author: CULLEN, J,

text:
    Colosi v. Bucher

      Patrick H. Zaepfel, for plaintiff.

      Gary G. Krafft, for defendant.
    August 28, 2009
   CULLEN, J,

On May 12, 2009, plaintiffs, Marc L. Colosi and Geri A. Colosi, filed a complaint against defendant, Gregory S. Bucher, alleging violations of the East Petersburg Borough Zoning Ordinance, breach of a cross-easement, nuisance and trespass.

On June 25,2009, defendant filed preliminary objections to the complaint seeking to strike portions of paragraphs 9, 17 and 26 as scandalous or impertinent.

Plaintiffs filed a response, and briefs have been filed by the parties.

For the reasons stated below, defendant’s preliminary objections will be sustained with respect to paragraphs 9 and 17 and overruled with respect to the challenged averment of paragraph 26.

DISCUSSION

The Pennsylvania Rules of Civil Procedure allow a party to file preliminary objections on the ground that the challenged pleading includes scandalous or impertinent matter. Pa.R.C.P. 1028(a)(2). To be scandalous or impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action. Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).

Paragraphs 9 and 17, with the challenged portions emphasized, read as follows:

“(9) Because the borough has refused to enforce its zoning ordinance against Mr. Bucher — who sits on the borough council — Mr. and Mrs. Colosi have brought this citizen’s enforcement action pursuant to section 617 of the Municipalities Planning Code, 53 P.S. §10617. As required by section 617 of the Municipalities Planning Code, a copy of this complaint was served on the borough council at least 30 days before filing of the complaint.
“(17) Mr. and Mrs. Colosi bring this action pursuant to section 617 of the Municipalities Planning Code, 53 P.S. §10617. As required by section 617, a copy of this complaint was served on the borough council at least 30 days before filing of the complaint. Despite receiving prior notice of this action, the borough has not initiated an enforcement action against Mr. Bucher — who is a member of the borough council — to abate the zoning violations.” (Compl. at^9, 17.) (emphasis added)

Section 617 of the Pennsylvania Municipalities Planning Code, 53 P.S. §10617, requires that an aggrieved landowner must give the municipality 30 days notice of his or her intent to institute an action to prevent, correct or abate a violation of the zoning ordinance. There is no requirement, however, that the municipality must have formally refused to take action to remedy the alleged violation or that the municipality has refused to take action for any improper reason before an aggrieved landowner may proceed.

In this instance, plaintiffs’ reference to defendant’s position as a member of the borough council allows plaintiffs to insinuate that unnamed members of the borough council have refused to address the alleged violations of the zoning ordinance for some improper reason. Unsupported tangential statements which cast a derogatory light on public officials may be stricken as scandalous. Common Cause/Pennsylvania, 710 A.2d at 115.

If plaintiffs have evidence that the members of the East Petersburg Borough Council have compromised their offices or acted in an improper or unlawful manner with respect to the enforcement of the zoning ordinance, plaintiffs may amend their complaint to plead facts in support of such claims.

Under the current circumstances, this preliminary objection will be sustained and the objected-to portions of paragraphs 9 and 17 will be stricken.

Paragraph 26, with the questioned portion highlighted, reads as follows:

“(26) Such violation is prejudicial to Mr. and Mrs. Colosi, because patrons of Chancey’s Pub utilize the shared driveway on their way to and from the tavern, increasing the use of the shared driveway very substantially beyond was is [sic] contemplated by the terms of the cross-easement. This is also a particular safety concern because Chancey’s Pub offers alcoholic beverages to its patrons. ” (Compl. at ¶26.) (emphasis added)

Plaintiffs refer to defendant’s business, Chancey’s Pub, throughout the complaint and in paragraph 6 identify it as a “tavern”. Other than to belabor the obvious, it is not clear what purpose the challenged language serves. Paragraphs that purport to be factual, but are simply evidence that might be relevant in a trial or hearing are not pertinent for the purposes of pleading a cause of action. Diess v. PennDOT, 935 A.2d 895, 909 (Pa. Commw. 2007). However, this language is best viewed as harmless surplusage.

Accordingly, this preliminary objection will be overruled.

ORDER

And now, August 28, 2009, upon consideration of defendant’s preliminary objections, and plaintiffs’ response, it is ordered that the preliminary objections are sustained in part and overruled in part.

The phrase “who sits on the borough council” in paragraph 9 and the phrase “who is a member of the borough council” in paragraph 17 are stricken as scandalous and impertinent.

The preliminary objection to the sentence in paragraph 26, “This is also a particular safety concern because Chancey’s Pub offers alcoholic beverages to its patrons” is overruled.

Plaintiffs are granted 20 days from the date of this order to file an amended complaint.

      . Plaintiffs have not alleged that they brought their complaints to the proper zoning officials prior to providing the 30-day notice, nor do they state what response, if any, they received.


source: Caselaw Access Project

author: RUEST, J,

license: Public Domain

text:
    Manahan v. Rhoades

      Joseph P. Green, for plaintiffs.

      Scott C. Etter, for defendant Designer’s Edge by Lou Inc.

      DavidD. Engle, for defendant Dan Dolan t/d/b/a B&L Excavating.

      Robert H. Bascom, for defendant Joseph Belsky t/d/b/a Belmor.
    January 20, 2010
   RUEST, J,

Presently before the court are complaints filed by plaintiffs Michael P. Manahan Sr. and Georgina Manahan on January 2,2007, and by Michael P. Manahan Sr. on April 2,2008. These two complaints have been consolidated for purposes of trial. Upon consideration of evidence presented at a non-jury trial and of proposed findings of fact and conclusions of law, the court finds in favor of plaintiffs.

BACKGROUND

Plaintiffs Michael P. Manahan Sr. and Georgina Manahan filed a complaint against Designer’s Edge by Lou Inc., Dan Dolan t/d/b/a B&L Excavating, and Joseph Belsky t/d/b/a Belmor Landscaping on January 2,2007. Plaintiffs’ claim amounts to $3,935 and involves alleged pooling of water and improper drainage. A separate complaint was filed by plaintiff Michael P. Manahan Sr. against Robert Rhoades d/b/a Designer’s Edge by Lou Inc. on April 2,2008. This second complaint seeks $4,150 and involves problems with roof gutters, downspouts, and sumps. The court held a non-jury trial in two parts, hearing some testimony on May 7,2009, and concluding on November 4, 2009. The parties submitted written proposed findings of fact, proposed conclusions of law, and briefs.

FINDINGS OF FACT

(1) Plaintiffs Michael P. Manahan, Sr. and Georgina Manahan own a house located at 260 Pantops Parade, Patton Township, Centre County, Pennsylvania.

(2) Defendant Designer’s Edge by Lou Inc. is a Pennsylvania corporation having an address of 256 Blackberry Hill, Port Matilda, Centre County, Pennsylvania.

(3) Defendant B & L Excavating Inc. is a Pennsylvania corporation owned by Brian and Lisa Ashcraft having a business address of 177 Ashcraft Lane, Bellefonte, Centre County, Pennsylvania.

(4) Defendant Joseph Belsky, t/d/b/a Belmor Landscaping, is an adult individual residing and conducting business at 596 Green Grove Road, Spring Mills, Centre County, Pennsylvania.

(5) On or about February 4, 2006, plaintiffs entered into a sales agreement with defendant Designer’s Edge in which said defendant sold the plaintiffs a spec house that Designer’s Edge had constructed at 260 Pantops Parade, Patton Township, Centre County, Pennsylvania.

(6) The agreement imposed a duty on the general contractor, Designer’s Edge, to complete all site work at the property.

(7) Defendant B & L performed all of the excavating work at plaintiffs’ property under the supervision of the general contractor Robert “Lou” Rhodes of Designer’s Edge.

(8) B & L performed numerous excavating services including work that is generally described in the construction field as “rough grading.”

(9) Dolan, of B & L, met with Rhodes, of Designer’s Edge, on the site to review B & L’s plans for the rough grading and the design and installation of the sumps.

(10) Rhodes approved the plans and directed Dolan to proceed.

(11) An employee of B & L, Rob Smith, performed most of the actual work.

