author: LASH, J.,

text:
    Morris v. Morris

      Amy J. Miller, for plaintiff.

      David S. Sobotka, for defendant.
    January 10, 2014
   LASH, J.,

The matters before this court are the petition of plaintiff, Lisa Ann Morris (hereinafter “mother”), for a modification of a custody order and the corresponding counterclaim filed by defendant, Arthur Layton Morris, Jr. (hereinafter “father”). Both parties are before this court seeking primary custody of their minor son and a modification of a custody order entered by this court by agreement on January 26, 2010. Trial was held on January 2, 2014. This court enters the following findings of fact:

I.FINDINGS OF FACT

1. Plaintiff, Lisa Ann Morris (hereinafter “mother”), is an adult individual who currently resides at 202 Hopewell Street, Birdsboro, Berks County, Pennsylvania 19508.

2. Defendant, Arthur Layton Morris, Jr., (hereinafter “father”), is an adult individual who currently resides at 164 Icedale Road, Honeybrook, Chester County, Pennsylvania 19344.

3. The parties are the natural parents of a son, D.S.M., bom November 11, 2004, (hereinafter “minor child”).

4. The parties were formerly husband and wife, having been married on August 9, 2002. The parties separated on July 22, 2007, and were divorced on January 7, 2011.

5. Since the time of separation, mother has been the primary custodian of the minor child.

6. The custody action was initiated by mother through the divorce complaint filed in November of 2008. The parties subsequently filed a stipulation, which the court entered as an order on January 26, 2010. The order provided, among other things, that the parties would share legal custody of the minor child, that mother would have primary physical custody, and that father would have partial custody on alternating weekends from Fridays at 5:00 p.m. until Sundays at 8:30 p.m., and every Monday and Wednesday night from 5:00 p.m. until the following Thursday morning at 9:00 a.m.

7. On or about July 23, 2012, father filed a petition to modify the custody order. However, on December 17, 2012, he filed a praecipe to withdraw the petition to modify, because he had decided to move to Florida for work-related reasons.

8. After residing in Florida for a short time, approximately a month, father returned to Pennsylvania. Concurrently, mother filed a petition to modify the custody order, on or about January 29, 2013. Father filed his counterclaim on April 16, 2013.

9. Mother currently resides with the minor child’s maternal grandmother, Linda Finney, mother’s 18 year old son, Brandon Davidheiser, and the minor child.

10. Father resides with his wife, Stacy, and her daughter, Isabella, age 11. Father has an 18 year old son, Jesse, and a 17 year old daughter, Andrea, who reside with their mother. Andrea is currently estranged from father.

11. Mother’s home is located in an urban setting, while father resides in a more rural area. The minor child has his own bedroom in both houses. The minor child has pets in both households, a dog at father’s and turtles at mother’s. Both homes are environmentally suitable for rearing a minor child.

12. Mother resides in the Daniel Boone School District. Father resides in the Coatesville School District. The minor child attends Birdsboro Elementary Center in the Daniel Boone District and is in the third grade.

13. The minor child has had some difficulties in school, particularly in reading. An Individualized Education Program (IEP) is now being administered to the minor child for the 2013-2014 school year.

14. Mother is employed as a customer service assistant at Polymeric Systems in Elverson, Pennsylvania. Her work hours are Monday through Friday from 9:00 a.m. to 5:00 p.m. She leaves for work approximately 7:30 a.m. and returns at about 5:30 p.m. The maternal grandmother cares for the minor child after mother leaves for work, ensuring that he gets on the school bus and is also available for him when he returns home on the bus from school.

15. Father is employed by the County of Chester as an information technician. His work hours are Monday through Friday from 8:00 a.m. to 4:30 p.m. On weekdays when he has the minor child overnights, father drops the minor child off at mother’s home between 7:00 a.m. and 7:15 a.m.

16. Father provides all the transportation. The parties meet at a convenience store in Gibraltar, Pennsylvania, for the pick up and drop off.

17. An independent psychological evaluation was compiled by Matt Shollenberger, Ph.D., P.C. The evaluator conducted interviews, family genograms, and administered the Minnesota Multiphasic Personality Inventory-2 RF tests, two (2) parent relationship questionnaires, the Beck Depression Inventory, the Beck Anxiety Inventory, and the Michigan Alcohol Screening tests, and conducted home visits of the parties’ residences. He compiled a written report dated June 24, 2013.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, the maternal grandmother, Linda Finney, father’s wife, Stacy, father’s 17 year old daughter, Andrea Morris, the expert testimony of Dr. Shollenberger, an in camera conference with the minor child, and the exhibits of the parties.

The presentation of both parties emphasized the perceived negative attributes of the other party. There were few positive characteristics cited by one party in favor of the other. In speaking of themselves, both parties emphasized their desire for primary custody, their wish to spend as much time with the minor child as possible, and their belief of being better suited than the other to oversee the minor child’s needs in education and health care. Both pointed out their recreational interactions with the minor child. Father’s wife testified of bike rides, swimming, walking in parks, and movies. Mother similarly noted bicycling, hiking, spending time at Hopewell Lake, kite flying, going to the mall, and seeing movies.

Father’s concerns were various and in some cases substantial. A problem in mother’s household has been her relationship with William Quinley. Mr. Quinley was abusive to mother, including at least on one occasion in front of the minor child, with mother obtaining a protection from abuse order against him. The police had to be called to her home. On one occasion, he pointed a gun at father. He also threatened to come to father’s employment while father was employed at Great Valley School District to settle some issues. Father reported this to the school administration, who viewed this as a risk and took necessary precautions, and was a factor in father’s separating from his employment with Great Valley. Mother testified that the relationship with Mr. Quinley ended approximately a year ago and that she has not had contact with him. Father suspects otherwise, particularly since Mr. Quinley contacted the evaluator in June 2013.

Father also outlined the difficulties he has with mother in co-parenting the minor child. Mother refuses to communicate with him. She refuses to allow him to pick the minor child up at her residence, which results in father having to drive an additional fifteen minutes one way to a convenience store in Gibraltar where the transfer takes place. On one occasion, mother struck father in the face, resulting in mother being charged with and found guilty of harassment before a magisterial district judge. When making the transfer, mother is sometimes hostile, including speaking loudly and making obscene gestures.

Father blames mother for the minor child’s school problems. He points out that the minor child has had excessive absences, the implication being that mother does not force the minor child to go to school when he doesn’t want to attend or feigns illness. The minor child’s reading problems were, in part, exacerbated by his inadequate eyesight. Father took the necessary measures to address the problem, eventually resulting in the minor child receiving a prescription for eyeglasses. Father testified that mother denied that the minor child had a problem and was uncooperative. He also notes that once the minor child was fitted with eyeglasses, his production, as well as his demeanor, immediately improved at school.

While mother was not particularly interested in assisting in getting the minor child eyeglasses, she does oversee the minor child’s doctor’s visits. Due to father’s work schedule, and the fact that he does not have the minor child on weekdays, it is very difficult for father to schedule medical appointments, unless they are on the weekend. He has requested that mother schedule the appointments and notify him, but she refuses to communicate.

There were several issues with the cellphone that father brought for the minor child. Father claims that mother has blocked father from having cellphone access to the minor child, which mother denies. Father, who is an informational computer technician, entered applications on the minor child’s cellphone, primarily to assist him with schooling, but also included Facebook. Mother objected to Facebook and some of the other applications. Additionally, the phone screen was broken and has not been fixed because father needs password information from mother in order to get the phone fixed. Although the phone still works, father is concerned that the minor child could injure himself on the jagged edge of the screen.

Father also believes that mother has made misrepresentations to the evaluator, resulting in the evaluator’s recommendation being based on a faulty foundation. For example, the evaluator reported that mother told him that the minor child has been diagnosed with allergies when, in fact, this had not happened.

Mother has similar complaints against father. She agrees that there is a lack of communication, but states that this stems from father’s continuing hostility toward her. He is condescending and authoritarian. For this reason, she does not want to have any verbal interaction with him and does not want him to come to her house, for she is concerned that he will act out in front of the neighbors.

