author: DJERASSI, «/.,

text:
    Commonwealth v. Turner

      Cari L. Mahler, for Commonwealth.

      Elayne C. Bryn, for defendant.
    October 22, 2010
   DJERASSI, «/.,

This case examines a due process question involving eligibility of PCRA petitioners whose short sentences are complete before a court has ruled on the merits of their ineffective assistance of counsel claims.

Following the general rule stated by Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002), defendant Emma Turner proceeded via the PCRA and petitioned for a new trial or alternatively an evidentiary hearing on grounds that her lawyer failed to discover and call available alibi and character witnesses.

For reasons stated here and on consideration of argument by the Commonwealth and defense, it is hereby ordered that an evidentiary hearing on the merits of Emma Turner’s post conviction petition for relief is granted.

PROCEDURAL HISTORY

On November 5, 2007, defendant Turner was tried without a jury before this court. Adrian J. Moody, Esq. was retained as defense counsel. At the conclusion of the trial, Turner was found guilty of conspiracy to deliver a controlled substance. On January 14, 2008, a two-year probation sentence was imposed. There was no direct appeal.

On January 12, 2009, Turner, pro se, filed a PCRA petition alleging that her trial counsel, Moody, had rendered ineffective assistance. On April 16, 2009, Elayne C. Bryn, Esq. was appointed as Turner’s PCRA counsel. A status listing for Turner’s PCRA petition was first scheduled for July 21, 2009. Counsel investigated and, on November 17, 2009, filed an amended PCRA petition which she supplemented on February 8, 2010. On February 17, 2010, the Commonwealth requested a 60 day continuance so the Commonwealth could respond to the amended and supplemental petitions and the matter was continued to April 26, 2010.

On February 19,2010, Turner completed her probation sentence.

On April 23, 2010, the Commonwealth filed a motion to dismiss arguing against an evidentiary hearing on the merits. On May 3, 2010, the Commonwealth supplemented its motion to dismiss, arguing, for the first time, that Turner was no longer eligible for relief because her sentence had expired on February 19, 2010.

On May 17, 2010, Turner responded, arguing that dismissing the petition without an evidentiary hearing on the merits would violate her right to due process of law. On May 19, 2010, the Commonwealth filed a letter brief, again arguing that Turner’s PCRA petition should be dismissed because she had completed her probation sentence.

STATEMENT OF THE CASE

This court’s guilty verdict hinged on a factual finding that the police testimony was more credible than the testimony of Turner and her codefendant Michael Neal. That factual finding was made absent alibi and character evidence that Turner claims her attorney failed to discover and produce at trial.

Police testimony showed that, on November 14, 17, and 21, 2006, a confidential informant (“CP’) purchased illegal narcotics from 2866 Aramingo Avenue, Turner’s home. Specifically, Police Officer Maureen Snyder testified that she observed Turner open the door for the Cl during two of the three control buys. There was no direct evidence that Turner sold drugs to the confidential informant. Upon execution of a search warrant at 2866 Aramingo, on November 21, 2006, police recovered $201 from Turner, including $10 in prerecorded buy money used by the Cl earlier that day.

At trial, Turner emphatically denied any involvement in the alleged drug sales. In particular, Turner testified that she was working at John Paul Jones Middle School at the time of each control buy. She also testified that codefendant Neal, who lived at her home, had given her money which included the recovered buy money. Neal himself testified that David Turner, Emma Turner’s son, was responsible for the drug sales at 2866 Aramingo. Turner further testified that she had repeatedly, but unsuccessfully, tried to bar David Turner from entering her home. No alibi or character evidence was offered to corroborate Emma Turner’s testimony.

To support her PCRA petition, Emma Turner has presented sworn and notarized affidavits attesting to her good reputation and buttressing her alibi. This available alibi and character evidence, if shown and believed at an evidentiary hearing, would have bolstered the credibility of Turner’s trial testimony and undermined the reliability of critical police testimony.

POST CONVICTION CLAIMS AND DEFENSES

Turner claims that her trial counsel rendered ineffective assistance by: (1) failing to properly investigate the case and call alibi and character witnesses; and (2) prejudicing her defense by jointly representing Turner and her codefendant Michael Neal. Turner has submitted sworn and notarized affidavits from Benita Wright and Anne O’Brien. In their affidavits, both Wright and O ’ Brien aver that they would have testified to Turner’s good works and excellent reputation in the community. Moreover, O’Brien asserts that she would have testified that she was preparing Thanksgiving dinner with Turner on November 21, 2006. In addition, Turner has submitted attendance records which proffer that she was working at John Paul Jones Middle School at the time of the alleged narcotics transactions. Turner argues that her trial counsel should have uncovered and submitted those attendance records. Finally, Turner has submitted a petition in support of her good character and excellent reputation in the community signed by eighteen people, including O’Brien. At age 42, this case is Emma Turner’s only conviction.

In response, the Commonwealth claims that Turner’s ineffective assistance of counsel claim is utterly without merit. Specifically, the Commonwealth asserts that the alibi provided by Wright and the attendance records are not precise enough to refute the police testimony which showed that Turner engaged in a narcotics transaction on November 21, 2006. Moreover, the Commonwealth argues that the proposed character evidence is not sufficient to call Turner’s conviction into doubt.

In addition, the Commonwealth has moved to dismiss Turner’s PCRA petition, claiming that she is not eligible for relief because she is no longer in custody — her sentence is completed. In response, Turner argues that dismissing her petition because she has completed her sentence would violate her right to due process under the circumstances here.

LEGAL ANALYSIS

To be eligible for relief under the PCRA, a defendant must plead and prove by a preponderance of the evidence all of the following:

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(1) currently serving a sentence of imprisonment, probation or parole for the crime...
(2) That the conviction or sentence resulted from one or more of the following:
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place....

42 P.A. C.S. § 9543.

I. Defendant Turner Has Submitted Affidavits Demonstrating That Her Conviction Resulted from a Violation of Her Right to Effective Assistance of Counsel

EmmaTumerclaimsthatherfederalandstate constitutional rights were violated because she did not receive effective assistance of counsel at trial. The Sixth and Fourteenth Amendments to the United States Constitution entitle a defendant to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 685 (1984). Likewise, Article I, Section 9 of the Pennsylvania Constitution guarantees defendants the right to effective assistance of counsel. See Commonwealth v. Halley, 582 Pa. 164, 168, 870 A.2d 795, 798 (Pa. 2005).

A. Failure to Investigate Alibi

Turner claims her trial counsel rendered ineffective assistance by failing to thoroughly investigate the case and call witnesses to provide alibi and character testimony on Turner’s behalf. Trial counsel has a general duty to undertake reasonable investigations. Commonwealth v. Johnson, 600 Pa. 329, 350-351, 966 A.2d 523, 535 (2009). This duty to investigate may include a duty to interview certain potential witnesses. Aprejudicial failure to fulfill this duty may lead to a finding of ineffective assistance. Id. To prevail on a claim that trial counsel rendered ineffective assistance by failing to call a witness, the defendant must show that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or should have known of the witness’ existence; (4) the witness was prepared to cooperate and would have testified on defendant’s behalf; and (5) the absence of the witness’ testimony prejudiced the defendant. Commonwealth v. Brown, 767 A.2d 576, 582 (Pa. Super. 2001).

Turner’s trial counsel failed to call Anne O’Brien to support Turner’s alibi defense, and he failed to submit available payroll records to prove that she was working at times relevant to her alibi. Ms. O’Brien’s affidavit states she was available to testify at trial on Turner’s behalf.