(12) Rhoades was at the site on a daily basis and approved the work undertaken by B & L.

(13) Defendant Belmor was hired by plaintiffs to perform landscaping services.

(14) Defendant Belmor performed fine grading which included rock hounding, hand raking, and seeding of the lawn areas.

(15) Fine grading consists of preparing the seed bed by working the top one-half to one inch of the soil.

(16) Belmor’s work in the septic drain field consisted of hand raking and seeding.

(17) Belmor was advised not to disturb any of the natural areas and therefore did not complete any work in the natural area along the left or right sides of the driveway.

(18) Belmor was not responsible for rough grading.

(19) Rough grading sets the slopes and runs to allow water to drain away from the home.

(20) Belmor did not adjust any of the rough grading by his fine grading.

(21) The topsoil left for Belmor was approximately one ton.

(22)Belmor spread topsoil on the right side of the driveway in the area of the mailbox, in the lawn area, and across the street to repair ruts left by construction vehicles.

(23) Belmor performed all of its services in a workmanlike manner.

(24) The other water issues, including the missing sumps and overflowing gutters, were completed prior to Belmor performing the final grading and seeding at the premises.

(25) The ponding complained of by plaintiffs was caused by the rough grading work and issues with the sumps.

(26) Plaintiffs made reasonable efforts to encourage or urge the contractor to correct the deficiencies, but these efforts were unsuccessful.

(27)Plaintiffs hired another contractor, Ameron Construction, to perform remedial work.

(28) Plaintiffs paid Ameron Construction the amount of $3,935 for this work.

(29) Plaintiffs also hired Ameron Construction to correct deficiencies with the gutters, downspouts, and sumps.

(30) Plaintiffs paid Ameron Construction the amount of $4,150 for this work.

CONCLUSIONS OF LAW

(1) When a party to a contract does not receive full performance in accordance with the terms of an agreement, that party is entitled to recover compensatory damages. Douglass v. Licciardi Construction Co., 386 Pa. Super. 292, 562 A.2d 913 (1989); Restatement (Second) of Contracts §348(2).

(2) The cost to repair constitutes a proper measure of damages in such circumstances. Ecksel v. Orleans Construction Co., 360 Pa. Super. 119, 519 A.2d 1021 (1987).

(3) The cost of the repairs performed by Ameron Construction was not excessive.

DISCUSSION

These two cases involve contract law as it relates to the sale and construction of a residential home. Plaintiffs contend that they have not received what they paid for. There are two general categories of water-related claims. The first claim deals with the four areas of improper water drainage and ponding: (1) Water was pooling on the septic drain field; (2) Water was pooling on the left side of the driveway; (3) Water was pooling on the front swale near the driveway on the right side; and (4) Water was pooling near the basement walkout and at the end of the swale near the basement walkout. The second claim deals with the downspouts, gutters and sumps.

Plaintiffs aver they made reasonable efforts to encourage or urge the contractor to correct the deficiencies and that these efforts were unsuccessful. Plaintiffs then hired another contractor, Ameron Construction, to perform remedial work. Representatives from Ameron Construction testified as to the completion of the repairs as well as the cost of the same. Plaintiffs are seeking compensatory damages for this remedial work.

When a party to a contract does not receive full performance in accordance with the terms of an agreement, that party is entitled to recover compensatory damages. Douglass v. Licciardi Construction Co., 386 Pa. Super. 292, 562 A.2d 913 (1989); Restatement (Second) of Contracts §348(2). The cost to repair constitutes a proper measure of damages in such circumstances. Ecksel v. Orleans Construction Co., 360 Pa. Super. 119, 519 A.2d 1021 (1987).

Plaintiffs contend that Designer’s Edge was contractually responsible for “all site work” according to the specifications prepared by Designer’s Edge as set forth in the sales agreement. Designer’s Edge maintains the work performed was not defective and, in the alternative, that any mistakes were the fault of B & L. Defendants Designer’s Edge and B & L also maintain that it was Belmor’s fine grading that caused the pooling and ponding problems.

The evidence established that the general contractor, Designer’s Edge, and its excavating contractor, B & L, were responsible for all site excavation work, including the rough grading. Belmor was hired to perform fine grading and seeding at the property only. Belmor performed this work and did not adjust any of the rough grading.

The court determines that the rough grading and the sumps were not sized or placed properly in that they failed to adequately perform their intended duty and did not prevent rainwater from pooling and ponding on plaintiffs’ property. The court determines defendant Designer’s Edge is responsible for this mistake, and defendant B & L is liable to Designer’s Edge for half of the amount owed to plaintiffs. The court further determines that no act or omission by defendant Belmor caused any of the water conditions alleged by the plaintiffs in their complaint. The court finally determines that defendant Belmor has no liability to the plaintiffs on their initial claim relating to water ponding and pooling and has no liability to defendants Designer’s Edge or B & L on their cross-claims.

Accordingly, the following is entered:

VERDICT AND ORDER

And now, January 20, 2010, following a non-jury trial held in the above captioned case, upon consideration of the evidence submitted at that trial, verdict is entered in favor of plaintiffs in both cases. The court orders the following:

(1) Defendant Designer’s Edge by Lou shall pay the amount of $3,935 to plaintiffs within 30 days of the date of this order as damages for plaintiffs’ claims in case number 2006-4800.

(2) Defendant Dan Dolan, t/d/b/a B & L Excavating, shall pay the amount of $1,967.50 to defendant Designer’s Edge by Lou within 30 days of the date of this order as damages for defendant Designer’s Edge by Lou’s cross-claim in case number 2006-4800.

(3) Defendant Designer’s Edge by Lou shall pay the amount of $4,150 to plaintiff within 30 days of the date of this order as damages for plaintiff’s claims in case number 2008-0926.


author: LUDGATE, J,

text:
    Commonwealth v. McNair

      Jacqueline M. Hamer, assistant district attorney, for Commonwealth.

      Christopher M. Brett, for defendant.
    January 12, 2010 —
   LUDGATE, J,

I. FACTUAL AND PROCEDURAL HISTORY

On March 13, 2009, Jack McNair (defendant) was charged by information with Count 1, possession with intent to deliver a controlled substance (cocaine), 35 P.S. 780-113(a)(30), Count 2, conspiracy to commit, possession with intent to deliver, 18 Pa.C.S. §903(a)(l)(2), Count 3, possession of a controlled substance (cocaine), 35 P.S. 780-113(a)(16), Count 4, possession of a controlled substance (marijuana), 35 P.S. 780-113(a)(16), Count 5, conspiracy to commit possession of a controlled substance, 18 Pa.C.S. §903(a)(l)(2) and Count 6, conspiracy to commit possession of a controlled substance, 18 Pa.C.S. §903(a)(l)(2).

On April 29, 2009, the defendant, through Attorney Douglas J. Waltman, filed an omnibus pretrial motion, in which the defendant raised a motion to suppress evidence, claiming the affidavit in support of the search warrant was overbroad and contained information which was stale. The defendant also sought suppression of statements and a pretrial writ of habeas corpus.