Mother believes that the minor child’s school issues stem from the custody schedule. Father has two (2) weekday evenings every week, returning the minor child the next day. This results in the minor child spending one (1) night at mother’s home, then the next night at father’s, and so forth. Further, father has to wake the minor child up very early when he has custody to get him to mother’s house prior to her leaving for work. This causes the minor child to lose about one (1) hour of sleep. These issues have affected his ability to focus in school. Mother also claims that father does not place any emphasis on the importance of education. She stated that father doesn’t help with homework and is not in contact with the school district. She points out that father’s son, Jesse, now 18, dropped out of school and does not want the same thing for her son. Further, if father assumed primary custody of the minor child, the minor child would have to change school districts, which would also affect his ability to function.

Mother believes that father undermines her authority with the minor child. According to mother, father told the minor child that “you don’t have to listen to her, she is not your boss.” As a result, mother sometimes has difficulties keeping the minor child under control.

Mother believes that father has anti-social qualities. Not only is she unable to deal with him, he, apparently, is estranged from members of his family. More importantly, he has a difficult relationship with his son and daughter from his former wife. Father’s daughter, Andrea, testified that she currently has no relationship with father.

Mother believes that father cannot provide a stable household. When he left Great Valley School District, which was sometime in late November or December of 2012, Father abruptly chose to move to Florida to assume new employment. This only lasted for a month or so and father returned. His relationship with his current wife is of short duration. The couple experienced two periods of separation, one because they weren’t getting along, with the second being the Florida move, although on that occasion the couple stated that they continued to maintain their relationship. Father has had several residences and several employments, and is now in his third marriage.

The evaluator, Dr. Shollenberger, recommended that mother continue as the primary custodian, with father to havepartial custody duringthe schoolyear. He recommends that the schedule be adjusted to eliminate overnight visits for father on weekdays during the school year. The parties would share custody equally during the summer on a week-on, week-off basis. He also recommended that the minor child have no exposure to William Quinley.

The evaluator believed that mother would be better suited for primary custody in part because of father’s unstable personal history. He cited father’s recent short term relocation to Florida, the newness of his marriage, and past changes in his residence and employment as evidence. He was also not impressed with father’s stated basis for seeking primary custody, that it would enable father to “have more control.” The evaluator’s advocacy for removing father’s overnight visits on weekdays during the school year reflected his concurrence with mother’s belief that the constant moving back and forth from one household to the other, and having to get up early when at father’s house to get to school on time, was a substantial contributor to the minor child’s problems at school.

The evaluator also noted some additional concerns identified through the results of the MMPI-2-RF testing. Regarding father, the test revealed substantial interpersonal dysfunction, that father was “likely to have family conflicts and to experience poor family functioning, to have strong negative feelings about family members, and to blame family members for his difficulties.” The behavioral dysfunction scale also raised issues, including identifying a propensity for criminal and antisocial behavior, conflictual interpersonal relationships, and difficulties with authority figures. There was also some dysfunction reported from mother’s test results, namely, in the emotional dysfunction scale, where mother was “likely to be stress-reactive, worry prone and to engage in obsessive rumination,” and on the interpersonal dysfunction scale where, like father, she is prone to family conflict and poor family functioning, strong negative feelings about family members, being prone to blame family members for her own problems. Dr. Shollenberger recommended that the parties attend co-parenting counseling and that mother engage in individual counseling.

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 child.

The first issue concerns “which party is more likely to encourage and permit frequent and continuing contact between the child and another party.” Neither party has been particularly cooperative with the other. It is apparent that mother does not want to have any dealings with father. This is evident by her refusal to communicate with him or to allow him to come to her house to pick up the minor child. Significantly, she made a comment that she had hoped that father would remain in Florida. Father also complained about his problems obtaining phone contact with the minor child due to mother’s blocking access, but this appears to stem primarily from the parties’ inability to agree on what application the minor child should be permitted to use. Father, as partial custodian, and based on the schedule, has not had the opportunity to establish what type of continuing contact he would allow mother, if he had the choice. That being said, his attitude toward mother is no better than her attitude toward him. This factor favors father but only slightly.

The next factor concerns 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.” There were no allegations of abuse raised against father or his household. Mother’s household has some history of abuse perpetrated by her former boyfriend, William Quinley. Mr. Quinley was abusive to mother, and this abuse was at least to some degree witnessed by the minor child. Mother adamantly states that she has no current involvement with Mr. Quinley, but assuming that is true, the existence of the relationship is still evidence of mother’s poor judgment in selecting a partner to assist her in rearing her minor child. This factor favors father.

The next factor addresses “the parental duties performed by each party on behalf of the child.” This factor favors mother. She has been the primary custodian and accordingly, the parent caring for the minor child on a daily basis, for over six and one-half (6 1/2) years. Father’s involvement has been primarily limited to weekends. He has also been less active in medical and educational concerns which he blames on mother’s refusal to cooperate. However, if his only obstacle was mother’s recalcitrance, he could have requested relief from the court but, in fact, only approached the court approximately five (5) years after the parties first separated, when he filed a petition to modify.

The next factor concerns “the need for stability and continuity in the child’s education, family life and community life.” Mother and the minor child continue to reside in the former marital residence, the location where the minor child is comfortable and has made friends. Father has moved several times, including his move to Florida, and has had several different employers. Neither party has been able to establish and maintain a strong, stable interpersonal relationship, father being married three (3) times and mother being involved in several relationships, including the abusive one with William Quinley.

This factor favors mother. Father’s abrupt move to Florida was significant and ill-advised, causing a geographic separation from his three (3) children and his wife. The fact that he quickly returned showed that he also realized the mistake. The move appeared to be a kneejerk reaction, with father failing to fully think through how this would affect his family. That being said, father is now residing with his wife in a home that was formerly owned by his wife’s father, a location that should continue as his residence for as long as the couple remain married, which hopefully will be for a long time, but remains to be seen.

The next factor addresses “the availability of extended family.” The maternal grandmother resides with mother in the former marital residence and is available to help care for the minor child. The minor child also interacts with other members of mother’s family. Father has had some difficulty with members of his family, which impacts on the minor child’s access to those family members. Father’s lack of family contact implies that he does not consider family relationships important in the context of rearing a child. This factor favors mother.

The next factor reviews “the child’s sibling relationships.” The minor child has a good relationship with mother’s other son, Brandon, and father’s children. In fact, father’s daughter, Andrea, has reached out to mother to enable her to continue contact with the minor child, even though she has no contact with father. Thus, most or all of the minor child’s interaction with his siblings are through mother. This factor favors mother.

The next factor concerns “the well-reasoned preference of the child, based on the child’s maturity and judgment.” This court conducted an in camera conference of the minor child with the attorneys present. The minor child was pleasant and cooperative throughout the interview. He was able to understand the questions and provide responsive answers. He was somewhat quiet, perhaps a little nervous, and was credible, although noncommittal on some issues. This court shall publish an addendum, available to counsel for the parties but not to the parties themselves, explaining the court’s position on this factor.

The next factor addresses “the attempts of a parent to turn the child against the other parent.” Although these parties do not get along, there does not appear to be any intent by either party to alienate the minor child from the other parent. Mother did complain about father’s undermining her authority by telling the minor child that mother is “not his boss,” but this appears to be more of a failure in co-parenting, not an attempt to alienate. This factor is not relevant to this case.

The next factor concerns “which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.” For reasons already set forth, mother is better able to provide stability and consistency in the relationship. Both parties love the minor child. It appears both parties have developed a close bond. This factor favors mother but only slightly.

The next factor addresses “which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.” From a positive standpoint, mother assumed the role of primary custodian and has never wavered in that commitment. That being said, there have been some concerns about mother’s attendance to the minor child’s daily needs. Mother has been somewhat lax in requiring the minor child to attend school. It was father, not mother, who moved to have the minor child’s vision corrected. Importantly, mother has been resistant to father being involved with the minor child’s educational and medical issues. Mother’s exposing the minor child to William Quinley may have impacted on him emotionally.

It is difficult to access father’s capacity here, as father has not had the opportunity to show how he would address these concerns. That being said, however, the issues he had with his other two (2) children, including estrangement and his son dropping out of school, lends support to mother’s conclusions that father would not be as invested as he would suggest in ensuring that the best interests of his minor child are met. This factor favors mother but only slightly.

The next factor reviews “the proximity of the residences of the parties.” According to father, the residences are an approximate twenty (20) minute drive apart. Unfortunately, because mother will not allow father to come to her house, the actual drive for the minor child is thirty-five (35) minutes from the meeting place to father’s home. Considering mother’s concern that the minor child is getting up too early to return to her house in the morning and is having difficulty focusing in school, and as a practical matter, it would make more sense to reduce the driving time to the twenty (20) minutes between households. Another option would be to choose a new meeting place between the two (2) households.

