author: DEVLIN SCOTT, J.,

text:
    Taylor-Moreland v. Smith

      C.P. of Bucks County,
    no. [ AXX-XX-XXXXX ]-C-19.

      Jeffrey Liebmann, for plaintiff.

      Arthur Klein, for defendant.
    August 11, 1999
   DEVLIN SCOTT, J.,

Darlene Taylor-Moreland has appealed our May 28,1999 order granting Adam Smith primary physical custody of the parties’ child, Corey Smith. We offer this opinion in support of our decision.

The parties were never married. At the time their minor child was born in October 1988, the parties had been living together for approximately six years. They separated in the early fall of 1989. They then resumed living together from approximately January 1991 until approximately January 1992. Mother, aged 38, has been married since April 1994 to Christopher Moreland who is in the United States Navy. As of the time of the hearing, Mother did not work outside the home. She had one daughter, Kayla Moreland, aged 3, and is expecting another child shortly. Father, aged 34, had been married since November 1997, to Nicolette Smith. Father was employed as a press operator. His wife was an environmental engineer. Mrs. Smith is expecting a child in January 2000. Both Mother and Father had numerous family members in the eastern Pennsylvania area that were close with Corey.

Mother’s husband, Christopher Moreland, was stationed in Hawaii at the time of Mother’s marriage to him in April 1994. Mother followed him to Hawaii in May 1994. Corey remained with his father in Pennsylvania until September 1994, when he went to stay with his mother in Hawaii. Father visited Corey in Hawaii in April 1995. Corey spent the summer of 1995 at his father’s in Pennsylvania. In November 1995, Corey, his mother and her family returned to the Warminster, Bucks County area when Christopher Moreland was transferred to the Willow Grove Naval Air Station.

From the time of Corey’s birth until he went to Hawaii, Mother was the primary custodian of him, although Father had significant partial custody. After Mother returned from Hawaii in November 1995, the parties had equal custody as discussed more fully below. In September 1998, Mr. Moreland was notified that he was being transferred back to Hawaii for at least four years. Father wanted Corey to remain in Pennsylvania with him. As a result, this custody proceeding was initiated.

On December 17, 1998, we entered an order that the parties participate in the court conciliation and evaluation service (CCES) program. On March 30, 1999, Sondra W. Friedman L.S.W. issued her six-page report recommending that Mother have primary custody of Corey in Hawaii. Father disagreed. Therefore, we held a custody hearing on May 28, 1999. At the hearing, we incorporated into the record the March 30, 1999 CCES report of Ms. Friedman. We also heard testimony from Mother, the maternal grandmother, a teacher at Corey’s school, Father, Father’s wife, the paternal grandmother and a step-aunt. At the conclusion of the hearing, we entered an order granting Father primary physical custody during the school year and Mother primary physical custody during the summer under the circumstances that Mother is in Hawaii. Mother has appealed this order.

Mother has filed the following statement of the matters complained of on appeal:

(1) The trial court erred when it did not examine the minor child, Corey, in chambers, regarding his wishes concerning Mother and Stepfather’s relocation to Hawaii.

(2) The trial court erred in placing undue weight on the minor child’s contact with his extended family.

(3) The trial court erred in improperly applying the relocation guideline factors of Gruber v. Gruber

(4) The trial court erred in placing undue and improper weight on the conciliator’s request to Mother that she provide as much contact between Father and child prior to the child relocating to Hawaii, thereby resulting in the court determining that Father had joint physical custody of the minor child. Said determination that Father had joint physical custody of the minor child was contrary to the evidence and was arbitrary and an abuse of discretion.

(5) The trial court’s determination that Father had joint physical custody with Mother was contrary to the evidence, and the report of court conciliator, and was arbitrary and an abuse of discretion.

(6) The trial court erred in separating the minor child, Corey, with his two half sisters, one of which was yet unborn at the time of the trial.

(7) The trial court’s determination that Mother had, on one occasion in Christmas 1994, denied partial custody to Father was contrary to the evidence and was arbitrary and an abuse of discretion; and that Father, therefore, would more adequately facilitate a partial custody arrangement, was also contrary to the evidence and the report of court conciliator, and was arbitrary and an abuse of discretion.

(8) The trial court’s order that, when Mother relocates to Hawaii, primary physical custody of the minor child shall be with Father during the school year, and partial custody shall be with Mother in the summers, is contrary to the best interest of the minor child.

(9) Defendant, Darlene Taylor-Moreland, reserves the right to supplement this statement upon receipt of the transcript.