On May 11,2009, Senior Judge Thomas J. Eshelman, specially presiding for this court, held a hearing on the defendant’s omnibus pretrial motion. The defendant did not request transcription of the hearing; it was not transcribed. S.J. Eshelman granted the Commonwealth’s motion to amend the information by withdrawing the conspiracy counts (Counts 2, 5 and 6). On June 9,2009, S.J. Eshelman issued an opinion and order in disposition of the defendant’s omnibus pretrial motion, denying the motion. In the opinion, S.J. Eshelman summarized the issuance and execution of the search warrant:

“In January 2009, the Reading Police Department began an investigation against the defendant at 351 Linden Street, Reading, Berks County, Pennsylvania;, for illegal sales of crack cocaine, a Schedule II controlled substance. In that month, a confidential informant (C.I.) was present with the defendant at that address. The C.I. informed the police that the defendant was in possession of a large quantity of crack cocaine inside 351 Linden Street and was bagging the cocaine into smaller packets for street sale. The C.I. also told the police that he knew the defendant sold cocaine at several local bars in the City of Reading, including the By-bar in the 200 block of Penn Street and Maria’s Bar in the 400 block of Penn Street in Reading. On February 10, 2009, the C.I. told the police that he had been with the defendant within the last 48 hours, at the defendant’s address on Linden Street and that the defendant was again in possession of at least one ounce of crack cocaine and a firearm, described as a black handgun, possibly a .45 caliber. (Commonwealth’s exhibit 1.)
“Thereafter, on February 10, 2009, the police went to Linden Street and knocked on the door. The defendant answered the door, wearing a bath robe. The defendant identified himself, gave his cell phone number and date of birth, and said that he lived at that address with his girlfriend, Life Page. On that date, the police also learned that the defendant had two confirmed warrants for his arrest, for harassment and for scattering rubbish. It was also learned that the defendant had a prior felony record out of New York for a robbery charge, which would prohibit him [from] possessing a firearm.
“On February 10,2009, Criminal Investigator Ed Heim requested a search warrant. In support of his request, he signed an affidavit of probable cause, asserting the above information, as well as attesting to the reliability of the C.I. The particular C.I. was currently providing information to members of the Reading Police Department that proved to be accurate and correct. All of the information that had been received was independently verified through the use of various investigative techniques. The information given by this C.I. to the police had resulted in the arrest and conviction of well over 75 persons for the distribution of mostly crack cocaine, marijuana and heroin. (Commonwealth’s exhibit 1.)
“On February 10, 2009, District Judge Stuart Kennedy signed the search warrant authorizing the search of 351 Linden Street. The warrant, in appendix A, specifically enumerated the items to be seized, including, inter alia, controlled substances and related paraphernalia, currency and weapons, including handguns. (Commonwealth’s exhibit 1.)” Opinion and order, Eshelman, S.J., 6/9/2009 pp. 2-3.

On October 23,2009, a non-jury trial was held before this court on the remaining charges. At trial, Edward Heim testified that he is employed by the Reading Police Department, Vice Section, has been so employed for 11 years, and was so working on February 10, 2009. (N.T., bench trial, 10/23/2009, pp. 12-13.) Officer Heim was conducting an investigation into sale of cocaine at 351 Linden Street, Reading, Berks County, PA on that date. (N.T. p. 13.) Officer Heim obtained a search warrant for the address. At approximately 12 p.m. on February 10, police surveillance observed the defendant, whom Officer Heim identified in court, leaving the address. (N.T. p. 13.) The defendant was followed for several blocks, then detained by Officer Heim. (N.T. pp. 13-14.) Officer Heim transferred custody of the defendant to other officers, and then returned to 351 Linden Street. (N.T. pp. 15-16.) Officer Heim knocked on the door of351 Linden Street three times to no answer, and then waited “a reasonable amount of time.” (N.T. p. 16.) Officer Heim discovered the door was unlocked; he cracked open the door “just a little bit” so his voice could penetrate inside and announced “police search warrant” to no response. (N.T. p. 16.) Upon entry, the officers discovered a female later identified as Life Page, who was then detained. (N.T. p. 16.)

The officers went to the second floor and entered the front bedroom; there, the officers initially found the driver’s license and social security card of the defendant, mail addressed to him, and $435 in U.S. currency. (N.T. p. 17.) In a dresser drawer, Officer Heim discovered three grams of crack cocaine in a plastic sandwich baggie, additional currency and about 90 empty bags of unused packaging material. (N.T. pp. 17, 19.) Underneath the dresser, there was a ceramic plate with cocaine residue on it and a razor blade. (N.T. p. 17.) Also in a drawer of the dresser was a piece of cardboard which had loose marijuana on it. (N.T. p. 17.) A tied piece of yellow plastic containing marijuana and a plastic baggie of marijuana were found on a TV stand in the bedroom. (N.T. p. 17.) Officer Heim discovered no evidence of adults other than the defendant and Ms. Page living at the address. (N.T. p. 22.)

Pasquale Laporace testified that he is employed as a criminal investigator for the City of Reading Police Department, has been a police officer since 1994 and a criminal investigator since 1997. (N.T. p. 23.) Investigator Laporace was working on February 10,2009 and was part of the entry team for execution of the search warrant for 351 Linden Street. (N.T. p. 23.) Investigator Laporace identified the defendant as a person who was the subject of the search warrant. (N.T. pp. 23-24.) After the defendant was arrested, Investigator Laporace took him to central processing and read the defendant his Miranda rights, which the defendant said he understood. (N.T. p. 25.) Investigator Laporace asked the defendant if there were any drugs in his house; the defendant denied knowledge of drugs but then said he had “a little bit of crack in his bedroom” and “a few baggies.” (N.T. p. 26.)

Jose Colon testified that he is a police officer for the City of Reading and has been so employed for 23 years, including 15 years with the vice narcotics unit. (N.T. p. 27.) The parties stipulated Officer Colon possesses the necessary qualifications to render an expert opinion regarding whether controlled substances are possessed with the intent to distribute. (N.T. p. 28.) Officer Colon expressed his opinion that the cocaine in this case was possessed with the intent to distribute. (N.T. p. 29.)

Following the non-jury trial, the defendant was found guilty by this court of possession of a controlled substance with intent to deliver (cocaine), 35 RS. 780-113(a) (30), possession of a controlled substance (cocaine), 35 P.S. 780-113(a)(16) and possession of a controlled substance (marijuana), 35 P.S. 780-113(a)(16). The defendant agreed to be sentenced immediately following the verdict; a pre-sentence investigation report had already been prepared. (N.T. p. 5 3.) The defendant was sentenced to a total sentence of two to five years incarceration in a state facility. The defendant was represented by Attorney Waltman at trial and sentencing. No post-sentence motion was filed.

On November 18, 2009, the defendant filed a pro se notice of appeal and requested appointment of the Berks County Public Defender’s office as counsel. On December 1,2009, this court ordered the withdrawal of Attorney Waltman as counsel and the appearance of the Berks County Public Defender’s office was entered. The same day, this court ordered the defendant to file a concise statement of errors complained of on appeal through new counsel within 21 days. On December 17,2009, Attorney Christopher Brett timely filed a concise statement and requested additional time to file a supplemental concise statement after receipt of transcripts. On December 21, 2009, the court granted Attorney Brett 10 days from receipt of transcript to file a supplemental concise statement. On January 7, 2010, Attorney Brett indicated no supplemental concise statement would be filed.

II. ISSUES RAISED BY THE DEFENDANT

“The trial court erred in denying defendant’s pretrial motion to suppress evidence when the issuance of a search warrant violated defendant’s constitutional protection against unreasonable search and seizure where the search warrant was not supported by probable cause under the totality of the circumstances in that (1) there is insufficient evidence upon the face of the affidavit of probable cause to determine that the information received supporting the warrant was reliable, truthful, or credible; and (2) there is insufficient evidence upon the face of the affidavit of probable cause to determine that the contraband sought would be found in the place requested to be searched and because there is no substantial nexus between the events described in the affidavit and the premises to be searched; and (3) where informant’s testimony exhibited a lack of personal knowledge that alleged weapons or drugs would be found in defendant’s resident [sic] at the time the warrant was issued.”

III. ANALYSIS

1) Reliability, Truthfulness and Credibility of Information Supporting Affidavit of Probable Cause

Pennsylvania courts employ a “totality of the circumstances” test for determining the existence of probable cause in support of the issuance of a search warrant. Commonwealth v. Singleton, 412 Pa. Super. 550, 551-52, 603 A.2d 1072 (1992) citing Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). In Gray, the Pennsylvania Supreme Court stated

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simple to ensure that the magistrate had a ‘substantial basis for ... concluding] that probable cause existed.’ ” Gray, 509 Pa. at 484, 503 A.2d at 925.

Probable cause in support of a warrant must be based on direct observations of the affiant or hearsay information which is reliable and the basis for which is articulated in the warrant. Commonwealth v. Weidenmoyer, 518 Pa. 2, 539 A.2d 1291 (1988). Probable cause exists where there is a probability of criminal activity; a prima facie showing of such activity is not required. Commonwealth v. Luton, 448 Pa. Super. 608, 613, 672 A.2d 819, 822 ( 1996).