A twenty (20) minute drive is common in custody cases and should not be a factor in making disposition. Accordingly, this court will order a change in the location of the transfer, but otherwise will not consider this as a relevant factor.

The next factor addresses “each party’s availability to care for the child or ability to make appropriate child-care arrangements.” Mother, with the duties of primary custody, has had no difficulty making suitable arrangements, utilizing the maternal grandmother, who resides with her, to assist the minor child with getting to school and otherwise caring for the minor child. Father did not provide any evidence on what his arrangements would be if he had primary custody. This factor favors mother.

The next factor is a review of “the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.” Unfortunately, these parties do not cooperate. The evaluator found that each had significant dysfunction in the area of interpersonal contact. It is ironic that two people who, apparently, have difficulty getting along with other people, would end up in a relationship. This court agrees with the evaluator that the parties should engage in co-parenting counseling. While this court is not optimistic that the parties will take an introspective look at themselves and make appropriate adjustments, the counseling may at least provide the parties with the knowledge on how their acrimony substantially affects the welfare of the minor child. Perhaps if they have this awareness, they will make a better effort to tolerate each other, even if they do not accept any responsibility for their actions. This factor does not favor either party.

The last relevant factor concerns “the mental and physical condition of a party or member of a party’s household.” There are no physical issues raised by either party. As stated, the evaluator noted some psychological concerns with both parties. First, he found that both had interpersonal dysfunction, which may in large part explain why the two of them are unable to have any collaboration, and why father is estranged from his daughter. Mother has some problems with dealing with stress, which the evaluator believes can be alleviated through counseling. While counseling may indeed be helpful, this court will leave it up to mother to address these concerns, not require them through this custody order. Finally, the evaluator found behavioral dysfunction in father’s makeup. Based on the evidence, however, it appears that the finding that father has criminal propensities is overblown. Father’s only criminal involvement concerned minor infractions when he was a juvenile. Fie appears to be a law-abiding citizen. Even when William Quinley caused problems for him, he handled the matter appropriately and within the law. Overall, the parties’ dysfunction is relatively similar. This factor does not favor either party.

This court rules that mother shall retain primary physical custody. Although there is room for improvement, mother has performed adequately in her long-term status as primary custodian. She has provided continuity and stability. The minor child will continue to live in the home in which he is accustomed, have the same friends, and attend the same school district. With the problems he has at school, the continuation in the school district is particularly important. Hopefully, the IEP program administered by Daniel Boone will be sufficient for the minor child’s needs.

Father’s level of stability and commitment to parenting remains in question. We see the potential for him laying a strong foundation, as it appears he is committed to his wife and his current employment. Hopefully, his two (2) separations from his wife, one because they were not getting along and the other being his trip to Florida, are things of the past.

Several issues need to be addressed. First is the relationship between mother and William Quinley. This court believes mother when she states that the relationship is over. If, however, she reunites with Mr. Quinley or becomes involved in another abusive relationship, the issue of primary custody should be revisited. Second, the parents must begin to cooperate to assist the minor child in his education. There appears to be several reasons for the minor child’s difficulties, including his makeup and the weekday custodial schedule, but also due to failings of the parents, namely, mother’s indulging the minor child when he does not want to go to school, mother’s refusal to allow father to co-parent on educational issues, and father’s acquiescence. This minor child has special needs, and the parents must put their differences aside.

This court agrees with mother that the weekday schedule must change. The minor child needs his rest more than he needs to spend overnight visits with father. Accordingly, the schedule shall be modified such that father will have every Friday evening overnight, a night when the minor child will not have to get up for school the next morning, and one (1) other evening a week, which the court will schedule for Tuesday, unless the parties wish to modify the day. Further, father will be permitted to pick up the minor child as soon as he is free from his employment, whether from mother’s home or directly from school. This court agrees with father that it serves no purpose to meet in Gibraltar for the transfer. Father shall be permitted to pick up the minor child at mother’s house, unless the parties can agree to a different location directly between the parties’ residences.

For the summer months, this court will order a shared 50/50 custody arrangement, on a week-on, week-off basis. This will enable the minor child to spend a significant time at father’s house. Further, the schedule could be enhanced at some future time to provide father with the majority of the time during the summer months, if father continues to move toward long-term stability.

This court enters the following order:

ORDER

And now, this 10th day of January 2014, after trial held, custody of the parties’ minor child, D.S.M., born November 11, 2004, (hereinafter “minor child”), shall be as follows:

1. The parties shall share legal custody of the minor child.

2. During the school year, plaintiff, Lisa Ann Morris (hereinafter “mother”), shall have primary physical custody. Defendant, Arthur Layton Morris, Jr., (hereinafter “father”), shall have partial custody as follows:

(a) on alternate weekends from Friday at the conclusion of father’s workday until Sunday at 6:00 p.m.,

(b) the Fridays prior to mother’s weekend from the conclusion of father’s workday until 10:00 a.m. on Saturday morning,

(c) one (1) evening per week, from the conclusion of father’s workday until 8:00 p.m., the day of the week to be agreed upon by the parties, but in lieu thereof, to be Tuesday evenings, and

(d) at such other times as the parties may agree.

3. During the summer months, the parties shall share physical custody on a week-on, week-off basis, with the transfer time to be agreed upon by the parties, but upon failure to agree, every Friday at 6:00 p.m.

4. The provisions of paragraph 4 shall take precedence over any other provisions of this order for custody:

(a) The parties shall share their rights of partial custody and visitation on holidays as follows:

The parties agree to observe, at aminimum, the following holidays: New Year’s Day, Easter Sunday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Eve, and Christmas Day. With the exception of Thanksgiving, Christmas Eve, Christmas Day and Easter, the parties shall have partial custody of the minor child on holidays from 8:00 a.m. to 8:30 p.m. Father shall have custody of the minor child on New Year’s Day and the parties shall alternate holidays accordingly thereafter.

The parties shall share custody of the minor child for the Thanksgiving, Christmas and Easter holidays as follows:

Thanksgiving: On Thanksgiving Day, mother shall have custody from 9:00 a.m. until 2:00 p.m. and father shall have custody from 2:00 p.m. until 7:00 p.m.; Christmas: In odd-numbered years, mother shall have custody from 1:00 p.m. on December 24th until 1:00 p.m. on December 25th and father shall have custody from 1:00 p.m. on December 25th until 8:00 p.m. on December 26. In even-numbered years, father shall have custody from 1:00 p.m. on December 24th until 1:00 p.m. on December 25th and mother shall have custody from 1:00 p.m. on December 25th until 8:00 p.m. on December 26th.; Easter: On Easter Day, mother shall have custody from 9:00 a.m. until 2:00 p.m. and father shall have custody from 2:00 p.m. until 7:00 p.m.

(b) Mother shall have physical custody of the minor child on Mother’s Day weekend and father shall have physical custody of the minor child on Father’s Day weekend.

5. Each party shall have the right to custody of the minor child for purposes of summer vacation for two (2) non-consecutive weeks of uninterrupted custody. A party seeking vacation shall provide at least sixty (60) days written notice of the dates and times for said vacation. If the parties’ proposed schedules conflict, father’s vacation shall take precedence in odd-numbered years and mother’s shall take precedence in even-numbered years.

6. The parties shall share transportation on a 50/50 basis, with father to pick up the minor child for his visits and mother to pick up the minor child to return the minor child to her home. The pick up shall be at the parties’ respective residences, although father is permitted to pick up the minor child directly from school if his work schedule permits. The parties may agree to an alternate arrangement where they meet at an agreed location between the two (2) residences.

7.Neither party shall remove the minor child from the United States of America without prior agreement of the other party or order of court. Consent shall not be unreasonably withheld.

8.The personal property of the minor child shall remain at the primary residence but mother shall send adequate clothes and other necessary supplies with father when father is exercising his rights of partial custody. Father agrees to return that personal property at the conclusion of his period of partial custody.

9.The parties shall agree to have the minor child tested for any possible allergies and to abide by the recommendation of the physician regarding any such allergies the minor child may have or may develop.