We will discuss each of these issues below.

(1) Trial Court Did Not Err When It Did Not Examine the Minor Child, Corey, at the Time of Trial

We find it incredible that Mother raises this as an issue on appeal. We asked counsel on the record whether they wanted this court to talk to the child. Both counsel indicated that they would prefer that this court not talk to the child. (N.T., pp. 154-56.) We noted at trial that we had the benefit of the child’s statements to Ms. Friedman. The CCES report stated in relevant part:

“In discussing his relationships with his parents and stepparents, Cory (sic), describes close, loving relationships with his family. He says that he would like to live with either parent, and that the most difficult aspect of the situation is that he will miss whichever parent he does not live with. He says that the hardest thing about living in Hawaii in the past was missing his father.”

Neither party disputed that this was the child’s position. Further, in this case, we were concerned that the child would feel that it was his burden to choose between his parents with whom he presently had equal time. Moreover, Mother thanked this court on the record, when, after discussing the issue with counsel, it was agreed by counsel that this court would not interview Corey. (N.T., p. 156.) The parties and counsel recognized that it was in Corey’s best interest in this situation to not subject him to an interview by the court. By her agreement that Corey not be interviewed, Mother has waived any right to raise this issue on appeal. (See Fillmore v. Hill, 445 Pa. Super. 324, 665 A.2d 514 (1995).)

(2) The Trial Court Did Not Err in the Weight It Placed on the Minor Child’s Contact With His Extended Family

There was no dispute that Corey had a very close relationship with his maternal grandmother, Rolleesa Thurman. Over the course of years, he had spent significant time with her. (N.T., p. 168.) At the time of the hearing, he was staying in her house with his mother during Mother’s custodial periods. There is also no dispute that Corey has a very close relationship with his paternal grandmother, Mary Smith. He traditionally had spent significant time also with her. (N.T., p. 79.) There are various other relatives in this area that Corey also sees. Both sides of the family have always been cordial to each other. The CCES report noted, “(Corey) has a large extended family, and sees his relatives often.” (Report, p. 4.)

Corey’s relationship with his extended family in this area was a significant factor which we appropriately considered in our analysis as to what custody arrangement was in Corey’s best interests. This analysis is discussed in point 8 below.

(3) The Relocation Guideline Factors of Gruber v. Gruber Were Not Misapplied to This Custody Matter

Mother asserts that we misapplied the Gruber factors to this relocation case. However, she is not specific as to what factors or how they were misapplied. These factors are as follows:

(1) The court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children.

(2) The court must establish the integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it.

(3) The court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the noncustodial parent.

Most Gruber relocation cases involve a primary custody parent who wishes to move and a partial physical custody parent. We note that in Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998), the Superior Court has extended the application of the Gruber factors to a case in which the partial physical custody parent sought primary physical custody and also sought to relocate. In Clapper, the court stated:

“Gruber factors should be considered in appropriate cases, as part of the overall best interests analysis, when a parent wishes to relocate a child to another jurisdiction. ...

“The determination of a child’s best interests involves the consideration of all relevant factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. Swope, 455 Pa. Super, at 589-91, 689 A.2d at 265. It follows then that the factors outlined in Gruber, if deemed relevant and likely to affect the child’s physical, intellectual, moral and spiritual well-being, should also be applied and considered in any custody case involving the relocation of either the custodial or non-custodial parent.” Id. at 1274. (emphasis in original)

In the context of a best interest of the child analysis, we considered these Gruber factors to the extent they were relevant in this relocation case involving two equal custodial parents. In this case we found:

(1) There was no dispute that it was to Mother’s advantage to move to Hawaii to be with her husband in 1999. There was also no suggestion that Father could move to Hawaii. Father, like Mother, has lived in eastern Pennsylvania his entire life. His job as well as his immediate and extended family are in this area.

(2) Mother’s motives in moving to Hawaii were to join her husband. It is to be noted that Mother originally created this problem when in 1994 she chose to marry a man in the military who was stationed in Hawaii. She knew it was possible he could be transferred back to Hawaii. Father’s motive in wishing to retain custody of Corey in Pennsylvania was not disputed. This motive was the close bond and love he has for Corey.

(3) The issue of realistic substitute “visitation” arrangements was considered. One parent would have summer and Christmas. One parent would have the school year. Mother does not work outside the home. If she had the school year, her time would be limited to that part of the day when Corey was not in school. By having the summer and Christmas vacation, Mother has the maximum time when Corey is not in school. Further, if Father had the summer, Corey would be in a child care situation during the day. We chose the arrangement which would help maximize the time Corey has with each parent given their respective occupations. We found it in Corey’s best interest to attempt to provide him as much time as possible with each parent under the circumstances.

