author: MOSS, J.,

text:
    Thomas v. SmithKline Beecham Corp.

      Mark S. Karpo, for plaintiff.

      Joseph E. O’neil, for defendant.
    November 9, 2012
   MOSS, J.,

Plaintiff, JoAnne Thomas, individually and as parent and natural guardian of Ryan Swindle, appeals this court’s order dated July 17, 2012, and docketed July 19, 2012, granting defendant, SmithKline Beecham Corporation (“GSK”), summary judgment based on non-viability of the fetus and applicable statute of limitations. For the following reasons, our order should be affirmed.

I. BACKGROUND

The facts in a light most favorable to plaintiff follow. Plaintiff, JoAnne Thomas, instituted this action by writ of summons on September 25, 2007. On November 27, 2007, plaintiff filed a short-form complaint. Plaintiff was allegedly taking a 40mg dose of Paxil (Paroxetine) throughout her pregnancy with Ryan Swindle in 2001. See defendant’s motion, 3/22/12, p.3. At the time, Paxil was classified as a category C drug by the FDA drug use in pregnancy ratings. See “Understanding Antidepressant Medications, ” U.S. Food and Drug Administration: Consumer Health Info, January 9, 2009, available at http://www.fda.gov/ForConsumers/ConsumerUpdates/ ucm095980.htm (last visited Oct. 12,2012). In December 2005, the FDA reclassified Paxil from a pregnancy risk category of C to D. Id. See also, U.S. food and drug administration, FDA Advising of Risk of Birth Defects With Paxil, Agency Requiring Updated Product Labeling, December 8, 2005, available at http://www.fda.gov/ NewsEvents/Newsroom/PressAnnouncements/2005/ ucml08527.htm (last visited Oct. 12, 2012). “With a Category C drag, fetal risk cannot be ruled out. With a Category D drag, positive evidence of fetal risks exists. FDA chooses a medicine’s letter category based on what is known about the medicine when used in pregnant women and animals.” Id.

In plaintiff’s last echocardiogram performed on April 23, 2001, the pediatric cardiologist estimated fetal gestational age to be 22 1/2 weeks, and notified her of baby’s congenital heart defects. See plaintiff’s response, exhibit 1, fetal echocardiogram report (4/23/01). What caused said fetal abnormalities was unknown and the doctor suggested a following up in 5-6 weeks. Id. On April 26, 2001, 3 days later, plaintiff voluntarily chose a therapeutic abortion. See defendant’s motion, exhibit 2, fetal death certificate. The fetal death certificate estimated gestational age to be 21 1/2 weeks. Id.

On March 8,2007, nearly six years later, while plaintiff was studying for her nursing boards, she contacted a consumer line on GSK’s website and spoke with a customer service representative who incorrectly told her Paxil was a “category C” drag. See defendant’s reply, exhibit 2, Amended pregnancy fact sheet (12/9/10). With further investigation, plaintiff discovered Paxil had moved from a category C to D drag. See “Understanding Antidepressant Medications, ” U.S. Food and Drug Administration: Consumer Health Info. (2009). The representative later confirmed Paxil had been relabeled a category D drag. See plaintiff’s response, exhibit 2, affidavit of JoAnne Thomas (4/20/12). Plaintiff then filed her short form complaint November 27,2007, alleging her Paxil ingestion during pregnancy caused her son, Ryan Swindle’s wrongful death. Defendant’s motion, exhibit 1, short form complaint, ¶6 (11/27/07).

On March 22, 2012, GSK moved for summary judgment. GSK argued plaintiff’s claims should be dismissed for two fundamental reasons. First, plaintiff cannot bring a wrongful death or survival action because her fetus was not viable at her therapeutic abortion. See defendant’s motion, p.2. GSK argues as a matter of law there must be either (1) a child bom alive; or (2) a viable fetus, capable of an independent existence at death. See Coveleski v. Bubnis, 535 Pa. 166, 172, 634 A.2d 608, 610 (1993). Under Pennsylvania law, viability occurs no earlier than 23 weeks gestational age. See McCaskill v. Phila. Housing Auth., 615 A.2d 382, 384 (Pa. Super. Ct. 1992) (following the U.S. Supreme Court’s holding in Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992), that viability occurs at 23 to 24 weeks). Relying on plaintiff’s fetal death certificate, GSK argued she cannot sustain a wrongful death or survival action because she at 21 1/2 weeks, before viability occurred. See defendant’s motion, exhibit 2, fetal death certificate.

Next, GSK argued even if the fetus was viable when aborted, any claim would be barred under Pennsylvania’s two year statute of limitations because plaintiff filed her action November 27, 2007, more than 6 years its death. GSK contends the two-year period commenced on the day Ryan Swindle died, regardless of when survivors knew, or should have known, cause of death. See defendant’s motion, p.4.

Plaintiff answered April 23, 2012, arguing at time of death, fetal gestational age was approximately 23 weeks, which is the viability threshold Pennsylvania courts recognize. See plaintiff’s response, p.4. Three days before Ryan Swindle died, a pediatric cardiologist estimated fetal gestational age at 22 1/2 weeks. See plaintiff’s response, Exhibit 1, fetal echocardiogram report (4/23/01). Plaintiff argued if viability threshold is 23 weeks, the echocardiogram report creates a genuine issue of fact as to whether Ryan Swindle was viable when aborted. Plaintiff also argues said statute should be equitably tolled under the doctrine of fraudulent concealment. Plaintiff argued GSK’s safety misrepresentations hindered her ability to discover what caused the birth defects prior and subsequent to said abortion. See plaintiff’s response, p.5. Plaintiff asserts whether GSK fraudulently concealed pregnancy risks associated with Paxil is a jury question. Id.