B. Failure to Call Available Character Witnesses

Emma Turner also claims trial counsel rendered ineffective assistance by failing to call available character witnesses on Turner’s behalf. A court must examine all the circumstances of a case in order to determine whether trial counsel’s failure to call character witnesses constituted ineffective assistance. See Commonwealth v. Blount, 538 Pa. 156, 170, 647 A.2d 199, 206 (Pa. 1994).

Evidence of good character, if available and believed, may by itself raise a reasonable doubt as to Turner’s guilt. Id. at 1025. The affidavits submitted with the PCRA petition proffer that Turner’s reputation for good character is strong. Nothing in the present record suggests that trial counsel had a reasonable basis for failing to call Benita Wright and/or Anna O’Brien, or others, as character witnesses. Assuming the credibility of the character and alibi evidence, its absence so undermines this Court’s truth-determining process that Turner’s adjudication of guilt is not reliable. See 42 P.A. C.S. § 9543(2)(ii).

II. Due Process Requires That Turner be Given a Remedy for the Proffered Violation of Her Right to Effective

Counsel

We now turn to the main question. Having filed a timely petition under the PCRA, and having completed her sentence, is Emma Turner entitled to a post conviction evidentiary hearing on the merits?

The Pennsylvania Supreme Court has determined that, as a matter of statutory construction, defendants who are no longer serving a sentence are ineligible for relief under the PCRA. Commonwealth v. Ahlborn, 548 Pa. 544, 550, 699 A.2d 718, 721 (Pa. 1997). The Supreme Court held that “the denial of relief for a petitioner who has finished serving his sentence is required by the plain language of' the PCRA. Id. at 548.

In addition, the Supreme Court has held that ineffective assistance of counsel claims cannot be raised on direct appeal and must, instead, be addressed under the PCRA. See Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002). As the Supreme Court has acknowledged:

the net effect of these two rules is that claimants may not have the opportunity to raise a claim challenging trial counsel’s effectiveness if their direct appeal is final at a time when they are no longer serving a sentence of imprisonment, probation, or parole. Commonwealth v. O’Berg, 584 Pa. 11, 14, 830 A.2d 597 (2005).

The Supreme Court specifically declined to remedy this dilemma by allowing defendants with short sentences to raise their ineffectiveness claims on direct appeal. Id.

Under law set forth by the Pennsylvania legislature and the Supreme Court, Turner can only raise her ineffective assistance of counsel claim through the PCRA. However, as seen, her PCRA petition is subject to summary dismissal because she is no longer serving her sentence. Such dismissal would deny her any opportunity for relief and violates due process.

Turner has a right to try to vindicate the denial of her constitutional right to effective assistance of counsel. Moreover, Turner has a strong interest in overturning her felony conviction so that she can cure her civil disabilities, clear her reputation, and restore her ability to work at jobs from which she would be disqualified by a felony conviction. Based on her affidavits and the likelihood that ineffective assistance of counsel prejudiced her, due process requires an evidentiary hearing on the merits.

A. Due Process is Violated Where There is No Remedy For the Violation of a Constitutional Right

Comparison of Pennsylvania’s post-conviction procedures to those of other jurisdictions clarifies why Pennsylvania’s procedures violate due process. Many states require that a defendant be in custody when he files a collateral attack. See Thomas M. Place, Deferring Ineffectiveness Claims to Collateral Review, 98 Ky. L.J. 301, 315-16 (2009/2010). However, Pennsylvania, and apparently Arkansas, are the only jurisdictions, state or federal, which prevent a defendant from pursuing a collateral review once a criminal sentence expires. Id. at 316; see also Commonwealth v. Ahlborn, 683 A.2d 632, 635 n.8 (Pa. Super. 1996) (noting that Pennsylvania is the only state to have expressly abrogated the collateral consequences doctrine). Pennsylvania’s post-conviction procedures contradict the United States Supreme Court’s presumption that: “[o] ur system affords a defendant convicted in state court numerous opportunities to challenge the constitutionality of his conviction. He may raise constitutional claims on direct appeal, in post conviction proceedings available under state law, and in a federal petition for a writ of habeas corpus.” Daniels v. United States, 532 U.S. 374, 381 (2001).

Indeed, under the U.S. Constitution, “No State shall... deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV § 1. Under the due process clause, a state’s post conviction procedures “must comport with fundamental fairness.” Pennsylvania v. Finley, 481 U.S. 551, 559 (1987).

Due process, of course, is a flexible concept and requires only such procedural protections as each situation demands. See Fordv. Wainwright, 477 U.S. 399, 424 (1986) (Powell, J. concurring). However, a fundamental requirement of due process and fundamental fairness is clear: a defendant is entitled to an opportunity to be heard. Id.

Here, the post conviction PCRA framework created by the Pennsylvania legislature would completely bar Turner from any opportunity to be heard on her constitutional claim of ineffective assistance of counsel, even though she has filed a petition within statutory time limits. This outcome does not comport with fundamental fairness. It is illogical to bar defendants serving short sentences from obtaining relief and confer unequal and, ironically, more substantive procedural protection to convicted defendants serving longer sentences.

Although Pennsylvania presently does not recognize a doctrine of collateral consequences, Ahlborn, 683 A.2d at 635, see also O ’Berg, 584 Pa. 11, Turner is nonetheless entitled to relief because she has a Sixth Amendment right to effective assistance of counsel and Pennsylvania is not giving her an opportunity to be heard. See McMann v. Richardson, 397 U.S. 759, 771 (1970) (“If the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel...”). If there is no remedy for ineffective assistance of counsel, the right itself has no value. See Weeks v. United States, 232 U.S. 383, 393 (1914).

B. The Pennsylvania Constitution Is Protected By Grant of An Evidentiary Hearing Under The Circumstances Here

Like the Fourteenth Amendment to the United States Constitution, Article I, Section 9 of the Pennsylvania Constitution guarantees a criminal defendant the right to due process of law. See Commonwealth v. Louden, 569 Pa. 245, 250, 803 A.2d 1181, 1184 (2002); See also Ken Gormley, The Pennsylvania Constitution §12.7[h] (2004). The Pennsylvania Constitution’s guarantee of due process is largely coextensive with the federal due process clause and likewise requires an evidentiary hearing here.

Additionally, Article 1, Section 11 of the Pennsylvania Constitution provides the right to a remedy as follows:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

Litigation over this clause has largely concerned civil tort matters. See Gormley, The Pennsylvania Constitution §14.4-14.5. However, nothing in the clause limits the right to civil matters, and the principle of open courts applies with force in the criminal context.

Accordingly, Article 1, Section 11 of the Pennsylvania Constitution requires that Turner “have remedy by due course of law” - an evidentiary hearing on the merits to determine if injury was caused to her reputation by ineffective assistance of counsel.

C. Writ of Error Coram Nobis

Finally, this court notes that prior to the enactment of the PCRA, the common law writ of error coram nobis was available to citizens faced with injustice for whom no other remedy was available. It was traditionally available to challenge the validity of a judgment based on facts not before the court when the judgment was entered — such as alibi and character evidence in this case. See Commonwealth v. Matthews, 356 Pa. 100, 51 A.2d 609 (1947). The writ has, of course, been abolished in Pennsylvania where a claim is cognizable under the PCRA. See Commonwealth v. Pagan, 844 A.2d 1231 (Pa. Super. 2004).

However, to the extent PCRA remedy is unavailable to Emma Turner because of a constitutional violation by the PCRA itself, this court issues a writ of error coram nobis granting an evidentiary hearing on the merits.

CONCLUSION

For the foregoing reasons, Emma Turner is granted an evidentiary hearing on her claim of ineffective assistance of counsel.