When essential information to a finding of probable cause is obtained through the use of criminal informant(s), the issuing authority determines the reliability of the informant(s) information from the facts supplied by the police official. Commonwealth v. Gindlesperger, 706 A.2d 1216, 1225 (Pa. Super. 1997), affirmed, 560 Pa. 222, 743 A.2d 898 (1999), cert. denied, 533 U.S. 915 (2001). The determination of reliability does not hinge upon disclosed records “regarding the track record of the informant.” The affidavit must however, at a minimum, contain an averment stating the “customary” phrase that the informant has provided information which “has in the past resulted in arrests or convictions.” Id.; Commonwealth v. Dukeman, 917 A.2d 338, 341-42 (Pa. Super. 2007).

The facts of this case show the C.I. was sufficiently reliable and credible to create probable cause to support the issuance of the search warrant. The C.I. in this case had provided information resulting in the arrest and conviction of more than 75 persons at both state and federal levels, primarily in drug distribution cases. Furthermore, police independently verified information provided by the C.I. regarding the defendant’s description, address and cell phone number. (N.T., p. 68.) The contention is without merit.

2) Lack of Substantial Nexus Between Events Described in Affidavit of Probable Cause and Place to be Searched; 3) Lack of Personal Knowledge by the Informant That Drugs or Weapons Would Be Found Upon Execution

The affidavit in support of a search warrant is to be tested with common sense and in a realistic manner, and not subjected to overly technical interpretation. Commonwealth v. Sharp, 453 Pa. Super. 349, 683 A.2d 1219 (1996).

The affidavit of probable cause provides:

“In January the informant who is outlined in the body of this search warrant was present with Jack McNair at 351 Linden Street. McNair is described as a black male, 33 years old, 6’ 0” tall, 170 lbs. and has a cell phone no. 610-568-2787. The informant stated that McNair was in possession of a large quantity of crack cocaine inside 351 Linden Street and was bagging the cocaine up into smaller packets for street sale. The informant knows that McNair sells the cocaine at several local bars in the City of Reading, including the By-bar 200 block of Penn Street and Maria’s Bar 400 block of Penn Street. [Within] the last 48 hours the informant was with McNair at his home at 351 Linden Street. McNair was again in possession of at least one ounce of crack cocaine and a firearm.” (N.T., p. 68.)

The record refutes both of the defendant’s claims of error. The C.I. provided information that the defendant was in possession of a large amount of crack cocaine at his residence, 351 Linden Street, within the last 48 hours. The search warrant was issued for 351 Linden Street, Reading, Berks County, Pennsylvania.

Counsel suggests a segregated reading of the affidavit, wherein each sentence is given independent meaning unto itself. Because no single sentence says the C.I. saw the defendant in possession of crack at his residence within a given time period, counsel argues the affidavit is defective. Such an interpretation ignores the plain meaning of the affidavit as a whole and is the type of overly technical interpretation prohibited by Sharp. Both claims are without merit.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied.

      . Although the omnibus pretrial hearing was not transcribed, the referenced exhibit appears in the bench trial transcript. N.T. of bench trial, 10/23/2009, pp. 64-69.


author: KISTLER, J,

text:
    Commonwealth v. Frattaroli

      Nathan L. Boob, for Commonwealth.

      Joseph M. Devecka, for defendant.
    January 15, 2010
   KISTLER, J,

Presently before the court is an omnibus pretrial motion in the form of a motion to suppress filed by Kristopher Frattaroli on November 30,2009. A hearing was held on December 18,2009, and Mr. Frattaroli filed a brief with the Centre County Prothonotary on January 4,2010. For the following reasons, Mr. Frattaroli’s motion to suppress is denied.

STATEMENT OF FACTS

(1) Detective Joshua Martin is a detective with the Ferguson Township Police and also a member of the Centre County Drug Task Force.

(2) Detective Martin had developed a confidential informant who provided information that Mr. Frattaroli was selling marijuana.

(3) The confidential informant made contact with Mr. Frattaroli by text message from his own phone.

(4) The confidential informant then came to the police station and discussed these text messages with Detective Martin on April 28, 2009.

(5) While at the police station and in Detective Martin’s presence, the confidential informant text messaged Mr. Frattaroli to find out the apartment number he was supposed to meet to purchase the drugs.

(6) The confidential informant received a text message back with the message, Bl.

(7) Based on this information, Detective Joshua Martin set up surveillance and the controlled buy took place in Mr. Frattaroli’s apartment.

(8) Detective Martin, with the assistance of Detective Paul were able to verify that the phone number used to contact the confidential informant was Mr. Frattaroli’s by using the internet.

(9) Detective Martin then made contact with Mr. Frattaroli by telephone on September 18,2009, and explained that he had a warrant for his arrest.

(10) Detective Martin then made arrangements with Mr. Frattaroli to meet at District Justice Dutchcot’s office where he was arraigned.

(11) At this meeting Mr. Frattaroli was read his Miranda warnings and then admitted to selling marijuana.

(12) Mr. Frattaroli explained that he was trying to help a friend out.

(13) Detective Martin never used the confidential informant’s phone to contact Mr. Frattaroli.

(14) Mr. Frattaroli sent the text messages to the confidential informant while he was in his apartment with the door closed.

DISCUSSION

The sole issue addressed in Mr. Frattaroli’s brief and at the hearing is, “Was Kris Frattaroli in his apartment with the door closed when Kris NLN texted back ‘B-1 ’ ? ” The court determines, based on Mr. Frattaroli’s testimony at the suppression hearing that Mr. Frattaroli was in his apartment with the door closed when he made the text messages to the confidential informant. However, the court cannot understand, nor does Mr. Frattaroli explain how his location at the time the text messages were sent to someone outside his home has any relevance to the Wire Tap Act or the Fourth Amendment. When asked about this at the suppression hearing, Mr. Frattaroli’s attorney stated that he believed there was case law which would show the relevance of his argument. After a review of Mr. Frattaroli’s brief the court is no closer to deciphering the relevance of this issue than it was at the suppression hearing.

Mr. Frattaroli’s brief mentions the case of Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). In Brion a confidential informant entered the defendant’s home wearing a consensual body wire and made a purchase of marijuana. The conversation between the two during the sale of marijuana from defendant to the informant was recorded and transmitted to the monitoring agents. Our Supreme Court held that “an individual can reasonably expect that his right to privacy will not be violated in his home through the use of any electronic surveillance.” Commonwealth v. Brion, 539 Pa. 256, 261, 652 A.2d 287, 290 (1994). Plowever, the Brion case does not address the issue of a defendant who initiates an electronic communication to someone outside his home in a format which is automatically preserved because of the very nature of the communication.

Mr. Frattaroli also mentions Commonwealth v. Cruttenden, 976 A.2d 1176 (Pa. Super. 2009). In that case a police officer adopted the identity of a drug runner he had arrested and sent text messages to the person who was supplying the drug runner. The Superior Court held that the police officer’s actions violated the Wire Tap Act because the officer intercepted the text messages using an electronic device, a cell phone. However, there are two crucial differences in Cruttenden and the case at bar. The first difference is that the officer in Cruttenden was posing as the drug runner in order to intercept messages intended for the drug runner. The second difference is that the officer’s interception of the text messages was instantaneous.

In this case the confidential informant received text messages from Mr. Frattaroli and then notified the police later. The confidential informant did send one text message while at the police station and received a response. This message was still sent to the informant’s phone and then relayed to Detective Martin. For these reasons the court believes that the case is readily distinguishable from Cruttenden but similar to Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001).

In Proetto, E.E. was a 15-year-old complainant who was in a chat room. She joined a private chat room with a person with the screen name CR907. CR907 informed E.E. that he was a police officer working for the Colonial Regional Police Department and e-mailed her a picture of him in police uniform, telling her 907 was his badge number. E.E. informed CR907 that she was 15 years of age. CR907 then proceeded to send E.E. inappropriate pictures as well as ask her to perform sexual acts. This continued for a full week. After each session E.E. saved a log of the chat room conversations and then reported these incidents to the police. Detective Morris then initiated conversation with CR907 in a chat room while posing under a different screen name. The conversation followed along the lines of those that E.E. had reported to the police.