10.In addition to any provisions contained in this agreement regarding custody or partial custody, each party shall have the following rights with respect to the minor child: Reasonable telephone calling privileges, access to report cards and other relevant information concerning the progress of the minor child at school, information on upcoming school activities, approval of any extraordinary medical or dental treatment, except in the case of an emergency, provided that such approval shall not be unreasonably withheld. Each party will inform the other of all visits to a physician or dentist by the minor child. Each party shall have the right to obtain necessary medical information directly from the minor child’s school and medical practitioner. Each party shall approve summer camps and schools, provided that such approval shall not be unreasonably withheld.

11. In all matters of importance relating to the minor child’s health, education, and welfare, the parties shall confer with each other for the purpose of developing a harmonious policy calculated to promote the minor child’s best interest. This duty shall include the requirement that the parties discuss with each other all important events in the minor child’s life, including, but not limited to, selection of schools, school meetings, day care facilities, travel plans, medical conditions, education progress plans, extracurricular activities, and vacation plans.

12. The parties shall make arrangements with the minor child’s school so that each party will receive duplicate notices of school activities, parent-teacher meetings, and sports events. To the extent possible, the parents shall notify each other of any social engagements of the minor child which parents normally attend in sufficient time to allow the other parent to attend.

13. Father and mother shall have the right to make major parenting decisions affecting the minor child’s health, education, and welfare. The parties intend that they both shall continue to be fully involved in all matters of importance in the minor child’s life, including, but not limited to, the following:

(a) Decisions which affect the minor child’s general physical health and welfare;
(b) Decisions which involve the minor child’s medical or dental needs or mental health treatment;
(c) Decisions which will affect the minor child’s educational learning process experience, especially as it relates to choice of school or curriculum or athletic programs;
(d) Decisions with regard to the minor child’s extracurricular activities and pursuits;
(e) Conferences scheduled to review the minor child’s progress at school, including the exchange of report cards and grades; and
(f) Such other matters which may come to the attention of either parent and which, in that parent’s opinion, considering the best interest of the minor child, deserves mutual consideration and communication.

14. Failure by either party to insist on strict compliance with any of the foregoing provisions of this agreement relating to custody/partial custody shall not be construed to be a waiver or modification of those provisions.

15. Each party shall encourage and promote the minor child’s relationship with the other party. The parties shall not disparage, downgrade, insult, or otherwise speak negatively about the other party or the other party’s immediate family in the presence of the minor child, nor permit other individuals to do so and each party will endeavor to encourage the development of the parent-child relationship between the minor child and each parent. Neither party shall alienate or permit to attempt to alienate the minor child from the other party.

16. In the event of any serious illness of the minor child at any time, any party then having custody or partial custody of the minor child shall immediately communicate with the other party by telephone or any other means available. The other party shall be informed of the nature of the illness. Each party shall notify the other party prior to making any major medical decision of a non-emergency nature. The term “serious illness” as used herein shall mean any disability which confines the minor child to bed under the direction of a licensed physician for a period in excess of forty-eight (48) hours. During such illness, each party shall have the right to visit the minor child as he or she desires consistent with the proper medical care of the minor child.

17. This agreement shall be construed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania. The situs of this agreement shall be Berks County, Pennsylvania.

18. Neither party shall permit the minor child to have any contact with William Quinley.

19. The parties shall engage in co-parenting counseling, with the parties to share the costs equally. The co-parenting counselors shall be chosen by counsel for the parties and if counsel is unable to agree, the court shall appoint the counselor. The counseling shall continue until the counselor no longer deems it necessary or until further order of court.

20. This order shall be considered a final order finally resolving the issues raised in the petition of mother for a modification of a custody order and the corresponding counterclaim filed by father.

21. If either party is planning to relocate with the child and the relocation will significantly impair any other party’s exercise of custodial rights, the relocating party is obligated to provide a detailed notice and counter-affidavit by certified mail, return receipt requested, to all individuals who have custody rights to the child at least sixty (60) days in advance of the proposed relocation in compliance with 23 Pa. C.S.A. Section 5337.

22. The attached appendix shall be made a part of the within order.

APPENDIX TO CUSTODY ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on all parties. Violation of any of these rules could become the subject of contempt proceedings before this court, or could be grounds for modification of this order. The word “child” is used below, but these rules apply to all the children in the order. If any of these general rules conflict with any specific provisions of the order, the order shall control.

1. In addition to the rights in the order, all parties shall also have the following rights with respect to the child:

A. The right to reasonable telephone contact with the child when they are in the other party’s custody.
B. The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain information directly from the child’s school or medical practitioner.
C. The right to be informed in advance before any important decision is made concerning the child and the opportunity to participate in those decisions.

2. In the event of any serious illness of the child at any time, the party then having custody of the child shall immediately communicate with the other parties by telephone or by any other means, informing the other parties as to the nature of such illness. During such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

3. None of the parties shall alienate or permit an attempt by anyone else to alienate the child from the other parties. While in the presence of the child, none of the parties shall make any remarks or do anything which is derogatory or uncomplimentary to the other parties and it shall be the duty of each party to uphold the other parties as ones the child should respect and love.

4. Both parties shall provide each other with the addresses and telephone numbers of where they will be staying anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three (3) days.

5. The parties shall not conduct arguments or heated conversation in the presence of the child or when the child can overhear the argument.

6. The parties shall at all times consider the child’s best interests, and act accordingly. It is in a child’s best interest for the parties to understand that the child is trying desperately to cope with the fact of his or her parents’ separation, and needs help in loving both parents and any other involved parties.

7. Neither party shall question the child as to the personal life of any other party except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on any other party. It is harmful to a child to be put in the role of spy.

8. The parties should remember that they cannot teach the child proper moral conduct if that party is indulging in improper conduct. Children are quick to recognize hypocrisy, and the party who maintains a double standard will lose the respect of the child.

9. Weekend and evening custody shall be subject to the following general rules:

A. Arrangements should be worked out beforehand between the parties without forcing the child to make choices and run the risk of displeasure. However, the child shall be consulted as to their schedules when appropriate.
B. Custodial rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other parties and to the needs and desires of the child.
C. If a party finds himself or herself unable to pick up or drop off the child at the designated or agreed to time, he or she should give immediate notice to the other parties to avoid subjecting the child to unnecessary worry or failed expectations.
D. The party having custody of the child should prepare them both physically and mentally for the transfer of custody to another party and should have them available at the time and place designated in the order or mutually agreed upon.
E. If any party or the child has plans which conflict with their scheduled custodial time and they wish to change their custodial time, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and the parties should be flexible for the sake of the child.
F. If a party shows up to begin their custodial time with the child and the party is under the influence of alcohol or drugs, the custodial time may be considered forfeited on those grounds alone.

10. If any party feels that another party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.

      . There is no evidence that either party or a member of the parties’ household had any history of drug or alcohol abuse (factor 14). Accordingly, factor 14 was not considered in making disposition.


source: Caselaw Access Project

author: BOCCABELLA, J.,

license: Public Domain

text:
    Commonwealth v. Greely

      James Mancuso, for Commonwealth.

      Matthew KopecJd, for defendant.
    January 16, 2014
   BOCCABELLA, J.,

FINDINGS OF FACT

1. On June 2nd, 2013 at approximately 11:21 P.M. Officer Rocco DeCamillo observed a silver 2004 Saturn Ion, parked at the south east comer of a Wal-Mart parking lot. The driver was identified as Jamie Lee Umer (32). The front passenger did not have any identification and told Officer DeCamillo that he lived in Phoenix, Arizona.

2. The front passenger (defendant) identified himself as Bryan Parsons DOB: 11-27-1976 and Social Security Number [ XXX-XX-XXXX ]. However, Officer DeCamillo later found out that the defendant’s name was Brian Thomas Greely DOB: 11-27-1977 and the Social Security Number is [ XXX-XX-XXXX ] (same as above). Officer DeCamillo asked both occupants if there were any drugs or alcohol in the vehicle. They both replied no.

3. According to Officer DeCamillo, the defendant appeared to be intoxicated and was slurring his words. The defendant’s eyes were bloodshot and glassy. He observed a bottle of tequila, which was half full in between the defendant’s feet.

4. Officer DeCamillo returned to his vehicle to retrieve his PBT and to confirm the information both occupants gave to him. During this time, the defendant exited the vehicle. Officer DeCamillo thought he was going to urinate at the edge of the guard rail. Officer DeCamillo ordered him back into the vehicle. The defendant proceeded to step over the guard rail and run.

