author: HODGE, J.,

text:
    In re Estate of Ambrosia

      John J. DeCaro, Jr. and Frank G. Salpietro, for petitioner.

      Charles J. Avalli, for respondent.
    April 3, 2014
   HODGE, J.,

— Before the court for disposition is a motion in limine filed on behalf of Carmen W. Shick, executor of the Estate of Rose Marie Ambrosia (hereinafter, the “executor”). The pending motion in limine relates to certain pieces of jewelry located in a safety deposit box housed at PNC Bank. Prior to reaching a determination on the instant motion, the court will provide the following summation of the relevant factual and procedural background of this case:

Rose Marie Ambrosia (hereinafter, the “decedent”) died testate on January 31,2012. decedent was survived by four grandchildren, Kendra A. Shick, Kenneth R. Shick, III, (hereinafter, collectively referred to as the “beneficiaries”), Carmen W. Shick and Rosemarie Bartholomew. At the time of the decedent’s death, various pieces of jewelry were in the possession of the beneficiaries. The jewelry was kept in a safety deposit box at PNC Bank. The safety deposit box was titled in the beneficiaries’ names. Following the grant of letters to the executor, the executor filed a Petition for Special Relief in this court, requesting the court to determine ownership of the jewelry.

The instant motion in limine was filed on December 28, 2012, wherein the executor sought to preclude the testimony of the beneficiaries and Jodi Shick, Kenneth R. Shick, Ill’s wife, as to whether the decedent gifted the jewelry to the beneficiaries prior to her death. Shortly thereafter, the executor filed a petition to gain access [to the Safety Deposit Box] because the executor desired to have the jewelry appraised prior to filing an Inheritance Tax Return on behalf of decedent’s estate.

This court granted the executor access to the safety deposit box and the jewelry was appraised. At the time the executor petitioned for access to the safety deposit box, the beneficiaries contended that the request constituted a discovery request, resulting in a waiver of the Dead Man’s Act. Beneficiaries alternatively contend that their testimony cannot be summarily precluded under the Dead Man’s Act in cases where the decedent’s donative intent can be independently established. Based on the foregoing facts, the court determines the issues presently before the court to be as follows: whether the testimony of the beneficiaries and Jodi Shick must be excluded pursuant to 42 Pa.C.S.A. Section 5930; and if they are determined to be incompetent witnesses, if a waiver has not occurred, thereby eliminating the provisions of 42 Pa.C.S.A. Section 5930.

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

[I]n any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy,....

42 Pa.C.S.A. § 5930.

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

Applying the three-prong test set forth above, the court determines that the three conditions enumerated in Olson are present in this case. Therefore, the provisions of the Act are before the court for consideration. According to the Act, surviving parties who have an interest which is adverse to decedent’s estate are disqualified from testifying as to any transaction or event which occurred before decedent’s death. Zigmantanis v. Zigmantanis, 797 A.2d 990 (Pa. Super. 2002). When the case at bar regards the validity of an inter vivos gift, statements of the decedent cannot be admitted absent independent testimony establishing the decedent’s donative intent. Id. If the independent testimony offered can establish a prima facie case of the decedent’s donative intent, a witness who would be otherwise incompetent to testify pursuant to the restrictions of the act may testify as to the statements and actions of the decedent. Id.; see also Ford Estate, 245 A.2d 443 (Pa. 1968).

Based on the foregoing, the beneficiaries are clearly incompetent to testify as to the validity of the alleged gift to them by the decedent. However, the beneficiaries contend that the testimony of Jodi Shick should not be summarily precluded on the same grounds as that of Kendra A. Shick and Kenneth R. Shick, III. Therefore, the initial issue before the court is whether Jodi Shick must be declared incompetent to testify regarding the alleged inter vivos gift to the beneficiaries because she has an interest adverse to the decedent as a spouse of one of the beneficiaries.

Controlling of the court’s determination of this issue is the case of Estate of Grossman, 406 A.2d 726 (Pa. 1976). In Grossman, Ronda Kesselman, a disinherited daughter of the decedent, Herman Grossman, sought to establish that she was entitled to a portion of her father’s estate by showing that she and her father had an oral agreement whereby the decedent promised to execute a will leaving one half of his estate to her. Id. at 727. The trial court refused to permit Ronda or her husband, Stanley Kesselman, to testify and dismissed Ronda’s claims against the estate. Ronda appealed the trial court’s ruling, claiming that the trial court erred applying the provisions of the Dead Man’s Act against her husband.