After his arrest, Proetto made a motion to suppress the pictures he had sent to E.E. and Detective Morris as violating the Wire Tap Act. Proetto’s motion was denied by the trial court. On appeal, the Superior Court affirmed, and held that the messages sent to E.E. were not “intercepted” pursuant to the Wire Tap Act because the “acquisition of the communications was not contemporaneous with their transmission.” Commonwealth v. Proetto, 771 A.2d 823, 829 (Pa. Super. 2001). As is the case at bar, the confidential informant received the text messages and then reported them to Detective Martin. Therefore the court determines that the text messages sent to the confidential informant by Mr. Frattaroli were not intercepted pursuant to the Wire Tap Act.

Commonwealth v. Proetto is also instructive in regards to the Fourth Amendment challenge brought by Mr. Frattaroli. In Proetto, the Superior Court determined that the e-mails and chat room conversations E.E. forwarded to Detective Morris did not violate Proetto’s rights under the Fourth Amendment or the Pennsylvania Constitution because,

“In order to invoke the protections of the Pennsylvania Constitution, the individual must possess a legitimate expectation of privacy in the area searched. Commonwealth v. Ardestani, 558 Pa. 191, 736 A.2d 552, 556 (1999). An expectation of privacy is present when the individual’s conduct exhibits an actual expectation of privacy which is recognized by society as reasonable. Id. The protection of the Fourth Amendment does not depend on a property right in the invaded place but does depend on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115, 1117(1993). An expectation of privacy is present when the individual, by his conduct, ‘exhibits an actual (subjective) expectation of privacy’ and that the subjective expectation ‘is one that society is prepared to recognize as “reasonable” I Id. (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances. Id.” Id. at 830-31.

The Proetto court determined that Proetto had no expectation of privacy with regard to his e-mail or chat room conversations and therefore there was no violation of appellant’s rights. It becomes apparent then that the question that should be asked is whether Mr. Frattaroli had an expectation of privacy in the invaded place. In this case, the invaded place constituted the text messages contained on the confidential informant’s phone. However, this was not the issue raised by Mr. Frattaroli’s attorney and this court is not going to address the issue sua sponte. Mr. Frattaroli’s attorney raises the sole issue of whether Mr. Frattaroli closing his apartment door while making a text message constituted conduct which exhibited an actual expectation of privacy which society is prepared to recognize as reasonable. See Katz v. United States, 389 U.S. 347 (1967).

To this question the court answers that the fact Mr. Frattaroli closed the door before sending text messages has no relevance whatsoever to the Fourth Amendment or Pennsylvania Constitution. This argument is nearly akin to asking that a ransom letter received by a victim, who subsequently hands the letter over to police, should be suppressed because the perpetrator wrote the letter in his house with the door closed. For the aforementioned reasons discussed above, the court denies Mr. Frattaroli’s omnibus pretrial motion to suppress the text messages.

ORDER

And now, Januaryl5, 2010, Mr. Frattaroli’s omnibus pretrial motion to suppress the evidence is denied.


author: SPRECHER, J,

text:
    Renaissance Bistro v. Pennsylvania Liquor Control Board

      George A. Gonzalez, for plaintiff.

      John K. Stark, for defendant.
    January 15, 2010
   SPRECHER, J,

Germaine M. Marcano t/a Renaissance Bistro appeals from the order of this court dated October 16, 2009, which sustained the decision of the Pennsylvania Liquor Control Board denying Bistro’s liquor license renewal application and its attendant amusement permit under the Liquor Code. This opinion is filed pursuant to Pa.R.A.P. 1925.

FACTS

Bistro filed an application for the renewal of its license for the period beginning April 1,2007, and ending March 31,2009. The board’s Bureau of Licensing notified Bistro that it had objections to the renewal application and a hearing would be held on the objections. The hearing examiner recommended renewal of the license, but the board was not convinced that Bistro’s license should be renewed based on its dismal operations. Therefore, the board denied Bistro its liquor license renewal application and its attendant amusement permit.

Bistro appealed the board’s decision to this court. Board issued a detailed opinion regarding its reasons for refusing the renewal of the liquor license. The facts gleaned from the record before the board are as follows.

On October 27, 2006, Bistro entered into a conditional licensing agreement (CLA) with board to resolve problems concerning an extension of its premises. The CLA permitted the extension provided that Bistro agreed to:

“(1) become complaint with the Responsive Alcohol Management provisions (R. A.M.R) of the Liquor Code within 90 days of the agreement;
“(2) maintain at least monthly contact with police;
“(3) remove all blind walls in the premises;
“(4) soundproof the premises;
“(5) keep doors closed;
“(6) patrol exterior of premises at least hourly;
“(7) install 12 surveillance cameras to monitor the interior and exterior of the premises;
“(8) monitor the cameras;
“(9) install a transaction scan device and a metal detector;
“(10) maintain and enforce a written barred patron list;
“(11) employ at least one, and after remodeling, two doormen/security guards on weekends from 8 p.m. to closing;
“(12) promptly address neighbor/police concerns about illegal parking;
“(13) refrain from obtaining more adjudicated citations.”

Bistro has a long history of receiving citations. On December 25,2005, it received notice of a violation from the Reading Police Department for music coming from the establishment after hours.

A citation was issued on January 24,2006, for operating the bar in a noisy and/or disorderly manner on October 19,20,24,25,28,29, November 1,2,6, December 5, 6, 7, 8,10,12,19,21, and 22 in 2005. A neighbor 120 feet away heard loud music emanating from the bar. Bistro admitted the charge and paid a fine of $750.

A citation was issued on April 10,2006, for an incident on February 19, 2006, because Bistro permitted the use of a loudspeaker whereby sound could be heard outside. Additionally it sold alcohol to three minors on February 18 and February 19, 2006. Bistro admitted the charge and paid afine of $1,550.

A citation was issued on October 26, 2006, because Bistro served alcoholic beverages on September 3,2006, a Sunday, after 2 a.m. Bistro admitted the charge and paid a fine of $1,000.

On October 30, 2006, Bistro received a non-traffic citation from the Reading Police Department for allowing music to be heard at a distance of more than 50 feet from the establishment.

In addition to receiving the citations, Bistro has been involved with criminal activity occurring on or near the premises. On October 27,2005, the Reading Police Vice Division and the Pennsylvania State Police, Liquor Control Enforcement Unit discovered seven small baggies of marijuana in a patron’s coat. The patron was arrested and charged with possession of marijuana. On December 4, 2005, a shooting victim with a gunshot wound in his back was found lying in Bistro’s parking lot behind the building. The victim was taken to the hospital, and the assailant was later arrested and convicted. The assailant was a patron who was evicted earlier from the premises.

According to its opinion, the board refused the renewal application because Bistro’s history clearly demonstrated irresponsibility, apathy, and an abuse of license privileges. It based its decision on Bistro’s three adjudicated citations, four incidents, including a shooting, in the two-year renewal period, and Bistro’s failure to comply with the CLA into which it voluntarily entered.

This court took additional testimony at the hearing before it. Mark Talbot, the deputy chief of the Reading Police Department, deals specifically with nuisance bars. He testified he had recommended that one of two entrances not be used to cut down on noise emanating from the bar. Bistro did not follow this recommendation consistently. In June 2009 he observed speakers facing the door that is usually used for patrons. He asked Ms. Marcano to turn the speakers and to stop using that entrance. Instead of ceasing the use of that entrance, Bistro installed its metal detector there sometime after the discussion. Therefore, Chief Talbot believes that the problem of noise will just be perpetrated in the future.

On three separate occasions Chief Talbot went to the Bistro. On each visit the surveillance cameras were not operational. As recent as three months prior to the hearing before this court the cameras were not working. The bar was unable to provide a tape that Chief Talbot wanted to review for suspicious activity that he had observed during his visit in June 2009.