      . Turner also claims that her counsel was ineffective because he failed to move to suppress the drugs and money found at Turner’s home. The Commonwealth correctly notes that this claim is underdeveloped and therefore waived. Turner has presented no reason why the search was invalid. In any event, the claim is without merit because the record shows that the search was conducted pursuant to a valid search warrant.

      . A claim of ineffective assistance of counsel can be adjudicated on direct appeal if the claim has previously been reviewed by the trial court in a post-sentence motion. See Commonwealth v. Bomar, 573 Pa. 426, 853 (Pa. 2003). This is not a practical exception. In order to properly raise a viable ineffective assistance of counsel claim in a post-sentence motion, trial counsel must be replaced with new counsel and the new counsel must investigate and raise the claim before the short time period for filing post-sentence motions expires.


source: Caselaw Access Project

author: VICAN, P.J.,

license: Public Domain

text:
    Jackson Township v. Dizzy Dottie, LLC

      C.P. of Monroe County,
    no. 4487 CIVIL 2010.

      John B. Dunn and Ralph A. Matergia, for plaintiff.

      Ira E. Weiner, for defendant.
    October 19, 2010
   VICAN, P.J.,

On June 25, 2010, defendant, Dizzy Dottie, LLC (hereafter “defendant”) filed a demand for final hearing pursuant to Pa. R.C.P. No. 1531(f)(1) in connection with the preliminary injunction issued on June 16, 2010; however, defendant failed to serve a copy of the demand upon the court. As noted in our June 30, 2010 order, we did not become aware of the demand for final hearing until June 29, 2010, when we received a copy of plaintiff’s opposition to defendant/ respondent’s demand for final hearing. Although we do not agree with defendant that the issue(s) in this case involves freedom of expression, we nevertheless granted appellant’s request for a final hearing and scheduled same for the first available date on the court’s calendar. The final hearing began on July 6, 2010 and concluded on September 16, 2010. On July 20, 2010, plaintiff/ petitioner Jackson Township (hereafter “plaintiff’) filed a petition to enjoin or abate violations of 68 Pa. C.S.A. § 5503(b) & (d). Upon review of the petition and after consideration of the testimony previously presented, we concluded that violations of 58 Pa. C.S.A. § 5503(b) & (d) had occurred and, therefore, entered an order temporarily enjoining defendant from “continuing or permitting the continuation of any violation of chapter 55” Specifically, the order temporarily enjoined defendant from “permitting or allowing live adult entertainment in booths, cubicles, rooms or stalls, which are blocked or obscured by doors, curtains, partitions, drapes, or any other obstruction whatsoever, and which is not continuously open to viewing in its entirety from the common areas of the premises.” [Order, 7/28/10.] The matter was scheduled for the next hearing date on August 18, 2010.

Although the final hearing had not yet concluded, defendant filed an answer to complaint and new matters on August 10, 2010. On August 20, 2010, plaintiff filed a petition for supplemental preliminary injunctive relief and defendant filed an answer on August 24, 2010. Plaintiff filed a reply to new matter on August 30, 2010. The petition was scheduled to be heard at the next date set for final hearing, August 31, 2010. Defendant filed a motion for post hearing relief on August 31,2010. The conclusion of the final evidentiary hearing occurred on September 16, 2010. The parties filed their respective briefs on September 27, 2010. We are now ready to dispose of this matter.

DISCUSSION

We have several matters pending before the court at this time. In addition to its request for a permanent injunction, plaintiff has filed a petition to enjoin or abate violations of 68 Pa. C.S.A. § 5503(b) & (d), as well as a petition for supplemental preliminary injunctive relief. Inasmuch as our decision with respect to plaintiff’s request for a permanent injunction will affect our ruling on these two petitions, we will address them at the conclusion of our discussion regarding plaintiff’s request for permanent injunctive relief.

“In order to establish a claim for a permanent injunction, the party must establish his or her clear right to relief.” J. C. Ehrlich Co., Inc. v. Martin, 979 A.2d 862, 864 (Pa. Super. 2009), citing Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700, 710 (Pa. Super. 2005) (citation omitted). “...[U] nlike a claim for a preliminary injunction, the party need not establish either irreparable harm or immediate relief and a court may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law.” Id.

I. The entertainment featured at Thrills constitutes “sexual conduct” and “sexually explicit nudity” which brings the business squarely within the jurisdiction of Zoning Ordinance 97-100.

Plaintiff contends that the business known as “Thrills” located at the comer of Route 715 and Doll Road in Reeders, Jackson Township, Monroe County, Pennsylvania, is still operating as an “adult cabaret” in violation of Jackson Township Zoning Ordinance 97-100 despite this court’s issuance of a preliminary injunction on June 16, 2010. We agree, but before reaching a conclusion as to whether Jackson Township is entitled to permanent injunctive relief against defendant, we feel that we must clarify the definition of an “adult cabaret” and determine, based on new evidence presented during the final hearing, whether Thrills is operating as an adult cabaret.

In our prior opinion of June 16, 2010, we found that Thrills is an establishment, club, tavern, restaurant, theatre hall or room that is open to the general public and it offers live entertainment to its patrons. Consequently, we concluded that Thrills is an adult cabaret as that term is defined in the zoning ordinance. Since that time we have received additional evidence that may or may not change this finding.

While defendant denies that the entertainment at Thrills “features” erotic dancing by female dancers who are in various stages of dress and/or undress, defendant admits that it “permits” live adult entertainment to take place in its establishment. Therefore, before we review the abundance of evidence presented by the private investigators hired by plaintiff, we believe it would be prudent to define some of the terms found in the ordinance.

First, the definition of an adult cabaret under Ordinance 97-100 refers to: “an establishment, club, tavern, restaurant, theatre hall or room which features live entertainment distinguished or characterized by emphasis on sexual conduct, sexually explicit nudity and/or activities such as mud wrestling and dancing.” [Plaintiff’s exhibit 4-Jackson Township Zoning Ordinance No. 97-100, adopted 2/13/97 (emphasis added).] Using common, everyday definitions from an internet dictionary rather than from a statute, we define the highlighted terms as follows:

a) feature - (n) highlight, characteristic, trait; (v-1) include, present, introduce, highlight; (v-2) figure, appear, be included, star, play a part.
b) permit - (not from the ordinance, but defendant’s term used to describe what the management of Thrills allows) (v) authorize, allow, consent, let, okay, sanction, give your blessing to; (n) license, certification, authorization.
c) authorization - (n) approval, agreement, sanction, permission, consent, endorsement.

The terms feature, permit and authorization can all be used to describe what the management at Thrills allows or expects from their dancers. First, the advertisements placed in the newspaper titled Focus, clearly show that Thrills’ adult nightclub presents, introduces, highlights, and thus “features”, live entertainment that includes lap dances and topless female dancers. [Plaintiff’s exhibits 9, 12, 13, & 1 A — focus newspaper.] Likewise, a large billboard located adjacent to Route 33 in Hamilton Township indicates that Thrills “presents”, “highlights”, and/or “features” nude female dancers. The definition of “feature” also means to “play a part”.

Defendant’s counsel asserts that the VIP dances provide the male patrons with a fantasy. To create a fantasy, one must “play a part” in that fantasy and since the definition of the word “feature” also includes “play a part”, it is not a far stretch to conclude that these so-called “fantasies” are “featured” entertainment. Based on the foregoing, we find that Thrills’ management does in fact “feature” both topless and totally nude female dancers as part of its nightly live entertainment.