5. Officer DeCamillo yelled stop but the defendant continued to run. Officer DeCamillo alerted Berks County Communications that the defendant had fled the scene. Officer DeCamillo spoke to the driver (Jamie Lee Umer) and asked if she knew why the defendant fled. She responded “I don’t know why he fled.”

6. Officer DeCamillo noticed that the defendant took the bottle of tequila with him when he fled. The driver cooperated and divulged the defendant’s phone number and said he lives with his grandmother in the trailer park to the rear of Wal-Mart. Officer DeCamillo administered the PBT to the driver and she registered negative for the consumption of alcohol. The driver was released at approximately 11:30 P.M.

7. At 11:50 P.M, Office DeCamillo called the phone and number and spoke with Loretta Greely (grandmother). He immediately went to the residence and the grandmother said the defendant lives here but he is not home. The grandmother allowed Officer Decamillo to look in the defendant’s room to make sure he was not home.

8. The grandmother also provided the defendant’s birthday which was 11-27-1977. The Officer gave the grandmother his business card and advised her to contact him if Brian came home.

9. Officer DeCamillo later found out that the defendant had an open SCOFF Law Warrant for cruelty to animals. The defendant is charged with false identification to law enforcement authorities 18 Pa. C.S.A Sec. 4914(a) and public drunkenness 18 Pa. C.S.A. Sec. 5505

CONCLUSIONS OF LAW

1. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H).

2. Section 6308(b) of the Vehicle Code provides:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b) (Emphasis added).

3. “Thus, when an officer has reasonable suspicion a violation of the vehicle code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for the investigative purposes stated therein.” Commonwealth v. Chase, 960 A.2d 108, 112 (Pa. 2008) citing 75 Pa. C.S.A. § 6308(b).

4. “To establish grounds for ‘reasonable suspicion’ ... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) citing Commonwealth v. Bennet, 827 A.2d 469, 477 (Pa. Super. 2003) (citing Commonwealth v. Cook, 558 Pa.50, 735 A.2d 673, 676 (1999)).

5. “In order to determine whether the police had a reasonable suspicion, the totality of the circumstances-the whole picture-must be considered.” In the Interest of D.M., 781 A.2d 1161, 1163 (Pa.2001) citing United States v. Cortez, 449 U.S. 411, 417 (1981).

6. In making this determination, we must give “due weight... to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 27 (1968).

7. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 22 (1968).

8. “Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer.” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Ornelas v. United States, 517 U.S. 690, 696(1996).

9. “While it is argued the lesser standard [reasonable suspicion] will allow a vehicle stop to be made based on pretextual motives, the United States Supreme Court made clear that case law ‘foreclose^] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.’” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Whren v. United States, 517 U.S. 806, 813 (1996); See also Commonwealth v. Foglia, 979 A.2d 357, 361-62 (Pa. Super. 2009) (Stating that observations made after the officer intends to stop the defendant can be used to support their actions).

10. “[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002); See also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

10. § 4914. False identification to law enforcement authorities

(a) Offense defined. — A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law.

In this current situation Officer DeCamillo saw two occupants in a vehicle parked in a Wal-Mart parking lot. Officer DeCamillo approached the vehicle and asked for identification from both occupants. Officer DeCamillo did inform neither the driver nor the defendant that he was officially investigating a violation of the law. The first thing he asked for was identification. According to the statute, an officer must first infonn the individual(s) what he is investigating before asking for identification. The two occupants in the vehicle had no idea why the officer was asking for ID. A matter of fact, during the entire encounter, Officer DeCamillo “never” told anyone what he was investigating. Furthermore, the defendant relayed the correct Social Security number to identify himself. The defendant also relayed that his name was Bryan with DOB of 11/27/1976, but the officer later found out that his name was Brian with a DOB of 11/27/1977. A different spelling of a first name and one (1) year off from the correct birth date, does not qualify as false identification. Especially when you have the correct Social Security number (more important for data research purposes). This court believes the Social Security number is sufficient to provide identification and the defendant did not violate this statute.

§ 5505. Public drunkenness and similar misconduct

A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol or a controlled substance, as defined in the act of April 14, 1972 (P.L.233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic act, except those taken pursuant to the lawful order of a practitioner, as defined in The Controlled Substance, Drug, Device and Cosmetic act, to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity. A person convicted of violating this section may be sentenced to pay a fine of not more than $500 for the first violation and not more than $ 1,000 for the second and each subsequent violation.

According to Officer DeCamillo, the defendant appeared to be intoxicated and was slurring his words. The defendant eyes were bloodshot and glassy. He observed a bottle of tequila, which was half full in between the defendant’s feet. However the defendant did not act to the degree that may endanger himself or other persons or property, or annoy persons in his vicinity. When Officer DeCamillo approached the vehicle, he did not report or testify to any type of violent acts by the defendant. While conversing with the defendant, he was not violent, argumentative, or a danger to the driver or the officer. The defendant was just simply sitting in the vehicle. No one called to report property damage at Wal-Mart nor did anyone call to report an annoyance by an individual. Furthermore, Officer Decamillo was not absolutely sure the defendant was under the influence. He was not able to administer the SFT’s or a PBT. Either way, the defendant still did not violate this statute to the degree transcribed above. Based on the totality of the circumstances, the court finds that the Commonwealth has not met its burden in establishing probable cause for these charges. Accordingly, any evidence derived from the stop is inadmissible as fruit of the poisonous tree.

12. The defendant’s motion for suppression of the evidence is granted.

13. “In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged.” Commonwealth v. Hock, 728 A.2d 943, 945 (Pa. 1999); See generally Commonwealth v. Rachau, 670 A.2d 731, 733 n.5 (Pa. Commw. 1996) citing Commonwealth v. Kowalek, 647 A.2d 948, 949 (Pa. Super. 1994).

14. “A prima facie case of defendant’s guilt exists, so as to satisfy Commonwealth’s burden at pre-trial stage of criminal prosecution, when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) citing Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citing Commonwealth v. Wojdak, 466 A.2d 991 (Pa. 1983)).

15.“The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

16.“In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Commonwealth v. Schmohl, - A.2d -, 2009 WL 1451451, filed May 26, 2009.

17.“[Inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) quoting Commonwealth v. Owen, 580 A.2d 412, 414 (Pa. Super. 1990).

18. In this case, having already determined that the charges present is not justified, the court finds that the Commonwealth has presented insufficient evidence to establish a prima facie case with respect to all counts.

19. The defendant’s petition for writ of habeas corpus is granted.

ORDER

And now, this 16th day of January 2014, it is hereby ordered that the defendant’s motion for suppression of the evidence is granted. It is further ordered that the defendant’s petition for writ of habeas corpus is granted with respect to all counts.


author: TUNNELL, J.,

text:
    Rawson v. Commonwealth Department of Transportation

      Joseph P. Green, Jr, for petitioner.

      William Christopher Duerr, for Commonwealth.
    January 29, 2014
   TUNNELL, J.,

Todd M. Rawson has filed a petition for appeal from the notice of suspension dated July 17, 2013 he received from Pennsylvania Department of Transportation, Bureau of Driver Licensing (“DOT”). For the reasons that follow, Rawson’s appeal is denied and the suspension is reinstated.

Rawson pleaded guilty to the offense of criminal attempt, a violation of 18 Pa. C.S. §901, with reference to the specific crime of possession of a controlled substance by a person not registered, 35 P.S. §113(a)(16), as charged in the third count of the information filed against him. In so pleading, Rawson necessarily admitted that he did an act which constituted a substantial step towards the commission of that crime.

About a month later, on July 9, 2013, the Chester County Clerk of Courts sent a Form DL-21D, a report of a conviction under the controlled substance act, to DOT. This document mistakenly stated that Rawson had been convicted of possessing a controlled substance in violation of 35 P.S. §780-113(a)(16) of the drug act. DOT then notified Rawson that as a result of that conviction his driving privilege was suspended.

Rawson then filed a motion to strike or modify record with the court. By order dated August 9, 2013, the court ordered that the DL-21 form be stricken, declared it to be a nullity and directed that it be expunged from DOT’S records. This was done.

The Chester County Clerk of Courts was unable to generate an amended Form DL-21D and so instead transmitted a certified copy of Rawson’s sentencing sheet to DOT (Exhibit C-2). This record accurately reflected Rawson’s two convictions, including the crime of attempt aforesaid.

