of Family Pathways/Kids In Common, 1001 East Washington Street, New Castle, Pennsylvania 16101 to commence co-parenting/communication counseling within twenty (20) days from the date of this order of court.

9. The parties may modify the terms of this custody order as they both agree from time to time. One party shall not modify these provisions without the consent of the other.

10. The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter and to comply with all provisions contained in the order(s). All communications regarding custody issues shall take place directly between parties, never using the minor children as an intermediary.

11. While in the presence of the children, the parties shall not make any remarks or do anything which can in any way be construed as derogatory or uncomplimentary to the other, and it shall be the duty of all parties to uphold the other party as one whom the children should respect and love. To the extent possible, each, party shall not permit any other person to make derogatory comments in the presence of the children. Each party shall refer to the other by the appropriate role names, such as mom, dad, your grandmother, etc.

12. Lawrence County retains jurisdiction of this custody case. Neither party shall remove the children from the jurisdiction of this court with the intent of changing the physical residence of the children without the written consent of the other party or approval of the court. No relocation, as defined in Title 23 Pa.C.S.A. §5322, with the minor children, shall occur without the consent of every person who has custodial rights to the minor children, or without approval of the court. Any person desiring to relocate with the minor children must comply with the obligations of Title 23 Pa.C.S.A. §5337, including, but not limited to, providing the required’ sixty-day notice.

13. This order of court supersedes all prior custody provisions in the above captioned case. All previous custody orders are null and void.

14. The parties shall abide by the terms of the appendix attached hereto, incorporated herein, and made a part hereof. The parties shall read the appendix immediately and shall familiarize themselves with the provisions contained therein.

15. The parties are obligated to notify the Prothonotary of Lawrence County of any change in address.

16. The prothonotary shall be responsible for properly serving a copy of this order of court and opinion upon all counsel of record; upon any unrepresented parties in this action in accordance with Pa.R.C.P. No. 236, and Rule L 236 and Mr. Brian Dick, LPC.