Another term from the ordinance definition of adult cabaret is the term “sexually explicit nudity To understand the plain meaning of this term, we must break it down and define each of the words individually. For instance, the word explicit means open, clear, overt, plain, unambiguous, unequivocal; precise, exact, specific, definite; frank, uninhibited, candid, and graphic. Clearly, the actions of the dancers in appearing topless and/or totally nude are “open, clear, overt, uninhibited, candid, and graphic” acts. There can be no question that the dances are “explicit. ” But are they “sexually explicit ”1

The word sexual means involving or relating to sex, i.e. sexual desire/feelings; concerning relationships between men and women, or the way that people think men and women should behave; (synonyms) erotic, fleshy, carnal, and sexy. The evidence in this case is clear - the female dancers at Thrills perform dances that are designed to elicit sexual desires/feelings in the male patrons. Defense counsel admits this. The dancers perform topless and nude, thus they are revealing flesh in an obviously sexy and carnal manner. The dances are also erotic which means they are intended to make you sexually excited, to create erotic thoughts. The dances are sexy, sensual, stimulating, and suggestive (also admitted by defense counsel).

In our June 16,2010 opinion, we relied on Title 18, section 5903(b) of the Pennsylvania Consolidated Statutes for a definition of the term “nude Nude means the showing of “the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple.” 18 Pa. C.S.A. § 5903(b). The testimony and video (plaintiff’s exhibit #2, 5/19/10) presented by Glen Miller at the preliminary hearing, without a doubt, shows that Autumn performed for him “topless”. Therefore, by the definition set forth above, Autumn was nude.

More significantly, the testimony of Brian Miller and William Cooperman clearly establishes that the female dancers perform topless on stage and a couple of the female dancers were completely nude when they performed lap dances for them in the VIP rooms.

Thus, when you apply the definitions of the terms “sexual, explicit and nude ”, to the evidence presented through the testimony of the private investigators, Glen Miller, Brian Miller and William Cooperman, it is not a far stretch to conclude that the performances by the female dancers at Thrills do constitute “sexually explicit nudity. ”

Notably, the female dancers did not begin to perform totally nude until after the entry of the preliminary injunction on June 16,2010. Defense counsel has mistakenly interpreted the preliminary injunction to mean that it does not preclude “nude” dancing at its establishment. This is not what the preliminary injunction said. The preliminary injunction merely stated that at the time of the first hearing, plaintiff had not satisfied its burden of proving that topless or nude dancing was actually taking place. In fact, the testimony of Glen Miller revealed that Thrills had not yet gone topless when he was there. It should be made clear that the preliminary injunction did not give Thrills the green light to go topless, nor did it give it a green light to go totally nude. For this reason, we find that Thrills is in violation of the preliminary injunction.

In conclusion and based on the foregoing, we adopt our findings from the preliminary hearing as set forth in our opinion dated June 16, 2010, and we reaffirm our previous ruling that “Thrills is an establishment, club, tavern, and restaurant which features live entertainment distinguished or characterized by emphasis on sexual conduct, specifically that conduct which occurs during the YIP dances.” [Opinion/ Order, 6/16/10, p. 18.]

Finally, we must determine whether Jackson Township is entitled to a permanent injunction against defendant. Unlike its claim for a preliminary injunction, Jackson Township need not establish either irreparable harm or immediate relief in order to be entitled to a permanent injunction. It is within the power of this court to issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law. For the reasons stated above, we find that Jackson Township has met its burden of establishing a claim for permanent injunctive relief and that it has a clear right to that relief. J C. Ehrlich, supra.

II. Zoning Ordinance 97-100 constitutes a valid time, place and manner restriction on adult facilities located within Jackson Township

The Zoning Ordinance 97-100 prohibits the operation of adult cabarets within the borders of the commercial zoning district of Jackson Township. However, the zoning ordinance does provide that adult cabarets are permitted to operate within the borders of the industrial zoning district of Jackson Township. Jackson Township Zoning Ordinance 97-100 defines an adult facility as: “an establishment open to the general public or a private club opened to members which is used and occupied for one or more of the following activities:

(1) Adult book store...
(2) Adult theatre...
(3) Adult cabaret - an establishment, club, tavern, restaurant, theatre hall or room which features live entertainment distinguished or characterized by emphasis on sexual conduct, sexually explicit nudity and/or activities such as mud wrestling and dancing.
(4) Adult massage parlor...

[Petitioner’s exhibit #4-Jackson Township Zoning Ordinance 97-100, Sec. 1 (J)(l-4), adopted February 13, 1997.]

Section 2 of Chapter 27, sets forth certain criteria and isolation distances that must be followed by adult facilities to locate their business in the industrial zoning district.

Section 2: Chapter 27 section 801(2)(K) states as follows:

K. Adult facilities - any adult facilities or businesses as defined in section J, above, which contain an adult facilities section shall comply with the following requirements:
(1) An adult facility shall not be located within 1000 feet of any other adult facility.
(2) An adult facility shall not be permitted to be located within 1000 feet of any public or private school, day care facility, indoor or outdoor public recreation facility, or any religious house of worship.
(3) An adult facility shall not be permitted within 500 feet of a school bus stop regardless of the time of day when the school bus stops at that location.
(4) No materials, merchandise, film or service offered for sale, rent, lease, loan or for view shall be exhibited, displayed or graphically represented outside of a building or structure.
(5) Any building or structure used and occupied as an adult facility shall be windowless or have an opaque covering over all windows or doors of any area in which materials, merchandise, film, service or entertainment are exhibited or displayed and no sale materials, merchandise, film or offered items of service or entertainment shall be visible from outside the structure.
(6) No sign shall be erected upon the premises depicting or giving a visual representation of the type of materials, merchandise, film, service or entertainment offered therein.
(7) If all adult facility videotape or laser disc rental users are restricted to a discreet small area of 150 feet or less within a larger non-adult facility business, then the requirement under (5) and (6) above only apply to that section of the business which is devoted to an adult facility videotape or laser disc rental use area within the business space.

[Plaintiff’s exhibit #4-Zoning Ordinance 97-100, section 2.]

Defendant challenges Zoning Ordinance No. 97-100 by trying to establish that the ordinance “regulates expressive conduct similar to barroom nude dancing”, ‘and thus, “it is subject to first amendment analysis and restrictions.” [Defendant’s post final hearing memorandum of law, 9/27/10, p.3.] We disagree. It has always been plaintiff’s and this court’s position that the matter before us is simply a zoning issue and does not involve a constitution question. Nevertheless, we will briefly address the constitutionality of Ordinance 97-100 in order to put the matter to rest.

In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925 (U.S. Sup. Ct. 1986), the court held that the zoning ordinance which prohibited adult motion picture theaters from locating within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school “was a valid governmental response to the serious problems created by adult theaters and satisfied the dictates of the first amendment.” (citation omitted). The Renton court went on to say:

(a) Since the ordinance does not ban adult theaters altogether, it is properly analyzed as a form of time, place, and manner regulation. ‘Content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.

Renton, supra at 928-929.

Because Ordinance 97-100 does not ban adult facilities (adult cabarets) altogether, we believe the ordinance is content-neutral and therefore, the proper analysis is one of time, place, and manner regulation. “A city’s interest in attempting to preserve the quality of urban life, as here, must be accorded high respect.” Id. The court further stated that “cities may regulate adult theaters by dispersing them, or by effectively concentrating them, as in Renton.” Id. at 930-932.