Defendant replied on April 30, 2012, reiterating plaintiff cannot bring a wrongful death or survival action because the fetus was not viable as a matter of law. See defendant’s reply, p. 2. Even if plaintiff was 22 1/2 weeks pregnant three days before the abortion, her claim she was “approximately” 23 weeks is simply not enough to establish viability under Pennsylvania’s bright-line rule. See defendant’s reply, executive summary. Plaintiff elected to terminate her pregnancy just prior to the critical point when viability occurs. Id.

GSK further argued plaintiff fails to establish fraudulent concealment and largely repeats her overarching “failure to warn claims” rather than establishing evidence that GSK committed “an affirmative, independent act of concealment directed towards plaintiff upon which she justifiably relied.” See defendant’s reply, p.3. Plaintiff cannot establish any specific “act” of GSK caused her to relax vigilance or deviate from inquiring. Id. The only potentially responsive argument plaintiff makes is she allegedly called the GSK consumer response center in March 2007. However, the statute had already expired by the time she allegedly called. See defendant’s reply, p.4.

After careful consideration, on July 17, 2012 we granted GSK summary judgment and dismissed plaintiff’s claims.

Plaintiff timely appealed on August 15, 2012 and filed her 1925 (b) statement of matters on September 10, 2012. Plaintiff raises the following:

The trial court, in granting [GSK’s] motion for summary judgment, erred by:
a. Concluding that there was no genuine issue of material fact as to whether decedent Ryan Swindle was viable; and
b. In ruling that the statute of limitations bars the plaintiff’s claims.

II. DISCUSSION

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.” Pa.R.C.P. 1035.2. “[Wjhere there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered.” See Bell v. Dean, 5 A.3d 266, 268 (Pa. Super. Ct. 2010). “Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment.” Id. “[A] record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” See Lineberger v. Wyeth, 894 A.2d 141, 146 (Pa. Super. Ct. 2006). “As with all summary judgment cases, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party as to the existence of a triable issue.” See Grandelli v. Methodist Hosp., 777 A.2d 1138, 1145 (Pa. Super. Ct. 2001). “A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion.” See Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 590, 111 A.2d 418, 429 (2001).

After considering arguments and reviewing the record in a light most favorable to plaintiff, we conclude she failed to carry her burden and summary judgment was warranted.

Plaintiff cannot sustain a wrongful death or survival action because the fetus was not viable as a matter of law when aborted. The U.S. Supreme Court held a fetus’ viability occurs at 23 or 24 weeks gestational age. See Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992). The Pennsylvania Supreme Court has followed suit. See McCaskill v. Phila. Housing Auth., 615 A.2d 382,384 (Pa. Super. Ct. 1992) (holding viability occurs at 23 to 24 weeks). In McCaskill, plaintiff suffered a spontaneous abortion at seventeen weeks gestational age after a portion of her apartment building collapsed. Plaintiff filed a complaint seeking to recover for her child’s wrongful death, a survival action and loss of consortium. See McCaskill, 615 A.2d at 383, (419 Pa. Super. 1992). The court held “The United States Supreme Court recently held that viability occurs at 23 or 24 weeks gestation” and that “the legal conclusion that viability occurs at 23-24 weeks is well supported in the medical literature.” Id. (internal citations omitted). “We decline to accept McCaskill’s invitation to disregard the precedential authority of this jurisdiction. Therefore, we hold that the trial court properly found that the fetus in question was not viable and that no cause of action may be maintained in wrongful death and survival on behalf of a non-viable fetus.” See McCaskill, 615 A.2d at 384, (419 Pa. Super. 1992) (refusing to align with Rhode Island as the only state to recognize wrongful death for fetuses at any gestational stage).

In this case, despite inconsistent documents regarding clinical estimates of fetal gestational age at abortion, there is no definitive evidence indicating plaintiff reached 23 weeks. The fetal death certificate indicates gestational age to be 21 1/2 weeks at abortion. See defendant’s motion, exhibit 2, fetal death certificate. Even presuming the fetal echocardiogram report provided amore accurate estimate at 22 1/2 weeks, plaintiff merely argues she “approximately” or “almost” or “would have” reached 23 weeks 3 days later. See plaintiff’s response, pp. 4-5. Therefore, plaintiff cannot overcome the critical viability threshold because she cannot prove the fetus actually reached 23 weeks.

Even if the fetus was viable, plaintiff’s claims are barred by the applicable two-year statute, which commences at death. Plaintiff failed to file her complaint until November 27, 2007 — more than six years after abortion. See defendant’s motion, p.4. The death occurred on April 26, 2001. See defendant’s motion, Exhibit 2, fetal death certificate. Thus the statute of limitations would have expired on April 26, 2003.

“There are exceptions that act to toll the running of a statute of limitations. The discovery rule and the doctrine of fraudulent concealment are such exceptions.” See Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 858 (2005). “The purpose of the discovery rule has been to exclude from the running of the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware he has been injured, so that he has essentially the same rights as those who have suffered such an injury.” Id. at 266-267, citing Hayward v. Medical Center of Beaver County, 530 Pa. 320, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). “Where, however, reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause, the court determines that the discovery rule does not apply as a matter of law.” Id. at 268, citing Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983).