On appeal, Rawson argues that DOT failed to prove by a certified record of conviction that he was convicted of an offense “involving the possession, sale or delivery” of a controlled substance requiring a license suspension under the provision of the vehicle code at 75 Pa. C.S. § 1532(c). He maintained at the hearing on his appeal that the evidence demonstrated that he never possessed any marijuana in the first instance. Rawson offered the Pennsylvania State Police Incident Report into evidence (Exhibit D-2), and the parties stipulated that investigating Trooper James Wisnieski would, if called, testify to the facts recited therein.

These facts may be summarized as follows: The trooper was summoned to a local federal express facility and took into possession a 10 Vi pound package addressed to Rawson containing a stuffed toy monkey. Inside this were four vacuum-sealed bags of marijuana. When the trooper interviewed him, Rawson admitted that he had met someone named “Heath” and negotiated a price of $2,500.00 which he paid for a pound of high-quality marijuana to be shipped to his home. When the package did not arrive as expected, Rawson contacted Federal Express and “Heath.”

Truly, Rawson never possessed any marijuana; it was intercepted as contraband. But he was charged with and convicted of an attempt to possess it, and a certified record of that conviction was offered by PennDOT and admitted into evidence at the hearing without objection by Rawson.

In license suspension cases, the only issues are whether the criminal court convicted the licensee, and whether DOT acted in accordance with applicable law. Dept. of Transp., Bureau of Driver Licensing v. Tarnopolski, 533 Pa. 549, 626 A.2d 138 (1993). DOT bears the initial burden to establish a prima facie case that a certified record of conviction supports a suspension. Zawacki v. Dept. of Transp., Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. Ct. 2000). An essential part of satisfying this burden is the production of an official record of the conviction supporting the suspension. Cotter v. Dept. of Transp., Bureau of Driver Licensing, 703 A.2d 1092 (Pa. Cmwlth. Ct. 1998). DOT must also establish that it acted in accordance with applicable law. Id. This creates a rebuttable presumption that the licensee was convicted of the offense. Mateskovich v. Dept. of Transp., Bureau of Driver Licensing, 755 A.2d 100 (Pa. Cmwlth. Ct. 2000).

In order to overcome this presumption of conviction, the licensee must show by clear and convincing evidence that the certified record offered into evidence was erroneous. Id. Licensees may not collaterally attack the underlying criminal conviction during the civil license suspension proceeding. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994).

DOT argues that even though Rawson’s guilty plea was to attempt, rather than to the substantive offense of possession of controlled substances, suspension is nonetheless mandated. Rawson argues that a conviction of criminal attempt does not fall under the suspension provisions in § 1532(c) and, as a result, his statutory appeal should be sustained.

Criminal attempt is an inchoate crime. Com. v. Simpson, 462 A.2d 821 (Pa. Super. 1983). Chapter 9 of the crimes code, 18 Pa. C.S. §901, et seq., deals with inchoate crimes, which include criminal solicitation and criminal conspiracy.

The vehicle code provides that DOT shall suspend the driving privileges of any person upon receiving a certified record of the person’s conviction of any offense involving the possession, sale or delivery of a controlled substance. 75 Pa. C.S. § 1532(c) (emphasis added). DOT argues that an attempt to possess falls within the phrase “any offense involving” possession. Rawson asserts that any such construction would constitute an invalid expansion of the operable law.

The Commonwealth Court examined the construction of this particular statute in Keim v. Dept. of Transp., Bureau of Driver Licensing, 887 A.2d 834 (Pa. Cmwlth. Ct. 2005). The licensee in that case pleaded guilty to one count of manufacturing a controlled substance and was suspended. He appealed his suspension arguing that the manufacture of a controlled substance was not one of the offenses enumerated in § 1532(c). The Commonwealth Court held, however, that it would be impossible for a person to manufacture a controlled substance without possessing it; for the purposes of the statute, the manufacturing of a controlled substance is an “offense involving possession” of a controlled substance. Any other result the court wrote would be “absurd and unreasonable and therefore not in accordance with the intent of the legislature.” Id. at 839.

In Conchado v. Dept. of Transp., Bureau of Driver Licensing, 941 A.2d 792 (Pa. Cmwlth. Ct. 2008), the licensee entered a guilty plea to conspiracy to possess a controlled substance. DOT argued that while that crime was not specifically set forth in § 1532(c), a conspiracy to commit a crime “involves” that crime. The Commonwealth Court agreed, reversing the trial court. It noted that, under 18 Pa. C.S. §905(a), conspiracy is a crime of the same grade and degree as the most serious offense that is the object of the conspiracy. The sentencing guidelines treat a conspiracy as identical to the underlying crime itself. Conchado’s suspension was reinstated.

Similarly, criminal attempt and criminal solicitation are made crimes of the same grade and degree as the most serious offense which is attempted or solicited, 18 Pa. C.S. §905(a).

Under the same reasoning, therefore, a mandatory license suspension is triggered in this case.

An appropriate order follows.

ORDER

And now, this 29th day of January, 2014, after trial de novo held on December 19,2013, and upon consideration of Petitioner Rawson’s brief, the appeal in the above-referenced matter is denied and the suspension reinstated.


author: BARATTA, J.,

text:
    Thierry v. Matson

      Pro se plaintiff.
    Pro se defendant.
    February 11, 2014
   BARATTA, J.,

ORDER OF COURT

And now, this day of February, 2014, upon consideration of the defendant, Larry E. Matson Jr., d/b/a Matson Contracting, d/b/a Matson’s Contracting’s, preliminary objections to the amended complaint and the plaintiff, Christine M. Thierry’s, response thereto, it is hereby ordered that said preliminary objections are disposed of as follows:

(1) The preliminary obj ection in the nature of a demurrer to Count I (Fraud), Count IV (Negligence Per Se), Count VII (Damage to Real Property) and Count VIII (Trespass) is sustained. Those counts are dismissed;
(2) The preliminary objection in the nature of a motion to strike plaintiff’s request for punitive damages is granted;
(3) The preliminary objection in the nature of a motion to strike plaintiff’s request for treble damages under the UTPCPL is denied; and
(4) The preliminary objection in the nature of a motion to strike paragraphs 23 and 25 is granted.

STATEMENT OF REASONS

Facts and Procedural History

On October 18, 2013, the plaintiff, Christine M. Thierry, appealed from Magisterial District Judge Roy A. Manwaring II’s judgment for the defendant, Larry E. Matson Jr., d/b/a Matson Contracting, d/b/a Matson’s Contracting, in the total amount of $3,051.50. The plaintiff filed her complaint on October 18, 2013, raising the following causes of action: (1) Breach of Contract; (4) Breach of Warranty; (5) Fraud; (6) Damage to Real Property; (7) Disgorgement of Profits; (8) Unjust Enrichment; (9) Violation of Home Improvement Consumer Protection; and (10) Recklessness.

On November 12,2013, the defendant filed preliminary objections to the plaintiff’s complaint and a supporting brief. In response, the plaintiff filed her amended complaint on November 19, 2013. She avers the following facts in her amended complaint:

The plaintiff posted an advertisement on Craigslist. com, seeking a “Skilled Meticulous Contractor” for her “historic home” built in 1869. The defendant contacted the plaintiff via telephone. On March 15,2013, the parties signed a contract for restoration of the multi-unit historical residence located at 258 E. Market Street, Bethlehem, Pennsylvania. According to the terms of contract, the amount due was $16,383.00, and an additional $3,804.63 was due according to written change orders. On July 5, 2013, the defendant terminated the contract in writing via email and retained the monies previously paid under the contract.

This dispute arises out of the defendant’s alleged defective performance under the contract and retention of monies paid under the contract. The plaintiff alleges that the “defendant received an advance payment for performing home improvement services or providing home improvement materials and failed to perform or provides such services or materials when specified in the contract.” Amended complaint ¶ 18. In addition to his defective performance, the defendant allegedly lacked the licenses necessary for completion of the project, failed to provide the plaintiff with acceptable contact information, falsely represented completion of certain work, fraudulently misrepresented and billed for incomplete work, and took inadequate safety precautions. Additionally, the defendant’s defective work allegedly caused damage to the plaintiff’s real property.

The plaintiff raises the following causes of action in her amended complaint: (1) Fraud; (2) Home Improvement Fraud (HICPA — 73 P.S. § 517.1); (3) Violation of the UTPCPL; (4) Negligence Per Se; (5) Breach of Warranty; (6) Damage to Real Property; and (7) Trespass. The plaintiff attached the following exhibits to her amended complaint: her Craigslist posting (Exhibit “A”); the signed contract (Exhibit “B”); Home Improvement Consumer Information (Exhibit “C”); and the bill for Paul Wright Roofing from July 17, 2013 (Exhibit “D”).