On review, the Supreme Court of Pennsylvania clearly held that “the testimony of the spouse of an interested witness may no longer be disqualified on the theory that husband and wife are one and the same person.” Id. at 731. Therefore, it is improper to infer that a spouse has an interest adverse to that of the decedent merely because he or she is married to an incompetent witness. Id. at 731-32.

Based upon the unequivocal precedent established in Grossman, the court determines that it is improper to preclude the testimony of Jodi Shick on the basis of incompetence. The executor has failed to show that Jodi Shick has any interest adverse to the decedent outside of the fact that she is married to one of the beneficiaries. The beneficiaries can therefore offer the testimony of Jodi Shick to independently establish a prima facie case of the decedent’s donative intent.

The court will next address the beneficiaries contention that the executor has waived the protections of the Dead Man’s Act by requesting an appraisal of the jewelry in question. Although the Act exists to protect the decedent’s estate, the representative of the estate may waive the disqualification of the adverse party by “taking his deposition or requesting a response to written interrogatories pursuant to the discovery rules found in the Pennsylvania Rules of Civil Procedure. Olson, 658 A.2d 358 at 364-65 (referencing Pa.R.C.P., Rules 4004, 4005, and 4007.1; See also Flagship First National Bank of Miami Beach v. Bloom, 431 A.2d 1082, 1085 (Pa. Super. 1981); Perl is v. Kuhns, 195 A.2d 156, 158 (Pa. Super. 1963) (if decedent’s representative requires the adverse party to submit to a deposition or respond to written interrogatories, this amounts to a waiver of the Dead Man’s Act). A representative may also waive the disqualification of the adverse party by testifying on his or her own behalf as to facts occurring subsequent to the decedent’s death. Estate of Kofsky, 409 A.2d 1358 (Pa. 1979).

In the present case, the executor requested the court to permit him to inspect the subject jewelry, which was in the exclusive possession of the beneficiaries. As previously stated, the beneficiaries contend that the executor’s request constituted a waiver of their disqualification pursuant to the Act. The executor refutes the beneficiaries’ contention by arguing that an inspection of the jewelry was conducted to complete his normal obligations as administrator of the decedent’s estate, and not a formal discovery request.

Pertinent to the court’s determination is the case of Anderson v. Hughes, 208 A.2d 789 (Pa. 1965). In Anderson, Gary Anderson was driving in a funeral procession when he was struck by a truck operated by Gene Ford. 208 A.2d at 790. At the time of the accident, Ford was carrying out his employment obligations for Hughes & Sons (hereinafter, “Hughes” or “defendants”), which owned the truck that struck the Anderson’s vehicle. Id. Hughes & Sons was a private partnership owned by James Hughes, Jr., James Hughes, Sr. and Donald Hughes. Id. Anderson instituted a complaint in trespass against Ford and Hughes. Id. Prior to the commencement of trial, James Hughes, Sr. died, and his personal representative was substituted of record as a defendant. Id.

During the course of trial, objections were raised as to the testimony of Anderson against James Hughes, Sr. by defendants based upon the Dead Man’s [Act]. 208 A.2d at 791. The trial court sustained defendant’s objection and precluded Anderson from testifying against James Hughes, Sr. Id. Subsequently, the jury returned a verdict in favor of Ford and Hughes. Id. On appeal, Anderson asserted that the trial court’s ruling was erroneous because his incompetency to testify under the Act had been waived when defendants deposed Anderson as to matters occurring prior to James Hughes, Sr.’s death. Id. Defendants argued that a waiver had not occurred because the deposition was never offered at trial. Id. The Superior court of Pennsylvania affirmed the trial court’s ruling, and Anderson appealed to the Supreme Court of Pennsylvania. Id. After considering Anderson’s appeal, the Supreme Court determined that

“where a party is required to answer pre-trial interrogatories, any objection based upon the ‘Dead Man’s’ rule to the competency of such party to testify at the trial is waived even though the answers to the interrogatories were not offered into evidence.”

Id. at 791 (citing Perlis v. Kuhns, 195 A.2d 156 (Pa. Super. 1963).