However, Pennsylvania law has held the “discovery rule...[does] not function so as to extend the period for filing wrongful death or survival actions.” See Molineux v. Reed, 516 Pa. 398, 402, 532 A.2d 792, 794 (1987). Here, plaintiff suffered a clear and immediately apparent injury — her son’s death. Therefore, the statute commenced at death making the discovery rule inapplicable as a matter of law.

“Fraudulent concealment provides a defendant may not invoke the statute if, through fraud or concealment, it caused plaintiff to relax vigilance or deviate from her inquiry.” See Fine, 582 Pa. at 271. “The doctrine does not require fraud in the strictest sense encompassing intent to deceive, but rather fraud in the broadest sense, including unintentional deception.” Id. at 271. “Mere mistake, misunderstanding or lack of knowledge is insufficient however, and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party.” See Baselice v. Friars Assumption BVM Province, 879 A.2d 270 (Pa. Super. 2005) citing Kingston Coal Company v. Felton Min. Co., Inc., 456 Pa. Super. 270, 690 A.2d 284, 290 (Pa. Super. 1997) (internal quotation marks omitted). “Moreover, in order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiff justifiably relied.” Id. “A statute of limitations tolled by fraudulent concealment commences when the injured party knows or reasonably should know her injury and its cause.” See Fine, 582 Pa. at 272.

In the instant case, plaintiff has not shown defendant concealed information which prevented her from investigating what caused her son’s death. Plaintiff does not allege any concealment beyond those encompassing general failure to warn. Paxil’s public label as a pregnancy category C drug prior to December 2005 does not constitute an affirmative act. Labeling Paxil a category C drug was “general systematic public conduct” and “is not an affirmative act directed at this specific plaintiff.” See Wilbourn v. Smithkline Beecham Corp., 2011 Phila. Ct. Com. Pl. LEXIS 351, 6 (Pa. C.P. 2011). GSK changed Paxil to a category D drug once additional medical studies were completed. This information was publicly available on GSK and FDA websites, as well as in a “dear doctor” letter sent to prescribing physicians. See GlaxoSmithKline, Important Prescribing Information, December 2005, available at http://www. fda.gov/downloads/S afety/MedWatch/S afety Information/ SafetyAlertsforHumanMedicalProducts/UCMl 64864. pdf (last visited on Oct. 12, 2012). See also U.S. food and drug administration, FDA Advising of Risk of Birth Defects With Paxil, Agency Requiring Updated Product Labeling, December 8, 2005, available at http://www.fda. gov/NewsEvents/Newsroom/PressAnnouncements/2005/ ucml08527.htm (last visited Oct. 12,2012). Mere mistake or lack of knowledge is insufficient. See Kingston, 456 Pa. Super, at 283. Therefore, labeling Paxil a category C drug prior to December 2005 cannot constitute fraudulent concealment.

Plaintiff’s alleged phone call to a GSK customer service representative on March 8, 2007, where she mistakenly learned Paxil was a category C drug, is irrelevant as the statute expired in 2003. See plaintiff’s response, exhibit 2, affidavit of JoAnne Thomas. Moreover, plaintiff admitted the representative later corrected said mistake and informed her Paxil was a category D drug. Id. She also admitted prior to calling a click on GSK’s website revealed Paxil had been upgraded to category D. Id. Paxil was publicly upgraded from category C to category D in December 2005. See U.S. food and drug administration, FDA Advising of Risk of Birth Defects With Paxil, Agency Requiring Updated Product Labeling, December 8, 2005, available at http://www.fda.gov/NewsEvents/Newsroom/ PressAnnouncements/2005/ucm108527.htm (last visited Oct. 12, 2012). The alleged phone call did not take place until March 2007, almost six years after the abortion and 15 months after Paxil was relabeled. See defendant’s reply, Exhibit 2, amended pregnancy fact sheet (12/9/10). Plaintiff must use all reasonable diligence to obtain facts and circumstances upon which recovery might be based. See Pocono International, 468 A.2d at 471. Plaintiff did not comply. Therefore, the phone call is a nonissue. Finally, plaintiff has failed to show an independent act of concealment upon which she relied. Thus, the doctrine of fraudulent concealment cannot apply.

In summation, Pennsylvania law follows a bright-line rule establishing the viability threshold at no less than 23 weeks. See McCaskill, 615 A.2d at 384 (419 Pa. Super. 1992). Plaintiff has failed to establish her pregnancy had reached that critical threshold. Nonetheless, even if we found viability, plaintiff’s claims are barred by the statute of limitations. She immediately knew her injury, yet took no investigative action until March 2007, almost six years later. Despite plaintiff’s assertions, she has failed to show any affirmative act of concealment upon which she relied to her detriment. Therefore, plaintiff has failed to meet her burden under the doctrine of fraudulent concealment and the two-year statute commenced at abortion.

III. CONCLUSION

While we understand this case involves a fetus’ death, we are constrained to follow the law in deciding any case before us. For the foregoing reasons, this court respectfully requests our order granting defendant’s motion for summary judgment be affirmed.

      . Pennsylvania law has held that “no cause of action exists under the law of this Commonwealth which permits recovery under the wrongful death and survival acts for the loss of a non-viable fetus, nor do we recognize an action in loss of consortium for the parents of a non-viable fetus.” See McCaskill v. Phila. Housing Auth, 615 A.2d 382, 383 (Pa. Super. Ct. 1992).


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Fletcher v. Mues.