The purpose for enacting Ordinance 97-100 is stated in the preamble to the ordinance, which states: “Whereas, the supervisors deem it to be in the township’s best interest regarding the health, welfare and safety of a citizenry; and...” [Plaintiff’s exhibit #4-Ordinance 97-100.] Defendant contends that the township must prove “that the ordinance was primarily motivated by concerns unrelated to the content of the expressive conduct itself.” [Defendant’s post final hearing memorandum, 9/27/10, p.4.] We believe plaintiff has established that the ordinance was primarily motivated by concerns unrelated to the content of the expressive conduct.

As we pointed out in our prior opinion, plaintiff’s ordinance does not seek to ban adult cabarets altogether from the township; it merely seeks to regulate such businesses by dispersing them or concentrating them in the industrial zone. Plaintiff provided ample testimony and evidence in the form of township zoning maps (plaintiff’s exhibit no. 7 & 10) to show that it has provided reasonable alternative avenues of communication in the industrial zoning district as required by the first amendment.

Defendant also argues that the ordinance does not pass muster under the intermediate scrutiny test set forth in United States v. O’Brien, 391 U.S. 367 (U.S. Sup. Ct. 1968) and instead, argues that the ordinance must “necessarily be subject to strict scrutiny.” [Defendant’s post final hearing memorandum, 9/27/10, p.9.] We disagree. If any standard applies, it is intermediate scrutiny.

Like the respondent in Renton, defendant argues that “Jackson Township has failed to meet its burden of proving the existence of an adequate number of alternative available sites.” [Defendant’s post final hearing memorandum, 9/27/10, p.ll.] Again, we disagree. The majority of the testimony in the final hearing dealt with the availability of alternative available sites for an adult cabaret. Plaintiff presented exhibits and testimony that there are at least 27 sites in the industrial zoning district that provide reasonable alternative avenues of communication. However, after taking into account the isolation distances as required in section 2 of the ordinance, the number of available lots was reduced to 17. Nevertheless, the engineers who testified on behalf of plaintiff, Andrew Bohl and Charles Unangst, both of Hanover Engineer Associates, indicated that they were not aware of any ordinance features or other physical features regarding these properties that would preclude their use or development as an adult facility.

Defendant argues that “[t]he lack of available commercial financing is particularly acute in this case because the industrial district contains no rental properties, no restaurants, no taverns, no convenience stores and, indeed, no other structures that can readily be converted into use by an adult cabaret. A person who wished to put an adult cabaret in that zone would have to purchase the land, then build, furnish, equip and stock the building before receiving one dime in revenue.” [Defendant’s post final hearing memorandum, 9/27/10, p.19.] Like defendant, the respondent in Renton argued that “in general there are no ‘commercially viable’ adult theater sites within the limited area of land left open for such theaters by the ordinance.” However, the court stated that “the fact that respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a violation of the first amendment, which does not compel the government to ensure that adult theaters, or any other kinds of speech-related businesses, will be able to obtain sites at bargain prices.” Renton, supra at p. 932.

During the testimony regarding available sites within the industrial zoning district, there was disagreement on how the isolation distances should be measured. Defendant argued that the isolation distances set forth in the ordinance should be measured property line to property line. However, the zoning officer, Michelle Arner, testified that she measures structure to structure. This argument took up a large amount of the time allotted for the final hearing. Defendant also claims that the ordinance is defective for the following reasons:

a) That the location of the lots which plaintiff indicates are available for an adult cabaret within the industrial zoning district would violate the isolation distances as set forth in Section II of 97-100 above,
b) Defendant argues that the isolation distances from a house of worship, indoor or outdoor recreational facility, private or public school, day care facilities and bus stops should be measured from property line to property line.

Defendant claims that by measuring from “property line to property line”, these isolation distances would prohibit use of any of the available lots referenced by plaintiff. We agree. However, the testimony of the township’s zoning officer clearly established that for this purpose, the isolation distances would be measured from facility to facility, not property line to property line. When asked what she meant by “facility”, Ms. Arner stated that she considers a “facility” a structure. Defendant, on the other hand, believes that the term “facility” also encompasses an outdoor recreational facility (with no structures) and therefore, the isolation distance would have to be measured using the property lines. We do not accept this interpretation.

The term “facility” is defined as a room, equipment, etc. provided for people to use; something such as a room or piece of equipment that is provided at a place for people to use; a bathroom or toilet; and area or building used for a particular purpose. Facility may also refer to an installation, contrivance, or other thing which facilitates something; a place for doing something such as a commercial or institutional building. Based on this definition, we believe that the term “facility” can only mean man-made structures; i.e. a church building, park buildings, indoor or outdoor swimming pools, tennis courts, etc.

Defendant argues that Big Pocono State Park, which is located in Pocono Township bordering along Jackson Township’s industrial zone, is a “public recreation facility”. However, Big Pocono State Park while it is a recreation area open to the public, has no buildings, swimming pools, tennis courts, etc. — no amenities except for hiking trails. Therefore, we find that Big Pocono State Park is not a “facility” as that term is defined above.

Next, defendant argues that the entire property owned and occupied by Streamside Camp is a “house of worship” and thus a “facility” for purposes of measuring isolation distances. While there may be two or three buildings located on the camp property where worship takes place, the camp property itself is not a “facility” i.e. a house of worship, as the term facility is defined above.

Defendant also argues that “[t]he lack of available commercial financing is particularly acute in this case because the industrial district contains no rental properties, no restaurants, no taverns, no convenience stores and, indeed, no other structures that can readily be converted into use by an adult cabaret.” Defendant asserts that because of contaminants leaching from the Butz Landfill Superfund Site into and contaminating the groundwater system throughout the industrial zone, commercial financing will be virtually impossible especially in today’s economic climate. Defendant claims that the underground subterranean water has been identified as being polluted thus barring the utilization of terrain above ground in residential and/or commercial applications. Defendant provided no reliable evidence that commercial financing would not be available due to the contamination of subterranean water from the Butz Landfill Superfund Site. The EPAreport (defendant’s exhibit 24-public health assessment, dated 11/3/09) makes the determination while “[t]he site posed a past public health hazard because people were exposed to contaminated groundwater; [c] urrently, the site represents no public health hazard...” [Website for Agency For Toxic Substances & Disease Registry.] The report went on to say that “several changes in conditions could alter that conclusion” but stated that if certain conditions presently in place continue to be enforced, there should be no public health hazard. [Defendant’s exhibit 24-public health assessment, 11/3/09.] Moreover, when the contaminants were discovered, Pocono and Jackson Townships combined their efforts at remediation by creating the Pocono Jackson Township Joint Water Authority. The authority has installed a public water system which services the lots located in the industrial zoning district. Therefore, without actual evidence that commercial financing is not available to an individual or company who seeks to locate in the industrial zone due to this contamination (rather than due to the economic downturn), this argument must fail.

Finally, and arguably important to our decision is the fact that defendant, while arguing that there are no reasonable avenues of communication within the Jackson Township industrial zone, has never applied for a zoning permit, which is a necessary requirement for the change in use from the prior use of a good/beverage facility to an adult cabaret. Moreover, there is a procedure under the municipalities planning code available to an applicant to make a challenge to the validity of a provision of a zoning ordinance on substantive grounds. This is referred to as the curative amendment procedure and is set forth in 53 P.S. 10609.1 and 10609.2. Defendant has failed to follow the procedures for obtaining a zoning permit and has failed to follow the procedures of the municipalities planning code to obtain a curative amendment.