The court also considers the more recent case of Schroeder v. Jaquiss, 861 A.2d 885 (Pa. 2004), which affirmed the prior rulings issued in Anderson, supra and Perlis, supra by stating

[t]he Dead Man’s Act itself does not address the circumstances by which a decedent’s representative waives the statute’s protection during the discovery process. The courts, however, have applied the doctrine of waiver to the Act in this context. The principle that presently controls was set forth in Anderson. It provides that when a decedent before he died or a decedents representative has required an adverse party to be deposed or to answer interrogatories, any objection based upon the Dead Man’s Act to the competency of such a party to testify at the trial is waived, even though the discovery is not offered in evidence. At the time this rule arose, the courts apparently viewed the taking of discovery as the functional equivalent of trial testimony, and in developing the rule, sought to prevent the unfairness that they perceived would ensue if a decedent’s representative could gain information from an adverse party through discovery and then repudiate the results, if what was learned proved to be unsatisfactory.

Schroeder, 861 A.2d at 388 (internal citations omitted).

In the instant case, the beneficiaries rely upon the Supreme Court’s ruling in Schroeder to support their contention that any form of discovery constitutes a waiver of the Act and renders an otherwise incompetent witness competent to testify. After a thorough review of the court’s ruling in Schroeder, this court cannot incorporate the beneficiaries’ interpretation as that of the court’s. The context of discovery discussed in all of the above referenced cases constituted either a deposition, request for answers to interrogatories or both. Thus, when the Schroeder court references ‘the taking of discovery’ this court believes it is referring to taking a deposition or issuing interrogatories, and not, as the beneficiaries suggest all discovery. The court therefore concludes that the executor’s request for an appraisal of the jewelry did not constitute a waiver of the Act because as the beneficiaries content, their request merely enabled them to determine the value of the subject jewelry. The appraisal did not supply either party with the type of testimonial evidence that would constitute a waiver. In this regard, the information received substantially differs from the type of information obtained by the requesting parties in the cases reviewed by this court. For this reason, the court finds that the actions of the executor do not constitute a waiver of the Act.

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

ORDER OF COURT

And now, this 3rd day of April, 2014, with this matter being before the court for argument on a motion in limine filed on behalf of Carmen W. Shick, executor of the Estate of Rose Marie Ambrosia, by and through his counsel, John J. DeCaro, Jr., Esquire and Frank G. Salpietro, Esquire, and with Charles J. Avalli, Esquire, appearing and representing Kendra A. Shick and Kenneth R. Shick, III, and consistent with the attached Opinion, the court hereby orders and decrees as follows:

1. A hearing on the underlying petition for special relief, filed on October 9,2012 is hereby scheduled for the 19th day of August, 2014 at 10:00 a.m. in courtroom #4 of the Lawrence County Government Center, one (1) day reserved status.

2. The executor’s motion in limine seeking to preclude the testimony of Jodi Shick is denied.

3. The executor’s motion in limine seeking to preclude the testimony of Kendra A. Shick and Kenneth R. Shick, III is granted.

4. Kendra A. Shick and Kenneth R. Shick, III are declared incompetent to testify; however the court’s determination may be rescinded if Kendra A. Shick and Kenneth R. Shick, III can initially and independently establish a prima facie case of the decedent’s donative intent.

5. The oral motion for attorney’s fees made by counsel for the executor is hereby denied.

6. The prothonotary is directed to file the attached correspondence of record and properly serve notice of this order of court upon counsel of record for the parties and upon any unrepresented party at their last known address as contained in the court’s file.

      . The trial court conceded Anderson’s contention on appeal, but noted for the record that the court was unaware that Anderson had been deposed by defendants because Anderson failed to specify his argument at the time he raised his objection. The trial court concluded that its failure to make a proper evidentiary ruling did not constitute reversible error.

      . The Perlis case expounded on the Supreme Court’s prior determination in Rosche v. McCoy, 156 A.2d 307 (Pa. 1959), which required the deposition of the decedent to be offered into evidence in order to establish that a party otherwise determined to be incompetent to testify may in fact testify against the decedent.


source: Caselaw Access Project

author: ZANIQ P.J.,

license: Public Domain

text:
    Shoup v. Cook

      Gregory A. Jackson, for plaintiff.

      Jennifer B. Habel, for defendant.
    April 3, 2014-
   ZANIQ P.J.,

MEMORANDUM

The court is called upon to determine the custodial rights of Jeremy Shoup, the natural father of Tristan Hamman, bom July 17,2002, and Joseph Cook, the young man’s stepfather.