(4) The Trial Court Did Not Err With Respect to the Joint Custody Status in the CCES Report

Mother asserts that we placed “undue and improper weight on the conciliator’s request to Mother that she provide as much contact between Father and child prior to the child relocating to Hawaii, thereby resulting in the court determining that Father had joint physical custody of the minor child.... Mother is referring to the portion of the CCES report in which Ms. Friedman states as follows:

“The parties agreed to a shared custody schedule until the mother’s move in order to enable Cory (sic) to spend as much time as possible with each parent.”

We considered that the parties agreed that at least from the time of their last joint meeting for the custody evaluation, they would have joint physical custody. This last joint meeting was March 1, 1999. We did not take this agreement to mean that the parties agreed that prior to the CCES evaluation, which began in January 1999, that they had joint physical custody. We made our determination that the parties had joint physical custody since 1995 from the testimony presented at trial. This is discussed in point 5 below.

(5) The Trial Court Did Not Err in Determining That the Parties Had Joint Physical Custody

In this point, Mother asserts as follows:

“The trial court’s determination that Father had a joint physical custody with Mother was contrary to the evidence, and the report of court conciliator, and was arbitrary and an abuse of discretion.”

We determined that the parties had had joint physical custody from the evidence at trial. Father testified that he had had equal time with Mother at least from the time after Corey’s return from Hawaii.

“Q. And when Corey came back from Hawaii to live in this area, how much time has Corey spent overnight at your residence for the time he came back from Hawaii until today?
“A. Approximately half the time.” (N.T., p. 32.)

He noted that he had begun to keep records and that in the last two years, Mother had only seven nights more than he did. His testimony was as follows:

“Q. In the last two years, how much time has Corey spent with you as compared to Mrs. Taylor-Moreland?
“A. Once again, approximately 50 percent of the time in the last two years.
“Q. In the last two years, do you know how many days more overnight Corey spent with Mrs. Taylor-Moreland than he did with you?
“A. Yes. I chronicled it. It was seven days more with her than me.” (N.T., p. 44.)

On cross, again examined on this issue, Father testified as follow:

“Q. I’m curious if that was the situation. I mean, you’ve sat here and testified virtually for the past 10 years you’ve had exactly half of the time with your son. Why would that even need to be said?
“A. Well, first of all, I didn’t say for the past 10 years. When he was younger, like I said, I — I worked, you know.
“Q. You were working but she chose—
“A. She stayed at home. But for the past — certainly since she’s come back from Hawaii, yes, that’s been— that’s been the case. So we’ve — the reason why was because we’ve never had a problem up until now. And my personal opinion — and this is only my personal opinion — I believe since Darlene’s husband’s in the military and she knew they were getting ready to leave, you know, since — with that surrounding, there’s tension because of you know, is he going to be able to go or is he going stay, and that’s understandable.” (N.T., p. 69.)

He was extensively cross-examined on this issue and responded appropriately regarding details. For example, it was Mother’s position that Father did not have Corey for any overnights during the week prior to Father’s marriage in November 1997 because of Father’s work hours. Mother asserted that Father’s wife’s work schedule enables her to take Corey to school at about 8 a.m. Mother testified that prior to November 1997, Father did not have Corey overnight during the week because Father had to be at work at 7 a.m. However, Father testified that he would drop Corey off at the daycare center at the school at approximately 6:30 a.m. on his way to work. (N.T., p. 62.) We found Father’s testimony credible.

Mother testified that she has always had primary physical custody even before the CCES evaluation. She acknowledged that Father has always had significant time with Corey. In most of her testimony, she was not definite as to what time he did have. We did not find Mother’s testimony credible on the issue of primary physical custody.

Mother also states that our determination that the parties had joint physical custody was contrary to the conclusion of Ms. Friedman. We agree. However, implicit in this contention is the assumption that we must follow the conclusion of Ms. Friedman. We disagree. We find this contrary to the law and the function of courts.

In custody, in general, it has become common for a psychologist to evaluate the parties and to make a recommendation as to an appropriate custody arrangement. In many situations, this avoids the necessity of a custody trial, as the parties will reach agreement. However, in the event of a custody hearing, the custody determination is made by the court, not by the psychologist.