      J. Peter Landis, for plaintiff.

      Thomas L. Klonis, for defendant.
    January 2, 2013
   LASH, J.,

Plaintiff, Timothy C. Fletcher (hereinafter “father”), filed a complaint in custody, seeking primary custody of the parties’ minor daughters. Trial was held on December 18, 2012. This court enters the following findings of fact:

I. FINDINGS OF FACT

1. Plaintiff, Timothy C. Fletcher (hereinafter “father”), is an adult individual who currently resides at 79 Clematis Street, Browns Mills, Burlington County, New Jersey 08105.

2. Defendant, Stephanie Mues (hereinafter “mother”), is an adult individual who currently resides at 710 North Third Street, Apartment 3A, Reading, Berks County, Pennsylvania 19601.

3. The parties are the parents of two (2) minor daughters, A.T.R, bom August 24, 2002, and I.C.R, bom July 10, 2007, (hereinafter “minor children”).

4. The parties were previously husband and wife, separating in May of 2011 and becoming divorced on September 13,2011.

5. Father is employed in the United States Marine Corps, having enlisted in the service approximately eight (8) years ago. His current rank is Sergeant E-5. Father is stationed at Fort Dix, New Jersey.

6. Father’s work schedule is Monday from 9:00 a.m. to 4:30 p.m. and Tuesday through Friday from 7:30 a.m. to 4:30 p.m. He states his schedule is flexible. Father was deployed twice, once to Iraq and once to Afghanistan. He states there are no current plans for a future deployment. He also states that he will not be transferred from Fort Dix for at least two (2) years, until he ascends in rank.

7. On November 26, 2012, father remarried to Ashley Figueroa. The couple have a minor son, E.I.F., bom November 10, 2012. His wife has another son, bom June 28, 2009.

8. Father and his wife do not currently reside together, keeping their residency plans on hold until the within custody case is resolved. His wife resides with her mother in Bayonne, New Jersey, and father resides on off-base housing with a roommate in the Pemberton School District. The couple plan to move on base into a three (3) or four (4) bedroom home. In that event, father would reside in the New Hanover school District, and the minor children, if he had primary custody, would attend the C.B. Lamb Elementary School.

9. Mother resides with the two (2) Minor children in a two (2) bedroom apartment. The minor children share one (1) bedroom. Mother’s apartment is in the Reading School District.

10. Mother is unemployed.

11. At the time of the parties’ separation, they were residing together in New Jersey. Mother returned to Berks County with the younger daughter. The elder daughter remained with father for a period of two and one-half (2 1/2) weeks to enable her to finish her schooling, then reunited with mother. Since that time, mother has had primary custody of the minor children.

12. There is no current custody order. Father and mother have an informal arrangement whereby father can have time with the minor children every weekend. Father travels to Berks County and sees the minor children at the home of the paternal grandparents in Reading, Berks County, Pennsylvania.

13. The paternal grandparents have been very involved with the minor children, caring for them on weekends when father is unable to travel to Berks County for financial reasons or otherwise, and also keeping the minor children on weekdays when mother is unavailable, particularly during a time when she was employed. Father’s grandparents, William and Sondra Renshaw, also provide care for the minor children.

II. DISCUSSION

Both parties seek primary custody. In making disposition, this court considered the testimony of the parties, paternal grandmother, Pamela Fletcher, maternal grandmother, Maria Cabrera, the in camera testimony of the elder daughter, and the exhibits submitted by the parties.

Father testified that he wants the minor children to reside with him and his wife in New Jersey. He has developed an excellent bond. He can provide a nice home, with play areas nearby. His wife, who works as a teacher’s aide, would be available full time to care for the minor children in the summer. The minor children would also then get to reside with their half-brother and stepbrother.

Father testified that when the parties resided together, he assumed the majority of the caretaking duties of the minor children. Mother did the cooking, but he cleaned the dishes, did the laundry, gave the minor children baths, took them to the doctor, and tucked them in. He assisted the elder child in her schooling, helping her to do her homework. In fact, when the elder child asked for help from mother, mother would state: “wait till your father gets home.”

Father recognizes that he may have to relocate and states this should not be problem for the minor children. When the parties resided together, they did move several times, and it never appeared to be a problem for the elder child, who always adapted and was able to make friends and continue to do well in school.

Father alleges that his family actually has more time with the minor children than does mother. According to father, the minor children are at his parents’ house or his grandparents’ house three (3) weekdays out of five (5) and every weekend. Not only is mother willing to drop them off whenever requested, but seeks assistance, and is sometimes unavailable to pick up the minor children when it is time for them to return to her home.

Father’s family handles health care concerns for the minor children. Father or the paternal grandmother take the minor children to the doctor and dental visits. Mother is uninvolved. Further, father claims that mother has been inattentive to the minor children. For example, she allowed a head lice problem to get out of control and remain untreated for several weeks. The minor children have had tooth decay, suffering cavities, with each child being required to have one (1) tooth extracted. On one occasion, the paternal grandmother took one of the children to the hospital to be treated for a throat infection. The paternal grandmother contacted Mother to come to the hospital but she did not respond.

Father also believes that mother is not invested in the minor children’s education. According to father, mother does not attend parent-teacher conferences. She has not assisted with the homework. The elder child has had substandard grades as a result. Further, the elder child switched schools from St. Margaret’s, aparochial school, to the city of reading’s public school at Riverside Elementary, due to mother’s inaction. Father states that mother was required to provide documentation of her income to St. Margaret’s by a certain date. She failed to attend to this in a timely manner, resulting in the minor children having to switch schools and start a new curriculum, over father’s objection.

