author: PER CURIAM,

text:
    Office of Disciplinary Counsel v. Henderson

      Disciplinary Board,
    No. 7 DB 2012
    Feb. 12, 2015
   PER CURIAM,

Petitioner, the Office of Disciplinary Counsel (hereinafter, (“ODC”) by Paul J. Killion, Chief Disciplinary Counsel, and Bruce H. Bikin, Disciplinary Counsel, and Respondent, Herbert P. Henderson, II (hereinafter, “respondent”), respectfully petition the disciplinary board in support of discipline on consent, pursuant to Pennsylvania Rule of Disciplinary Enforcement (“Pa.R.D.E.”) 215(d), and in support thereof state:

1. ODC, whose principal office is situated at the Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Enforcement Rules.

2. Respondent, Herbert P. Henderson, II, was bom on April 23, 1964, and was admitted to practice law in the Commonwealth on November 20, 1989. Respondent is currently suspended and is residing in the Commonwealth of Pennsylvania, respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

3. Respondent’s affidavit stating, inter alia, he consents to the recommended discipline is attached hereto as Exhibit A.

SPECIFIC FACTUAL ALLEGATIONS ADMITTED

4. On October 12,2011, respondent pled guilty and was convicted of conspiracy to conceal property in bankruptcy and to commit bankruptcy fraud in violation of 18 U.S.C. § 371; concealing property in bankruptcy in violation of 18 U.S.C. § 152(1), acting as an agent concealing property in bankruptcy in violation of 18 U.S.C. § 152(7), and embezzlement against bankruptcy estate in violation of 18 U.S.C. § 153.

5. Respondent further agreed not to contest forfeiture as set forth in the notice of forfeiture charging criminal forfeiture under 18 U.S.C. § 981(a)(1)(C).

6. Each violation is a felony punishable by up to five (5) years in prison, a three (3) year period of supervised release, a $250,000 fine and a $100 special assessment.

7. Respondent was sentenced on November 13, 2012 to six months in prison, three years of probation and a fine of $1,000.00. Respondent was apparently paroled on July 1, 2013 and is under the supervision of the Philadelphia Regional Reentry Office of the Federal Bureau of Prisons.

8. Respondent was administratively suspended, effective October 20, 2011, due to his failure to comply with the requirements of Pa. R. D. E. 219. He was never reinstated.

9. Respondent was placed on emergency temporary suspension by Supreme Court Order dated August 9,2012.

10. Respondent has no other record of discipline.

11. Respondent reported this matter promptly. Further, he has fully cooperated with both the criminal authorities and the Office of Disciplinary Counsel.

12. By way of further mitigation, respondent assisted the United States Attorney in the investigation and prosecution of Kenneth G. Reidenbach, II, for similar criminal actions. Mr. Reidenbach was respondent’s employer at the time of the criminal actions. With the assistance of respondent’s extensive cooperation, Mr. Reidenbach was convicted of nine (9) counts of conspiracy to conceal property in bankruptcy and to commit bankruptcy fraud in. violation of 18 U.S.C. § 371, concealing property in bankruptcy in violation of 18 U.S.C. § 152(1), false declaration certification or verification in bankruptcy in violation of 18 U.S.C. § 152(2), acting as an agent concealing property in bankruptcy in violation of 18 U.S.C. § 152(7), embezzlement against bankruptcy estate in violation of 18 U.S.C. § 153, bankruptcy fraud in violation of 18 U.S.C. § 157 and aiding and abetting in violation of 18 U.S.C. § 2.

SPECIFIC RULES OF PROFESSIONAL CONDUCT AND RULES OF DISCIPLINARY ENFORCEMENT VIOLATED

13. By his conduct alleged in paragraphs 4 through 11, respondent violated the following Rules of Professional Conduct and the Rules of Disciplinary Enforcement:

(a) RPC 3.4(a) which provides a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or assist another person to do any such act;
(b) RPC 3.4(b) which provides a lawyer shall not falsify evidence;
(c) RPC 4.1 (a) which states a lawyer shall not knowingly make a false statement of material fact or law to a third person;
(d) RPC 8.4(a) which states that it is misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so;
(e) RPC 8.4(b) which states that it is misconduct to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer;
(f) RPC 8.4(c) which states that it is misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(g) RPC 8.4(d) which states that it is misconduct to engage in conduct prejudicial to the administration of justice; and,
(h) Pa.R.D.E. 203(b)(1), which states that conviction of a crime is grounds for discipline.