On December 4, 2013, the defendant filed his preliminary objections to the amended complaint. The defendant raises the following objections: (1) Preliminary objection in the Nature of a Demurrer to Count I of the plaintiff’s complaint and preliminary objection pursuant to Pa.R.C.P. 1028(a)(3) for Insufficient Specificity in Pleading Fraud; (2) Preliminary objection in the Nature of a Demurrer to Count VIII (Trespass) of plaintiff’s complaint; (3) Preliminary objection in the nature of a demurrer to Counts I (Fraud), IV (Negligence Per Se), VII (Damage to Real Property) and VIII (Trespass); (4) Preliminary objection in the nature of a motion to strike plaintiff’s requests for and award of punitive damages; (5) Preliminary objection in the nature of a motion to strike plaintiff’s request for treble damages under the UTPCPL; and (6) Preliminary objection in the nature of a motion to strike paragraphs 23 and 25 of plaintiff’s complaint. On December 4, 2013, the defendant filed his memorandum of law in support of the preliminary objections.

On December 19, 2013, the plaintiff filed her response to the preliminary objections. On the same day, she filed a memorandum of law in support of the plaintiff’s opposition to the defendant’s preliminary objections.

This matter was placed on the January 28, 2013, argument list and submitted on brief.

Legal Standard

In ruling on preliminary objections in the nature of a demurrer, the trial court may consider no testimony or evidence outside of the complaint. Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) (citation omitted). In ruling upon a demurrer, we must accept as true all well-pleaded allegations and material facts averred in the complaint as well as all reasonable inferences deducible therefrom. Wurth v. City of Phila., 584 A.2d 403, 407 (Pa. Commw. Ct. 1990) (citation omitted). However, when ruling on preliminary objections, although a court must accept as true all clearly-pled facts, there is no such requirement as to a pleader’s legal conclusions or mere averments of law. Santiago v. Pa. Nat’l Mut. Cas. Ins. Co., 613 A.2d 1235, 1238-39 (Pa. Super. 1992) (citations omitted).

In the face of a demurrer, a complaint should only be dismissed in cases that are free and clear from doubt. Id. at 1238. If any theory of law will support a claim, preliminary objections should not be sustained as any doubt should be resolved against the objecting party. Foster v. Peat Marwick Main & Co., 587 A.2d 382, 384 (Pa. Commw. Ct. 1991); Ambrose v. Cross Creek Condos., 602 A.2d 864, 869 (Pa. Super. 1992). In order to grant a demurrer, it must be certain from the face of the complaint that the claims will not support recovery under any legal theory. Mellon Bank, 650 A.2d at 899; Eckell v. Wilson, 597 A.2d 696, 698 (Pa. Super. 1991), appeal denied, 607 A.2d 253 (Pa. 1992) (citations omitted).

Discussion

The defendant raises three preliminary objections with regard to the plaintiff’s tort claims. As we sustain the defendant’s third preliminary objection in the nature of a demurrer, we decline to rule on the defendant’s first two preliminary objections in the nature of a demurrer, as we find that the plaintiff’s tort claims are barred by the “gist of the action” doctrine.

I. Preliminary Objections in the Nature of a Demurrer to the Plaintiff’s Tort Claims

The defendant argues in his preliminary objections that the plaintiff’s tort claims are barred under the “gist of the action” doctrine in Pennsylvania, because the gist of the action lies in contract and not tort. See preliminary objections ¶¶ 37-45. Specifically, the defendant has challenged Count I (Fraud), Count IV (Negligence Per Se), Count VII (Damage to Real Property) and Count VIII (Trespass). In response, the plaintiff argues that she has properly pled those causes of action.

The “gist of the action” doctrine is applied in Pennsylvania “to preclude plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa. Super. 2002). In marking the distinction between contract and tort actions, “[t]he most important difference...is that the latter lie from breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus.” Id. Therefore, “a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.” Reed v. Dupuis, 920 A.2d 861, 864 (Pa. Super. 2007).

In determining whether the gist of the action doctrine applies, our Superior Court has examined whether the claim of fraud arises directly out of the contract dispute. Id. There is no “categorical exception for fraud,” so “it is possible that a breach of contract also gives rise to an actionable tort.” eToll, 811 A.2d at 14, 19. In making the determination, a court should focus on “whether the fraud concerned the performance of contractual duties.” Id. at 19. Under Pennsylvania case law, the gist of the action doctrine bars tort claims:

(1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract.

Id. (internal citations omitted).

In her brief, the plaintiff argues that the test used to determine if there exists a cause of action in tort arising out a breach of contract is “whether there was an improper performance of a contractual obligation (misfeasance) rather than a mere failure to perform (nonfeasance).” Raab v. Keystone Ins. Co., 412 A.2d 638, 639 (Pa. Super. 1979). Our Superior Court has since rejected the Raab test, finding instead that in order for a claim “to be construed as a tort action, the wrong ascribed to the defendant must be the gist of the action with the contract being collateral.” Redev. Auth. Of Cambria v. Intern Ins., 685 A.2d 581, 590 (Pa. Super. 1996) (citing Phico Ins. Co. v. Presbyterian Med. Servs. Corp., 663 A.2d 753, 757 (Pa. Super. 1995)). Further, “a contract action may not be converted into a tort action simply by alleging that the conduct was done wantonly.” Phico, 663 A.2d at 757.

In eToll, supra, our Superior Court examined whether the gist of the action doctrine should be applied to dismiss the plaintiff’s fraud claim. eToll, 811 A.2d at 14-21. The plaintiff in that case contended that the defendants perpetuated a number of fraudulent schemes in the course of the parties’ contractual relationship, including that they: (1) deceived the plaintiff regarding the price of certain goods while charging at an inflated price; (2) deliberately submitted bills containing fictitious charges and unauthorized markups; (3) told the plaintiff that they had performed certain services under the contract when they had not so performed; and (4) concealed these schemes in order to perpetuate overbilling and fraud. Id. at 20.

The court found that the alleged acts of fraud “arose in the course of the parties’ contractual relationship.” Id. Further, the court found that the duties regarding billing and performance arose from and were grounded in the parties’ contract, rather than in social policy. Id. The court also determined that the damages for fraud would essentially duplicate those in a breach of contract claim. Id. at 21. The eToll court found that “the fraud claims are inextricably intertwined with the contract claims” and that the gist of the action lay in contract; therefore, the court did not reverse the trial court’s dismissal of the fraud claim. Id.

In J.J. DeLuca Co., Inc. v. Toll Naval Assoc., 56 A.3d 402, 415 (Pa. Super. 2012), our Superior Court examined a circumstance in which it found that the gist of the action doctrine did not preclude a party from bringing a separate cause of action for fraud. In J.J. DeLuca Co., DeLuca was hired for the construction of townhomes and condominiums by the Toll. 56 A.3d at 407. DeLuca and Toll eventually discontinued their contractual relationship over claims by DeLuca that it was owed monies for work completed and that Toll had wrongfully delayed the proj ect. Id. Toll brought competing claims for defective work by DeLuca. Id. During discovery, Toll allegedly learned of significant fraud related to DeLuca’s misrepresentations of its work completed and in DeLuca’s billing practices. Id. Thereafter, Toll amended its claim to include a fraud claim. Id.

The trial court awarded damages for breach of contract against Toll, even though it acknowledged “pervasive significant fraud” by DeLuca. J.J. DeLuca Co., 56 A.3d at 408. The parties appealed. Id. The Superior Court remanded the matter with instructions. Id. On remand, the trial court reversed and awarded damages to Toll under the fraud claim. Id.

In the second appeal, DeLuca argued that the fraud claim was barred by the gist of the action doctrine. J.J. DeLuca Co., 56 A.3d at 408. In order for a breach of contract to give rise to an actionable tort, the Superior Court found that “the wrong ascribed to defendant must be the gist of the action, the contract being collateral.” Id. at 413. The court found that (1) the developer’s claim did not arise “solely from a contract between the parties,” (2) “the duty breached was not created by the contract,” (3) “the liability did not stem from a contract,” and that (4) “the tort claim does not duplicate a breach of contract claim or the success of which is wholly dependent upon the terms of a contract.” Id. at 414. The court determined that that actions by DeLuca indicated that Toll “was merely a convenient cash box to fund the [DeLuca’s] fraud,” because DeLuca did not perform the work at all, and that “[t]he mere incidental employment of a contractual provision as the vehicle or instrument to perpetrate a fraud does not immunize a perpetrator from liability for fraud.” Id.