Father has other issues with mother’s care. He believes that mother shows favoritism to the younger child. He cites one example where mother purchased a nice gift for the younger child for her birthday but had no gift for the elder child on her birthday. Father also objects to mother taking the elder child’s cell phone from her as punishment. Father purchased the cell phone for the elder child to be able to communicate with her and to provide her with internet and facebook access. Father states that, “four out of five times,” he is unable to contact the child by phone because mother has taken the cell phone from her.

Father is concerned that mother fails to attend to the minor children’s daily needs. In addition to the lice and medical examples, father states that mother dresses the minor children in clothing that is too small. He also believes that she does not oversee their bathing, alleging that when they come to the paternal grandmother’s house and she gives them a bath, they are so dirty that the bath water is brown and a ring is left in the tub.

Mother disputes father’s allegations. She states that the parties reached an agreement when they separated that she would be the primaiy custodian. There was cooperation until approximately December of 2011 when, after mother rebuffed father’s attempts to reconcile, Father became uncooperative and began refusing to communicate with her. Since that time, there has been a total lack of cooperation. The custody complaint followed soon thereafter.

Mother testified that she, at all times, has properly cared for the minor children. She attends to their daily maintenance. She is active in overseeing their schooling and has attended parent-teacher conferences, including one for this school year. She disputes father’s perception that the elder child’s grades are substandard, pointing out that for the most part, she has above average grades, particularly in math, although her english and writing skills need improvement. She notes that father is actually the one inattentive, incorrectly believing that math is the area that needed improvement.

Regarding the attendance at doctor and dentist visits, mother agrees that the paternal grandparents have handled these matters, but states that this has taken place because father and the paternal grandparents refuse to communicate with her. They have not provided father’s medical information or cards to her. They refuse to advise her about upcoming doctor’s appointments or the times the minor children were taken to the hospital for immediate care, stating that the paternal grandmother would contact her after the child had already been treated and left the hospital.

Regarding the lice issue, mother points out that the lice treatments required cooperation which she did not receive from father’s family. She states that she did obtain appropriate medications and did contact the doctor. The doctor advised her that the treatment originally prescribed must be carried out before he would prescribe any alternate treatments, such as oral medication. The paternal grandmother, conversely, had testified that she was told that the medication was not working, was causing one of the children to have a burning sensation, and that oral medication may have to be substituted.

In response to father’s allegation that he and his family actually have more custodial time than she does, she states that this is not the case currently, that she has the minor children during the week. She honors her commitment to allow father to have the minor children on weekends but he is often unavailable, having only intermittent contact, so the minor children stay at the paternal grandparents’ home. Mother has no problem with the paternal grandparents having liberal interaction and agrees that at the time she was working, they would have the minor children some weekdays. At no time, however, has she been willing to abdicate any responsibility to them or to father.

Mother alleged that father, was physically abusive to her over the course of the marriage and even prior to the couple getting married, and was also abusive to the minor children. She spoke about specific incidents in great detail, such as on one occasion while she was pregnant with the elder child and sitting in the car, he assaulted her in front of witnesses. On another occasion, she was choked so extensively that marks from her necklace imprinted on her neck. She testified that he would punch, slap, or choke her as often as once a month, particularly after he returned from deployment. She notes that he was treated for anger management when he was 17 or 18 years old, and was prescribed Wellbutrin. When questioned why she would marry father if he was an abuser, she stated that at the time he began his enlistment and was at boot camp, he told her that he was a “changed person,” that he loved her and that things would be different. She believed him, but he did not change. She told no one about the abuse, being scared to go to the police, and did not want her mother to become involved.

Regarding abuse of the minor children, mother testified that father would scream at them when they misbehaved. He would also employ “military discipline” by requiring them to do such things as run up and down the steps until they were “ready to throw up” or hold their hands out in front of them holding a book, not being permitted to move, while their muscles would bum from the physical stress.

Mother objected to father providing the elder child with her cell phone. She states that at 10 years old, she is too young to have internet and facebook access. The child becomes preoccupied with the cell phone, constantly texting her friends. On at least one occasion, she viewed a web site with mature themes.

Mother does not accept father’s statement that his schedule is flexible enough that he will be able to spend extensive time with the minor children. She remembers how inflexible his schedule was when the two were living together. As stated, father has not taken advantage of the parties’ arrangement by seeing the minor children every weekend.

At issue is primary physical custody. The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa.Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa.Super. 381, 385, 659 A.2d 1040, 1042 (1995).

In 23 Pa.C.S.A. Section 5328, the general assembly has enumerated certain factors to consider when awarding custody, if relevant, giving weighted consideration to those factors which affect the safety of the minor children.

The first factor concerns “which party is more likely to encourage and permit frequent and continuing contact between the child and another party.” By all accounts, mother has been very accommodating in permitting contact. The criticism against her is that she actually has been too accommodating, and that she has delegated parenting responsibilities to the paternal grandparents.

At this juncture, father has not been in a position to grant or deny permission on access to the minor children. Certainly, if he has custody of the minor children, there would be logistical problems, as the minor children would reside in New Jersey, with mother being handicapped by transportation issues. On the other hand, it is expected that the maternal grandparents would want to maintain frequent contact, resulting in father bringing the minor children to Berks County for the dual purpose of mother’s custodial time and visits with the grandparents.

Mother has established that she recognizes the value of the minor children having frequent interaction with the other side of the family. For a time, she resided with the paternal grandparents when father was deployed and had a good relationship with them until her relationship with father deteriorated. Nevertheless, she has actively allowed the minor children to continue to enjoy time with grandparents, the great grandparents, and father when he is available. This factor favors mother.

