author: DOZOR, J.,

text:
    White v. Waller

      Jeffrey R. White, pro se petitioner

      Finncourt Shelton, for respondent
    September 11, 2013
   DOZOR, J.,

NATURE AND HISTORY OF THE CASE:

This appeal is considered a direct appeal from this court’s July 11, 2013 order providing petitioner/appellee with a protection from abuse (PFA) order against respondent/appellant. On August 7, 2013, appellant filed the instant appeal, the nature and history of the case is as follows:

Appellee filed for a petition for a PFA on June 12, 2013. Following a hearing, held on July 11, 2013, a temporary PFA was issued by the Honorable Ann A. Osborne. Appellee was notified that that a hearing would be scheduled for June 20,2013 and that appellant must be served with a copy of the PFA petition and order. A review of the record reveals that the June 20, 2013 PFA hearing was continued to July 11,2013 by the Honorable Spiros E. Angelos. On July 11, 2013, both parties appeared before this court, appellee was self-represented and appellant was represented by her current counsel. Following an evidentiary hearing that was held on July 11, 2013, the undersigned trial court issued a final PFA order. The final PFA order is the standard final PFA order Issued by judges in the Court of Common Pleas In Delaware County, which states that appellant shall not “abuse, harass, stalk, threaten any of the above persons in any place where they might be found,” and that appellant, shall not contact appellee, or any other person protected under this order, by telephone or by any other means, including third persons.” This final order Is in effect from July 11, 2013 until December 31, 2013.

On August 7, 2013 the instant appeal by appellant followed. Appellant’s concise statement of matters complained of on appeal, alleges the following areas of error:

1. That the issuance of the PFA was contrary to the evidence presented in open court.
2. The issuance of the PFA was contrary to the current case law in the Commonwealth of Pennsylvania.

FACTS:

Jeffrey White, petitioner/appellee, is an officer with the Colwyn Borough Police Department, who resides in Philadelphia, Pennsylvania and who had dated, respondent/appellant, Yolanda Walker. Yolanda Walker is a resident of Lansdowne, Pennsylvania. Appellee testified that he was dating appellant and last saw her a week before the incident on March 14, 2013. Appellee testified that although they had not seen each other in a week, appellant had been telephoning appellee. At first the telephone calls were about appellant just wanting to speak with appellee. The telephone calls between the parties then turned to arguing and “it just started getting worse and worse,” according to Appellee. [N.T., July 11, 2013, pgs. 7-8].

On March 14, 2013, while appellee was working, as a Colwyn Borough Police Officer, in full uniform and while in a marked police vehicle, appellant made contact with appellee. Appellant was in her parked vehicle with the window rolled down. As appellant was finishing the police call he was working on, he was “cursed out” by appellee. [N.T., July 11, 2013, p. 6]. Appellee was also called a few derogative names by appellant. [N.T., July 11, 2013, p. 8]. Appellee told appellant to stop harassing him and following him around.

Appellee then proceeded to his marked police vehicle and left the area en route to another police call. As appellee was leaving one police call and heading to back up another police officer, appellant followed appellee’s marked patrol vehicle which he was operating with full lights and sirens at the time. [N.T., July 11, 2013, p. 6]. Appellant followed appellee through stop signs. As appellee was being followed by appellant, appellee telephoned his corporal, informing her of the situtation. As appellee was driving, with appellant following him, the corporal arrived in the area and began driving with appellee’s and appellant’s vehicles. Appellee was instructed by his superior officer (the corporal) to make certain turns, appellant continued to follow appellee’s marked police vehicle, which had its lights and sirens activated. Appellant continued to follow appellee’s marked patrol vehicle, with appellee continuing to disregard traffic safety devices in her pursuit of and her harassing of appellee.

The corporal, with lights and sirens activated, attempted to conduct a traffic stop of appellant’s vehicle; however, appellant failed to yield to the lights and sirens of the corporal’s police vehicle. Appellant failed to yield to the marked police vehicle with active lights and sirens, driven by the corporal through several boroughs: Colwyn, Darby, Yeadon and nearly into Lansdowne, before ultimately stopping her vehicle. When appellant finally stopped her vehicle there were four marked patrol vehicles that were in pursuit of appellant and these four police vehicles were necessary in assisting the Colwyn Corporal in effectuating the traffic stop. As a result of her actions on March 14, 2013, criminal charges were filed against appellant and she was found guilty of harassment and a motor vehicle violation related to her vehicle not being properly insured. This court was not provided with any documentation, by either party, related to these criminal charge and motor vehicle violations. This court notes that appellant did not provide any testimony or evidence to refute appellee’s testimony relative to the criminal charges and motor vehicle violations or their outcome.

This court notes that attached to appellee’s petition for a PFA is a copy of the Colwyn Borough Police Department’s incident report related to the March 14, 2013 incident. Corporal Hayes’ incident report confirms appellee’s testimony regarding the incident and appellant’s actions on March 14, 2013.

This court notes that there is a supplemental narrative, written on May 1, 2013 by another Colwyn Borough Police Officer. This May 1, 2013 incident report relates that appellant approached this Colwyn. Borough Police Officer regarding the complaint filed by Corporal Hayes and the March 14, 2014 incident.

Appellee credibly testified that appellant had gone, on at least three occasions, to the Colwyn Borough Mayor, as well as to the borough secretary and various other employees and police officers in the Colwyn Borough disparaging appellee’s name. Appellant approached another Colwyn Police Department Corporal In front of the Colwyn Borough Police Department and when appellant saw appellee, she pointed to him and said, there goes that “no good bastard.” Appellant also confronted appellee at the Colwyn Borough Police Department, again cursing him out and calling appellee a “fucking bastard.”

The court found appellee’s testimony credible and the testimony of appellee was not rebutted or denied by appellant.

DISCUSSION:

Appellant’s allegations of error are that the trial court erred in granting a final protection from abuse order because there was not sufficient evidence to issue the order and that the issuance of that final PFA order was contrary to the law of the Commonwealth of Pennsylvania. Specifically, appellant alleges that the evidence was insufficient to issue a final PFA order because appellee did not present evidence or proof of injury, or a continued course of conduct, and that the testimony elicited on July 11,2013 or contained in the complaint does not fall within the scope of the law. Appellant also alleges that the PFA order is contrary to the law, 23 Pa.C.S.A. Section 6102 et seq., since there was no emergent need for appellee to request or be issued a temporary or final PFA order, because the incident occurred on March 14,2013, ninety (90) days before PFA order was sought, appellant alleges that the testimony presented by appellee was “un-believable.” Appellant alleges that appellee’s actions in seeking the PFA are pre-textual to protect himself and Corporal Hayes from their illegal police activity.

It is well settled in the Commonwealth of Pennsylvania case law that when a sufficient of the evidence claim is raised on appeal the evidence is weight “In the light most favorable to the petitioner and granting [him] the benefit of all reasonable inference, [to] determine whether the evidence was sufficient to sustain the trial court’s conclusion by a preponderance of the evidence.” Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999) (quoting Miller on Behalf of Walker v. Walker, 445 Pa. Super. 537, 665 A.2d 1252, 1255 (1995)).

When reviewing an appeal that challenges the sufficiency of the evidence, the appellate court must determine whether the evidence was sufficient to sustain the trial court’s conclusions by a preponderance of the evidence. The preponderance of the evidence standard is “defined as the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence.” Mescanti v. Mescanti, 2008 PA Super 201, 956 A.2d at 1020 (quoting Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (citation omitted).

Appellant also alleges that this court’s granting of a final PFA order was contrary to the law of the Commonwealth of Pennsylvania. When reviewing a trial court’s actions in a PFA case, the appellate court is to review the presiding trial court’s legal conclusions for an error of law or abuse of discretion. Ferko-Fox v. Fox, 2013 PA Super 88, 68 A.3d 917, 920 (2013); Commonwealth v. Walsh, 36 A.3d 613, 617 (Pa. Super. 2012); Lawrence v. Bordner, 907 A.2d 1109, 1112 (Pa. Super. 2006). In Commonwealth v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 (2000), the Pennsylvania Supreme Court defined “abuse of discretion” as follows:

The term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, with the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85 (1993)); Custer v. Cochran, 933 A.2d 1050, 1053-54 (Pa. Super. 2007) (enbanc); Mescanti v. Mescanti, 2008 PA Super 201, 956 A.2d 1017, 1019 (2008).

This court will address all these issues as one, since they are interrelated. This court notes that the ultimate purpose of the PFA Act is the protection of victims from continued victimizations. The PFA Act, unlike the certain criminal statutes, does not provide for a protected class of citizens, i.e. police officers. Rather, the PFA Act simply provides protections for persons who had or have certain types relationships with the alleged abuser. In this case, appellee and appellant were “current or former sexual or intimate partners,” having been girlfriend/boyfriend around the time of the first incident on March 14, 2013. The PFA Act defines abuse as follows:

The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.
The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).

23 Pa.C.S.A. §6102(a)(2) and (5).

In this case, there is no dispute that appellant and appellee were persons who were protected under the PFA Act and that appellee could have been issued a PFA based upon their status of “sexual or intimate partners.” The sole issue then remains, does appellant’s actions rise to the level which required protection under the PFA.