This case began in 2006 when plaintiff filed a complaint for shared custody against the natural mother, Angela Cook. The parents entered into a custody agreement pursuant to a stipulation on May 22, 2006. Sadly, Angela Cook passed away on September 29, 2012.

On October 29, 2012 a praecipe to amend caption was filed which substituted Joseph Cook as the defendant in this case, replacing Angela M. Hamman (Cook).

Also on October 29, 2012, plaintiff and defendant entered into a stipulation providing that the parties would share legal custody of Tristan, and that the stepfather would be the residential custodian of Tristan subject to periods of partial custody for the natural father. This stipulation was adopted as an order of court.

On October 21, 2013 father filed the instant petition to modify custody requesting that he be awarded sole legal custody and primary physical custody of Tristan subject to the right of defendant to have periods of partial custody. A custody conference was held on November 25, 2013, at which time the case was listed for full hearing. That custody hearing was held on January 29, 2014.

We begin by pointing out that the parties do not present on equal footing. In this regard, even though a stipulation was signed by father and this court entered an order in October of 2012 giving stepfather residential custody of Tristan, the natural parent is nonetheless entitled to a prima facie right of custody. See, Jordan v. Jackson, 876 A.2d 443 (Pa. Super 2005).

Likewise, “in any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent maybe rebutted by clear and convincing evidence.” 23 Pa.C.S.A. § 5327(b). “The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing so as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” In re B.C., 36 A.3d 601, 605-606 (Pa.Super.2012).

In fulfilment of the statutory requirements and the guidance from our appellate courts, this court has received evidence relevant to the child’s best interest, and must decide whether the evidence presented on behalf of stepfather is weighty enough to bring the scale up to even, and down on his side. See V.B. v. J.E.B., 2012 PA Super 200, 55 A.3d 1193,1199 (Pa. Super. Ct. 2012), citing McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa.Super.2000) (quoting Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512, 513-514 (1980)).

Initially, we note that the Pennsylvania Supreme court considered a comparable case involving a custody contest between a stepfather and the natural father following the death of the mother. See Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000). The court affirmed primary custody in the stepfather, stating that unlike other states, in Pennsylvania it was not necessary for a party in loco parentis to establish that the biological parent was unfit before he or she could obtain primary custody. Rather, the court reaffirmed the standard as follows:

It is axiomatic in custody cases that “the fundamental issue is the best interest of the child.” Ellerbe v. Hooks, [490 Pa. 363,] 416 A.2d 512, 513 (Pa.1980). In a custody contest between two biological parents, “the burden of proof is shared equally by the contestants....” Id. Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, “the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents’ side.” Id. at 514 (quoting In re Hernandez, [249 Pa. Super. 274,] 376 A.2d 648, 654 (Pa. Super. 1977))... (W)hile this Commonwealth places great importance on biological ties, it does not do so to the extent that the biological parent’s right to custody will trump the best interests of the child.

744 A.2d at 1257-1259.

In Ellerbe, supra at 514, our Supreme Court held that “these principles do not preclude an award of custody to the nonparent. Rather they simply instruct the hearing judge that the nonparent bears the burden of production and the burden of persuasion and that the nonparent’s burden is heavy.” The Supreme Court determined that, “where circumstances do not clearly indicate the appropriateness of awarding custody to a nonparent, we believe the less intrusive and hence the proper course is to award custody to the parent or parents.” Ellerbe, supra at 514.

As such, our duty in this case is to utilize the factors set forth by legislature in 23 Pa. C.S.A. § 5328 in analyzing the evidence and to thereby determine what is in the best interest of Tristan. In this regard, we must weigh the evidence in a manner that affords to the plaintiff the evidentiary advantage he enjoys as a parent. We will consider each factor individually:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party?