After considering all of the documentary and testimonial evidence presented by both parties, we make the following determinations:

a) Thrills is currently located in the commercial zone of Jackson Township;
b) Dizzy Dottie, LLC, t/a Thrills, is operating its business as an adult cabaret;
c) Pursuant to the Jackson Township Zoning Ordinance 97-100, an adult cabaret is barred from operating in the commercial zone;
d) Township has shown that properties are available for such use in the industrial zone of the township;
e) The evidence establishes that there would be no prohibition by state or federal government agencies that would prohibit utilization of the properties in the industrial zone for a commercial business.
f) We find no prohibition in Ordinance 97-100 which would bar a would-be entrepreneur from building or converting existing property in the industrial zone for use as an adult cabaret;
g) The zoning ordinance does not bar the construction of an adult cabaret facility in the industrial zoning district;
h) We find the evidence presented by township regarding the number of alternate sites in the industrial zone to be credible;
i) The evidence provides that at least 17 lots are available for that particular purpose;
j) Therefore, we conclude that Ordinance 97-100 is content-neutral and complies with the first amendment requirements for a time, place and manner restriction. Accordingly, we find that Zoning Ordinance 97-100 is constitutional and will, therefore, be enforced.

-Petition to enjoin or abate violations of 68 Pa. C.S.A. §§5503(b) & (d)

On July 20, 2010, plaintiff filed a petition to enjoin or abate violations of 68 Pa. C.S.A. §§ 5503(b) & (d) requesting the court to “enter an order restraining the continuation of any violation or violations pending such next hearing and the court’s final decision”. If upon conclusion of the final hearing, the court finds that the defendant has heretofore violated chapter 55, then plaintiff asks the court to order that the premises occupied by “Thrills” shall not be occupied or used for any purpose for up to one year following the date of the court’s order. [Plaintiff’s petition to enjoin or abate violations, 7/20/10, ¶¶17-18. p.5.]

68 Pa. C.S.A. § 5503(b) provides as follows:

Every adult-oriented establishment doing business in this Commonwealth shall be well-lighted at all times and be physically arranged in such a manner that the entire interior portion of the booths, cubicles, rooms or stalls where adult entertainment is provided shall be clearly visible from the common areas of the premises. Visibility into such booths, cubicles, rooms or stalls shall not be blocked or obscured by doors, curtains, partitions, drapes or any other obstruction whatsoever. It shall be unlawful to install enclosed booths, cubicles, rooms or stalls within adult-oriented establishments for whatever purpose, but especially for the purpose of providing for the secluded viewing of adult-oriented motion pictures or other types of adult-oriented entertainment.

68 Pa. C.S.A. § 5503(d) further provides as follows:

The operator of each adult-oriented establishment shall be responsible for and shall provide that any room or other area used for the purpose of viewing adult-oriented motion pictures or other types of live adult entertainment shall be well-lighted and readily accessible at all times and shall be continuously open to view in its entirety. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than a one footcandel as measured at the floor level. It shall be the duty of the operator and the operator’s agents to ensure that the illumination required by this subsection is maintained at all times that a patron is present in the premises.

“Upon finding that the material allegations of the petition are true, the court shall order that neither the premises nor any part of the premises be used in violation of this chapter.” 68 Pa. C.S.A. § 5506(b)(2). If the court orders that a violation be abated, it “may order that neither the premises nor any part of the premises shall be occupied or used for any purpose for up to one year following the date of the court’s order.” Id. After considering the testimony presented up to July 20,2010, we determined that “violations of Chapter 55, specifically §§ 5503(b) and (d), have occurred by virtue of female dancers at the ‘Thrills’ club having engaged in live adult entertainment in upstairs VIP rooms while the interior of the room and the entertainment occurring inside were not clearly visible from the common areas of the premises.” [Order, 7/28/10.]

Although evidence was presented that the curtains on the doorways to the VIP rooms have been removed, evidence presented in the form of testimony from the private investigators indicates that even without the curtains, the interior of the VIP rooms still are not visible from the common areas of the establishment. Even the photographs presented by defendant are inconclusive. Those photographs taken from a distance do not show the interior of the rooms and the remaining pictures were obviously taken from the doorway to the rooms. Accordingly, we find that the design and location of the VIP rooms violate the conditions of Chapter 55, specifically §§ 5503(b) and (d). Therefore, plaintiff is entitled to an order against defendant directing that neither the premises nor any part of the premises shall be occupied or used for any purpose for up to one year following the date of the court’s order.

-Petition for supplemental preliminary injunctive relief

On August 20, 2010, plaintiff filed a petition for supplemental preliminary injunctive relief, seeking a supplemental preliminary injunction directing defendant to cease operations at the Route 715 and Doll Road premises, pending disposition of the plaintiff’s underlying complaint for permanent injunction. Plaintiff’s request is based on additional testimony showing a continued violation of the court’s preliminary injunction dated June 16, 2010. [Plaintiff’s petition for preliminary supplemental injunctive relief, 8/20/10, ¶ 18.]

In Izenson v. Izenson, 418 A.2d 445 (Pa. Super. 1980), the Pennsylvania Superior Court stated that “[wjhere a preliminary injunction is in force, the issuance of a permanent injunction terminates the preliminary injunction.” Because the preliminary injunction issued on June 16, 2010, will cease to be in effect upon the filing of the present opinion and order granting permanent injunction, we cannot grant supplemental preliminary injunctive relief. Accordingly, plaintiff’s petition for preliminary supplemental injunctive relief is moot.

ORDER

And now, October 19, 2010, based on the foregoing, it is ordered as follows:

1. Plaintiff/petitioner, Jackson Township’s, complaint seeking permanent injunctive relief against defendant/ respondent is granted.

2. Plaintiff/petitioner, Jackson Township’s petition to enjoin or abate violations of 68 Pa. C.S.A. §§5503(b) & (d) is granted.

3. Plaintiff/petitioner’s petition for supplemental preliminary injunctive relief is moot.

4. Defendant/respondent, Dizzy Dottie, LLC, doing business as Thrills, is permanently enjoined from occupying or using the commercially zoned premises located at Route 715 and Doll Road as an adult cabaret, which use is permitted only within the industrial zoning district of Jackson Township, Pennsylvania, nor any part of the premises, for any purpose for up to one year following the date of this order.

      . On July 9, 2010, defendant appealed the June 16, 2010 order granting preliminary injunction, as well as the June 30, 2010 order continuing the preliminary injunction, to the Superior Court. The Superior Court transferred the appeals to the Commonwealth Court on or about August 18, 2010. The appeals are still pending in the Commonwealth Court.

      . Due to the extensive evidence presented by defendant, the final hearing has taken place over a period of five days over the past three months (July 6, August 18, August 20, August 31 and September 16, 2010).

      . Defendant waived the 24-hour/5-day time periods within which the court is to make a decision pursuant to Pa. R.C.P. 1531(f)(1).


author: HODGE, J,

text:
    In re Elena Hahn

      C.R of Lawrence County,
    nos. 34 and 35 of 2008.

      Dennis W. McCurdy, for petitioner.

      Jean Perkins, for Children and Youth Services.

      David H. Acker, for father.

      Robert DiBuono, for mother.

      Deborah Shaw, for children.
    November 16, 2010
   HODGE, J,

This case was before the court on November 9, 2010 on a motion to intervene filed on behalf of Kathryn Hahn, the maternal great-aunt of the minor children in the above listed actions. Kathryn Hahn (petitioner) asserts that she is an indispensable party to this action and is therefore permitted standing, pursuant to the Pennsylvania Rules of Civil Procedure, Rule 1133. Before addressing the legal issue of standing, the court finds it necessary to give a concise statement of the relevant factual background of this case.