Appellant alleges that the conduct testified to during the PFA hearing on July 11, 2013 and contained within the PFA petition provides “no proof of a continued course of conduct,” and as such the contact on “5/1/13 was not harassment.” See appellant’s concise statement of matters complained of on appeal, ¶2. However, what appellant fails to acknowledge is that her conduct of March 14,2013 or May 1, 2013 alone is not the issue in this case. Rather, this court was able to consider appellant’s harassing actions regarding appellee that began before March 14, 2013, when appellee began telephoning appellant. Those harassing actions continued on March 14, 2013 when she confronted appellee while he was on duty as a police officer who was operating a marked police vehicle with active lights and sirens and continued to follow him, despite the fact that appellant was engaging in criminal behavior while doing so, i.e., committing traffic violations and stalking and/or harassing appellee. Appellant’s actions on March 14, 2013 were such that appellee was in reasonable fear for his safety such that appellee telephoned for assistance while appellant was following him and committing motor vehicle violations. If following appellee who was in a marked patrol vehicle with active lights and sirens was not enough of a reason for appellee to fear for his safety, appellant continued her actions when the corporal arrived on scene.

Appellant failed to stop her pursuit of appellee when the corporal arrived on scene and she continued her pursuit while the corporal’s vehicle had its lights and sirens activated. When appellant still did not stop her pursuit of appellee, the corporal then required the assistance of at least four other marked police vehicles before appellant stopped her vehicle.

Appellant’s actions were such that they led to criminal charges and a guilty verdict. This court notes that appellant’s own trial counsel admitted in open court on July 11,2013, that she committed the crimes in which she was found guilty. [See N.T. p. 21].

Appellant’s harassing actions continued when she approached members of the Borough regarding the March 14, 2013 incident, when those borough employees were not in a position to handle her complaints and appellant’s actions continued through May 1, 2013. Appellant also approached another Colwyn Borough Police Officer to complain about the criminal charges that were filed in relation to the March 14, 2013 Incident. Appellant went to another corporal in' the Colwyn Borough Police Department to complain about appellee, appellant and the corporal were standing on the steps of the police station and when she saw appellee, she pointed at him and called Appellee a “no good” or “fucking bastard”. [See N.T. p. 12].

It is also well settled that when a PFA petition is filed, there need not be an accompanying police report and that the PFA court is free to believe a petitioner’s testimony alone. Custer v. Cochran, 2007 PA Super 290, 933 A.2d at 1058 (citing Hood-O’Hara v. Wills, 873 A.2d 757, 760 (Pa. Super. 2005)). This court notes that upon listening to the testimony of appellee and the arguments of appellant’s counsel, since appellant did not provide this court with any testimony of the evidence to contradict appellee’s testimony, this court was tasked with rendering a determination of appellee’s credibility. During the July 11,2013 PFA hearing, this court was able to view the appellee’s facial expressions and mannerisms, which is critical for the PFA court to render its credibility determinations. Based upon a review of the PFA petition that was filed, which included a police incident report regarding the day in question and upon hearing the testimony from appellee/petitioner regarding appellant’s actions prior to March 14, 2013, on March 14, 2013, on May 1, 2013 and all the other information provided to this court regarding appellant’s actions towards appellee, this court determined that appellee/petitioner was credible in his testimony. This court notes that during the July 11, 2013 Hearing this court states “her actions that day, following him, following him and following him — and I believe that’s credible testimony’s credible — rises to the level of abuse.” [See N.T. p. 21]. Appellant’s trial counsel’s response was “Very good, Your Honor. I don’t dispute that.” [See N.T. p. 21]. Trial counsel’s sole issue is “he waited 90 days to file something [sic the PFA]” [See N.T. p. 21]. As in all cases where an appeal is taken, the appellate court will defer to the credibility determinations of the trial court as related to the witnesses who appeared before the trial court.

In the case, sub judice, the court in granting the PFA determined that the sole witness, appellee, provided credible testimony that the course of conduct exhibited by appellant provided appellee with a reasonable fear of his safety. And this court notes that, trial counsel did not dispute on July 11,2013, that appellee was not credible nor did trial counsel dispute that appellant’s actions rose to the level of abuse, the sole issue of the July 11, 2103 hearing was did appellee wait too long to file for a PFA. This court has thoroughly researched this issue and has determined that in cases where there is a course of conduct which rises to the level of a PFA being granted, there is no statute of limitation in filing a PFA.

The facts and circumstances in this case, as summarized above, provided this court with ample evidence that appellee was a protected person under the PFA Act and that appellant engaged in a course of conduct against appellee such that a final PFA order was required.

The appellate court must consider the sufficiency of the evidence in the context of a PFA in determining that this court properly concluded that the evidence was sufficient to establish that appellant “knowingly engaging in a course of conduct or repeatedly committing acts toward” appellee another person, including “following [Appellee] without proper authority,” and that appellant’s actions placed appellee in reasonable fear of bodily injury. See 23 Pa.C.S.A. §6102(a) (5) and see Thompson v. Thompson, 2008 PA Super 285, 963 A.2d 474, 478 (Pa. Super.2008); McCance v. McCance, 908 A.2d 905 (Pa. Super.2006). Applying the proper standard of review, the appellate courts must determine that the evidence, when considered in the light most favorable to the appellee supports the PFA court’s determination that appellant’s conduct has created a reasonable fear of bodily harm and as such there is no error in the PFA court’s determination.

The testimony presented at the PFA hearing, as discussed herein, establishes, by a preponderance of the evidence that appellant knowingly engaged in a course of conduct or repeatedly committing acts towards appellee, including following appellee, without proper authority, under circumstances which place appellee in reasonable fear of bodily Injury. Further, this court did not err in rendering a determination that the appellant acted in a manner such that appellee was in reasonable fear for his safety and that a PFA was necessary to ensure appellant’s harassing conduct would not continue.

CONCLUSION:

For all of the foregoing reasons, the trial court’s order dated June 11, 2013 which granted petitioner/appellee’s petition for a protection from abuse order against respondent/appellant should be affirmed.


source: Caselaw Access Project

author: FOX, J.,

license: Public Domain

text:
    Morris v. Davis Giovinazzo Construction Company, Inc.

      Edward J. Morris, for appellant.

      Anthony P. Tabasso, for appellee.
    July 2, 2013
   FOX, J.,

Pursuant to the Superior Court’s April 4, 2013 order, this court supplements its prior opinion in this matter. Specifically, this opinion is to address why Susquehanna Banks’ failure to file a petition within thirty days of the November order did not render the entire November 10, 2011 order (including the grant of Susquehanna’s petition to intervene) a nullity.

FACTS and PROCEDURAL HISTORY

In 2006, Susquehanna made loans and agreed to extend a line of credit to Davis-Giovinazzo Construction Co. (DGC). The loan and line of credit agreements were secured by a security agreement and a UCC-1 financing statement covering, inter alia, all of DGC’s receivables. DGC failed to repay the loans, and on June 16, 2008, Susquehanna confessed judgment against DGC in the amount of $17,079,732.52 plus interest. DGC owed money to several parties including plaintiff, who previously obtained a judgment against DGC for unpaid legal services in Montgomery County. Plaintiff transferred the judgment to Philadelphia on June 9, 2008. In the meantime, Domus, a general contractor on several large projects, hired DGC as a masonry subcontractor. At the time plaintiff transferred his judgment to Philadelphia, Domus owed DGC a significant amount of money. In an attempt to collect on the judgment, plaintiff garnished from Domus $41,150, the amount of his judgment plus interest. Susquehanna Bank had a first lien on the Domus account receivable. Domus paid the funds to plaintiff, despite requests from Susquehanna not to do so. On March 19, 2009, when Susquehanna learned that Domus had transferred the funds to plaintiff, it filed an emergency petition to intervene and to freeze the funds. In response, this court ordered that all funds paid to plaintiff by Domus be frozen pending further order. Meanwhile, DGC wished to collect the money that Domus owed it, and in June 2008, it filed a demand for AAA arbitration. On April 5,2010, a panel of arbitrators ordered Domus to pay DGC $757,174.00 plus a portion of the arbitrators’ administrative fees. Shortly thereafter, Domus filed an action in the United States District Court for the Eastern District of Pennsylvania alleging that multiple parties had claimed priority to the money it owed to DGC. Domus, Inc. v. Davis-Giovinazzo Construction Co., Inc. et al., E.D.Pa. No. 10-1654. The District Court issued an order awarding the entire amount of the interplead funds to Susquehanna because it held a perfected security interest in all of DGC’s accounts receivable. In September 2011, Susquehanna notified the Philadelphia Court of Common Pleas of the District Court’s decision. In response, the court entered the following order:

And now, this 10th day of November 2011, upon consideration of the Petition to Intervene filed by Susquehanna Bank, the response thereto, and after a hearing and review after a review of supplemental pleadings, it is hereby ordered and decreed that the Petition is granted and Susquehanna Bank is permitted to intervene in this matter.
It is further ordered that pending further order of the court, Edward J. Morris, P.C., shall retain possession and not disperse and/or transfer the $41,500.00 in funds he received from Domas [sic], Inc., pursuant to a garnishment. Intervenor, Susquehanna Bank is granted leave of thirty (30) days from the docketing of this order to file an appropriate motion to request distribution of the funds retained by Edward J. Morris, P.C., consistent with this order. Failure to file such a petition within the thirty days designated shall result in dissolution of this order.

Trial court order, 11/10/11. Susquehanna Bank did not file its petition to distribute funds until eight days later. This court granted the petition. Plaintiff filed an appeal in which every issue raised pertained to this court decision to grant Susquehanna’s petition to distribute the funds S even though it filed fifty days beyond the time limit set by the court. The Superior Court remanded this matter back for this court to address why Susquehanna’s delayed filing did not preclude the court from granting relief to Susquehanna.