The testimony is undisputed that the parties have communicated and cooperated since the untimely death of Tristan’s mother. Stepfather was instrumental in encouraging visits to anger management classes in an effort to enhance the child’s relationship with the child’s father, prior to mother’s passing. Quite compelling was the testimony of stepfather that “(w)e have gotten along. Even over the past year. You know, there has been a little bit of contention here with the court hearings, but before then, even in the last year, very flexible. We have worked with each other. I have never kept him from him when he has asked to go see him. I have never denied it. We have gotten along. We have worked holidays out and everything.” (T.T. 24). Stepfather has even arranged to give father additional visitation since the entry of the order entered in 2012.
The court is quite concerned, however, with the nonsensical testimony of father relating to his reasons as to why legal custody should not be shared. (TT 59-61). The statement of father, that “(b)ecause honestly, the doctor that he goes to now might not be the best physician for him. There is always somebody better,” (T.T. 60) is curious. Father has shared legal custody of Tristan for seven years, however, he now takes the opportunity to announce that he will do better if given sole legal custody. This court was not impressed with the second-guessing nature of father’s testimony.
Also telling is the tone of father’s testimony when he was asked if Tristan was a good kid, and he stated that “Couldn’t ask for a better kid. His mother did an exceptional job with him.” (T.T. 72.) The court notes that this was an unnecessary and disdainful jab at stepfather. Stepfather has been the primary caretaker of Tristan since Angela’s death, and the obvious negative attitude and lack of appreciation for the stellar job that stepfather has done in raising this young man is a sign of things to come should father become the primary legal and residential custodian.
This court is convinced beyond any doubt that stepfather has and will continue to encourage and permit frequent and continuing contact between the child and his father, and as such this factor weighs heavily in his favor. The court is also convinced that should father obtain the control he seeks, the solid influence and guidance of stepfather will be substantially diminished.

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

No relevant evidence was presented to consider this factor.

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

Since Tristan’s mother passed away, stepfather has been the primary caretaker of Tristan, and stepfather has ensured that all of Tristan’s medical needs have been attended to on a daily basis. Stepfather has taken Tristen to the vast maj ority of his medical appointments. Tristan’s medical issues are of much greater concern than an average child. Stepfather has easily persuaded the court that he has excelled as a primary caretaker and that he would continue to do so in the future.
In contrast, father, was not able to identify Tristan’s dentist, his vision therapist nor his dermatologist. Clearly father is involved with his child and a capable parent, however, he has not participated in the day to day involvement as the primary caretaker which has been successfully undertaken by stepfather. Father has had limited involvement with the Tristan’s teacher this year, but stepfather has taken the lead in the educational aspect of Tristan’s life as well.

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

This factor weighs very heavily in favor of defendant. Tristan has undoubtedly undergone significant trauma in his life with the loss of his mother. Stepfather has been and will continue to be the stabilizing force in Tristan’s life, and to change residential custody now would be detrimental and certainly not in his best interest.
If this court were to change residential custody, it is unclear where Tristan would go to school. Although everyone agreed that Tristan should stay in his present school, there was only speculation as to how to accomplish that task should father become the residential custodian.
Father speculated regarding the paying of tuition to keep Tristan in the Southern Huntingdon County School District, and he testified that he was looking for real estate in the Southern Huntingdon County School District. This court is not persuaded by the testimony of father in that regard, and it is not appropriate to render a decision on what might happen. Stepfather has also indicated a possibility of moving his family home, while staying in the same school district, the stability factor still remains in favor of plaintiff.
Through his testimony, the court was able to learn a great deal about stepfather’s background and the make-up of the current situation with Tristan. We learned about the residents of his home, and most importantly we learned about stepfather’s fiancee, Mandy Davis, and her role in assisting with the child-care and assisting Tristan with his homework. She has been a positive factor over the course of the past year in the upbringing of Tristan, and there can be no doubt that she will continue to be a very positive influence in Tristan’s life. She is by no means a replacement for his mother, however, the court cannot ignore her everyday role in assisting with the raising of Tristan.
It is quite curious, however, that we only know the name of father’s fiancee, Rebecca Wright, but know nothing else about her. Granted Tristan testified that he gets along with her; however, there was no testimony regarding who she is and the role she might play in Tristan’s life. Obviously, when making a decision as to where a child is going to live, great care has to be undertaken in determining the make-up of each household and whether stability will be provided.
This court is being asked to speculate regarding the appropriateness of father’s household. Tristan has done as well as can be expected for a child who has lost his mother. Continued stability is essential, and the stability factor weighs heavily in stepfather’s favor.

(5) The availability of extended family.