SPECIFIC RECOMMENDATION FOR DISCIPLINE OF HERBERT P. HENDERSON. II

The significant facts supporting the recommended consent discipline for respondent are as follows:

Respondent pled guilty to:
(a) knowingly and fraudulently concealing property belonging to the estate of a debtor and making false oaths, declarations and certifications to the Bankruptcy Court and knowingly devising a scheme to defraud in relation to a bankruptcy proceeding;
(b) knowingly and fraudulently concealing, and aiding, abetting, counseling, inducing and willfully causing, the concealment of property belonging to the estate of a debtor from creditors, the Bankruptcy Court and the US Trustee;
(c) knowingly and fraudulently transferring, concealing and aiding & abetting the transfer and concealment of property belonging to the estate of a debtor from creditors, the Bankruptcy Court and the US Trustee, with the intent to defeat the provisions of Title 11 of the Bankruptcy Code; and,
(d) acting as an attorney and officer of the court, who had access to property and documents of a debtor under Chapter 11 US Code, participating in the administration of the estate and performing a service with respect to the estate, knowingly and fraudulently appropriating to their own use and transferring, and aiding and abetting the appropriation and transfer, of property belonging to the bankrupt estate.

The total amount involved in these fraudulent actions involved $30,100.

For these actions respondent received a prison term from which he was paroled on July 1, 2013. He remains under the supervision of the Federal Bureau of Prisons’ Philadelphia Re-Entry Office.

Respondent’s license to practice law in Pennsylvania was administratively suspended by order of the Supreme Court dated September 20, 2011, effective October 20, 2011. On August 9, 2012, respondent was placed on emergency temporary suspension. His license remains suspended and he has not sought reinstatement to date.

Respondent has fully cooperated with both the criminal authorities and the Office of Disciplinary Counsel. He assisted the criminal authorities in the prosecution of Kenneth G. Reidenbach, Esquire, who contested his guilt through trial, conviction and the filing of an appeal. (The appeal was later withdrawn.) Reidenbach was sentenced to 33 months in federal prison.

In cases bearing some similarity to respondent’s, the discipline imposed has varied between disbarment and suspension for five (5) years, depending on several criteria such as the amount of money involved, the number of charges on the conviction and whether or not the respondent cooperated with the criminal prosecution and the disciplinary enforcement. “The recommended discipline is a reflection of the facts and circumstances unique to the case, including any circumstances that are aggravating or mitigating.” Office of Disciplinary Counsel v. Eilberg, 441 A.2d 1193, 1195 (Pa. 1982).

For example, In Office of Disciplinary Counsel v. Greene, 169 DB 2007, (Pa. 2009), respondent was convicted in the United States District Court for Maryland, of criminal conspiracy to commit mail and bank fraud. Respondent was sentenced to one year of incarceration, three years of supervised release, and the payment of court costs and restitution. Respondent’s criminal conduct involved his engaging in multiple fraudulent acts, along with several others, to defraud mortgage lenders.

In their opinion and recommendation to the Supreme Court, the Disciplinary Board wrote “Respondent’s criminal conduct is an egregious affront to those who relied upon him in a fiduciary capacity. Such misconduct, and other similar crimes, have led to lengthy suspensions or disbarment. The common thread in these matters is the extreme disfavor with which the Supreme Court views criminal acts involving fraud, and dishonesty, from which the public deserves to be protected.” Office of Disciplinary Counsel v. Costigan, 584 A.2d 296 (Pa. 1990) (Disbarment); Office of Disciplinary Counsel v. Chung, 695 A.2d 405 (Pa. 1997) (Five year suspension); Office of Disciplinary Counsel v. Shapiro, 22 Pa.D. & C. 4th 261 (1994) (Five year suspension). “Disbarment has been reserved for the most egregious cases, with each case being considered individually and on the totality of the facts.” Office of Disciplinary Counsel v. Greene, supra. Respondent Greene was disbarred.

In Office of Disciplinary Counsel v. Radbill, 113 DB 2004, (Pa., 2006), respondent pled guilty in federal court to one count of Health Care Fraud, in violation of 18 U.S.C. §1347, and one count of fraud and false statements in connection with a federal tax return, in violation of 26 U.S.C. §7206(1), based on a criminal investigation showing that respondent engaged in a six-year history of fraud in representing twenty-nine clients in personal injury cases and a four-year history of fraud in the filing of his federal tax returns. Twenty insurance carriers were defrauded in the twenty-nine fraudulent personal injury cases; those carriers incurred a total loss of $261,447.16. Respondent’s under-reporting of his income and his falsifying and exaggerating his business expenses resulted in the United States government incurring a total tax loss of $235,788. Respondent admitted at the disciplinary hearing that over the course of thirty years he had used “runners” and represented clients who he knew were “not really injured.”

The Disciplinary Board found that Radbill failed to exhibit genuine remorse for his misconduct and that he had failed to make restitution payments since his release from prison. Respondent Radbill was disbarred.

In Office of Disciplinary Counsel v. Chung, 695 A.2d 405 (Pa. 1997), the respondent pled guilty to five counts of making false statements to a federally insured financial institution. The federal district court sentenced respondent to concurrent sentences of twelve months and one day for each count and ordered respondent to pay restitution in the amount of$ 106,000.00 and a fine and assessment totaling $10,250.00.