DISCUSSION

This court’s November 10, 2011 order did not preclude the court from granting the relief requested by Susquehanna because there is no time limit on Intervention other than it must be during the pendency of an action. Pennsylvania Rule of Civil Procedure 2327 provides that aperson “shall be permitted to intervene” in an action where the action “may affect any legally enforceable interest of such person.” Pa. R. Civ. P. 2327(4) (emphasis added). There is no question that Susquehanna’s lien is a “legally enforceable interest” that warranted its intervention. Courts regularly allow third parties to intervene in judgment execution proceedings to protect their interests. See, e.g., Deutsch, Larrimore & Famish, P.C. v. Johnson, 791 A.2d 350, 351 (Pa. Super. Ct. 2002). It is well established that a “question of intervention is a matter within the sound discretion of the court below and unless there is a manifest abuse of such discretion, its exercise will not be interfered with on review.” Darlington v. Reilly, 363 Pa. 72, 76, 69 A.2d 84, 86 (1949). Jackson v. Hendrick, 498 Pa. 270, 446 A.2d 226 (1982); Templeton Appeal, 399 Pa. 10, 159 A.2d 725 (1960). Here, since Rule 2327 does not permit the court from placing a time limit on a petition to intervene, the 30 day language of the order is unenforceable unless plaintiff takes some action. Instead of making the appropriate filing with the court, plaintiff disbursed the funds to himself with out notifying either the Susquehanna or this court. Therefore, since The time limit set by the court in its original order was to resolve the motions pending at that time by imposing a deadline. Neither party took any action regarding the funds at issue, the debt or the pending action. This court considered Susquehanna’s a new petition in which the relief requested is allowed under the Rules of Civil Procedure. The deadline imposed in this court’s order of November 10, 2011, was not intended to prevent either party from seeking further relief from the court but to bring closure to a pending motion. For these reasons this court did not deny Susquehanna’s Petition as “untimely” but reviewed it, and the response, on the merits.


author: NEALON, J.,

text:
    Brogan v. Rosenn, Jenkins & Greenwald, LLP

      Michael J. Kenny, for plaintiffs.

      James J. Wilson, for defendants Rosenn, Jenkins & Greenwald, LLP and David F. Chuff.

      David R. Cherundolo, for defendants SBP Abstracting and Anthony J. Popeck.

      Stephen G. Bresset, for defendant Conestoga Title Insurance Co.
    July 5, 2013
   NEALON, J.,

ORDER

In their latest motion to compel discovery, plaintiffs, Thomas Brogan and Wendy Brogan (“the Brogans”), seek access to the “original” records and “digital files” of defendant, Conestoga Title Insurance Company (“Conestoga”). Oral argument on the Brogans’ discovery motion was conducted on July 3, 2013, at the conclusion of which this matter was submitted for a decision.

As previously noted, this “relatively straightforward and uncomplicated” case involves the Brogans’ claims against their former counsel, David F. Chuff (“Chuff’) and Rosenn, Jenkins & Greenwald, LLP (“Rosenn”), and title searcher, Anthony J. Popeck (“Popeck”), who allegedly failed to advise the Brogans that the property which they purchased was encumbered by a utility easement. Brogan v. Rosenn, Jenkins & Greenwald. LLP, 2013 WL 1742689, at *1 (Lacka. Co. 2013). Since that easement prohibits structures within thirty feet of it, the Brogans contend that they must construct their sewer and water lines at least eight feet beneath the water main of the Pennsylvania Gas & Water Company. Id. The Brogans have asserted breach of contract, bad faith liability and negligent misrepresentation claims against their title insurer, Conestoga, which “denies that the Brogans’ title defect claim is covered by the terms of the title insurance policy.” Id. at *2.

The Brogans now seek to inspect and copy the “original and digital” versions of the following four categories of materials in “FoxPro, Outlook, and LaserFiche” formats:

(1) Conestoga’s claims files concerning the Brogans’ claim and Conestoga’s cross-claim against Rosenn;
(2) any “claims denial and approval letters, and settlement acceptance, rejection, and objection letters” pertaining to those claims; (3) any notes prepared by Conestoga’s paralegal, Rebecca Breault (“Breault”), relative to her conversation with the Brogans ’ consultant, Kevin Conforti, on October 15,2007; and (4) personnel files of six former employees of Conestoga. (Plaintiffs’ motion to compel dated 2/19/13, exhibit A). Conestoga has represented in its responsive filings and during the transcribed oral argument that the requested materials have either been produced previously in discovery or simply do not exist.

Pennsylvania Rule of Civil Procedure 4009.1(a) provides that “[a]ny party may serve a request upon a party pursuant to Rules 4009.11 and 4009.12... to produce and permit the requesting party, or someone acting on the party’s behalf, to inspect and copy any designated documents..., or to inspect, copy, test or sample any tangible things or electronically stored information, which constitute or contain matters within the scope of Rules 4003.1 through 4003.6 inclusive and which are in the possession, custody or control of the party....” Pa.R.C.P. 4009.1(a). In 2012, Rule 4009.1(b) was adopted and states that “[a] party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object” Pa.R.C.P. 4009.1(b). The 2012 Explanatory Comment accompanying the amendments to Rule 4009.1 indicate, in pertinent part, as follows:

As with all other discovery, electronically stored information is governed by a proportionality standard in order that discovery obligations are consistent with the just, speedy and inexpensive determination and resolution of litigation disputes. The proportionality standard requires the court, within the framework of the purpose of discovery of giving each party the opportunity to prepare its case, to consider: (i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; (ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; (iii) the cost, burden and delay that may be imposed on the parties to deal with electronically stored information; (iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and (v) any other factors relevant under the circumstances.

PTSI, Inc. v. Haley, 2013 WL 2285109, at *11 (Pa. Super. 2013) (quoting Pa.R.C.P. 4009.1, Explanatory Comment (2012)).

With respect to the Brogans’ demand for access to Conestoga’s original and electronically stored claims file, Conestoga and its counsel have repeatedly represented that every document which is contained in their files “from the inception of the [title insurance] policy to the commencement of this litigation” has already been produced. The Brogans nevertheless allege that “we think things are missing” and that they “believe” that Conestoga’s entire file has not been provided. The Brogans speculated at the time of oral argument that a preclosing name search may have been conducted by Chuff or Popeck, but they did not articulate any plausible reason for their subjective assertion that such a name search was done or that it allegedly would be contained in the original or digital files of Conestoga. Nor have they attempted to secure a copy of that purported name search from Chuff or Popeck. Therefore, the Brogans have not established that a review of Conestoga’s original and digital claims file is reasonably calculated to lead to the discovery of such an alleged document or any other relevant material which has not already been produced.

As for the second category of original and electronically stored information (“ESI”) sought, the Brogans never requested production of paper copies of the same, and have instead demanded the original and digital forms of those alleged materials. Counsel for Conestoga confirmed at the time of oral argument that there are no earlier drafts of Conestoga’s denial of coverage letter that was transmitted to the Brogans, nor was the working copy of that letter ever saved as a document on Conestoga’s computer system. Conestoga has also stated on the transcribed record that there are no “approval letters, and settlement acceptance, rejection and objection letters” as demanded by the Brogans. In response, the Brogans have suggested that “metadata” existing in Conestoga’s computer files would reveal every document generated by Conestoga, but they have also expressed an unwillingness to retain a forensic electronic discovery expert to retrieve any ESI on Conestoga’s computers. See PTSI, Inc., supra, at *16 (Wecht, J., concurring) (discussing forensic examiner’s retrieval and review of ESI on party’s computers).

The third class of original records and ESI sought by the Brogans relates to Rebecca Breault’s telephone discussion with Kevin Conforti. During her deposition, Ms. Breault testified that she only typed a memorandum of that conversation as it transpired, and it is undisputed that Conestoga has already furnished that memorandum to the Brogans. (See deposition of Rebecca Breault dated 12/5/12, exhibit 14, Bates No. 000286). Ms. Breault testified that she did not prepare any separate notes pertaining to that conversation, and the Brogans have not advanced a valid reason for their subjective contention that any such notes exist and have not been produced.

The fourth group of original and digital materials demanded by the Brogans relate to the employment records of six former employees. The Brogans acknowledged at the time of oral argument that they have never sought paper copies of those documents since they “might come with redactions” if they are sought in that format. But see, Bianco v. GMAC Mortgage Corp., 2008 WL 4661241, at *2 (E.D. Pa. 2008) (noting that inspection of “electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy.”); Salvatore Joseph Bauccio, E-Discovery: Why and How E-Mail is Changing the Way Trials are Won and Lost, 45 Duq. L. Rev. 269,273 (Winter 2007) (stating that production of electronically “stored data poses a substantial risk of the inadvertent waiver of both the attorney-client and work-product privileges,” as a result of which, “the responding party must hire attorneys to review the files for privileged materials.”). In reply, Conestoga has indicated that it will produce the non-privileged portions of those personnel files in paper format if the Brogans simply request copies of those materials rather than demand unbridled access to the original and digital versions of those records.

With the exception of the above-quoted discussion of the “proportionality standard” in PTSI, Inc. in connection with the denial of a motion for spoliation sanctions following a party’s deletion of ESI, there is an absence of appellate precedent addressing electronic discovery in civil litigation. See Brooks v. Frattaroli, 2009 WL 7419028, at *2 (Leb. Co. 2009) (“..'.no Pennsylvania appellate decision has as of yet addressed the issue of whether a civil litigant should be permitted to enter the property of a party opponent in order to access the opponent’s computer files.”). Based upon the foregoing discussion, the Brogans have not established their right to the requested ESI under the proportionality standard governing such requests. First, as previously noted, this litigation is not particularly complex, and there is no reason to believe that the parties’ discovery needs cannot be satisfied by traditional paper discovery. Moreover, the Brogans’ subjective suspicions that other discoverable documents may conceivably exist, notwithstanding Conestoga’s repeated attestations and representations to the contrary, do not establish the relevance and importance of ESI. See, Bianco, supra, at *3 (“This court is loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.”) (quoting Scotts Co. v. Liberty Mut. Ins. Co., 2007 WL 1723509, at *2 (S.D. Ohio 2007)).