Due to the breakdown of the relationship between stepfather and the maternal grandparents, this factor weighs in favor of father. It is clear that plaintiff has made an effort to include grandparents in Tristan’s life, and there can be no question that the maternal grandparents must be involved in Tristan’s life. This court would suggest that the parties cooperate to ensure that the grandparents, who live next door to stepfather, are a constant factor in Tristan’s life. While procedurally the court does not have the ability to grant visitation to grandparents at this time, there can be no question that for the benefit of Tristan, the relationship between stepfather and grandparents must be mended. It is strongly suggested that stepfather permit frequent contact with grandparents while Tristan is in stepfather’s care. The animosity created between grandparents and stepfather is not lost on Tristan, and that creates a very heartbreaking set of circumstances.

(6) The child’s sibling relationships.

If plaintiff gets his wish as to the custody order, Tristan would see his half-brother and half-sister only every other weekend. That result is unacceptable. The policy in Pennsylvania is to permit siblings to be raised together, whenever possible (the doctrine of “family unity” or “whole family doctrine.”) Wiskoski v. Wiskoski, 427 Pa. Super. 531, 629 A.2d 996, 999 (1993), appeal denied, 536 Pa. 646, 639 A.2d 33 (1994).
Absent compelling reasons to separate siblings, they should be reared in the same household to permit the “continuity and stability necessary for a young child’s development.” Pilon v. Pilon, 342 Pa. Super. 52, 492 A.2d 59, 60 (1985). This policy does not distinguish between half-siblings and siblings who share both biological parents. In re Davis, 502 Pa. 110, 465 A.2d 614. The factor while important is only one important factor — and not the controlling factor — in the ultimate custody decision. See, e.g., E.A.L. v. L.J.W., 443 Pa. Super. 573, 662 A.2d 1109, 1118 (1995); Cardamone v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575, 583-84 (1995); M.D. v. B.D., 336 Pa. Super. 298, 485 A.2d 813, 816-17(1984).
The sibling factor clearly and overwhelmingly weighs in favor of defendant. Tristan has been raised with his half-siblings, Alexander Cook and Emma Cook. At the time of the hearing, Alexander was six years old and Emma two. Cancer has taken his mom from him, and this court is not inclined to have the legal system take him from his siblings. While circumstances dictate that Tristan spend significant time away from Alexander and Emma we will make every effort to construct an order that ensures that Tristan has a healthy and long lasting relationship with his half-brother and half-sister.

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

Tristan indicated that he would prefer to live with his father, however, he had a difficult time explaining why he wanted to do so. Although it would be difficult for any young child to explain his reasons, Tristan had an exceptionally difficult time coming up with any reasons. Father was clear on the witness stand that one of the main reasons he has proceeded with his efforts to obtain custody was due to the persistence of Tristan. The court, however, does not see this as a compelling reason based on the young age of Tristan and his inability to provide an explanation, or any credible reason for the preference.

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

No relevant evidence was presented to consider this factor.

(9) (10) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs, and which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

Defendant is more likely to succeed in the long term in these areas. As pointed out by counsel for stepfather, “the best predictor of future behavior is past performance ” (Brief of defendant p. 10). Stepfather has been vigilant in all developmental aspects of Tristan’s life and there is no reason to believe that this will change. Tristan is a wonderful young man due to his upbringing thus far, and many people have played a significant part in Tristan’s development. While the evidentiary burden is on stepfather, his role in raising Tristan cannot be ignored. Defendant has been a constant in Tristan’s life. Tristan has medical and educational needs that have been taken care of almost exclusively by stepfather over the course of the past year, and stepfather will continue to ensure that this will happen in the future. The credible emotion and love that projected from the witness stand during stepfather’s testimony was noted.

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

The parties live only 20 minutes apart; however, they live in different school districts.

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

Each party has an ability to provide adequate and appropriate child care, and it is anticipated that maternal grandparents and Mandy Davis will continue to play significant and appropriate roles in this area when the parties are working.

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

This court finds that the parties have and will cooperate in the future for Tristan’s sake. The only significant level of conflict is the pronounced negativity directed toward stepfather from some members of mother’s family. While those mentioned are not parties to this action, it should be addressed in the future to ensure that those who love and care for Tristan are able to work together for the sake of Tristan’s development.

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

No relevant evidence was presented to consider this factor.

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

No relevant evidence was presented to consider this factor.

(16) Any other relevant factor.

Many people have been involved in raising Tristan, undoubtedly with the greatest contribution coming from his mother. Until today, those involved have done an admirable job. Tristan is a polite and respectful young man who will succeed in the future. It is our hope that those involved in Tristan’s life will continue to work together for the benefit of Tristan.