In discussing the discipline to be imposed, Justice Newman, writing for the court, and citing Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2 186 (1983) said “While this court certainly does not condone acts of dishonesty, we have declined to adopt a per se rule requiring disbarment for specific acts of misconduct.” Office of Disciplinary Counsel v. Chung, at p. 407. Evidence of mitigation was offered by respondent that included his standing in the community and his remorse. “Considering the totality of the facts, ...we disagree with the board’s recommendation of disbarment. Based upon our independent balancing of the nature of the conviction and the mitigating evidence presented, we imposed a five year suspension retroactive to August 24, 1994.” Office of Disciplinary Counsel v. Chung at p. 408.

In Office of Disciplinary Counsel v. Shapiro, 22 Pa. D & C, 4th 261 (1994), respondent entered a guilty plea in federal district court to multiple counts of mail fraud, wire fraud and willful failure to file tax returns along with single counts of transferring and concealing property of a bankruptcy estate and willful failure to pay taxes.

Respondent Shapiro presented evidence in the form of Braun mitigation from a psychiatrist indicating respondent had a personality disorder that led him to engage in the above recited federal crimes. The court adopted the board’s recommendation of a five year suspension retroactive to July 25, 1989.

Thus, precedent establishes that disbarment is appropriate discipline in matters involving fraud perpetrated on the court in legal proceedings. This is because the “extreme disfavor with which the Supreme Court views criminal acts involving fraud and dishonesty, from which the public deserves to be protected,” Costigan, supra.

However, while respondent’s criminal acts herein could well serve to support his disbarment, his cooperation with the criminal prosecutors and his cooperation with the disciplinary authorities, should be considered sufficient mitigation to permit a step-down from disbarment to a five year suspension. Further, imposition of the five year suspension retroactive to the date of his emergency temporary suspension, August 9, 2012, is appropriate.

WHEREFORE, Joint Petitioners respectfully pray that your Honorable Board:

a. Approve this petition; and
b. File a recommendation for a five year suspension, retroactive to August 9,2012, the date of his placement on Emergency Temporary Suspension, and this petition with the Supreme Court of Pennsylvania.

VERIFICATION

The statements contained in the foregoing joint petition in support of discipline on consent pursuant to P.A.R.D.E. 215(d) are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities.

AFFIDAVIT UNDER RULE 215(d) Pa.R.D.E.

Respondent, Herbert P. Henderson, II., being duly sworn according to law, deposes and hereby submit’s this affidavit consenting to the recommendation of a five (5) year suspension from the practice of law in the Commonwealth of Pennsylvania, in conformity with Pa.R.D.E.215(d) and further states that:

1. He is an attorney admitted in the Commonwealth of Pennsylvania, having been admitted to the bar on or about November 20, 1989.

2. He desires to submit a joint petition in support of discipline on consent pursuant to Pa. R.D.E. 215(d).;

3. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress, and he is fully aware of the implications of submitting this affidavit.

4. He is aware that there is currently pending a proceeding into allegations that he has been guilty of misconduct as set forth in the joint petition in support of discipline on consent of which this affidavit is attached hereto.

5. He acknowledges that the material facts set forth in the joint petition are true.

6. He submits the within affidavit because he knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, he could not successfully defend against them.

7. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has not retained counsel and has acted pro se in connection with his decision to execute the within joint petition, due to finances.

8. It is understood that the statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904 (relating to unsworn falsification to authorities).

Signed this 18th day of November 2014.

ORDER

And now, this 12th day of February, 2015, upon consideration of the recommendation of the three-member panel of the Disciplinary Board dated January 22, 2015, the joint petition in support of discipline on consent is granted pursuant to Pa.R.D.E. 215(g), and it is

Ordered that Herbert P. Henderson, II, is suspended on consent from the Bar of this Commonwealth for a period of five years retroactive to August 9, 2012, and he shall comply with all the provisions of Pa.R.D.E. 217.


source: Caselaw Access Project

author: TUNNELL, J.,

license: Public Domain

text:
    In re D.R.S.C.

      C.P. of Chester County,
    No. AD-14-0051
    March 23, 2015
   TUNNELL, J.,

D.R.S.C. was adjudicated dependent in Juvenile Dependency Court in April 2013 and has been in foster care for the nearly two (2) years since then. Chester County Department of Children, Youth and Families (“CYF”) has worked intensively with his parents, but at a recent review hearing CYF sought and was granted a goal change from reunification to a new permanent living arrangement.

On July 10,2014, CYF started this case, filing petitions to terminate the parental rights of D.R.S.C.’s mother and father. The parents contested these proceedings, asserting that CYF had not met its burden of proof. Alternatively, they offered evidence of a strong bond between D.R.S.C. and his mother and, to some extent, his father, and argued that it would not be in the child’s best interests to terminate parental rights.