The minor children, E.H. and A.H. were originally placed in the petitioner’s home on November 1, 2007. Children and Youth Services of Lawrence County removed the minor children from the custody of their natural parents, Krista Hahn and Kurt Fletcher, after the youngest child, E.H. was brought to Ellwood City Hospital on Wednesday, October 31,2007. E.H. had been experiencing constant vomiting and stomach pains. E.H. was promptly transferred to Children’s Hospital of Pittsburgh where she was found to have an intestinal transaction which required immediate surgery.

The Child Advocacy Center at Children’s Hospital subsequently contacted Children and Youth Services of Lawrence County (CYS) due to concerns regarding the severity and nature of E.H.’s condition. The treating physicians believed that E.H.’s injuries were consistent with blunt force trauma to the abdomen and went untreated for a period of time exceeding twenty-four (24) hours. After investigating the allegations, CYS petitioned this court for temporary custody of E.H. and her older sister A.H.

A 72-hour dependency/disposition hearing took place, and the minor children were subsequently placed with the petitioner as a kinship care provider on November 1, 2007. The minor children remained in petitioner’s care until September 27, 2010, when a dependency hearing took place in front of the Juvenile Master, Susan M. Papa. At the review hearing, the master determined that it was no longer in the children’s best interest to remain in petitioner’s care and that placing them with Sarah Babusci, their maternal aunt, would be a more suitable arrangement. A close review of the transcript from the dependency hearing indicated that there were serious concerns regarding petitioner’s attachment to the minor children and her obstructive behavior to CYS’ goal of eventually reunifying the minor children with their natural father. Such adversarial behavior seemed to escalate as natural father began increased visitation, and resulted in the petitioner filing a complaint for custody in Butler County. Pennsylvania; said complaint was subsequently dismissed by the Honorable Judge Kelly Streib.

The recommendations of the master were adopted by order of this court dated October 7, 2010. The October 7, 2010 specifically provided that each child would be placed with their material aunt, Sarah Babusci, and that CYS would be vigilant in assuring that appropriate interaction between the minor children and other family members, including Kate Hahn, took place. The minor children would continue to have visitation with natural father every first and third Saturday of the month, as well as every second and fourth Sunday of the month.

The petitioner subsequently filed a motion to intervene, claiming to be an indispensable party to this action. A hearing on petitioner’s motion to intervene was scheduled for the November 9, 2010, at which time this court heard argument from Dennis W. McCurdy, Esquire on behalf of Kathryn Hahn; Jean Perkins, Esquire, appearing and representing Lawrence County Children and Youth Services; David H. Acker, Esquire, appearing and representing the natural father, Kurt Fletch; Robert DiBuono, Esquire, appearing and representing natural mother, Krista Hahn; and with Deborah Shaw, Esquire, appearing and representing the minor children.

Petitioner cites Pennsylvania Rules Juvenile Procedure, Rule 1133 in support of her request to intervene in this dependency action. Rule 1133 along with the provided commentary expressly states:

A. Contents. The motion to intervene shall include:
(1) the name and address of the person moving to intervene;
(2) the relationship of the intervening person to the child;
(3) the contact between the child and the intervening person;
(4) the grounds on which intervention is sought; and
(5) the request sought.
B. Action by court. Upon the filing of a motion to intervene and a after a hearing, the court shall enter an order granting or denying the motion.
Comment Under paragraph (B), a motion may be denied if, among other reasons, there are insufficient grounds for the motion, the interest of the movant is already adequately represented, the motion for intervention was unduly delayed, or the intervention will unduly delay or prejudice the adjudication of dependency or the rights of the parties. Pa.R.Juv.P. 1133.

Respondents, however, argue that petitioner lacks standing to intervene in this action as a foster parent, and that the best interest of the children is a determination that should be left to the court’s discretion. In support of their argument, respondents cite section 6336.1 of the Juvenile act, which provides as follows:

(a) General rule. The court shall direct the county agency or juvenile probation department to provide the child’s foster parent, preadoptive parent or relative providing care for the child with timely notice of the hearing. The court shall provide the child’s foster parent, preadoptive parent or relative providing care for the child the right to be heard at any hearing under this chapter. Unless a foster parent, preadoptive parent or relative providing care for a child has been awarded legal custody pursuant to section 6357 (relating to rights and duties of legal custodian), nothing in this section shall give the foster parent, preadoptive parent or relative providing care for the child legal standing in the matter being heard by the court. 42 Pa.C.S.A. §6336.1 (emphasis added).

A review of the file makes it clear that at all times while petitioner was a foster parent for the minor children, she was given notice of the review hearings, and she had been afforded the opportunity to be heard at the hearings. It is equally clear that CYS maintained legal custody of the minor children since they were originally adjudicated dependant, and petitioner, therefore, provided care for the minor children under the authority and discretion of CYS.

Furthermore, the fact that CYS developed a permanency plan of adoption, concurrent with the primary plan of reunification, does confer upon petitioner an automatic right to intervene. See Chester County Children and Youth Service v. Cunningham, 636 A.2d 1157 (Pa. Super. 1994). Although CYS did establish a concurrent goal of adoption for the minor children, the primary objective has been to assist the natural father in establishing an appropriate parental relationship with the children so that he many obtain permanent custody in the future.

In any dependency proceedings, the ultimate objective is to establish a safe permanent environment that will ultimately provide for the child’s overall well being. See In the Interest of C.B. and A.L., 861 A.2d 287, 294 (Pa.Super. 2004); In re R. T., 778 A.2d 670, 678 (Pa Super. 2001). Natural father has been working towards completing each element of the family service plan established by CYS, and the court believes that these elements create an appropriate process through which natural father can eventually be permanently and safely reunited with the minor children. Petitioner, however, does not believe that CYS goal of reunification is in the children’s best interest, and has petitioned this court for standing, so that she can ensure that the best interests of the children are adequately represented.

The Juvenile Act restricts attendance and participation in dependency proceedings. As such, dependency hearings are closed to the general public. 42 Pa.C.S.A. §6336(d); In re L.J., 691 A.2d 520, 526 (Pa.Super. 1997). A person who is not a party to the dependency proceedings has no right to participate in a dependency proceeding. 42 Pa.C.S.A. §6338(a); In re L.J., 691 A.2d at 526. The term “party” in dependency proceeding as generally been granted to three classes of persons: (1) the parents of the juvenile whose dependency status is at issue; (2) the legal custodian of the juvenile whose dependency status is at issue, or (3) the person whose care and control of the juvenile is in question. In re J.P., 832 A.2d 492, 496 (Pa.Super.2003); L.J., 691 A.2d at 526; In re Manuel, 566 A.2d 626, 628 (Pa.Super. 1989).

Petitioner’s legal argument that she should be granted standing as an indispensable party to this action lacks merit. Rule 1133 of the Pennsylvania Rules of Juvenile Procedure is very general, and is interpreted as being directional in nature and does not expressly confer standing upon petitioner. While there is ample case law that provides that standing must be conferred on an individual having a substantial, direct and immediate interest in the dependency proceeding, see e.g; South Whitehall Township Police Serv. v. South Whitehall Township, 555 A.2d 793 (Pa. 1989); In re C.B., 861 A.2d 287, 295 (Pa. Super. 2004), there is also very specific statutory authority prohibiting this court from allowing petitioner to intervene as a foster parent or as a family care provider because she was never granted legal custody of the minor children. 42 Pa.C.S.A. §6336.1.