The next factor addresses 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.” Mother has accused father of chronic physical abuse, anger issues, and excessive discipline of the minor children. These allegations were recounted in detail and reflected a trustworthy recollection of what took place, not a fabrication. For example, her testimony regarding the “military style” discipline is unlikely to have been created by mother’s imagination. For his part, father did not give any explanations, simply categorically denying any abuse. This court finds mother’s testimony to be credible.

Given father’s denials and the absence of any counseling or other remedies to resolve the issue, there is the concern that father retains the capacity to impose excessive discipline on the minor children. This factor favors mother.

The next factor relates to “the parental duties performed by each party on behalf of the child.” This factor is noteworthy. Father has apparently not performed much in the way of parental duties since separation, although he stated when the parties were residing together he shouldered a large majority of these responsibilities. Mother has either delegated or acquiesced in some of the parental duties to the paternal grandparents, particularly health care.

It appears that the burden shifting to the paternal grandparents stems from actions of both sides. The paternal grandparents, who enjoy the company of the minor children immensely, would like as much time with them as possible. No doubt they frequently request this time, and mother accommodates them. This in and of itself does not represent mother attempting to free up time for herself. Nevertheless, when the paternal grandparents assumed control, she acquiesced. While she states she was thwarted from receiving medical appointment or insurance information, she should not have stood by helplessly, but should have made the necessary inquiries and, if necessary, appear in court to regain control of her minor children’s health care needs. For their part, the paternal grandparents were perfectly comfortable overseeing these needs, never counseling mother on her need to take these matters over.

The overriding problem here was a breakdown in communication. The lice problem, for example, represents the paternal grandparents and mother acting on parallel courses, creating gaps in treatment and information. A simple discussion, followed by collaboration, would have resolved the lice issue in short order.

There is also the issue of daily maintenance. While it appears that the paternal grandmother’s account of the minor children’s hygiene might be somewhat exaggerated, it is also likely that mother could do a better job of overseeing this concern. For reasons set forth, this factor favors father, but only moderately, due to his lack of recent involvement.

The next factor concerns “the need for stability and continuity in the [children’s] education, family life and community life.” The minor children have experienced a fair amount of transience. The parties, while together, resided at several military bases, including in California and North Carolina. The elder child has had to switch school districts on several occasions. This also occurred post separation when she changed schools from St. Margaret’s Catholic School to the Reading School District. While the residential relocations were innocuously based on father being transferred, the change from St. Margaret’s to the Reading School District was also caused by the parties’ failure to communicate. Father blamed mother for this issue, alleging that she failed to attend to the documentary requirements of St. Margaret’s. Mother stated that she was in the process of doing that, requesting father’s assistance, when father stated to her: “I’m not giving you any help. The kids can go to public school.” This represents another example of father or his family attempting to isolate mother, with mother passively acquiescing.

Neither party has established a stable foundation at this time. Father’s marriage is a little over a month old. If you accept mother’s version of the facts, father wanted to reconcile with mother as recently as a year ago. Hopefully, the new marriage will be one that endures, but it is simply too early to tell. Regarding mother, there was no mention of any involvement with a paramour, or her plans in this area. She is unemployed, seeking work, but is limited by the fact that she does not own a vehicle. The parties became a couple extremely early in life, with mother becoming pregnant at age 15. They are still young and immature. This court cannot attribute any established level of continuity to the households of either one. Accordingly, this factor will not be considered.

The next factor addresses “the availability of extended family.” As stated, the paternal grandparents and great grandparents are integral in the minor children’s lives. The maternal grandmother also has a good relationship with the minor children, but has been less involved as a caretaker.

If father obtains primary custody, this would result in the minor children having less contact with the extended family on both sides due to the distances between the residences. Nevertheless, the paternal grandparents’ availability to assist mother, as well as father, in the day-today caretaking responsibilities has many positive aspects, the major criticism being the lack of communication and the developing mistrust between the sides. Because of the paternal grandparents involvement, this factor must favor father, but only slightly.

The nextfactor looks at“the child’s siblingrelationships.” The minor children enjoy the company of their infant half-brother and father’s wife’s son. These relationships should continue to be fostered. This factor favors father.

The next factor addresses “the well-reasoned preference of the child, based on the child’s maturity and judgment.” The court met with both minor children in camera, but declined to interview the younger child due to her age and maturity level. Regarding the elder child, this court found her to be intelligent, engaging, and able to answer questions directly and truthfully. This court shall issue a separate Addendum, to be reviewed by the court and counsel only, and sealed by the prothonotary, which will discuss the elder child’s preference.

The next factor concerns “the attempts of a parent to turn the child against the other parent.” There were no allegations by either party that a parent is attempting to alienate the minor children from the other parent or a member of the parent’s family. Accordingly, this factor will not be considered.

The next factor addresses “which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.” Mother has a good bond with the minor children and clearly loves them both. The questions of stability and consistency and to some extent nurturance, turn, in part, on whether mother should be considered a full-time parent or a part-time parent, for clearly some of the minor children’s needs in this area are met by the paternal grandparents. Though immature and passive, perhaps even somewhat afraid of challenging the paternal grandparents, mother has, nevertheless, established herself as the key figure in the minor children’s lives. As such, there is a moderate level of relational stability.

Father has established consistency. He has been in the Marine Corps for over eight (8) years, achieving promotions. His parents have been a consistent resource for the minor children. On the other hand, he has not been able to establish as strong a bond as mother, predominately because of his lack of contact, but also because he does not appear to have the same capacity to nurture the minor children as does mother. Again, these parties are still developing as parents, their stability being a work in progress. This factor does not favor either party.