What the Supreme Court calls “the clock of childhood” is ticking.

The court will terminate the parental rights of both parents, based on the following:

FINDINGS OF FACT

1. D.R.S.C. is a male minor child, bom November 7, 2003; he is eleven (11) years old.

2. D.R.S.C.’s parents are S.D.C. (“mother”) and T.F.C., Jr. (“father”).

3. D.R.S.C. has two siblings, T.F.C., III (age 17) and C.C. (age 15).

4. Although CYF has been involved with this family since 1999, D.R.S.C. has been in foster care through CYF for two blocks of time; from November 22, 2010, to August 18, 2011, and from April 11, 2013, to the present.

5. D.R.S.C.’s two siblings are also in CYF foster care, although the dates of their placements do not exactly correspond to D.R.S.C.’s dates of placement.

6. Mother has a history of mental health problems, including emotional instability and issues with domestic violence, inadequate parenting, household management and housing.

7. Father has a history of substance abuse, unemployment, domestic violence, criminal violations, poor judgment and housing issues.

8. These problems caused D.R.S.C. and his two brothers to be placed in CYF foster care, most recently in April 2013.

9. For years CYF has provided mother and father with numerous services to address the issues that led to D.R.S.C.’s placement in foster care, including but not limited to, in-home services, family preservation services, family intervention services, life skills services, individual counseling, family group decision making, housing assistance, and family finding services, as well as regular contact with caseworkers from CYF and affiliated contract service providers.

10. Despite these services, mother and father have made minimal progress towards alleviating the circumstances which necessitated the child’s placement.

11. D.R.S.C. has been adjudicated dependent in proceedings in the Juvenile Dependency Court at #CP-15-51-2010.

12. What mother and father needed to do to regain custody of D.R.S.C. was spelled out and explained to mother and father by CYF caseworkers through, inter alia, periodic family services plans, as well as through the various hearings and orders of the Juvenile Dependency Court. See (Ex. CYF-2.)

13. The Juvenile Court determined that mother and father have made “no” or “minimal” progress toward the initial goal of reunification with D.R.S.C. (Id.)

14. In 2014, mother appealed an order of the Juvenile Court to the Superior Court (since discontinued by mother). In an opinion pursuant to Pa.R.A.P. 1925(a), dated June 16, 2014, the honorable Anne Marie Wheatcraft, Juvenile Court judge, found that:

Mother has no insight as to how her behavior affects her children even after years of intensive services and weekly therapy. Mother avers she has made progress toward alleviating the conditions that first necessitated placement but even though she has consistently engaged in long-term weekly therapy and recovery programs there has been no improvement in her toxic behavior that causes emotional and psychological harm to her children.

(Ex. Child-1 (Opinion of 6/16/14 at pp. 6-7).)

15. Two caseworkers from CYF gave evidence in this case that neither parent made any real progress toward alleviating the conditions which led to D.R.S.C.’s placement in foster care.

16. Father was arrested on or about October 20, 2014, for driving under the influence. He pled guilty on January 13,2015, to at least his second driving under the influence charge and is awaiting sentencing. (Ex. CYF-1 (Docket no. 3604-2014).)

17. There is a bond between D.R.S.C. and both mother and father; however, it is not a healthy bond.

18. Severing the bonds between D.R.S.C. and his parents through termination of parental rights will do less harm to D.R.S.C. than maintaining them.

19. D.R.S.C. has thrived in his foster home, and his earlier aggression and acting out have been ameliorated.

20. D.R.S.C. is an adoptable child.

21. His court appointed counsel adopts the proposed findings of fact and conclusions of law filed by CYF.

DISCUSSION

The grounds for involuntary termination of parental rights are set forth in the Adoption Act, 23 Pa. C.S.A. §2101, et seq. CYF seeks termination based on the following:

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

The Pennsylvania Supreme Court has stated that there is no simple or easy definition of “parental duties.” Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance and support. The parental obligation is a positive duty which requires affirmative performance. In re Burns, 474 Pa. 615, 379 A.2d 535 (1977). A parent must exert himself or herself to take and maintain a place of importance in the child’s life. Id.

Parental rights may not be terminated in the absence of evidence which is clear and convincing. Even when it is established that a parent has failed to perform parental duties for a period in excess of six (6) months, such a finding does not in and of itself support an order terminating parental rights. Instead, the court must then examine the individual circumstances and any explanation offered by the parents to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination of said parents’ parental rights. A court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. 23 Pa. C.S. §2511(b). Judicial inquiry is thus to be centered on the best interests of the child rather than the fault of the parent. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986).

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

Caseworkers familiar with D.R.S.C. and his family testified about the long and rather sordid behaviors of mother and father that brought them into contact with CYF going back to 1999, four (4) years before D.R.S.C. was even bom.