Furthermore, the retrieval and review of the ESI sought by the Brogans will require the services of a forensic examiner and involve considerable time and expense, and the Brogans have stated that they are unwilling to bear that cost. See International Cartridge Corp. v. Kilgore Flares Co., LLC, 2012 WL 8134303, at *13-14 (Jeff. Co. 2012) (requiring requesting party to pay costs associated with electronic discovery unless forensic search of responding party’s computers reveals that “materially relevant information” was not otherwise disclosed by responding party); Young v. Pleasant Valley School District, 2008 WL 2857912, at * 2 (M.D. Pa. 2008) (denying electronic discovery request on grounds that “[t]his case does not involve a billionaire multi-national corporation that could produce the material in question using a miniscule fraction of its budget, and the plaintiffs do not have a large financial interest in the case which could only be realized with [electronically stored] information on the tapes.”); Brooks, supra, at *4 (requesting party’s “attorney indicated that he would bear the cost of hiring an expert to perform an analysis of [opponent’s] hard drives.”). Perhaps most importantly, Conestoga has already provided the Brogans with Conestoga’s entire claims file and has indicated that it will produce copies of the non-privileged portions of the requested employment records sought by the Brogans. Thus, the same or “substantially similar information is available with less burden,” PTSI, Inc., supra, at * 11 (quoting Pa.R.C.P. 4009.1, Explanatory Comment (2012)), via paper discovery, as opposed to electronic discovery. See Young, supra, at *1 (finding electronic discovery request unwarranted since it was “not likely” to produce material that was not already “available in another, less burdensome way.”); Diepenhorst v. City of Battle Creek, 2006 WL 1851243, at * 3 (W.D. Mich. 2006) (denying motion to compel forensic examination of party’s computer hard drive, and holding that such discovery “is allowed only on a finding that the opponent’s document production has been inadequate and that a search of the opponent’s computer could recover deleted relevant materials.”).

Under the Pennsylvania discovery rules, a party is not entitled to discovery unless the requestor demonstrates that the information sought is relevant or “reasonably calculated to lead to the discovery of admissible evidence.” See Cooper v. Schoffstall, 588 Pa. 505, 522, 905 A.2d 482, 493 (2006) (citing Pa.R.C.P. 4003.1(b)). The Brogans have not established their entitlement to electronic discoveiy under the proportionality standard governing ESI discoveiy pursuant to Rule 4009.1. See also, Brooks, supra, at *4-5 (“At a minimum, a party seeking ESI discovery should be required to submit an affidavit setting forth facts and/or documentation to establish the need and legitimacy of ESI discoveiy.... To use a sports metaphor, in order to obtain permission for this type of ESI discovery, a party must travel the length of a football field and into the end zone. While [the requestor] may have driven into field goal range, he has not yet crossed the ESI goal line.”). The Brogans likewise have not demonstrated their right or need to review the originals of Conestoga’s files and records. See Brogan, supra, at *9 (“While a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties aré not permitted ‘to fish with a net rather than with a hook or a harpoon.’”) (quoting Brownstein v. Philadelphia Transp. Co., 46 Pa. D. & C.2d 463, 464 (Phila. Co. 1969)). Accordingly, the Brogans’ motion to compel will be denied.

And now, this 5 th day of July, 2013, upon consideration of “plaintiffs’ motion to compel Conestoga to comply with plaintiffs’ request to enter property to inspect documents & things,” the memoranda of law submitted by the parties and the oral argument of counsel on July 3,2013, and based upon the reasoning set forth above, it is hereby ordered and decreed that “plaintiffs’ motion to compel conestoga to comply with plaintiffs’ request to enter property to inspect documents & things” is denied.

      . “Medadata is ‘data typically stored electronically that describes characteristics of ESI, found in different places and different forms,’” and while “some medadata, such as file dates and sizes, can easily be seen by users, other medadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 161 n. 3 (3rd Cir. 2012) (quoting The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management, at 34 (Sherry B. Harris et al. eds. 3rd ed. 2010)).


author: WILLIAMSON, J.,

text:
    Goode v. Orozco

      Alexander J. Karam, Jr., for plaintiff.

      Nicholas Sabatine, III, for defendant.
    August 14, 2013
   WILLIAMSON, J.,

This matter comes before the court following a full evidentiary hearing on custody and a petition for contempt. John Goode, Jr. (father) and Juana Orozco (mother) are the parents of John Goode, III (age 6) and Juliana Goode (age 3). In addition to the hearing to determine custody, father also filed a petition for contempt of the existing custody order. We will dismiss father’s petition for contempt. We are now prepared to enter an order concerning custody.

The most recent custody order entered in this matter was dated May 9, 2013 adopting the custody conciliator’s recommendation of May 8,2013, following a conciliation conference before the custody conciliator. That order awarded shared legal custody to mother and father, with father having physical custody subject to mother’s periods of partial physical custody on the first, second and fourth weekends of every month and a shared holiday and summer vacation schedule.

Father is 56 years old and retired from the U.S. Postal Service. He has an adult daughter, age 37, and the two children subject to this custody matter. John III was bom November2,2006 and Juliana was bom February 12,2010. Father lives in Smithfield Township, East Stroudsburg, Pennsylvania in a four (4) bedroom 21/2 bath ranch home that he owns. Father also maintains several rental units in the Newark, New Jersey area.

Mother is 46 years old. She works as a home health care worker in the Newark, New Jersey area. Mother’s exact work schedule at this time is not clear. It appears she worked 8:00 a.m. to 4:30 p.m., but is now working 6:30 a.m. to 2:30 p.m., Monday — Friday. Mother lived in Newark, New Jersey when she had the children and for a period of time thereafter. Mother and the children lived with father at his home in Pennsylvania starting in 2011. When she lived in Pennsylvania, she held a similar job and worked 7:00 a.m.; to 3:00 p.m. Mother moved back to Newark, New Jersey in 2012 after her relationship with father ended. Mother and father were never married. Mother has a son, Jose, age 12. Mother’s parents also live in Newark, New Jersey.

Father purchased his home in Pennsylvania in 2003. He lived on and off with mother in New Jersey after the birth of the children. Father, mother and the children, including Jose, started living full time in father’s house in East Stroudsburg in July of 2011. Mother and Jose moved out in the fall of 2012, and John III and Juliana remained with father.

The parties have had a custody order since November 2, 2012. The parties seek a final custody determination and each seeks to be the primary custodian. Father also filed a petition for contempt, alleging mother took their daughter, Juliana, when it was not her time for custody. The incident occurred when father was outside of his car, securing a driveway gate at one of his rental properties. Mother parked nearby, and came up to father’s car and removed Juliana from the back seat, despite father’s protests. Mother then kept Juliana for a while, eventually returning her to father.

This court must consider the following factors in determining custody:

“(a) Factors — In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(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 child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) 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.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.”

23 Pa. C.S.A. §5328 (a).

We believe father is more likely to encourage and permit frequent and continuing contact between the children and mother, than mother is with father. We note that father has abided by the custody order to date. Father was convincing in his testimony that he wants mother to be an active parent to the children. On the other hand, mother has not abided by the custody order. Father was credible in his testimony that mother has picked up the oldest child from school when it was not her period of custody. Mother also took Juliana from father in the incident giving rise to the contempt petition. We find mother’s prior actions in this regard significant indicators that she will be less likely than father to encourage and permit frequent and continuing contacts with the children.

The present and past abuse is a non-factor in these proceedings. Mother alleges father was physically and verbally abusive toward her and her son Jose, causing her to leave the East Stroudsburg residence in 2012. However, the two instances of physical abuse against mother that she said occurred were in November and December 2011. This was nearly a year before she left the residence. Father also stated the one incident, in which mother cut her hand, fall of 2012, mother has done the same when the children are in her care. We find father is more available as a parent to the children due to mother’s work schedule and the fact father is retired and has rental investments that allow him more flexible time. Father is able to be there at all times for the children without the need for child care. As such, this factor currently favors father.

There is some need for stability and continuity in the children’s education, family life and community life. John III is going into the first grade. He attended East Stroudsburg School District last year. He would benefit from remaining in the same school district that knows him and his educational needs, and vice versa. John and Juliana have resided in the home in East Stroudsburg for two (2) years. They are both still very young, and it is important that there be minimal disruptions to a routine. Father is also home more often to provide care without having to change the children’s routine.

The residence in East Stroudsburg, Pennsylvania would also be a more stable community for the children to reside. Father’s house is on two (2) acres with open areas to play. The neighborhood is quiet and the elementary school is very close to father’s house. Mother’s residence is in Newark, New Jersey. While her home is appropriate, and mother’s parents live close, the residence does not have an adequate outside play area. There are also more concerns of crime in Newark, as evidenced by the mugging of mother in front of the children. Father’s home in East Stroudsburg would provide more stability and continuity for the children from a safety and security stand point.

Mother has more extended family close to her. Mother’s parents live near mother and would assist in child care. Mother’s son Jose also lives with her. Mother’s sister and three was caused by mother trying to grab a saw father was using to cut brush, when she became angry with father. We do not find mother’s testimony credible in light of the circumstances. We also do not find the testimony convincing that father physically abused Jose.