Wherefore, based on the foregoing, this court finds by clear and convincing evidence that the best interests of Tristan will be met with entry of the preceding order.

ORDER

And now, this 3rd day of April, 2014, it is the order of this court that the parties shall share legal custody of Tristan Hamman, bom July 17, 2002.

It is the further order of court that residential custody of Tristan Hamman shall be as follows:

1. During the school year, stepfather, Joseph Cook, shall have primary residential custody of Tristan subject to the right of father, Jeremy Shoup, to have partial residential custody three weekends each month from Friday at 6 PM until Sunday at 6 PM;
2. During the summer vacation from school, father and stepfather shall alternate weeks of residential custody of Tristan. Specifically, starting at 6 PM on the first Sunday after the conclusion of the school year, father shall have residential custody until the following Sunday at 6 PM. The summer weeks shall thereafter alternate between father and stepfather until the final Sunday prior to the start of school year, with the exchange taking place at 6 PM each Sunday;
3. Natural father shall have partial residential custody of Tristan from December 25th at 2 PM until December 31st at 2 PM;
4. The parties shall alternate the following holidays; Easter, Memorial Day, July 4th, Labor Day and Thanksgiving;
5. The party not in custody shall provide transportation;
6. The “appendix to custody order” shall be attached hereto and incorporated into this order.
7. No party shall be permitted to relocate the residence of the child to significantly impair the ability of another person to exercise custody unless every individual who has custody rights to the child consents to the relocation. A person proposing relocation must comply with the requirements pursuant to PA. C.S.A. Section 5337(c).

So as not to disrupt the routine of Tristan during this school year, the residential custody portion of this order shall begin on the first Sunday following the conclusion of school in June, 2014. Until such time, the October 29, 2012 order of this court shall remain in place.


author: TUNNELL, J.,

text:
    Szary v. Zoning Hearing Board of Tredyffrin Township

      Jane M. Shields, for appellants.

      Stacey L. Fuller and Patrick M. McKenna, for appellee Tredyffrin Township Zoning Hearing Board.

      Michael T Imms, for appellee Landmark 5, LLC.

      Vincent T. Donohue, for intervenor Township of Tredyffrin.
    April 14, 2014
   TUNNELL, J.,

— Gregory Szary and Karen Szary (“appellants”) filed their appeal from the decision of the Tredyffrin Township Zoning Hearing Board (“board”) granting the application of Landmark 5, LLC (“applicant” or “Landmark”) for a use variance from §208-67 of the Tredyffrin Township Zoning Ordinance (“ordinance”) so that it could add an outdoor patio with seating and a bar to its existing restaurant. This section of the ordinance requires that each permitted use in the C-l Commercial District, other than a parking lot, shall be conducted within a completely enclosed building. Appellants contend that Landmark failed to prove that it was entitled to a variance permitting such outdoor and unenclosed dining.

The court took no additional evidence.

The standard of review of this court is whether the board committed a manifest abuse of discretion or an error of law in granting the variance. Valley View Civic Ass ’n v. Zoning Hearing Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983); see also, Allegheny W. Civic Council, Inc. v. Zoning Hearing Bd. of Adjustment of the City of Pittsburgh, 689 A.2d 225, 227 (Pa 1997).

The court recognizes of course that the board is the ultimate arbiter of credibility and finder of facts. The court’s only role is that of review to make sure that the board’s determinations and conclusions are supported by substantial evidence in the record. Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Township, 987 A.2d 1243, 1248 (Pa. Cmwlth. 2009), appeal denied 607 Pa. 708, 4 A.3d 1056 (2010). “Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In re: Rural Route Neighbors, 960 A.2d 856 (Pa. Cmwlth. 2008) (also noting that a reviewing court may not substitute its judgment for that of the zoning hearing board). The reviewing court exceeds its scope of review by reweighing testimony. If it does so, it erroneously assumes the role of fact-finder. In re: Rural Route Neighbors, supra.

The applicant here sought a use variance. A hearing was conducted on March 22, 2012. Landmark presented testimony from its principal, David Goldman, and its architectural expert, John M. Schwartz.