If the parties in a custody dispute privately retain a psychologist, that psychologist may testify and be cross-examined at the time of the custody hearing.

In Bucks County, we have created another option which is more financially feasible for most parties involved in a custody dispute. This is a system under which the parties may agree to go to the court conciliation and evaluation service (CCES) for a custody conciliation and evaluation. Under this system, an evaluation is made at considerably less cost than if the parties retained a private psychologist. Prior to going to such evaluation, the parties sign a consent and waiver. They waive the right to bring the evaluator to court. This form also states:

“I understand that if an agreement is not reached between us, a report based on the clinician’s evaluation will be sent to the court and that the court’s final decision in this matter may take into consideration the findings and recommendations in that report.”

At the time of trial, we incorporated by reference into the record the CCES report authored by Ms. Friedman. (N.T., p. 3.) The issue of the past custody arrangement of the parties was addressed in various sections of the March 30, 1999 report as follows:

“The current arrangement for custody and visitation places Cory (sic) in the mother’s primary custody. The father has partial custody Tuesday and Thursday overnight until school the following morning, and on alternate weekends from Friday evening until Monday morning. This has been an informal agreement since October 1998. Prior to that, the parents informally arranged partial custody.” (Report, p. 1.)

“The mother says that she has been the child’s primary caretaker, and that the father only became more involved with Corey when he married. She says that, prior to the father’s marriage, ‘he lived a single lifestyle,’ and he would take the child when it was convenient for him.” (Report, p. 2.)
“It is my impression that, although the father was consistently involved with the child, the mother was the child’s primary parent. The father takes umbrage when the mother tells him that she was ‘the primary parent and he was a Disney Dad.’ ” (Report, p. 4.)
“The father takes his parenting responsibility seriously and views his role in the child’s life as being as significant as the mother’s is. It is my impression that this makes it difficult for him to confirm that the mother was the primary parent.” (Report, pp. 4-5.)
“It is my professional opinion that the mother has provided primary custody of the child and, if the court grants her request to relocate with Cory (sic) to Hawaii, she should continue to provide primary custody for him.” (Report, p. 5.)

Before we address the issue of the evaluator’s conclusion that Mother had primary physical custody prior to the CCES evaluation, we note that Ms. Friedman concluded that Mother at present had primary physical custody and that Father at present had partial physical custody under the informal custody arrangement in place since October 1998. However, an examination of the actual time indicates that on a 14-day schedule, each parent has seven days. This is an equal physical custody schedule. Ms. Friedman is incorrect when she stated on page 1 of her report that “The current arrangement for custody and visitation places Cory (sic) in the mother’s primary custody.” This is, of course, the arrangement acknowledged to be in place since October 1998, prior to the CCES evaluation.

It was this court’s impression at trial that the label of primary physical custodian was very important to Mother. Father was not as concerned with the title but rather focused more on the actual time. This difference in approach may help explain, to some extent, discrepancy in the testimony of the parties on this point.

Mother’s statement that Father only became more involved with Corey after his marriage in November 1997, is contradicted by Mother’s testimony at trial that Father wanted Corey for six months or half of the time when Mother went to Hawaii in 1994. We considered this issue in connection with our determination that Father would more likely foster contact with Mother as described in point 7 below.

Finally, it is clear that Father did not agree with Mother at the time of the evaluation that Mother was the primary custodian after her return from Hawaii in 1995. The evaluator reached that conclusion and relied upon it in forming her conclusion that Mother should have primary custody. However, this report represents the opinion of an expert and is subject to the same limitations as any expert testimony. If the trier of fact finds that a material fact that the expert relied upon in reaching her conclusion does not exist, then the opinion so expressed should not be considered by that trier of fact. (See In re Glosser Brothers Inc., 382 Pa. Super. 177, 555 A.2d 129 (1989).) Ms. Friedman assumed that Mother had had primary physical custody at all relevant times. We found from the evidence at trial that this was not correct.

It is the function of the trial court to assess credibility of the parents. We specifically found at the end of the hearing on the record that Ms. Friedman’s conclusion that Mother had primary physical custody was not correct. (N.T., p. 176.) We did note at that time, however, that for the first few years of Corey’s life, his Mother had been his primary custodian, although he had significant contact with his Father. We found that by the time of the return from Hawaii in November 1995 through the present, the parties had equal physical custody. (N.T., p. 176.) Therefore, we did not consider Ms. Friedman’s recommendation as to the custody arrangement to have any validity or weight. We did find her report useful as to Corey’s position on custody and information on the parties.