Although no specific example of verbal abuse was cited by mother against her or Jose, there was testimony father has been threatening and demeaning. Father said he was not verbally abusive toward Jose, but asked him to do chores around the house that Jose did not want to do. We also note that father’s adult daughter reported he is a good father to the minor children and she did not report father ever being abusive to tham or to her. We find father has not committed past or present abuse as alleged under the circumstances presented in court.

Father has concerns that mother drinks to excess and previously caused a kitchen fire. He also testified to an incident where mother was mugged in front of John III and Juliana in Newark, New Jersey. Father believes mother cannot provide adequate physical safeguards and supervision of the children. Based upon the evidence, we do not attribute either incident to be a danger to the children based upon mother’s care. These incidents do not reflect an inability of mother to properly safeguard or supervise the children. We do believe mother’s work schedule will require others to supervise the children when she has custody. Father himself, due to his availability, is less likely to need others to provide care and supervision. However, we do not find either parent is less likely than the other to provide adequate supervision.

The parties have been sharing parental duties throughout the lives of the children, mother and father both performed parental duties, including cooking, caring for the children, and raising the children when they lived together in New Jersey and in Pennsylvania. Although father has performed parental duties caring for the children more often than mother since the children live fifteen (15) minutes from her. Mother has five (5) sisters and one (1) brother, three of whom live in the Newark, New Jersey area. Father does not have extended family in Pennsylvania. Father’s adult daughter lives in Mount Olive, New Jersey, approximately 30 miles from father’s residence. This factor slightly favors mother.

The children maintain a relationship with their half-brother Jose, and their half-sister Shakirra. The testimony of father and Shakirra is that she spends time with the children. At 37 years old, Shakirra considers herself more like an aunt to the children. Jose, age 12, gets along well with the children. The children also appear to be bonded with him. Father has concerns with Jose’s use of profanity, and playing video games that depict guns and violence. Father is also concerned with evidence of Jose’s Facebook page that was introduced. We find any negative influence of Jose on the children to be minimal at this time. However, mother should be aware of Jose’s use of Facebook and the persona that he portrays on it and any other social media. We can understand father’s concerns if such behavior goes unchecked and leads to more, and eventually teaches John III and Juliana similar behavior.

The children are too young and lack the necessary maturity and j udgment to state a preference to be considered by this court. Therefore, this will be a non-factor. We do note that both children appeared to the court to be well behaved, well-adjusted, happy and bright children who love being with both parents.

We do not find any examples of either parent attempting to turn the children against or alienate them from the other parent. While both parents have plenty to say about the other, we find that neither has taken steps to turn the children against the other parent.

We find both parties will equally maintain a loving, stable, consistent and nurturing relationship with the children adequate for their emotional needs. Both parents are close to the children and bonded. Both parents are providing a loving and stable environment. Mother made a claim that Juliana, age 3, had soiled herself the week prior to the June 26, 2013 hearing in this matter and on one occasion prior to that. However, we find no credible connection to those two incidents, and father’s ability to provide a nurturing, stable and consistent relationship with the children. There was no other testimony in this regard, and the incidents could have occurred for any multiple number of reasons. Therefore, we find both parents, based upon their testimony, will provide the necessary relationship with the children and this factor favors neither party over the other.

We believe father will.be more likely to attend to the daily physical, emotional, developmental, educational and special needs of the children. This is due primarily because father is retired and available at all times for the children. Father has more time to get the children to and from school, cook their meals, play with them on a daily basis, and work with them on homework. Father sees to his rental investments around the schedules of his children. This is not to say mother does not or cannot do these things when she is home from work. We believe mother to be a good parent and a hard worker and that she does all of the things father does for the children when she is home from work. Flowever, father is available to attend to the needs of the children all day, every day. We find testimony of father that he provides for the daily care of the children to be credible. We find the examples cited in mother’s side of the case of father’s lack of providing this care were not credible. Therefore, this factor favors father.

The parties ’ residences are about one (1) hour from each other. This can allow for frequent and continuing contact of the parents with the children, but makes a shared custody schedule during the week impossible due to the distance, need for schooling, and mother’s work schedule during the day. The proximity of the residences will require one parent being the primary custodian during the week and the children’s breaks from school, and the other parent receiving frequent time periods to spend with the children. This will be taken into an account in the custody order

Both parties are able to care for the children, or provide appropriate child-care. Although mother works during the week, she is able to provide child care through the assistance of her parents and other family members. Since father is retired, he is home at all times for the children. He works around the children’s schedules when he manages his rental properties. Father’s schedule is flexible for the children. As a stay-at-home parent, he is available and dependable to see to the children’s needs. Although mother can provide child-care when needed, father’s availability as a parent to the children who are both relatively young, is important to the children. As such, this factor favors father.

There is a moderate amount of conflict between the parties and a likelihood they will not always be cooperative with each other. Father alleges mother has taken John from school during his period of custody. Father testified mother has done this 8 or 9 different times. This court witnessed on video mother taking Juliana from father’s car during father’s period of custody. We find father’s testimony in this regard to be convincing.

Mother counters that father has left Juliana alone in the car on at least two (2) occasions when he went inside one of his rental properties. She alleges that on the date she removed Juliana from the car while father was standing there, it was because she had not seen Juliana on her birthday two (2) days earlier. Mother stated she drives by father’s rental property everyday for work and that she stopped when she saw father’s car to say hello to Juliana. Mother claims she asked to take Juliana for a few hours since she missed her birthday.

Mother’s testimony was not convincing to this court. The video did not depict mother simply saying “hello” or trying to have a calm conversation with father about spending a few hours with Juliana. It was a chaotic scene, that did not appear to be appropriate behavior in front of the child. Furthermore, the incident was at 1:00 p.m., shortly before father would need to leave for Pennsylvania to pick up John from school. The timing of the incident does not fit with mother’s work schedule and she made no mention of leaving work early that day. This incident, and the others described by father, shows a likelihood of continued conflict between the parties. We also note mother did not appear to understand, or try to understand, the current custody order regarding the periods of custody she can elect during the children’s summer. These issues will create problems between the parties if not stopped.

We also find the general demeanor of the parties in court, mother’s lack of respect for a custody court order, and father’s description in court of his current feelings and view of mother to be problematic. It shows the parties may not put aside their differences, in an attempt to cooperate for the best interests of their children. We find mother’s prior behavior most troubling at this time since it interferes with father’s custody time and creates more tension between the parties. It also violates an existing court order. That is not to say father is without his faults in this situation. Father’s demeanor in court, and his derogatory comments about mother’s concern for money and how she chooses to dress is going to continue to hurt the communication between the parties; and ultimately, co-parenting their children. Father’s attempts to describe what he thinks is proper and respectful behavior, was stated in a disrespectful manner. Father may expect the mother of his children to act and dress a certain way for their benefit, but father fails to realize that his choice of behavior and words toward mother is not going to benefit the children. The manner in which both parties act, both privately and publicly, will eventually be realized by the children and potentially learned by them as the way to act and view and treat others. Regardless of personal feelings, father should reconsider his actions. The children should not learn to be disrespectful.

There was some testimony from father that he has concerns for mother’s drinking alcohol. There were no other allegations of drug or alcohol abuse by the parties. Father cited a few concerns, none of which can be confirmed. He believes mother has a drinking problem and is careless when she drinks. We do not view this as a factor currently effecting custody of the children, but we will order mother to submit to an initial drug & alcohol evaluation to address father’s concerns as a condition of this custody order. Any further concerns thereafter can be addressed in a petition for change in custody if necessaty.

There were no allegations of a mental or physical condition of a party or member of the parties’ households that effects custody. Father is retired in part due to a heart condition; however, there was no testimony from either party that this is a serious condition or one that effects periods of custody with the children. This factor is not relevant to these proceedings.

Further considerations have been given to other relevant factors. We find that father’s home in East Stroudsburg, Pennsylvania is a safer environment for the children to reside than in Newark, New Jersey. Mother’s home is appropriate. However, it is in an apartment complex without a large open area for the children to play. Newark is more congested with busy traffic. Newark also has more incidents of crime, and this family has already experienced a mugging in Newark. Mother even admitted that she believed Pennsylvania was safer for the children after that incident, and one of the reasons she moved in with father in Pennsylvania with the children.

There was an incident reported by mother’s son Jose that Juliana had a gun in her hand. Father admits owning guns, but they are locked away and inaccessible to the children. Father denies Juliana ever had a gun in her hand. We find father credible in this regard. He presents as someone who would be careful not to expose his children to guns without supervision, nor would he leave them accessible to children. Therefore, this is not a concern at this time.

At the hearing, a document (defendant’s exhibit 1) was presented and testimony given regarding expectations of father if the parties reconciled. We note this was an attempt at reconciliation and nothing therein can be construed as harmful to the children’s best interests. Therefore, we place no weight on this testimony.

Mother also introduced a typed letter into evidence as defendant’s exhibit 2. It was drafted and signed by father. It dates from October 5, 2007. It purports to give up all legal rights of custody of John to mother. Father stated this was written as a joke and out of anger because mother had told him John was not his son. This letter also predated the parties living together in Pennsylvania and is not relevant to these proceedings.

Mother also introduced documents from John’s school as defendant’s exhibit 6. One document indicated John made a threat on the bus on March 5, 2013, for which he lost one day of recess as punishment. The other incident acknowledged no one was at the bus stop on March 4, 2013, to pick up John, and that on March 1, 2013, father followed the bus to an alternate stop because he was not at John’s regular bus stop on time. Mother also asserts father did not disclose this information to her. We note mother’s exhibit contained a cover letter dated March 6, 2013 addressed to her at her Newark, New Jersey address. We also note mother shares legal custody and notice of that order was sent to John’s school. Therefore, mother is being mailed notices, such as defendant’s exhibit 6.