The next factor to be discussed relates to “the proximity of the residences of the parties.” The distance between the parties’ residences is substantial enough to prohibit frequent transfers of custody, particularly on weekdays during the school year. Father has been limited by financial constraints from taking full advantage of the weekend custodial time agreed to by the parties. This factor will certainly be considered in fashioning a practical schedule.

The next factor concerns “each party’s availability to care for the [children] or ability to make appropriate childcare arrangements.” As stated, mother has relied on the paternal grandparents, and to a lesser extent her mother, to provide child care. The grandparents remain available and are an acceptable solution. Father has not had the need to seek out daycare arrangements. He testified that his wife would be available in his absence, particularly during the summer months, as she is employed at a school district. If necessary, the paternal grandparents would likely assist him as well, when practical. This court has no concerns about alternate supervision. This factor does not favor either party.

The last applicable factor relates to “the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.” Mother appears to be easy going, one who is more likely to avoid rather than seek conflict. She has been very cooperative, allowing father and his family unfettered access to the minor children. This is especially noteworthy considering the physical abuse suffered by mother. Father and his family have been less cooperative, particularly in the area of communication. Whether this results from hard feelings or of lack of trust in mother’s ability to parent, it has resulted in the paternal grandparents assuming parental responsibilities. This factor favors mother.

To summarize, the parties are young parents who love their children and who both want to accept the responsibility of being a primary custodian. Both, however, need to show improvement in certain areas to fulfill their capacity as a parent.

Mother has accepted the difficult responsibility of being a single mother of two (2) children. In accepting this responsibility, she has performed some of the duties adequately, but has also chosen to rely on the paternal grandparents for extensive assistance. To some extent, this is appropriate, as they are responsible caregivers. The minor children are given the opportunity to interact with them, always an important concern, but especially so here, because father’s contact has been limited. That being said, to the extent mother became dependent upon grandparents to do her job, she shirked her responsibilities. It is important that she be fully involved in the oversight of all legal custody matters.

Father needs to improve on his communication with mother and his level of cooperation. Most importantly, he needs to address through counseling his propensity for domestic violence. He is now a parent of three (3) children and a stepparent of a fourth, all of whom deserve to be treated and disciplined in a humane and responsible manner.

This court finds that the best interests of the minor children would be served by continuing primary custody with mother. However, father’s custodial time shall be expanded during the summer months, such that the parties will share custody equally during that time. This expansion is conditioned upon father seeking counseling, which will be court ordered, and upon there being no further instances of abuse of any party or excessive discipline of any child.

Mother should continue to utilize the paternal grandparents for caretaking purposes. That being said, mother shall, in conjunction with father as shared legal custodian, handle the medical and educational needs of the minor children.

This court enters the following order:

      . Factor number 10, which concerns “which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the [children],” was addressed in the analysis of other pertinent factors. Factor 14, “the history of drug or alcohol abuse of a party or member of a party’s household,” and factor 15, “the mental and physical condition of a party or member of a party’s household,” do not apply, as no evidence was presented regarding these matters.


text:
    Commonwealth v. Serrano.

      Kevin McCloskey, for plaintiff.

      Mark Merdinger, for defendant.

      December 3, 2012
   STEINBERG,./.,

The defendant, Angel Serrano, is charged with indecent assault, indecent exposure, and corruption of minors. It is alleged that the defendant sexually assaulted his nine (9) year old neighbor, A.A., when he grabbed her buttocks, exposed his penis and masturbated in her presence.

On November 14, 2012, the defendant filed an omnibus pre-trial motion, including a “motion to suppress defendant’s statements”. It is alleged that at the time of the defendant’s arrest, Detective Thomas Galloway of the Bethlehem Police Department “possessed substantial evidence that A.A.’s statements were unreliable.” If so, the defendant contends that the detective lacked probable cause to arrest him, and any inculpatory statements made by him after the arrest must be suppressed. A hearing was held on this motion during which detective Galloway testified on behalf of the Commonwealth. The defense submitted two (2) DVD interviews of the victim that were conducted on October 17, 2011 and November 17, 2011.

Discussion

Prior to arresting an individual, the police must possess probable cause. Commonwealth v. Hannon, 837 A.2d 551, 554-555 (Pa.Super. 2003). It has frequently been explained:

Probable cause to arrest exists when the facts and circumstances within the police officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. Probable cause justifying a warrantless arrest is determined by the ‘totality of the circumstances.’ Furthermore, probable cause does not involve certainties, but rather ‘the factual and practical considerations of everyday life on which reasonable and prudent [persons] act.’

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008)(internal citations omitted); see also In Interest of O.A., 552 Pa. 666, 676, 717 A.2d 490, 495 (1998); Commonwealth v. Johnson, 467 Pa. 146, 153, 354 A.2d 886, 889 (1976); Commonwealth v. Griffin, 456 A.2d 171, 174 (Pa.Super. 1983).