(6) The Trial Court Did Not Err in Separating Corey With His Two Half Sisters, One of Whom Was Yet Unborn at the Time of the Trial

The fact that Corey had a 3-year-old half sister at the time of trial was considered by this court as well as the probability that there would be another half sibling shortly after the hearing. By this point raised on appeal, we gather that Darlene Taylor-Moreland had a baby girl. The only testimony we heard concerning the relationship of this 10-year-old boy and his 3-year-old half sister was from Mother. She testified that they fight, then added that they love each other. (N.T., p. 138.) We did not consider such relationship to be of such magnitude so as to necessitate Corey remaining with his sisters for the school year. He will see them each summer and Christmas vacation. We note that Father’s wife is pregnant with an anticipated delivery date in January 2000. Presumably, Corey will have another half sibling from his father’s side. The issue of siblings to the extent that it is a factor at all is approximately equally weighted on both Mother and Father’s sides.

(7) The Court Did Not Err in Determining That Father Would More Adequately Facilitate a Partial Custody Arrangement

In this point, Mother asserts that we determined that Father would more adequately facilitate a partial custody arrangement based upon an incident at Christmas 1994. We disagree. The issue of facilitating a partial custody arrangement arose in the context of a statement by Ms. Friedman in the CCES report. In this report, Ms. Friedman states: “It is my impression that the mother recognizes the importance of the father’s relationship with Corey and she will make every attempt to insure that the child is able to spend time with his father.” (Report, p. 5.) We indicated that that statement should be qualified because of two incidents. (N.T., p. 177.) The incident at Christmas or rather January 1995 was one of these two incidents. The other incident involved the agreement the parties reached prior to Mother leaving for Hawaii in 1994 and her failure to abide by that agreement. We will discuss each of these incidents briefly.

The January 1995 incident involved a dispute between the parents as to whether Corey was going to go with Father that day. Mother wanted Corey to go to some event at her mother’s. Father said he would make sure Corey was brought to the event. They disagreed on the time. It apparently was one of the few times when they disagreed about this topic. The significance for this court was that when Father said he was coming over to pick up Corey, Mother called the police. In the end, Father was about to pick up Corey, but the police were there. (N.T., pp. 35-39.) This was not an appropriate atmosphere for Corey.

The Hawaii incident involved the intention of the parties at the time Mother went to Hawaii in May 1994. She had married her present husband in April 1994. Mr. Moreland had been stationed in Hawaii for four years. A usual tour of duty is five years. It was anticipated that the family would be transferred back in approximately one year. In fact, they did return in November 1995. Father testified that the agreement was that he would have Corey for six months or approximately one half the time, beginning in January 1995. He planned to enroll Corey back in his Pennsylvania school. After Mother and Corey returned to Pennsylvania in November 1995 they would have to work out the exact times for the custody arrangement but it was to be equal time.

Mother denied this agreement as to the six-month arrangement. However, she was not consistent in her testimony. She did acknowledge that she did intend to send Corey back for two months in January 1995, but then she discovered she was pregnant. She then decided to keep Corey with her for the birth of her child. (N.T., pp. 151-52.) Mother took this step even though Corey missed his father. Further, Mother acknowledged that Father then agreed to only keep Corey for two months but she did not send him. (N.T., p. 152.) Father’s mother also testified with great credibility that Mother told Father in her presence that he would have six months. (N.T., p. 84.) We found that Mother did not consider how important it was for Corey to have time with his father.

On the other hand, there was no dispute or incident to indicate that Father would not facilitate contact with Mother.

(8) The Trial Court’s Decision To Award Father Primary Physical Custody of the Minor Child During the School Year Was in the Child’s Best Interests

This custody case involves the relocation of one of two parents who have equal custody. Therefore the basic premise of the Gruber case is not applicable to such a situation. In Gruber, the court states:

“In terms of the best interests of the child the primary physical custody family must be viewed as the family central and most important to the child’s best interests....
“Therefore, our analysis begins with the recognition that divorce causes irrevocable changes in parent-child relationships. Further, we emphasize that the best interests of the child are more closely allied with the interests and quality of life of the custodial parent and cannot, therefore, be determined without reference to those interests. In the context of relocation cases this principle translates into an understanding that when relocation is likely to result in a substantially enhanced quality of life for a custodial parent, often the child’s best interests will be indirectly but genuinely served.” Gruber at 182-83, 583 A.2d at 438. (footnote omitted)

The assumption in the Gruber line of cases is that if the relocation is of benefit to the primary physical custodian, then it will benefit the child. That assumption is absent when both parents have equal physical custody. We therefore looked to a best interests analysis of the child. To the extent that any factors raised in the Gruber relocation cases were relevant, we considered them in the context of a best interests analysis. As the court stated in Gancas v. Schultz, 453 Pa. Super. 324, 331, 683 A.2d 1207, 1210 (1996), the factors in Gruber are “refinements of the basic standard which remains the best interest of the child.”