Father asserts John learned the language he used on the bus from Jose, or from playing video games with Jose. That may be the case; however, it is unknown. While the language is a concern, we do not believe it is a result of living with father, or something that will be overlooked by father to address with John.

Father explained he was late to the bus stop due to mother coming to see him and Juliana while he was at his rental property in Newark, preventing him from returning promptly to pick up John. Regardless of the actual reason, we do not find these two isolated incidents are currently factors in this custody matter. Father has had warning from the school, and should now realize he must allow more time to arrive at his son’s bus stop or school to pick up John. Continued behavior in this manner, regardless of the reasons, can be grounds for the parties to petition for modification of the custody order. Likewise, mother should be respectful of father’s need to return to Pennsylvania to pick up John from school if she is indeed seeing father and Juliana while they are in New Jersey.

Based upon a review of all of these factors, and the testimony in this case, we find father should have physical custody of the minor children subject to periods of partial physical custody with mother. We adopt the attached order as the new custody order in this matter.

Father’s petition for contempt will be dismissed as part of the new custody order. As discussed herein, the incident giving rise to the contempt petition was given consideration in this custody determination. No further action needs to be taken. However, mother should realize her actions to disregard the custody order, if continued, may give rise to a finding of contempt. This court will not tolerate any further disregard of our order.

We also expect the parties to try and work out custody issues as they arise, including trying to accommodate each other for additional time and schedule changes when possible. The parties were able to make accommodations for a summer vacation schedule in court on August 1,2013, and the court hopes this communication can continue.

ORDER

And now, this 14th day of August, 2013, following a full custody trial before the court wherein John Goode Jr. was present represented by Alexander J. Karam, Jr., Esquire and Juana Orozco was present represented by Nicholas Sabatine, III, Esquire, it is the order of this court, with respect to the parties’ minor children, John III bom November 2, 2006 and Juliana, bom February 12, 2010:

1. SHARED LEGAL CUSTODY

Mother and father shall share legal custody of their children. For purposes of this order “shared legal custody” shall mean:

(a) All decisions affecting the children’s growth and development, including but not limited to education, choice of school, medical and dental treatment, religious training, athletic pursuits and extracurricular activities shall be considered major decisions, and shall be made by the parties jointly after discussion and consultation with each other with a view toward obtaining and following a harmonious policy in the children’s best interest;
(b) Each party agrees to keep the other informed of the progress of the children’s education and social adjustment. Each party agrees not to impair the parties right to shared legal or physical custody of the children. Each party agrees to give support to the other in the role as parent and take into account the consensus of the other for the physical and emotional well-being of the children with the recognition that their life styles may be different;
(c) While in the presence of the children, neither party shall make or permit any other person to make any remarks or do anything which would in any way be construed as derogatory or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the other parent as one whom the children should love and respect;
(d) It shall be the obligation of each parent to make the children available to the other in accordance with the following schedule and to encourage him to participate in the plan hereby set forth;
(e) Each parent shall have the duty to notify the other of any event or activity that could reasonably be expected to be of a significant concern to the other parent or to the children;
(f) The parents shall communicate with one another concerning any parenting issues requiring consultation and agreement regarding a proposed modification of the custody schedule which may, from time to time, become necessary, and shall specifically not use the children as a messenger at any time. Neither party shall discuss with the children any proposed changes to this schedule or any other issue requiring consultation and agreement prior to discussing the matter and agreement with the other parent;
(g) With regard to any emergency decisions which must be made, the parent with whom the children are physically residing at the time shall be permitted to make a decision necessitated by the emergency without consulting the other parent in advance; however, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Day to day decisions of a routine nature will be the responsibility of the parent having physical custody at that time;
(h) Mother and father agree to share complete and full information from any doctor, dentist, teacher or other authority, and each parent may have copies of any reports given to them as a parent. Each parent shall also request any authority to forward copies to both parents at their respective addresses. Such documents include, but are not limited to, medical reports, athletic and school reports, birth certificates, etc. Both parents may and are encouraged to attend conferences and activities with the children. Both parents shall be listed with any school or day care center as parents to be contacted in the event of an emergency and to be notified regarding school events. Mother and father agree to share copies of any school notices in a timely fashion;
(i) Both parents shall attempt to avoid scheduling any activities or appointments for the children which would require his/her attendance or participation during the time when he/she is scheduled to be in the physical custody of the other parent without the parent’s prior approval; however, both parents agree to cooperate and be flexible in accommodating the children’s scheduled activities.

2. SHARED PHYSICAL CUSTODY

F ather shall have physical custody of the minor children, John III, age 6, and Juliana, age 3, under and subject to the partial physical custody rights of other, as follows:

(a) First, second and fourth weekends of every month beginning Friday at 6:00 p.m. and ending on Sunday at 6:00 p.m.;
(b) Following the second weekend of every month, mother shall have custody of the minor children on Thursday night of that immediate week (prior to the third weekend) from 5:00 p.m. until 7:30 p.m. This period of custody shall be exercised in Pennsylvania with mother driving to pick up and drop off the children at father’s residence. If mother cannot exercise this period of physical custody in any given month, she shall give twenty-four (24) hours advance notice. If mother is going to be late in picking up the children, she shall call father immediately to let him know, in which case the visit shall still occur.
(c) Any other days and times upon which the parties shall mutually agree.

3. HOLIDAYS

The following holiday schedule supersedes all other partial and vacation custody schedules established in this recommendation:

The parties shall alternate the major holidays as they may agree. If unable to agree, the alternating holiday schedule shall include the holidays of New Year’s Day, Presidents Day, Easter, Memorial Day, Fourth of July, Labor Day, and Thanksgiving. Mother shall have partial custody on Mother’s Day and father shall have partial custody on Father’s Day. Those periods of partial custody for which no times for exchange were heretofore scheduled shall begin at 9:00 a.m. and end at 8:00 p.m. These periods of holiday custody shall begin with father on Easter Day, 2013.

The parties shall alternate Christmas. Father shall have physical custody of the children from Noon on Christmas Eve continuing until Noon on Christmas Day. Mother shall have physical custody of the children from Noon on Christmas Day until Noon on December 26th. The above period shall alternate each and every year.

In the event that a holiday to which mother is entitled shall fall within a day prior or subsequent to weekend period of partial custody to which mother would also be entitled, that period of weekend partial custody shall be extended to include mother’s period of holiday partial custody.

The parties shall share custody of the children on the children’s birthdays. If the parties cannot agree to a schedule, or the child’s birthday occurs on a school day, at a minimum, the party having custody pursuant to this order, shall transport the minor child to the other parent for a two (2) hour visit with the child.

4. SUMMER VACATIONS

With respect to summer vacations, mother and father shall each be entitled to three (3) weeks of uninterrupted partial physical custody with the minor children, provided they give the other parent thirty (30) days prior notice of their intention to exercise that right, which periods may be taken in no more than one week segments beginning Sunday at noon and ending Sunday at noon. Each parent shall provide to the other parent the telephone number and address where they will be exercising their period of vacation custody.

5. TRANSPORTATION

The parents shall share transportation equally as they can agree. If they are unable to agree, in order to facilitate the exchange of partial custody, it shall be the responsibility of the party who will be obtaining partial custody, or a designee, to pick up the children at the residence of the other party. Appropriate passenger restraint devices shall be utilized by the children while being transported.

6. TELEPHONE ACCESS

Each parent shall allow the other parent to have private, liberal and reasonable telephone access with the minor children during that parent’s period of partial custody. This shall include the children initiating such contact. The parties hereby agree that they will provide one cell phone for the children in order that each party may exercise her or his right to telephone access with the children. The costs for the cell phone shall be divided equally between the parties. Reasonable telephone access shall be construed to be during the children’s normal waking hours, emergencies excepted. If the calling parent leaves a message at the residence of the custodial parent, custodial parent shall require the children to return the telephone call to the non-custodial parent.

7. SPECIAL PROVISIONS

(a) Mother shall not remove the children from the United States of America at any time whatsoever without the written consent of father.

(b) Each party shall retain one passport for each of the children in his or her possession, in order that they may mutually agree to the places where the children may visit utilizing their passports. In addition, each parent shall secure notarized written permission from the other parent when traveling abroad with the children.

(c) Mother shall have a Drug & Alcohol evaluation with Catholic Social Services within 60 days and complete any recommended treatment. Mother shall sign releases for information to be given to her attorney, attorney for plaintiff and the court.

8. NOTICE: CHANGE OF RESIDENCE OR RELOCATION

Before a party may relocate the children or change the residence of the children in a manner which significantly impairs the ability of other individuals with custody rights to the children to exercise those rights, the party must comply with the requirements and obligations of Pennsylvania’s Custody Law set forth in 23 Pa. C.S.A. 5337.

      . Father was parked in front of one of his rental properties and was closing and locking the driveway gate. Father had a surveillance camera at the property and it recorded part of the incident. This is the incident giving rise to father’s contempt petition.


author: CEISLER, J.,

text:
    Toscano v. A. Bassaner Ltd.

      Brett A. Datto and Sandra G. Tor gat, for plaintiffs.

      Charles T. Kovler, for defendants.
    August 18, 2013
   CEISLER, J.,

I. FACTS AND PROCEDURAL HISTORY

Defendants Andrew Bassaner et. al., file an appeal of this court’s order of June 10, 2013 granting of plaintiffs’ motion for judgment on writ of revival.

The genesis of this appeal began approximately thirteen years ago in 2000 when Frank and Cheryl Toscano (hereinafter “plaintiffs”) contracted with a number of moving companies and their principal, Andrew Bassaner, (hereinafter “defendants”) to move plaintiffs’ belongings from one residence to another. Defendants’ verification of defense or answer to plaintiff’s writ of revival, p.l (hereinafter “defendants’ answer”).