Those behaviors ebbed and flowed. The court listened to testimony about the parents’ issues, and the negative impact they had on D.R.S.C. The testimony of the caseworkers is amply supported by the orders in the dependency proceedings. Judge Wheatcraft summed up succinctly as follows:

This family has been involved with CYF continuously since November 2009 and had previously received CYF services and then had been closed. The current case was initially opened in 2009 due to reports of Timothy Corum, Sr. (“father”) being intoxicated, threatening suicide, and choking mother in presence of the children. Extensive in-home services were provided to the family but the children continued to be in an unsafe environment and were placed in foster care in November 2010. CYF worked with the family intensively and reunification occurred in August 2011. In April 2013 the children were taken from the home again due to issues of on-going violence in the home, father’s continued alcoholism, mother’s lack of housing, and her inability to keep the children safe.
* * *
In this matter, CYF petitioned to change the goal from reunification with mother to another planned permanent living arrangement as none of the other permanency options are currently feasible for these children. We agreed a change in goal was appropriate and the petition was granted. Of course that change is not made lightly, but the long and intensive history of this case makes it appropriate.

(Ex. Child-1 (Opinion of 6/16/14 at pp. 6-7).)

Mother and father counter by pointing out the items that they did manage to accomplish, and then for those reasons urge the court that CYF has not proven its case against them.

For example, mother and father attended all visits with D.R.S.C. and acted “appropriately” with him. In recent months, father has attended AA meetings and is working with his sponsors. Both sponsors testified in court about the marked improvement in father’s behavior and his commitment to recovery. On the other hand, he was arrested for DUI after these proceedings had begun, has pleaded guilty and is awaiting sentencing. While the court understands that recovering alcoholics do “slip,” this conduct belies the father’s current arguments.

Mother points out the numerous ways in which she feels she has been compliant with service plans. Unfortunately, no measurable progress towards reunification could be seen. Towards the end of her testimony in court, mother stated that she “doesn’t know why her children are still in placement,” that she has “lost everything,” and that she doesn’t know why her behavior has been as “impactful” on her children as described in various dependency orders.

The court was amazed. Mother’s continuing lack of insight after all this time is a chief factor in the court’s mind as to why her parental rights should be terminated.

Although not contained in the packet of dependency orders presented to the court and admitted as Ex. CYF-2, this court has taken judicial notice of the most recent Permanency Review Order dated February 5, 2015 concerning D.R.S.C. Judge Wheatcraft found that there was “minimal compliance” by the mother and father with regard to a permanency plan and “no progress” by mother and father “towards alleviating the circumstances which necessitated D.R.S.C.’s original placement.”

D.R.S.C. has an emotional bond with mother. He is worried about her, even “scared” for her. The court was asked to watch a videotape of D.R.S.C. made over a year ago wherein he cries that he misses her. Frankly, the court faults the mother for the derelictions that put her son in this pathetic and unhealthy position.

D.R.S.C. does not want to be adopted. He seems happy and healthy in his foster home.

Where an agency is petitioning for termination of parental rights it is not necessary for the agency to demonstrate a pending adoption nor that a person with a present intention to adopt exists. 23 Pa. C.S.A. §2512(b).

Perpetuating the birth parents’ involvement despite their inability to care for a child could in fact foreclose any hope for adoption. In the Matter of T.D., 949 A.2d 910, (Pa. Super. 2008). The parents argue here as they did in Juvenile Court that D.R.S.C. maintains a bond with mother. They urge that the court should consider this pursuant to §2511(b) of the Adoption Act which requires courts to give primary consideration to the developmental, physical and emotional needs and welfare of the child when considering a termination petition. The statute does not provide any guidance as to how the court is supposed to evaluate those considerations, nor does it mention the word “bond.”

The court is concerned that keeping a child unavailable for adoption or another permanent living arrangement on account of an unhealthy or even pathological bond with an abusive or neglectful parent most certainly does not serve the needs and welfare of the child. Where the mother’s abusive or neglectful parenting has created a pathological bond in the child, she should not be heard to say that the bond should be preserved lest further harm result to the child. The Supreme Court in In Re T.S.M., 620 Pa. 602, 71 A.3d 251 (2013), grappled with these problems. It cited with approval a Superior Court decision in In Re: K.K.R. -S., 958 A.2d 529, 535 (Pa. Super. 2008), recognizing that the mere existence of a bond of a child to a parent will not necessarily result in the denial of a termination petition. In the Superior Court decision, Judge Tamilia observed that it was “an immutable psychological truth” that even the most abused of children “will often harbor some positive emotion towards the abusive parent.” The failure to correct parenting and behavioral disorders which are harming the children cannot, he said, be misconstrued as “bonding.” Id. at 535.

Ultimately, the court must weigh the injury of breaking a child’s bond to a biological parent against the damage that the bond may cause if the bond is left intact. The Supreme Court went on to observe in T.S.M. that:

In weighing the difficult factors discussed above, courts must keep the ticking clock of childhood ever in mind. Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly.