This court believes that petitioner has always wanted to provide and care for these two children in the best possible way. However, to the extent that her behavior has conflicted with the permanency goals for the children, there remains a disturbance to establishing a permanent and stable outcome for these minor children. The role assumed by petitioner, as foster parent, can be heart breaking. Petitioner cared for these children for an extensive period of time, and the court does not doubt that much of a foster parent’s daily task of caring for children goes unacknowledged and underappreciated. In many cases it is inevitable that placement is not permanent, as the children are returned to their natural parents. Petitioner is very fortunate in the fact that she is a relative of these minor children, and she has the ability to maintain a relationship with them. However, the natural father must be afforded the opportunity to be reunified with the minor children. Allowing petitioner the right to intervene would not only be in direct conflict with the statutory provisions which set forth the process and procedure for dependency proceedings, but it would also conflict with the overall objective and goals for the minor children.

For the reasons set forth above, the court will enter the corresponding order, denying Kathryn Hahn motion to intervene.

ORDER OF COURT

And now, November 16, 2010, this matter being before the court on November 9, 2010 for argument on a motion to intervene filed on behalf of Kathryn Hahn, by and through her counsel, Dennis W. McCurdy, Esquire; and with Deborah Shaw, appearing and representing the minor children; Jean Perkins, appearing and representing Lawrence County Children and Youth Services; and the court being in receipt of a answer to the motion to intervene prepared by counsel for the natural father, David H. Acker, Esquire; it is hereby ordered and decreed as follows:

1. Kathryn Hahn’s motion to intervene is hereby denied.
2. The prothonotary shall properly serve notice of this order upon counsel of record for the parties and any unrepresented party at their last known address as contained in the court’s file.


author: ZULICK, J.,

text:
    Commonwealth Financial Systems, Inc. v. Quistgaard

      C.P. of Monroe County,
    no. 6215 CV 2008.

      T. Axel Jones, for plaintiff.

      Alan R. Mege, for defendant.
    October 15, 2010
   ZULICK, J.,

This case comes before the court on defendant Jennifer A. Quistgaard’s petition to open or strike a default judgment entered for plaintiff Commonwealth Financial Systems, Inc. (CFSI) on August 8,2008. CFSI commenced this action after Ms. Quistgaard allegedly failed to make monthly payments and defaulted on a credit card account owned by CFSI. Quistgaard’s petition to open or strike was filed on August 18, 2008.

DISCUSSION

Verification of Petition

As apreliminary matter, CFSI argues that Ms. Quistgaard’s petition is noncompliant with the Pennsylvania Rules of Civil Procedure because it lacks required verification. It asserts that pursuant to Pa.R.C.P. 237.3, the preliminary objections attached to the complaint should have been verified but were not. It further contends that Ms. Quistgaard’s petition contains facts not-of-record and it is therefore noncompliant with Pa.R.C.P. 206.3. Rule 206.3 requires verification of a petition containing an allegation of fact that does not appear in the record.

“A petition containing an allegation of fact which does not appear of record shall be verified.” Pa.R.C.P. 206.3. Failure to properly verify a petition to strike or open a judgment should not be routinely condoned. Feigley v. Suomela, 564 A.2d 1032, 1034 (Pa. Cmwlth. 1989) (citing Davis v. Safeguard Inv. Co., 361 A.2d 893 (Pa. Super. 1976)). However, the error may be excused where it is inconsequential and not prejudicial. Furthermore, “courts should not be astute in enforcing technicalities to defeat apparently meritorious claims....” Id. at 896 (quoting West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84, 86 (1951)).

Ms. Quistgaard’s petition contains the following allegations not-of-record:

5. That counsel for plaintiff was aware of same [that Mr. Jones represented Ms. Quistgaard before the district judge], yet failed to serve counsel for the defendant with the complaint.
6. Furthermore, that counsel for the plaintiff failed to serve counsel for the defendant with a copy of the 10-day notice.
7. That defendant never received a copy of the 10-day notice.

Petition to open/strike judgment, page 1, ¶¶ 5-7. The court notes that CFSI’s response to the Quistgaard petition was not verified either. CFSI filed a reply to defendant’s petition on August 28, 2008, without a verification. CFSI then filed a praecipe to attach a verification on July 20, 2010, the same day it praeciped the case for argument.

Ms. Quistgaard will be given leave to amend by filing verifications to her petition and preliminary objections to support her contention that attorney Jones appeared of record as her attorney in the district court. Her petition will be reviewed as though the preliminary objections were properly verified, on the condition that she files the missing verifications.

Adequacy of Notice

Quistgaard alleges that CFSI failed to comply with Pa.R.C.P. 237.1 when it filed a praecipe for entry of default judgment without sending notice of its intent to enter the judgment to either Ms. Quistgaard or her counsel of record, Attorney Jones. Pa.RX.P. 237.1 provides in pertinent part:

(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to that party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of filing of the praecipe....

The relevant inquiry under Pa.R.C.P. 237.1 is whether the prothonotary received certification that a written notice of intent to file a default judgment had been sent to the opposing party and the attorney at least ten days prior to the filing of a praecipe for default judgment. The issue is not whether Ms. Quistgaard and Attorney Jones actually received the notice. See Feigley v. Suomela, supra, at 1034 (finding irrelevant and inconsequential allegations of fact not on record addressing issue of whether parties in default had received notice prior to entry of default judgment, and not issue of prothonotary’s receipt of certification of notice.)

Ms. Quistgaard’s allegations do not question the prothonotary’s receipt of certification. I am able to determine from the record that CFSI did file a praecipe for default judgment with the Prothonotary stating that it served a copy of the ten-day notice on the defendant with a copy attached. If CFSI was not required to serve attorney Jones by the rules, this certification complied with rule 237.1(a)(2) and (3).

Attorney Jones contends that he was “counsel of record” because he represented Quistgaard at the district judge’s office. No appearance was entered in this court by attorney Jones pursuant to Pa.R.C.P. 1012. The question presented here is whether attorney Jones is an “attorney of record” for purposes of serving notice of the default judgment. The Rules of Civil Procedure for Magisterial District Judges provide that when filing an appeal from a judgment of a district court:

The appellant shall by personal service or by certified or registered mail serve a copy of his notice of appeal upon the appellee and upon the magisterial district judge in whose office the judgment was rendered...If the appellee has an attorney of record named in the complaint form filed in the office of the magisterial district judge, the service upon the appellee may be made upon the attorney of record instead of upon the appellee personally. M.D.J.R.C.P. 1005.

The M.D.J. rules refer to counsel who appears for a party as an “attorney of record” and this is an appeal from the M.D.J. court. While our appellate courts do not appear to have addressed this issue, it is clear under the M.D.J. rules that an attorney appearing there is “an attorney of record” for purposes of the appeal. Thus, when Pa.R.C.P. 237.1 (a)(2)(h) refers to serving the party’s “attorney of record” a consistent application of the rules should include an attorney of record in the M.D.J. proceedings, where this case began.

CFSI did not serve Jones with the ten day notice, so there is a defect apparent on the record, and the default judgment will be stricken. Because the judgment is being stricken, it is not necessary to discuss the parties’ arguments about the opening of the judgment.

ORDER

And now, October 15, 2010, upon consideration of defendant’s petition, and the parties’ briefs and arguments, it is hereby ordered as follows:

1. Defendant’s petition to strike the default judgment is granted provided that defendant files a substituted verification of her petition and preliminary objections within twenty days.

2. Defendant’s preliminary objections will be placed by the prothonotary on the argument list for December 6, 2010, and the parties will file briefs in accordance with 43 J.D.R.C.P. 210.

      . Attorney Jones attached to his brief a copy of a Notice of Intent to defend addressed to CFSI from the district judge’s office, in which Jones is listed as Quistgaard’s attorney of record there. CFSI moved the case down for argument without requesting a hearing so the court is accepting Quistgaard’s allegation that Jones was her lawyer in the court below.