A property owner seeking a use variance must always demonstrate that an unnecessary hardship exists with respect to the property at issue and in light of the permitted uses in the particular zoning district in which the property is located. Sweeney v. Zoning Hearing Bd. of Lower Merion Township, 626 A.2d 1147 (Pa. 1993). In Taliaferro v. Darby Township Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005), appeal denied 585 Pa. 692, 887 A.2d 1243 (2005), the Commonwealth Court held that in order to establish unnecessary hardship an applicant must prove that either (1) the physical features of the property are such that it cannot be used for a permitted purpose, or (2) the property can be conformed for a permitted use only at a prohibitive expense, or (3) that the property is valueless for any purpose permitted by the zoning ordinance. The court is mindful that the Supreme Court in Hertzburg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998) relaxed the standard in some respects for allowing variances, but did so in respect to dimensional variances and did not speak at all to any relaxed standard for use variances.

The burden on an applicant seeking a variance is a heavy one, and the reasons for granting the variance must be substantial, serious and compelling. Valley View Civic Ass’n v. Zoning Bd. of Adjustment, supra.

Indeed, the finding of an unnecessary hardship must itself be supported by substantial evidence. Seipstown Village, LLC v. Zoning Hearing Bd. of Weisenberg Township, 882 A.2d 32 (Pa. Cmwlth. 2005). The board in its decision properly set forth the elements for consideration of a use variance and in that regard noted a variance “whether labeled dimensional or use, is appropriate ‘only where the property, not the person, is subject to hardship.’” Yeager v. Zoning Hearing Bd. of the City of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001). The board further noted in its decision that the proposed outdoor dining area is consistent with the character and type of development in the surrounding community, and that numerous other businesses had similar outdoor dining areas (Decision, p. 9). It noted that no additional parking would be required and that the proposed screening would be adequate to address any concerns of neighbors including the appellants. It concluded that the applicant met the requirements of the Tredyffrin Township Zoning Ordinance and that the relief sought shall not alter the essential character of the C-l Commercial District of the township.

The board simply did not discuss whether the requisite hardship was demonstrated. This is a problem because the failure of a zoning hearing board to consider each requirement of a zoning ordinance prior to granting a variance constitutes error. Larson v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 289-90 (Pa. 1996).

The only testimony in the record that could be construed as bearing on “unnecessary hardship” was the following exchange:

Q. Describe why you feel that, you know, a patio outdoor dining area is necessary for Landmark?
A. Sure. I mean, you know, we have seen over the years anyone that had that patio — excuse me, had a patio in their establishment any time the weather breaks they’re very busy and everybody else is — especially in this area where going to the shore is so popular, you have a much smaller market in the summer months, and generally only the places that offer outdoor are going to be successful during those months. We certainly want to put together a sustainable business model and I think this would be critical to it.

(N.T. 16: 7-21).

Without invading the province of the board to assess credibility, this evidence falls far short of the legal standards for granting a use variance. It simply amounts to an assertion that an outdoor dining patio is attractive and trendy, and part of the applicant’s business model. There was nothing in the record with respect to previous restaurants at the same location nor any reasons for their success or failure, how other area eateries came to have outdoor seating, what zoning classifications they were located in, or anything that could fairly be said to buttress the board’s determination.

In SPC Co., Inc. v. Zoning Bd. of Adjustment of the City of Philadelphia, 773 A.2d 209, 214 (Pa. Cmwlth. 2001), the court noted that there is no right of a property owner to utilize its land for the highest and best financial gain, stating that “financial hardship alone is not a sufficient basis for granting a variance.”

The applicant for the first time on appeal raised new theories not presented before the board. These included that (1) outdoor seating is permitted for all restaurants as a matter of right under the ordinance, (2) the applicant is entitled to validity variance, and (3) that §208-67 of the ordinance deprives the applicant of the equal protection of the law. Legal theories raised below are deemed waived on appeal. Bailey v. Upper Southampton Township, 690 A.2d 1324, 1327 (Pa. Cmwlth. 1997). This is also true even if the theories are of constitutional dimension. Lamm v. Fisher, 903 A.2d 1259, 1262 (Pa. Super. 2006). Accordingly, the court will not entertain them.

An appropriate order follows.

ORDER

And now, this 14th day of April, 2014, upon consideration of the record and the parties’ briefs it is hereby ordered and decreed that the appeal of Gregory and Karen Szary is granted. The decision and order dated April 26,2012 of the Zoning Hearing Board of Tredyffrin Township is reversed, and the application of Landmark 5, LLC for a use variance from §208-67 of the Tredyffrin Township Zoning Ordinance is hereby denied.