Noise violations were filed against Ms. Marcano’s son, Chris Marcano, on September 8, 2008, and September 15,2009, for incidents. Ms. Marcano had a noise evaluation done. Her expert recommended that the doors should be kept closed except when patrons are entering or leaving and that only one of two doors at an entrance should be used. The expert also advised that the sound system should not be operated above 50 percent of its power. He further suggested that the addition of a covered entrance or a vestibule would help to decrease the noise emanating from the bar. Ms. Marcano does not have sufficient funds at this time to install a covered entrance.

Ms. Marcano spent $250,000 to extend the premises. Most of the renovations were completed by September 2007. She installed a metal detector at a cost of $3,000 and 16 surveillance cameras.

Ms. Marcano testified that she had made monthly attempts to contact the Reading Police Department. However, Chief Talbot testified that she had contacted him just three times during the relevant period.

The bartenders completed the R.A.M.P. training on November 5, 2007. The bartenders make up the barred patrons list. The list contains the following 10 names:

(1) Junbug (Comiell Jr.)

(2) Walt

(3) Pig

(4) Leroy

(5) Brain (Jamaican)

(6) Macho

(7) Kevin (old Security)

(8) Glenn

(9) Gloria

(10) Chancy Martin

The bartenders are supposed to call the police if any of the above people come into the bar. Ms. Marcano tells the bartenders to set the volume on the sound system between 47 and 50 percent of total output.

Bistro employs one security guard even on weekends unless there is a special function occurring on the premises. If there is a special event happening, then an additional security guard is employed.

Ms. Marcano does not have a board approved manager. She is the only person on record that is either a manager or owner. She is at the bar usually in the mornings when it opens at 11 a.m., but not in the evenings. Her oldest son, Dave, Dave’s wife, and her grandson help out in the evenings after they finish at work. Her son, Chris Marcano, “is around to help out but he does not like to get involved too much with the riffraff and stuff like that.” Transcript at 90.

Based on the foregoing record, this court entered the order which Bistro now appeals. Bistro timely filed a concise statement of errors complained of on appeal.

ISSUES

Bistro raises the following issues in its concise statement.

(1) Does the record introduced before this court regarding the citation history of Bistro demonstrate such a degree of egregious activity or abuse of the licensing privilege to warrant non-renewal?

(2) Does the record of certain non-adherence of a CLA as entered into by the parties on October 27,2006, from its inception to the date of the hearing as held by this court, by itself warrant a finding by this court that failure to adhere to these conditions as set forth in the CLA warrant non-renewal of the license?

(3) Does the record introduced before this court regarding both the citation history of Bistro and of the non-adherence to a CLA as entered into by the parties on October 27, 2006, from its inception to the date of the hearing as held by this court, warrant a finding of non-renewal of the liquor license in that these violations evidence egregious activity or abuse of the licensing privilege and/or established that Bistro failed to take affirmative, substantial measures to address and prevent the recurrence of these unlawful activities on or about the licensed premises?

DISCUSSION

This court shall address Bistro’s issues collectively. A common pleas court, hearing an appeal under the section of the liquor code involving the renewal or transfer of liquor licenses or amusement permits, is prohibited from reversing a decision of the Liquor Control Board unless there has been a manifest abuse of discretion or the court makes findings of fact that vary from those made by the board. The court is not permitted to substitute its findings of fact for those of the board when the evidence before the two tribunals is substantially the same. Pennsylvania Liquor Control Board v. Can Inc., 664 A.2d 695 (Pa. Commw. 1995). This court did not find that the board committed a manifest abuse of discretion, and it did not find that the facts differed from those findings made by the board. Instead, it found that the additional testimony was merely cumulative.

Bistro did not comply with many terms of the CL A. It was supposed to become compliant with the R. A.M.P. provisions by January 30,2007. It only became compliant on November 5, 2007, more than 10 months late.

Instead of maintaining at least monthly contact with the police, Ms. Marcano met only four times with Chief Talbot since October 27, 2006. Although surveillance cameras were installed, they were not functional for much of the relevant period. Thus, they could not be monitored or their tapes reviewed.

The written barred patron list is a joke. It is comprised of nicknames and first names only. Out of 10 names only one name may be a complete name.

Bistro agreed to install a metal detector. It was not installed until late in 2009. Furthermore, it was installed at an entrance that was strongly recommended by the police department and others to remain closed to reduce noise.

After the renovations were completed, Bistro was to employ two doormen/security guards on weekends. Bistro, however, still only employs one security guard unless there is a special function on the premises.

Bistro was to refrain from having additional adjudicated citations. It did not do so. Additional citations were filed in 2007, 2008, and 2009.

Therefore, out of 13 conditions placed on Bistro by the board, Bistro did not completely fulfill its obligations for 10 of them. As the board stated in its opinion, Bistro has a dismal history. Moreover, there is no indication that the violations will be rectified in the near future, if ever. Bistro knew that it was under close scrutiny by the board. Even realizing this, it did little to satisfy its duties under the CLA. Hence, there is nothing to suggest in the case sub judice that Bistro will ever be fully compliant and responsible to hold a liquor license. The board did not abuse its discretion in not renewing Bistro’s application. This court had no basis to overturn its decision.

In accordance with the foregoing opinion, this court submits that its order should be affirmed and the appeal denied.


author: CAMPBELL, J,

text:
    Harrell v. Pecynski

      Alan Ziegler, for plaintiff.

      Denise Sebald, for defendant.
    December 21, 2009
   CAMPBELL, J,

Plaintiff filed a custody complaint on July 23,2008. Per Supreme Court of Pennsylvania rule, custody cases are to be disposed of promptly. Pa.R.C.P. 1915.4; see also, Dietrich v. Dietrich, 923 A.2d 461 (Pa. Super. 2007). Thus, the time line to dispose of this case began to run on July 23,2008 such that the custody case needed to be scheduled within 180 days, by approximately January 20, 2009, and the trial had to commence within 90 days of the scheduling order being entered. Pa. R.C.P. 1915(b) and (c); see also, Dietrich.

The Superior Court of Pennsylvania first ruled on the “new” custody rule Pa.R.C.P. 1915(b) in Dietrich v. Dietrich, 923 A.2d 461, 465 (Pa. Super. 2007) (holding that to date “this court has not addressed the impact of Rule 1915.4(b) on custody cases.”).

In Dietrich, a case which rose on appeal out of the Berks County Court of Common Pleas, the Superior Court held that the timing rule is unambiguous leaving no question “how to proceed once the 180-day period has expired”; failure to comply with the rule results in an automatic dismissal. Id. at 465. In Dietrich, at the trial court level, a series of hearings were held regarding temporary custody; contempt hearings were also held; conciliation conferences were held, and, finally, a custody trial was held. Id. at 462. After the trial, the court held the record open for a custody evaluation, and then issued its custody ruling. Id.

Mother appealed, alleging among other things, that the custody trial was invalid because it was conducted after 1915.4(b) prescribed that the case should have been dismissed. Id. at 463. The trial court explained how it acted in good faith with what it perceived as the intent of the rule based upon the rule’s explanatory comment, but the Superior Court held that the rule mandates an unambiguous “shall” procedure and that the trial court should have dismissed the complaint, and, therefore, the custody order issued was a “nullity.” Id. at 465. The Superior Court vacated the trial court’s order and remanded the custody case for the trial court to vacate the complaint.

Our case is very similar to the Dietrich case in all the essential elements. After this case was recently transferred between judges, this court reviewed the file and saw that the case is far past its trial deadline. As noted above, the complaint in this case was filed on July 23, 2008. The 180-day deadline for a trial to be set was January 20, 2009. We are now approximately 320 days beyond the final deadline. The record is replete with petitions for special relief, motions for contempt, answers, responses, counter-claims, continued conferences, re-scheduled evaluations, and promised settlements, but neither a scheduling order nor a request for trial were filed during the required period.

Under Dietrich, Pa.R.C.P. 1915.4(b)’s mandate controls, and the only germane issue is whether a scheduling order for a trial on the complaint or a request for a trial on the complaint was filed within 180 days unless the moving party filed for a good cause extension up to 60 days. There was no such good cause extension requested in this case. At this point in time, we are far, far past the deadline for the custody matter to be resolved.