On June 26, 2000, defendants loaded plaintiff’s belongings onto defendant’s moving truck with the understanding that these items would be delivered to plaintiffs’ new residence on June 31, 2000. However, defendants failed to appear at plaintiffs’ residence on June 31, 2000. Plaintiffs’ reply brief in further support of plaintiffs’ judgment on the pleadings or alternatively, to strike defendants’ verification of defense or answer to plaintiffs’ writ of revival and enter judgment, ex. B. pp. 8-9 (hereinafter “plaintiffs’ reply brief’). Despite plaintiffs’ repeated phone calls and promises from defendants that the property would be delivered as soon as possible, defendants’ truck did not arrive at plaintiff’s new residence until August 10, 2000. Id. at 10-12. Plaintiffs examined the contents of the truck and found that a large number of their items were missing. Plaintiffs filed a report with the Philadelphia Police Department. Id. at 13.

Shortly thereafter, the police informed plaintiffs that defendant Andrew Bassaner had been arrested for theft. As it turned out, the defendant’s had illegally sold the personal property of over one hundred (100) victims who had entrusted the defendant moving company to move their personal belongings. Plaintiffs’ motion for judgment on the pleadings or alternatively, to strike defendants’ verification of defense or answer to plaintiffs’ writ of revival n.2 (hereinafter “plaintiffs’ motion for judgment on the pleadings”).

On August 20, 2000, the plaintiffs accompanied the police to the defendants’ disorganized and rat-infested warehouse in an attempt to locate and hopefully recover their property. Plaintiffs were able to locate only a few items, all of which were damaged. Plaintiffs’ reply brief, ex B.p. 15. Despite subsequent visits, plaintiffs were able to recover only a third of the items they had entrusted to defendants. Id.

Pursuant to the terms of the agreement signed by the plaintiffs and defendants, plaintiffs filed an arbitration action against defendants through the American Arbitration Association. Defendants’ answer, ex. 2. In July 2001, there was a four day arbitration hearing during which plaintiffs produced evidence to support the nature and extent of their losses, as well as the deceptive business practices of defendants. On November 7, 2001, the arbitrator awarded the plaintiffs $177,675.00. in damages against the defendants. Plaintiffs’ preliminary objections to defendants’ preliminary objections to the service of writ of revival, ¶¶2-4.

On April 4, 2002, defendant Andrew Bassaner pled guilty to 174 criminal charges related to his numerous thefts as principal of the moving companies, and was sentenced to 2-4 years of incarceration followed by twenty-one (21) years of probation. In addition, defendants were ordered to pay over $1 million in fines and restitution. Plaintiffs’ motion for judgment on the pleadings, n.2. Though judgment on plaintiffs’ arbitration action against defendants was entered on April 22,2005 and confirmed on June 10, 2005, plaintiffs decided not to pursue collection efforts on the judgment as they believed it was unlikely defendants would be able to pay. Plaintiffs’ preliminary objections to defendants’ preliminary objections to the service of writ of revival, ¶¶2-4; plaintiffs’ motion for judgment on the pleadings, ¶14.

On January 23, 2013, plaintiffs’ attorney received a phone call from a Florida attorney seeking additional information on defendant Andrew Bassaner. Plaintiffs’ motion for judgment on the pleadings, affidavit ¶6. Through this conversation, plaintiffs’ attorney discovered that defendant Bassaner was living in central Florida under an alias name, and apparently had significant financial resources. For example, defendant was renting a home for $14,000 a month and driving a luxury car. Id. After learning of this, plaintiffs filed a praecipe for writ of revival of judgment (hereinafter “the writ”) on January 24, 2013. Id. at ¶7. On February 14, 2013, the writ of revival was served on defendant Bassaner while he was attending violation of parole hearing in an office at the Adult Probation and Parole Department. Defendants’ answer, p.5.

On April 15, 2013, defendants filed their answer to the writ of revival (hereinafter “answer”) arguing that the writ should be stricken because plaintiffs had committed insurance fraud and that the service of the writ was improper. In the answer, the defendant also requested that the plaintiffs be sanctioned for the filing of the writ and serving it at defendant’s parole violation hearing. Id. On May 14 & 31, 2013 respectively, defendants filed two supplementary answers to their initial answer to the writ, defendants’ manner of filing its two supplementary answers failed to comply with Pa.R.C.P. 1033, which requires a party to attain the consent of the adverse party or leave of court before filing an amended pleading.

In their original answer, and procedurally improper amended answers, defendants assert that the judgment had been satisfied because the plaintiffs had recovered some of their property and/or that plaintiff’s losses were covered either by plaintiffs’ insurance company; that defendant Andrew Bassaner was not a party to the original hearing; and that plaintiffs had signed a general release. defendants ’ supplemental verification of defense to the writ of revival, ¶1 (hereinafter “defendants’ first supplementary answer”); defendants’ supplemental verification of defense in the nature of new matter to the writ of revival, ¶1 (hereinafter “defendants’ second supplementary answer”). Plaintiffs replied to the supplementary answers on June 3, 2013, disputing the supplementary answers on substantive and procedural grounds.

On June 10, 2013, this court granted plaintiffs’ motion for judgment on writ of revival and ordered the prothonotary to enter judgment against defendants.

On July 2, 2013, defendants appealed the matter to the Superior Court of Pennsylvania. On the same day, this court directed defendant to provide a statement of errors pursuant to Pa.R.A.P. 1925(b), the response to which was filed on July 19, 2013.

II. DISCUSSION

As an initial matter the court points out that the defendants’ statement of errors is decidedly not concise and raises twenty issues, many of them repetitious. Courts have considered inordinately long and unclear statements of error to be sufficient grounds to find that the filing party has waived its issues. See, e.g., Tucker v. R.M. Tours, 939 A.2d 346 (Pa. Super. Ct. 2007); Kanter v. Epstein, 866 A.2d 402 (Pa. Super. Ct. 2004). Furthermore, “[ejven if the trial court correctly guesses the issues appellant raises on appeal and writes an opinion pursuant to that supposition, the issue is still waived.” Com. v. Heggins, 809 A.2d 908, 911 (Pa. Super. Ct. 2002).

Notwithstanding this, this court respectfully requests that the instant appeal be denied for the following reasons:

1. Defendants did not raise any of the cognizable defenses in a proceeding to revive a judgment lien in its original answer.
2. Defendants failed to follow the Pennsylvania Rules of Civil Procedure in submitting its supplementary answers.

It is well-established that “in a proceeding to revive a judgment, the courts will not entertain any inquiry into the merits of the original judgment. PNC Bank, Nat. Ass ’n v. Balsamo, 634 A.2d 645, 649 (Pa. Super. Ct. 1993). In fact, courts have explicitly rejected the idea that a writ of revival opens the door for attacks on the merit of the original judgment. See Triangle Building Supplies and Lumber Co. v. Zerman, 363 A.2d 1287 (Pa. Super. Ct. 1976). Defenses to a writ of revival “are limited to those arising after entry of the judgment, such as payment or other discharge.” Smith v. Bald Hill Coal Co., 23 A.2d 466, 467 (pa. 1942). See also Balsamo, 634 A.2d at 645 (“The only cognizable defenses in a proceeding to revive a judgment lien are that the judgment does not exist, has been paid or has been discharged.”) A party waives any defense not raised in its answer to the writ of revival. Pa.R.C.P. 1032.

Defendants raise multiple defenses that are not cognizable under the law including the following:

1. Defendant Andrew Bassaner was not a party to the original arbitration, defendants’ statement of errors complained of PA.R.C.P. 1925(b), ¶13 (hereinafter defendants’ statement of errors),
2. Plaintiffs committed fraud, Id. at ¶¶4-5,7,11,18-19,
3. Plaintiffs’ counsel committed insurance fraud, concealment, and civil conspiracy, and plaintiff’s counsel is a “sneak”. Id. at ¶¶4, 15-18.

Defendants argue that these claims are defenses to the writ and that the court should not have entered judgment before permitting discovery to uncover this fraud and misconduct. Id. at ¶¶1,19-20. However, as the law clearly states, defendants’ arguments are improper attempts to challenge the validity of the original judgment itself. For this reason, defendant’s appeal should be denied.

Defendants also argue that, while they may have failed to raise a cognizable defense in the original answer, cognizable defenses were provided in their supplemental answers. Specifically, that plaintiffs’ partial recovery of their lost property, as well as the compensation plaintiffs received from their insurance company, amounted to a satisfaction of the judgment against defendants. Id. at ¶1. Defendants’ first supplementary answer ¶1. Defendants also argued that the release plaintiffs signed was general in nature, and therefore it extinguished plaintiffs’ ability to pursue any claims against defendants. Defendants’ statement of errors, ¶11. See defendants’ second supplementary answer, ¶1. However, the Pennsylvania Rules of Civil Procedure require a party who wishes to amend an answer to obtain either leave of court or consent of the adverse party. Pa.R.C.P. 1033. Defendants docketed the two supplemental answers without the consent of the adverse party or leave of court.

As defendants failed to raise cognizable defenses in their original answer, and subsequently failed to follow proper procedural rules in submitting two amended answers, this court properly granted plaintiffs’ motion for judgment on writ of revival.

III. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the instant appeal be denied.

      . Defendants’ titled their filing, “Defendant’s Verification of Defense or Answer to Plaintiff’s Writ of Revival” and likewise referred to defendants in the singular in other filings. However, these pleadings were, at all times, filed on behalf of all defendants. For purposes of clarity, this court hereinafter corrects defendants’ filing titles to reflect this.