T.S.M. 620 Pa. at 631.

In T.S.M., the Supreme Court reversed the decision of the trial court that denied the petition for termination because such denial “merely prolonged and, indeed, exacerbated the harm suffered by the children.” Id. at 633. The Supreme Court concluded “without hesitation that it best serves their needs and welfare to sever their bond with mother permanently in order to permit them to be placed forthwith into healthy, permanent homes.” Id. at 634. This court believes no less is true at bar.

CONCLUSIONS OF LAW

1. CYF filed petitions to terminate parental rights as to mother and father on July 10, 2014.

2. Mother and father were served with the petitions by constable on August 14, 2014.

3. Both parents were represented by counsel throughout this matter.

4. This court has jurisdiction in this matter and venue is proper.

5. Both parents have failed to perform parental duties relative to D.R.S.C. for more than six (6) months immediately preceding the filing of the petitions in this matter. 23 Pa.C.S.A. §2511(a)(1).

6. Both parents have repeatedly and continually demonstrated an incapacity to parent D.R.S.C. and, therefore, the child is without essential parental care, control or subsistence necessary for his physical or mental well-being, and the conditions and causes of that incapacity cannot or will not be remedied by the parents. 23 Pa.C.S.A. §2511 (a)(2).

7. D.R.S.C. has been removed from the care of mother and father by the Juvenile Court for a period in excess of six (6) months, the conditions which led to the removal or placement of the child continue to exist, the parents cannot or will not remedy those conditions within a reasonable period of time, the services and assistance provided to the parents have not remedied and will not remedy within a reasonable time the conditions which led to the removal and placement of D.R.S.C. for twenty-three consecutive months, and termination of parental rights best serves the needs and welfare of D.R.S.C. 23 Pa.C.S.A. §2511(a)(5).

8. D.R.S.C. has been removed from the care of mother and father by the Juvenile Court, more than twelve (12) months have passed since removal, the conditions which led to the removal and placement of D.R.S.C. continue to exist and termination of parental rights best serves the needs and welfare ofD.R.S.0. 23 Pa.C.S.A. §2511(a)(8).

9. The developmental, physical and emotional needs and welfare of D.R.S.C. will be best served by termination of parental rights. 23 Pa.C.S.A. §2511(b).

10. CYF has met its burden of clear and convincing evidence relative to 23 Pa.C.S.A. §2511(a) and (b).

11. Termination of parental rights and, therefore, freeing D.R.S.C. for adoption or other permanent living arrangement are appropriate in the circumstances of this case.

An appropriate order follows.

FINAL DECREE

And now, to wit, this 23rd day of March, 2015, upon consideration of the petition and hearing had thereon,

The court finds that Stephanie Corum, by conduct continuing for a period of at least six (6) months, has evidenced a settled purpose of relinquishing parental claim to the child, or has refused or failed to perform parental duties pursuant to 23 Pa. C.S.A. §2511(a)(1); and

The court further finds that the repeated and continued incapacity, neglect or refusal of the said Stephanie Corum has caused the said minor child to be without essential parental care, control or subsistence necessary for the child’s physical and mental well-being and the conditions and causes of the incapacity, neglect or refusal cannot or will not be remedied by the said parent pursuant to 23 Pa. C.S.A. §2511(a)(2); and the court further finds that the child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six (6) months, the conditions which led to the removal or placement of the child continue to exist, and the parent cannot or will not remedy those conditions within a reasonable period of time. The services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child pursuant to 23 Pa. C.S.A. §2511 (a)(5); and

The court further finds that the child has been removed from the care of the parent by a court or under a voluntary agreement with an agency, twelve months or more have lapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child pursuant to 23 Pa. C.S.A. §2511(a)(8).

It is ordered, adjudged and decreed that the petition of Chester County Department of Children, Youth and Families for the termination of parental rights of Stephanie Corum, the natural mother of D.R.S.C., is granted, and that all parental rights and duties of Stephanie Corum in respect to D.R.S.C. is hereby awarded to Chester County Department of Children, Youth and Families which is hereby authorized to give consent to the adoption of said child and adoption of said child may be decreed without further consent of or notice to the aforesaid parent. Further, pending finalization of adoption, the Chester County Department of Children, youth and families shall stand in loco parentis to the child and in such capacity shall have the authority, inter alia, to consent to major medical, psychiatric and surgical treatment, make educational decisions and to exercise such other authority concerning the child as a natural parent could exercise.