In Commonwealth v. Evans, 451 A.2d 734, 737 (Pa. Super. 1982) in which the same probable cause standard was articulated, it was alleged that the police lacked probable cause to arrest the defendant, and that his subsequent confession should be suppressed as fruit of the illegal arrest. The court in concluding otherwise noted that it is well-settled that “[t]here is a substantial basis for crediting the information of an eyewitness.” Id. at 737. See also Commonwealth v. Walker, 501 A.2d 1143, 1148 (Pa.Super. 1985). Furthermore, even though an arresting officer may not have direct, personal knowledge of the relevant facts and circumstances, probable cause may rest solely on information supplied by another person, provided there is a substantial basis for crediting that information. Commonwealth v. Stokes, 480 Pa. 38, 44, 389 A.2d 74, 76-77 (1978)(The uncorroborated confession of an accomplice, the statement of a victim identifying the perpetrator of a crime, and an eyewitness whose identity is known, all fall within the category of information sufficient to establish probable cause); see also Commonwealth v. Bells, 540A.2d297 (Pa.Super. 1988)(Information provided by victim, who gave a detailed physical description of her attacker and the unusual knife he possessed, established probable cause to arrest); Commonwealth v. George, 878 A.2d 881, 884-885 (Pa.Super. 2005). It has also been held repeatedly throughout the federal courts that the testimony from an alleged victim is ordinarily sufficient to establish probable cause. Acosta v. Ames Dept. Store, Inc., 386 F.3d 5, 10 (1st Cir. 2004); Lee v. Sandberg, 136 F.3d 94, 103 (2nd Cir. 1997); Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997); United States v. Harness, 453 F.3d 752, 754 (6th Cir. 2006); Reynolds v. Jamison, 488 F.3d 756, 765 (7th Cir. 2007); Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987); Easton v. City of Boulder, Colo., 776 F.2d 1441 (10th Cir. 1985).

The defendant, however, relying upon language in Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000), a civil rights lawsuit, which subscribed to the above tenets and found probable cause, contends that this child-victim’s version of events to an experienced child abuse investigator should be discounted as unreliable. If so, the defendant posits that Detective Galloway lacked probable cause to arrest him and his admission to Detective Galloway of the very same acts told by the victim to the investigator should be suppressed.

The defendant would impose a heightened standard on law enforcement to establish probable cause. Every discrepancy or forgotten detail in a child victim’s statement would be used as a springboard to negate a finding of probable cause. Cf. Lallemand v. University of Rhode Island, 9 F.3d 214, 217 (1st Cir. 1993)(Discrepancies concerning the assailant’s first name, hair style, dormitory and height are trivial, given their nature and the positive identifications).

Law enforcement has never been required to make such wide reaching assessments at the initiation of an arrest. The arresting officer is “neither required nor allowed to sit as prosecutor, judge or jury. [His] function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.” Panetta v. Crowley, 460 F.3d 388, 396 (2d Cir. 2006) quoting Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989); see also Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)(“[O]nce a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.”); State v. Griffin, 570 P.2d 1067, 1069 (1977)(Victim’s advanced age and contradictory stories about how crime occurred did not result in finding that arresting officer lacked reasonable trustworthy information to establish probable cause where basic information was not contradictory).

The language in Wilson must be qualified by the surrounding circumstances. Of course, “independent exculpatory evidence or substantial evidence of the witness’s own unreliability that is known by the arresting officers” could negate a probable cause determination. Id. at 790. Examples cited in Wilson include DNA evidence that contradicts a credible victim identification or the description of the assailant as 7’ tall and the suspect is only 5’. Id.

The allegations of sexual misconduct described by the child in this case were reasonably trustworthy and reliable. As a result, the police prosecutor had a substantial basis for crediting the child’s account of the events in the defendant’s home. She was nine (9) years old when forensic interviews were conducted with her at the Lehigh County Child Advocacy Center by a child abuse investigator. The child consistently recounted details of the defendant’s misdeeds, including the location within the home where they were committed, the specific conduct committed by the defendant, and a description of the defendant’s anatomy. The victim’s description of the defendant’s penis was confirmed by him. Additionally, the defendant and his wife both admitted that the child was upstairs in their home with the defendant.

Two (2) interviews with the child were conducted by Detective Theresa Rentko, an experienced child abuse investigator. One (1) was conducted on October 17, 2011, and the other onNovember 17,2011. She described conduct perpetrated by the defendant and her stepfather, although she was unsure whether her stepfather’s acts were real or dreams. However, her recollections of the defendant’s acts were never subject to uncertainty. The defendant points to the child’s failure to recall an earlier incident with the defendant when she was interviewed in November. In light of her age, her response is just as easily a product of misunderstanding or confusion rather than dishonesty. It is not the type of mistake that shakes the foundation of probable cause.

Likewise, the child providing more detailed information to her mother should not come as a surprise. Detective Galloway explained that the child was “embarrassed” regarding her use of certain words, and she would certainly be more comfortable explaining details to her mother than a stranger. Even a stranger who is an experienced investigator.

During the hearing in this matter, Detective Galloway was able to articulate the investigation he conducted which led him to arrest the defendant. This is not a case where the defendant’s version of events, or some other evidence, may have cast doubt on the child’s accusations. Commonwealth v. Thompson, 604 Pa. 198, 212, 985 A.2d 928, 936 (2009)(A police officer’s experience may be regarded as a relevant factor in determining probable cause to arrest). Based on all the facts and circumstances, probable cause was established to arrest the defendant.

For all the foregoing reasons, the motion to suppress must be denied.

ORDER

And now, December 3,2012, upon consideration of the defendant’s “motion to suppress defendant’s statements” and hearing held on November 14, 2012;

It is hereby ordered that said motion is denied.

       18 Pa.C.S. §3126(a)(7).

      . 18 Pa.C.S. §3127(a).

      . 18 Pa.C.S. §6301 (a)(l)(ii).

      . The motion also included a “motion for Competency Hearing and Psychiatric Evaluation of A.A.” that was withdrawn and dismissed following the hearing.

      . “Motion to suppress defendant’s statements”, ¶ 14.

      . Defendant’s Exhibit 1.

      . Defendant’s Exhibit 2.