In the instant case, the plaintiff’s allegations arise out of the contractual relationship. In particular, the plaintiff alleges that the defendant breached the contract by failing to notifying her of the ability to rescind it, incomplete performance under the contract, failing to perform the completed work with the quality of workmanship expected by plaintiff, and failing to complete the work according to schedule. The plaintiff also alleges that the defendant falsely represented to her the amount of work actually completed. Additionally, the plaintiff complains that the defendant’s defective performance caused damage to the plaintiff’s property by causing water damage and through his improper disposal of toxic chemicals. Clearly, the plaintiff’s averments arise from the defendant’s alleged defective performance under the contract.

Unlike in J.J. DeLuca Co., the plaintiff avers here that the defendant has completed substantially all of the work required under the contract. Further, the disagreement here centers on whether the defendant completed the work as promised under the contract, whether he misrepresented the work completed, and whether the performance of his contractual duties below the reasonably expected standards for workmanlike performance. Plaintiff’s alleged tortious acts here arose in the course of the parties’ contractual relationship. Finally, the damages sought in plaintiff’s tort claims essentially duplicate the breach of contract claim.

Plaintiff’s allegations mirror those in eToll, supra, in which the Superior Court affirmed the trial court’s dismissal of the fraud claim. We find that the tort claims here are inextricably intertwined with the contract claims. As a result, we dismiss the plaintiff’s tort claims in her instant amended complaint.

The defendant’s third preliminary obj ection in the nature of a demurrer is sustained. Therefore, Count I (Fraud), Count IV (Negligence Per Se), Count VII (Damage to Real Property) and Count VIII (Trespass) of the plaintiff’s amended complaint are dismissed.

II. Motion to Strike Plaintiff’s Request for Punitive Damages

The defendant raises a preliminary objection in the nature of a motion to strike, arguing that an award of punitive damages cannot be granted based on the plaintiff’s averments, and thus any and all references to punitive damages must be stricken from the amended complaint. See Pa.R.C.P. 1028(a)(2). In response, the plaintiff argues that she has averred wanton and malicious conduct on behalf of the defendant, and thus may seek punitive damages under her amended complaint.

With regard to whether the plaintiff has established entitlement to punitive damages, we will generally discuss the analysis for punitive damages in Pennsylvania. The function of punitive damages in Pennsylvania is to deter. See Martin v. Johns-Manville Corp., 494 A.2d 1088, 1096 (Pa. 1985). Section 908(2) of the Restatement (Second) of Torts states: “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” See Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963). The Pennsylvania Supreme Court has embraced this guideline and found that “punitive damages must be based on conduct which is malicious, wanton, reckless, willful, or oppressive.” Feld v. Merriam, 485 A.2d 742, 747-48 (Pa. 1984).

In determining whether to impose punitive damages, a court should evaluate the state of mind of the actor. Id. at 748. Punitive damages “may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment.” McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436, 447 (Pa. Super. Ct. 1987). Instead, the outrageous conduct “must show the actor’s evil motive or reckless indifference to the rights of others.” Hess v. Hess, 580 A.2d 357 (Pa. Super. Ct. 1990). As a result, “in deciding whether punitive damages should be assessed, the nature of the tortfeasor’s act itself, together with his motive, the relationship between the parties and all other attendant circumstances should be taken into account.” Martin, 494 A.2d at 1096.

In Pennsylvania, however, punitive damages cannot be recovered under a breach of contract claim. See Smith v. Harleysville Ins. Co., 418 A.2d 705, 706 (Pa. Super. 1980). Regardless of any allegations of wantonness, the gist of the action doctrine, discussed above, bars the plaintiff’s tort claims. Plaintiff is not entitled to punitive damages.

The defendant’s preliminary objection in the nature of a motion to strike plaintiff’s request for punitive damages is sustained and granted. We therefore strike any reference to punitive damages in the plaintiff’s amended complaint.

III. Motion to Strike Treble Damages under the UTPCPL

The defendant next argues that the plaintiff is not entitled to treble damages as a matter of law, because courts must be governed by “the well-established, general principles of law governing punitive damages” when exercising their discretion in awarding treble damages under the Unfair Trade Practice and Consumer Protection Law (UTPCPL). Johnson v. Hyundai Motor America, 698 A.2d 631, 639-40 (Pa. Super. 1997). In response, the plaintiff asserts that (1) she is entitled to both punitive and treble damages, and (2) the principles governing the award of treble damages are separate and distinct from those governing punitive damages.

In Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007), our Supreme Court addressed the standard for determining whether to permit treble damages. The court found that “as a matter of statutory construction, that the courts’ discretion to treble damages under the UTPCPL should not be closely constrained by the common-law requirements associated with the award of punitive damages. Schwartz, 932 A.2d at 898. The court found, however, that this discretion is not limitless, stating “we believe that awards of treble damages may be reviewed by the appellate courts for rationality, akin to appellate review of the discretionary aspect of equitable awards.” Id. Further, in determining whether to award treble damages, “courts of original jurisdiction should focus on the presence of intentional or reckless, wrongful conduct, as to which an award of treble damages would be consistent with, and in furtherance of, the remedial purposes of the UTPCPL.” Id.

Here, the plaintiff avers in Count III that the “defendant fraudulently misrepresented and billed for work that he stated was complete or substantially complete, but was not complete.” Amended complaint ¶ 47. Further, she asserts that the work product was inferior to that represented to her, that the defendant did not notify her of the three-day rescission period, and that the defendant did not honor warranties under the contract. Id. at ¶¶ 49-52. The plaintiff includes language of the defendant’s “extreme, outrageous and egregious behavior” and asserts that he acted out of malice and wanton disregard. Id. at ¶ 48.

An award of treble damages is not linked to that of punitive damages, but rather is allowed under the statutory authority of the UTPCPL. As the plaintiff alleged an action under the UTPCPL, the trial court may exercise its discretion to award treble damages. Therefore, the defendant’s preliminary obj ection in the nature of a motion to strike plaintiff’s request for treble damages under the UTPCPL is overruled and said motion is denied.

IV. Motion to Strike Paragraphs 23 and 25 of Plaintiff’s Complaint

The defendant alleges that paragraphs 23 and 25 of the plaintiff’s amended complaint should be stricken under Pennsylvania Rule of Civil Procedure 1028(a)(2) because the plaintiff “has failed to demonstrate any causal connection between these facts and the damages she has allegedly suffered.” Preliminary objections ¶¶ 60-66. As a result, the defendant argues that those paragraphs are scandalous or impertinent, and should be stricken.

In response, the plaintiff asserts that the averments, while scandalous, are pertinent, ongoing, and aid in providing the foundation for her claims. Specifically, she asserts that these averments speak to the credibility of the defendant and/or its employees, provides a foundation for damages, and speak to why the work may not have been completed according to the terms of the contract. She also asserts that it shows a lack of supervision on the part of the defendant.

Pa.R.C.P. 1028(a)(2) provides for preliminary objections to be filed when pleadings include a scandalous or impertinent matter. In order to be scandalous or impertinent, “the allegation 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). The right to strike an impertinent matter, however, “should be sparingly exercised and only when a party can affirmatively show prejudice.” Commonwealth Dep’t of Envtl. Res. v. Hartford Accident and Indem. Co., 396 A.2d 885, 888 (Pa. 1979).

Here, the plaintiff has made allegations regarding prior criminal activity of the defendant and his subcontractors. All allegations of criminal activity are unrelated to this contractual dispute. It is apparent that the allegations of past criminal activity are offered to attack the moral character of the defendant and his employees. As a result, the allegations are immaterial, inappropriate and must be stricken under Pa.R.C.P 1028(a)(2).

Therefore, the defendant’s preliminary objection in the nature of a motion to strike paragraphs 23 and 25 is sustained and said motion is granted.

      . We assume that the plaintiff intended to include two additional unnumbered causes of action in her complaint.

      . While our Supreme Court has not yet expressly adopted the “gist of the action” doctrine, it has been recognized by our Superior Court. See, e.g., Bash v. Bell Tel. Co., 601 A.2d 825 (Pa. Super. 1992).