FINAL DECREE

And now, to wit, this 23rd day of March, 2015, upon consideration of the petition and hearing had thereon,

The court finds that Timothy Corum, by conduct continuing for a period of at least six (6) months, has evidenced a settled purpose of relinquishing parental claim to the child, or has refused or failed to perform parental duties pursuant to 23 Pa. C.S.A. §2511(a)(1); and the court further finds that the repeated and continued incapacity, neglect or refusal of the said Timothy Corum has caused the said minor child to be without essential parental care, control or subsistence necessary for the child’s physical and mental well-being and the conditions and causes of the incapacity, neglect or refusal cannot or will not be remedied by the said parent pursuant to 23 Pa. C.S.A. §2511 (a)(2); and the court further finds that the child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six (6) months, the conditions which led to the removal or placement of the child continue to exist, and the parent cannot or will not remedy those conditions within a reasonable period of time. The services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child pursuant to 23 Pa. C.S.A. §2511 (a)(5); and

The court further finds that the child has been removed from the care of the parent by a court or under a voluntary agreement with an agency, twelve months or more have lapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child pursuant to 23 Pa. C.S.A. §2511(a)(8).

It is ordered, adjudged and decreed that the Petition of Chester County Department of Children, Youth and Families for the termination of parental rights of Timothy Corum, the natural father of D.R.S.C., is granted, and that all parental rights and duties of Timothy Corum in respect to D.R.S.C. is hereby awarded to Chester County Department of Children, Youth and Families which is hereby authorized to give consent to the adoption of said child and adoption of said child may be decreed without further consent of or notice to the aforesaid parent. Further, pending finalization of adoption, the Chester County Department of Children, Youth and Families shall stand in loco parentis to the child and in such capacity shall have the authority, inter alia, to consent to major medical, psychiatric and surgical treatment, make educational decisions and to exercise such other authority concerning the child as a natural parent could exercise.


author: ZULICK, J.,

text:
    Ferraro v. Lee

      C.P. of Monroe County,
    No. 8924 CV 2014

      Geoffrey S. Worthington, for plaintiff.

      John C. Prevoznik, for defendant.
    April 22, 2015
   ZULICK, J.,

This matter comes before the court on defendant’s preliminary objections to plaintiff’s amended complaint. Plaintiff James Ferraro filed a complaint sounding in breach of contract and tortious interference with contract on October 30, 2014. Ferraro alleged that that defendant Wakwan Lee unreasonably denied permission for Ferraro to assign his commercial lease and that Lee interfered with the contractual relationship with Ferraro and Charles Curry, the individual to whom Ferraro sought to assign the lease.

Lee filed preliminary objections on December 8, 2014, which led to Ferraro amending the complaint before arguments were held on January 9, 2015. Lee again filed preliminary objections to the amended complaint on February 13, 2015, demurring to Ferraro’s claim for tortious interference with contract and arguing Ferraro’s request for punitive damages is scandalous or impertinent matter, or legally insufficient. Both parties filed briefs, and oral arguments were held on April 6, 2015.

The facts as alleged in the amended complaint are as follows. Lee is the owner of a property located at 1113 North 9th Street, Stroudsburg, PA. Amended Complaint, ¶3. Pursuant to a lease agreement dated June 5, 2012, Ferraro leased the premises to operate an ice cream business under the name “Jimmy’s Ice Cream.” Id. at ¶ 4. Paragraph 12 of the lease provides, “[tjenant shall not assign or sublet or in any manner transfer this lease or any estate or interest herein, without the express prior written consent of Landlord, which shall not be unreasonably withheld.” Id. at ¶ 5.

Ferraro entered into an agreement in 2013 with Charles Curry, a third party seeking to purchase the ice cream business from Ferraro. Id. at ¶6. Ferraro and Curry executed a written agreement of sale on January 3, 2014. The purchase price of the business was $124,000.00. Id. at ¶¶ 6-7. The sale was contingent upon Ferraro receiving Lee’s consent to assign the lease or sublet the premises. Amended complaint, ¶ 8.

Lee approached Curry in December, 2013, while Curry was on the premises, inquiring as to whether Curry intended to purchase the ice cream business. Id. at ¶ 9. During the conversation, Lee “maligned” Ferraro, stating that Ferraro was a “liar.” Id. at ¶ 10. Ferraro then contacted Lee to request permission to assign the lease or sublet the premises. Lee requested Curry’s individual financial statements and those for C&L Marketing, Curry’s business. Id. at ¶¶ 11 -12. The financial statements reflected substantial assets for Curry and for C&L Marketing. Id. at ¶14. Curry additionally provided Lee with a letter of reference from his current landlord. Id. at 15.

Curry met with Lee again and requested permission to occupy the premises. Id. at ¶ 16. In addition, Curry offered to enter into an extension of Ferraro’s Lease for a term expiring May 31,2017. Amended complaint, ¶ 17. During the meeting, Lee repeatedly told Curry that Ferraro did not pay his rent on time and that Ferraro was a “liar,” a “loser,” and a “failure at business.” Id. at ¶ 18. Thereafter, Lee refused to grant Ferraro permission to assign the lease or sublet the premises. The contract for the sale of the ice cream business failed due to the landlord’s lack of consent to assignment. Id. at ¶ 32. After the contract failed, Lee asked Curry if he was interested in operating an ice cream business in the premises, suggesting that he open a new ice cream business that did not use the name “Timmy’s Ice Cream.” Id. at 34. Ferraro requests compensatory damages amounting to $124,000.00 as well as punitive damages.