The Superior Court made clear that dismissal is the “only option” under these type of facts. Id. at 465. Also, “the rule dictates that dismissal must be automatic, thus making it unnecessary for a party to petition for dismissal.” Id. at 465. In our case, there is no doubt that the complaint must be dismissed.

In the Dietrich case, after the Superior Court indicated that the complaint should be dismissed, the court ordered that a previous trial order should be placed in effect after the invalid custody order was vacated though why that previous order, which also was entered after the 180-day custody deadline, should be valid, or why the case should not have been closed after the complaint upon which the whole case rested was dismissed is not clear from the opinion. As the facts and reasoning underlying that part of the Dietrich case’s ruling are unclear, this court is unable to consider how that part of the ruling would or would not apply to this case. It appears that the logical conclusion to dismissing a complaint which initiated a case would be to dismiss everything that rests upon that complaint and close the case. Because the dismissal rule’s scope appears clear in our case, there must have been distinguishing facts in the Dietrich matter not apparent in the appellate opinion.

In our case, this court is bound by Pa R.C.P. 1915.4(b)’s instruction that “the court shall dismiss the matter....” This court reads “the matter” as meaning the entire custody case in a case such as this one where there is no previous final order based upon a prior complaint in the record. The only custody order entered in this case before the deadline was a temporary order designed to be a very short-term holding arrangement. This court does not believe it would be legally or pragmatically appropriate to elevate that temporary order as a final custody order nor does this court believe it would be legally correct under the rule to keep this case (“matter”) open when the complaint upon which the entire case rests is being dismissed.

In accordance with all of the above, this court enters the following order:

ORDER

And now, December 21,2009, in accordance with this court’s accompanying opinion, it is ordered that plaintiff’s custody complaint is dismissed, all of plaintiff’s and defendant’s outstanding petitions are dismissed, all court orders in this case are vacated, and this entire custody case is dismissed and closed.

      . This court does not believe that it is legally appropriate to elevate a temporary order entered without a trial to final order status, nor is it practical to elevate an order designed to be a short-term holding solution whose pragmatic bases long ago became obsolete, and which order has not been followed by the parties, to final order status.

      . Furthermore, hypothetically, if there had been some way for this custody case to continue then whether the Commonwealth is the most appropriate forum would most likely have come into play as it appears the child has lived primarily in another state for the last year. If a new custody complaint is filed in Pennsylvania both forum and jurisdictional issues might arise.


author: HODGE, J,

text:
    Peace v. Peace

      James W Manolis, for plaintiff.

      Phillip L. Clark Jr., for defendant.
    January 28, 2010
   HODGE, J,

Before the court for consideration are two matters, the first being the petition for special relief filed by plaintiff/Father, requesting that defendant/Mother be held in contempt of court for violating this court’s order prohibiting her from removing the child from the jurisdiction of the court without written approval of either Father or the court, and the second, being a petition objecting to the defendant’s relocation to the State of Arizona with the child. Defendant/Mother filed an answer to the rule to show cause issued by the court on the relocation matter, as well as her own counter-petition to relocate.

The parties in this case are the parents of a minor child, K.P., born November 1, 2000.

The most recent order of court relative to the care, custody and control of the minor child is dated July 13, 2006, wherein Mother was granted primary physical custody of the minor child, with Father having partial custody of the minor child on alternate weeks from Sunday through Friday, each week, plus one weekend each month. In addition, paragraph 10 in the order indicated that neither party shall remove the child from the jurisdiction of this court without written consent of the other party or order of court. This order was a stipulated, consensual order of both parties.

There was a subsequent order on March 26, 2007, pertaining mainly to the holiday visitation schedule, which order reaffirmed the prior orders of this court of July 13,2006, and November 17,2005, as to matters not modified by the March 26, 2007 order.

For a party to litigation to be found in civil contempt of court, it is necessary that the moving party prove that there was an existing order, that the offending party knew of the order, and willfully violated the order.

The testimony at the hearing on September 29, 2009, consisted of, among other things, an admission by defendant/Mother that she knew of the provisions of the court order relative to the provision on relocation, that she knowingly failed to notify Father of her move to the State of Arizona with the child, and that she moved to the State of Arizona with the child without notifying Father of her new address.

As a result, the court finds defendant/Mother in civil contempt of court, and will address the appropriate sanction in the order attached to this opinion.

In addition, the court, in civil contempt matters, is obligated to insert a purge condition, similar to this court’s interim order of September 30,2009, wherein the court granted temporary primary physical custody of the minor child, K.P., to plaintiff/Father, pending further order of court.

In that defendant/Mother complied with that order of court by returning the minor child to the custody of Father, this court finds that Mother met the purge condition on not only the order of September 30, 2009, but also which this court would have entered as a final order on the contempt petition.

As to the relocation issue, the appellate courts conclude that the burden of proof in relocation proceedings is on the party seeking to relocate. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003).

Prior to September 2008, the evidence in this case is relatively uncontradicted from both sides. The parties were married and separated several months prior to the birth of the child on November 1, 2000. Thereafter, the first custody order was entered by the Honorable J. Craig Cox, of this court, on May 8,2001, granting the parents shared legal custody of the minor child, and Mother primary physical custody, as the parties mutually agreed. Thereafter, Father was substantially involved in the minor child’s life, leading up to the order of July 13,2006, wherein Father was granted partial custody of the minor child for alternate weeks from Sunday through Friday, plus one weekend per month.

In September of 2008, a dispute arose at a custody exchange, with each parent having a different version of what happened. Mother’s version was that she was trying to get the child to tell her father why the child did not want to stay the week with Father, apparently for some issue pertaining to Father’s current wife and her attempts to discipline the child. Father indicated that Mother was so far out of control, that for the sake of calming the situation and preventing a further escalation, he told the child to go back home with Mother until such time as Mother calmed down. Thereafter, Father did not exercise custody pursuant to the order of July 13,2006, however, he testified that he saw the child several times each week while the child was staying with his mother, who would baby-sit the child for Mother after school until Mother’s work schedule permitted her to pick up the child.

Mother has been employed at McKesson Pharmaceuticals in New Castle, Pennsylvania, with her job title being that of lead warehouse worker for the past several years. Mother works shifts in New Castle, either 7 to 3:30, or 3 to 11:30, with no weekend work. Mother became aware of a job opportunity with McKesson in Arizona, and in July 2009, traveled to Arizona, without the child, to investigate the living and work situation in the State of Arizona. Mother was positively impressed by the living circumstances and the work circumstances in Arizona, and as a result, arranged a transfer from New Castle to the State of Arizona, and continued employment with McKesson Pharmaceuticals.

It is undisputed that Mother did not inform Father in any manner that she and the child were moving to the State of Arizona. Father’s testimony was that he observed a moving van at Mother’s residence, but concluded that she was merely changing residences within Lawrence County, as she had done numerous times since the child was bom. Only after Father heard through a mutual acquaintance that Mother had gone to Arizona, did he realize that Mother and child were, in fact, gone from New Castle.

Father then filed his petition for special relief and contempt on September 9, 2009, and this court held a hearing on September 29, 2009, leading to the court’s interim order of September 30, 2009, ordering Mother to return the child to New Castle pending further order of court.

The Superior Court of Pennsylvania in the case of Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), set forth the standards and factors which the court must consider in every relocation dispute, those factors being as follows:

(1) The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of momentary whim on the part of the custodial parent;

(2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and

(3) The availability of realistic, substitute arrangements which would adequately foster an ongoing relationship between the child and the non-custodial parent.

Mother’s testimony relative to the Gruber factors were substantially as follows:

Mother believed that the job opportunities with McKesson Pharmaceutical, were superior in Arizona, and that she would have the career opportunity for supervisory positions in Arizona, in that all similar positions were filled at the New Castle McKesson location.

Mother had visited Arizona prior to the move, liked the area and the environment, and “took a chance on relocation.” In addition, Mother testified she investigated the schools in Arizona, which started in late August 2009, and that the outside activities were appropriate for the child and that the child was doing well in school.

Mother’s living arrangement in Arizona was similar to the Union Township living arrangement, with Mother and her boyfriend renting an apartment in an apartment complex where the child had her own bedroom, and there is a swimming pool and play area in the apartment complex that the child could use.