      . Com. v. Bassaner, CP-51-CR-0405441-2001.

      . Defendants’ manner offiling its two supplementary answers failed to comply with the Pennsylvania Rules of Civil Procedure, which require a party to attain the consent of the adverse party or leave of court before filing an amended pleading. See Pa.R.C.P. 1033.

      . This court calls attention to a quotation often referenced by Pennsylvania courts: “[W]hen I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.” United States v. Hart, 693 F.2d 286, 287 (3d Cir. 1982). See, e.g., Com. v. Williams, 782 A.2d 517, 536 (Pa. 2001); Com. v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993); Estate of Lakatosh, 656 A.2d 1378, 1380 (Pa. Super. Ct. 1995); Com. v. Phillips, 580 A.2d 840, 841 (Pa. Super. Ct. 1990).


author: HIGGINS, J.,

text:
    Erie Insurance Exchange v. Davidson

      Joseph P. Walsh, for plaintiff.

      Michael B. Kaspszyk, for defendants.
    September 5, 2013
   HIGGINS, J.,

The pertinent facts in this case are not at issue. On May 22, 2009, defendant Kimberly Davidson was a passenger in a Ford E-350 Mini School Bus van being operated by Rebecca Achey. Ms. Davidson was employed as a “bus aide” at First Student which required her to assist children on and off the bus. On May 22, 2009, Zachary Sasz was operating a 2001 Pontiac Grand Am which was struck by a vehicle being driven by Allison Phelps. As a result of that collision, the Sasz vehicle was pushed into the opposite lane of travel causing a collision with the bus van being operated by Ms. Achey. Ms. Davidson suffered personal injuries as a result and she subsequently settled her third party claim against Ms. Phelps. Thereafter, MS'. Davidson submitted a claim for UIM benefits under her commercial policy (“policy”) issued by plaintiff, Erie Insurance Exchange (hereinafter “Erie”). Erie denied Ms. Davidson UIM benefits under the “regular use” exclusion in the policy. Erie then filed the instant action seeking a declaratory judgment regarding its rights and obligations under the policy, i.e., to wit: whether the regular use exclusion contained in the defendants’ policy excludes UIM coverage for Ms. Davidson. After the pleadings closed, Erie filed a motion for summary judgment (“motion”). We heard oral arguments from the parties and reviewed the briefs filed of record. We are now prepared to rule on Erie’s Motion.

Pennsylvania Rule of Civil Procedure 1035.2 states that any party may move for summary judgment in whole or in part whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, and the moving party is entitled to judgment as a matter of law. Gutteridge v. A. P. Green Services, Inc., 804 A.2d 643 (Pa. Super. 2002). A trial court may dismiss all or part of a claim after the close of pleadings through summary judgment Wilson v. El-Daief 600 Pa. 161, 964 A.2d 354 (2009). To prevail on a motion for summary judgment, the moving party bears the burden of proving that no genuine issues of material fact exist as to a necessary element of the cause of action or defense. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648 (Pa. Super. 1999). The court must view the record in the light most favorable to the party opposing the motion for summary judgment and resolve all doubts as to the existence of genuine issues of material fact against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The trial court may only enter summary judgment when the facts are so clear that reasonable minds cannot differ. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115 (2000).

The party opposing a motion for summary judgment may not rest on mere allegations or denials in the pleadings, but must identify evidence of a dispute of material fact presented by the record in the case. Pa. R.C.P. 1035.3; McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938 (Pa. Super. 1998) The record, for the purposes of a motion for summary judgment, consists of pleadings, depositions, answers to interrogatories, admissions, affidavits, and reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1). Pa. R.C.P. 1035.1.

In its motion, Erie argues that UIM coverage is not available to Ms. Davidson under the “regular use” exclusion in the policy. Specifically, Erie claims that the policy excludes coverage for bodily injury to an insured using a non-owner motor vehicle which is regularly used by the insured and which is not insured by UIM benefits. In opposition, defendants argue that Ms. Davidson’s job responsibilities do not require her to operate the bus and that she does not possess a commercial driver’s license (“CDL”) which would allow her to operate the bus. The parties agree that Ms. Davidson was a regular passenger on the bus in which she was occupying when it was involved in the collision that caused Ms. Davidson’s injuries. Ms. Davidson does not possess a CDL which she testified is required to operate the bus. Therefore, the issue before the court is whether a passenger, who regularly occupies a non-owned motor vehicle, is considered to be “using” the non-owned motor vehicle pursuant to the policy’s terms.

Under Pennsylvania law, the court’s primary task in contract interpretation is determining the intent of the parties. 401 Fourth St., Inc. v. Investors Ins. Group, 583 Pa. 445, 879 A.2d 166 (2005) (citation omitted). In determining the intent of the parties, we look to the terms used in the written insurance policy. Gene and Harvey Builders, Inc. v. Pennyslvania Manufacturers’ Association, Ins. Co., 512 Pa. 420, 517 A.2d 910 (1986) (citation omitted).

When there is ambiguous language, the policy is to be construed in favor of the insured, “to further the contract’s prime purpose of indemnification,” 401 Fourth St., supra 583 Pa. at 455. Conversely, where the contract’s terms are unambiguous, we are required to give effect to that language. Id. Merely because the parties interpret the contract differently does not mean it is ambiguous. Espenshade v. Espenshade, 729 A. 2d 1239, 1242 (Pa. Super. 1999). Only where different constructions are capable of being understood in more than one sense is a contract ambiguous. Insurance Adjustment Bureau v. Allstate, 905 A. 2d 462, 468-69 (Pa. 2006).

Based upon the above, we will focus our inquiry on the following language contained in the policy:

WHAT WE DO NOT COVER-EXCLUSIONS
This insurance does not apply to:
10. bodily injury to you or a resident using a non-owned motor vehicle or a non-owned miscellaneous vehicle which is regularly used by you or a resident, but not insured for Uninsured or Underinsured Motorists Coverage under this policy, (emphasis in original) See page 2, paragraph 10 of policy attached as Exhibit “B” of plaintiff’s complaint.

Erie argues that Ms. Davidson suffered bodily injury while using a non-owned motor vehicle which was not insured under this policy. On the other hand, defendants contend that Ms. Davidson was not “using” the vehicle because she was a passenger and she is unable to drive the vehicle. Neither party disputes that Ms. Davidson was a regular passenger on the bus, accordingly, our inquiry turns to whether being s passenger on the bus is construed as “using” the bus.

Initially, we note that the definition sections contained within the policy do not define “using” or “using a non-owned motor vehicle.” Erie argues that this “regular use” exception was upheld as clear and unambiguous in the case of Brink v. Erie Insurance Group, 940 A.2d 528 (Pa. Super. 2008). In Brink, the Superior Court addressed the issue of whether a police officer’s use of a police vehicle was “regular use” as expressed in the exclusions contained in the insurance policy, which would determine if coverage was excluded under Erie’s policy. The Superior Court determined that the police officer regularly used the police vehicle which triggered exclusion on his personal Erie Insurance policy. In its opinion, the Superior Court reasoned that the police officer had regular access to a police vehicle, even if it was a different vehicle in the fleet. Accordingly, coverage was denied in Brink.

However, instantly, the parties do not take issue with whether Ms. Davidson had regular access to the bus, but rather, whether being a passenger is “using a non-owned vehicle” as contemplated within the provisions of the policy. In the case cited by defendant, Erie Insurance Exchange v. E.L., ex rel. Lowry, 941 A2d 1270 (Pa. Super. 2008), the Superior Court encountered similar issue. In Lowry, the insurance policy did not define “using” within the insurance policy. The Lowry court specifically determined that “using” and “occupying” are not interchangeable. Since the insurance policy did not define using, the Lowry court relied on a Pennsylvania Supreme Court decision which stated that the term “use” must be considered with regard to the setting in which it is employed. The Lowry court then determined that the “method or manner of employing a vehicle is to physically operate it.” Lowry, supra, 941 A.2d at 1276 (citation omitted). In Lowry, an 11 year old child was a passenger at the time of the accident. The Lowry court held that since the 11-year-old could not possess a driver’s license, the child could not operate the motor vehicle and therefore was not “using” the car at the time of the accident.

Instantly, while Ms. Davidson may very well be capable of driving the bus, it is illogical to conclude that she regularly uses the bus when she does not maintain a CDL. [Notes of testimony, deposition of Kimberly Davidson, January 9, 2013, p. 14] Many of the cases cited by Erie involve facts where the claimant was a passenger but a qualified driver of the non-owned vehicle. In those cases although the claimants were passengers or occupants, those claimants had the ability to use or operate the vehicle, or one of the vehicles in the fleet, as part of their job description. However, in the instant case, Ms. Davidson’s employer did not require her to operate the bus and Ms. Davidson testified that she could not operate the bus without a CDL. Hence, Ms. Davidson is prohibited, legally, from operating the bus. As stated in Lowry, supra, Erie could have “utilized more precise language such as ‘occupied’, if it intended to preclude coverage,” Id., 941 A.2d at 1277 (citation omitted), in an instance such as those in the instant case. Since we find that the contractual language is ambiguous, we must construe the policy language in favor of defendants. Accordingly, Erie’s motion will be denied.

In light of the foregoing, we enter the following order:

ORDER

And now, this 5th day of September, 2013, after argument and in consideration of plaintiff’s motion for summary judgment and the briefs filed of record, it is hereby ordered that plaintiff’s motion for summary judgment is denied.

      . Erie Insurance Exchange v. Transamerica Insurance Company, 516 Pa. 574, 533 A.2d 1363, 1367 (1987).