DISCUSSION

Tortious Interference with Contract

The standard for demurrer is “whether, on the facts averred, the law says with certainty that no recovery is possible.” Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 613 A.2d 1235, 1238 (Pa. Super. 1992). “Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.” Id.

First, Lee argues that Ferraro failed to state a claim for tortious interference with contractual relationship. The supreme court has stated:

In Birl v. Philadelphia Electric Co.,..., 167 A.2d 472 (Pa. 1961), this court adopted Section 766 of Restatement of Torts and its definition of the right of action for intentional interference with existing contractual relations. There, we stated:
At least since Lumley v. Gye (1853)..., the common law has recognized an action in tort for an intentional, unprivileged interference with contractual relations. It is generally recognized that one has the right to pursue his business relations or employment free from interference on the part of other persons except where such interference is justified or constitutes an exercise of an absolute right: Restatement, Torts, s 766. The special note to comment m. in s 766 points out: There are frequent expressions injudicial opinions that “malice” is requisite for liability in the cases treated in this Section. But the context and course of decision make it clear that what is meant is not malice in the sense of ill will but merely purposeful interference without justification. ’....
The elements of this tort of inducing breach of contract or refusal to deal, which must be averred in the complaint, are set forth in the Restatement, Torts, s 766, which says, ‘....one who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.’ In other words, the actor must act (1) for the purpose of causing this specific type of harm to the plaintiff, (2) such act must be unprivileged, and (3) the harm must actually result.

Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175, 1181-82 (Pa. 1978).

Ferraro has stated a claim for tortious interference with contractual relationship. Ferraro alleges that Lee intentionally interfered with the relationship by “maligning” Ferraro in speaking with Curry, and that as a result of Lee’s refusal to consent to the assignment, the sale of the ice cream business could not occur. After he refused to consent, Lee attempted to obtain a lease directly from Curry. These allegations meet the elements as quoted in Adler. Ferraro has thus stated a claim for tortious interference with contractual relationship.

Alternatively, Lee raises a demurrer to Ferraro’s claim for tortious interference with contractual relationship under the gist of the action doctrine. “[T]he “gist of the action” doctrine[...] operates to preclude a plaintiff from re-casting ordinary breach of contract claims into tort claims.” Hart v. Arnold, 884 A.2d 316, 339 (Pa. Super. 2005).

Generally, the doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims. As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims. [In Bash v. Bell Tel. Co., 411 Pa. Super. 347, 601 A.2d 825 (1992),] the court explained the difference between contract claims and tort claims as follows:
[although they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.... To permit a promisee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions.

Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010).

Here Lee argues that Ferraro’s tort claim is simply a reframing of the contractual claim that Lee unreasonably withheld permission to assign the lease. However, Ferraro’s allegations that Lee maligned Ferraro and referred to him as a “liar” and a “failure at business” with intent to disrupt Ferraro’s contract with Curry, were not related to the contract. In the situation at hand, Lee was allegedly behaving as a third party interfering with the contractual relationship between Ferraro and Curry, and then seeking to obtain Curry as a replacement tenant. Lee had a societal duty to not interfere with their contractual relationship, and he allegedly breached this duty. This tort claim is not barred by the gist of the action doctrine, and this preliminary objection will be denied.

Punitive Damages

Finally, Lee disputes Ferraro’s request for punitive damages under Count II as scandalous or impertinent matterunderPa.R.C.P. 1028(a)(2), as insufficiently specific under 1028(a)(3), or as legally insufficient under 1028(a) (4). “Punitive damages may be awarded for conduct that is outrageous because of the defendant’s evil motive or reckless indifference to the rights of others.... As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton, or reckless conduct.” Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005). Furthermore, “this court has stressed that, when assessing the propriety of the imposition of punitive damages, the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless, or malicious.” Id.

Thus, punitive damages are not available under a claim for breach of contract; however, Ferraro requests punitive damages for an intentional tort, interference with a contractual relationship. As discussed supra, Ferraro’s claim is that Lee maligned Ferraro to Curry and intentionally disrupted their contract to obtain a business advantage. In Pennsylvania, punitive damages are awarded for “outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.” Martin v. Johns-Manville Corp., 508 Pa. 154, 172, 494 A.2d 1088, 1097-98 (1985) (emphasis in original). Plaintiff has alleged conduct that at least rises to the level of reckless indifference to Ferraro’s rights under his contract with Curry. This preliminary objection will be denied.

ORDER

And now, this 22nd day of April, 2015, upon consideration of defendant’s preliminary objections and the briefs and arguments of both parties, the defendant’s preliminary objections are denied.