Mother acknowledges she has no family contacts in the State of Arizona, while she did have a family in New Castle.

Mother testified that she preferred the steady shift in Arizona of 6:30 p.m. to 3 a.m., as opposed to working swing shifts in New Castle. The childcare arranged by Mother for the child when she was working, was that the child would stay with a friend of the family, Loretta Benning, or her boyfriend, Hayden Russell, if he was not working.

The child had met Mr. Russell when he had come to New Castle on weekends prior to the move to Arizona, but the defendant and Mr. Russell had not lived together until the move to Arizona.

After September of 2008, Mother testified that to her knowledge, Father’s last contact with the child had been at Christmas of 2008, for several hours, when he took her shopping to spend her Christmas gift cards, and several days later. Subsequent to September 2008, Mother testified that Father made no calls to the child, sent no cards, gifts, or letters inquiring about her well-being. In addition, Mother testified that since the move to Arizona, Father had made no attempts to call the child. Mother did acknowledge that she knew that Father had been seeing the child while the child was at his mother’s. *

On cross-examination, Mother acknowledged the continuing difficulties with Father relative to the custody of the child, however, acknowledged that Father had weekly custody of the minor child since September of 2005, until the September 2008 incident. On cross, Mother acknowledged that she did not encourage visits with Father, as she thought there must have been a reason why the child did not want to go to Father’s.

Mother acknowledged that she did not tell Father about the job opportunity in Arizona in July 2009, that she made the decision to move to Arizona after returning from the visit to Arizona in July 2009, and did not tell Father. Mother admitted that she is well aware of the court order prohibiting the relocation without written consent of Father or order of court, and that she ignored the order and took responsibility for her own child, believing it to be in the child’s best interest as a mother.

Mother’s testimony about the job position in the State of Arizona, with McKesson Pharmaceuticals, is that essentially, it was very similar to the position in New Castle, with her job title in Arizona being a step below that of her job title in New Castle, however, that she did still manage a shift of 35 persons.

Mother did not present any testimony relative to any proposed visitation of the child with Father, should the court grant her primary physical custody and permit the relocation to the State of Arizona.

Father’s testimony was that Mother was very difficult to deal with, and that after the incident in the driveway in September of 2008, he had told Mother to take the child with her until they figured something out, as Mother was screaming at the child to tell Father why she did not want to come over to his home. Father’s perception of the child was that she was like any other child, rejected discipline, and that each week when she would be coming over that she would have an attitude early in the week, which attitude improved the longer she was staying with Father and stepmother. In addition, Father testified that he was intending to discuss the school situation with Mother and attempting to get back on better terms with the child as far as regular partial custody, before the start of the 2009 fall school year, in that Mother and the minor child used his resident address in Union Township, Lawrence County, Pennsylvania, as the address for the child for school attendance purposes. Mother lived in the City of New Castle, and Mother did not want the child to attend New Castle School District.

The court’s conclusion in this case is that the parents did not have completely equal, shared physical custody of the minor child pursuant to the order of July 13,2006, in that Mother, with the addition of three weekends per month, as opposed to one weekend per month of Father, would have a slightly greater percentage of custody time than Father. Counsel for Father referred the court to the case of Thomas v. Thomas, 739 A.2d 206 (Pa. Super. 1999), in which the Superior Court held that the Gruber factors apply with equal force to relocation actions by parents who share physical custody. Thus, the court will analyze the Gruber factor in each party’s testimony to arrive at its determination in this matter.

As to the first factor, the potential advantages of the proposed move, economic or otherwise, Mother’s testimony was that her economic conditions would be substantially the same in Arizona as in New Castle. Her wages were substantially the same in both jobs, her testimony being that there were more career opportunities in Arizona being somewhat speculative, in that the position that she was placed upon her transfer to Arizona was substantially the same as that in New Castle. Mother’s testimony was that she moved to Arizona and was living with her boyfriend, Hayden Russell, who also secured employment in Arizona. However, Mother testified she is not engaged to Mr. Russell and had no present intentions to marry him. As to the schools, Mother testified that the school in Arizona was appropriate, but there was no testimony to the point that this court can conclude that the schools in Arizona were in any manner superior to the child’s schooling at the Union Township School District. Included in the first Gruber factor is the issue of whether or not the move is a result of a “momentary whim” on the part of the custodial parent. This court’s analysis of Mother’s testimony is that the relocation was the result of a momentary whim, in that she had never previously been to Arizona, she had no substantial improvement in her job opportunities in Arizona, she had no family in Arizona, and that the move was done without any type of notification to the father.

Based upon the same reasons, the court questions the integrity and motive of Mother in seeking the move, in that she, by her own testimony, acknowledged that she made the move without any notice to Father. The noncustodial parent’s, Father’s, motive for seeking to prevent the move was appropriate, in that while he was not seeing the child pursuant to the then existing custody order, that he was remaining in contact with her very frequently when the child was at his mother’s home.

As to the third factor, the availability of realistic, substitute arrangements which would adequately foster an ongoing relationship between the child and the noncustodial parent, Mother presented no testimony whatsoever as to how she would propose that the court resolve this situation in her behalf. In addition, in cross-examination, Mother essentially admitted that even in New Castle, she did nothing to foster an ongoing relationship between the child and Father.

As a result, the court concludes that Mother has failed to meet her burden of proof relative to the Gruber factors, necessary and appropriate for this court to rule in her favor on the counter-petition for relocation.

In addition, based upon the court’s conclusion relative to Mother’s failures to meet her burden of proof on the Gruber factors, this court concludes that the best interest of the minor child, based on the same factual analysis, is that the child shall remain in the primary physical custody of Father, who acknowledged that he felt it would be appropriate for the child to visit with her mother in Arizona, for a good part of the summer. In addition, Father acknowledged that he permitted and encouraged the child to speak with her mother almost daily via telephone.

Accordingly, the court will enter the following order:

ORDER

And now, January 28, 2010, in accordance with the attached opinion, the court enters the following order:

(1) The defendant/Mother, Ada Major, is found to be in contempt of this court’s order of July 13,2006, in that Mother moved the minor child to the State of Arizona without obtaining prior order of court or written consent of Father.

(2) The court finds that Mother has purged herself of the contempt by returning the child to New Castle, Pennsylvania, pursuant to this court’s order of September 30, 2009.

(3) As a sanction for the contempt, the court assesses the mother attorney’s fees in the sum of $750, payable to Attorney James Manolis, by April 30, 2010.

(4) As to the petition for special relief filed by Father, objecting to the defendant’s relocation to Arizona with the child, the court grants the petition, and the relocation of the child to the State of Arizona is hereby denied.

(5) Primary physical custody of the minor child, K.P., shall be with plaintiff/Father, subject to defendant’s/ Mother’s partial custody rights as herein set forth.

(6) The defendant/Mother shall have partial custody of the minor child as follows:

(a) For summer vacation commencing on June 15 of each year, through August 15 of each year, in the State of Arizona, with the parents to be responsible for equally sharing the cost of transportation. Mother shall be responsible for arranging the transportation for the minor child, and shall notify Father in advance, no later than May 31 of each year, of the cost of the airline transportation to and from the State of Arizona. Father shall be responsible for taking the child to the Pittsburgh Airport, for the flight to Arizona, and shall be responsible for picking the child up at the Pittsburgh Airport upon her return. In the event the parties arrange for transportation other than airline transportation, the cost and process shall be similar.

(b) Mother shall have partial custody of the minor child commencing in calendar year 2010 and on even years thereafter, commencing one day after the child’s last day of school for the school schedule prior to the Christmas vacation period, up until January 1 of each year; in odd numbered years, Mother’s partial holiday visitation shall commence on December 26 of each odd numbered year, through January 1 of the following year.

(c) The parties may arrange for other suitable holiday vacation time between Mother and the minor child, as they mutually agree.

(d) The parties shall have shared legal custody of the minor child, as is set forth in the order of July 13, 2006.

(7) The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record and any party not represented by counsel at their last known address as contained in the court file.