A “best interests” analysis involves consideration of the physical, emotional, intellectual and spiritual well-being of the child. Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997). The CCES report found that, “The parents are able to co-parent. They are mature, caring individuals who both take their parenting responsibilities seriously.... The father is an involved, caring parent with excellent parenting skill . . . The mother also has a close relationship with the child, and has excellent parenting skills. (Report, pp. 4, 5.)

In his interview with Ms. Friedman, Corey was “asked a series of hypothetical parenting situations to determine if (he) showed preference for one parent, Cory (sic) showed no preference, and looked to either parent to meet his physical and emotional needs. It was evident to me that Cory (sic) would like the situation to remain as it has been so that he would continue to have access to each parent. (Report, p. 4.)

Corey is doing well in school. He is an “A” student. He is active in sports, including football, basketball and karate. He has frequent contact with his extended family in Pennsylvania. When he went to Hawaii in 1994 when he was 6 years old, he missed his father. Corey has suffered the loss of sustained contact with his father in the past. We did not feel that it was in his interest for this almost 11-year-old boy to again suffer the loss of constant contact with his father.

A review of the totality of the testimony at trial and the demeanor of the parties led us to conclude that Mother was more focused on her needs and interests. Her decision to marry and relocate Corey the last time was not to Corey’s benefit; it was to her benefit. Father appeared more focused on Corey’s needs. For example, he spoke of Corey’s interest in sports and various scenarios for school and sports based on Corey’s desires and needs in the next few years. (N.T., pp. 45-46.) Mother’s testimony on this issue consisted principally of repeating simply that Corey should be with her.

Corey should suffer as few losses as possible occasioned by this current move of Mother’s. He will lose the constant contact of one parent, either Mother or Father. If he goes with Mother, he also loses contact with his father, his school, his extended family, his friends with whom he plays sports, and the home in which he currently spends half his time. If he goes to Hawaii, he will be with his mother, his 3-year-old half sister and his newborn baby half sister far from his familiar surroundings, friends and relatives. We found it in Corey’s best interests for him to be with his father for the school year and with his mother in the summer and at Christmas. For the above reasons, we entered our order of May 28, 1999.

      . 400 Pa. Super. 174, 583 A.2d 434 (1990).

      . No supplementation has been received as of the date of this opinion.

      . The best interest analysis is discussed more fully in point 8 below.

      . This consent and waiver form is part of the record on appeal.

      . Or in the case of Clapper, the parent who seeks primary physical custody and then to relocate.

      . There is no dispute that Father has faithfully paid an agreed upon amount of child support without a court order since Corey was a baby.


source: Caselaw Access Project

author: WALLACHMILLER, J.,

license: Public Domain

text:
    Commonwealth v. Meeker

      C.P. of Monroe County,
    no. 1675 Criminal 1998.

      Bernard Anderson, assistant district attorney, for Commonwealth.

      William K. Sayer, public defender, for defendant.
    June 11, 1999
   WALLACHMILLER, J.,

OnNovem-ber 13,1998, members of the Monroe County Drug Task Force executed a search warrant at 75 Analomink Street, East Stroudsburg, Monroe County, Pennsylvania. This is a two-story house with two apartments located on the second floor. The number of apartments on the first floor is an issue here. The warrant was issued by a district justice upon an affidavit of probable cause which alleged that during a month of video surveillance, indicia of drug trafficking was observed at the rear door of the first floor apartment of this residence. The affidavit also alleged that 10 days previous to the request for the warrant, a controlled buy of crack cocaine was made at the first floor apartment of this address and that the police had received information from a reliable informant that certain males named “Drew” and “Jay” were selling drugs from this apartment and that the criminal histories of these two men revealed drug histories. The police also alleged they had information from another reliable informant that drugs were kept “outside in dirt.” The affidavit went on to allege within the last 48 hours a controlled purchase of crack cocaine was made from the first floor apartment of this residence. On the warrant application, the owner is listed as John J. King. Under the heading “occupant or possessor of the premises to be searched,” the warrant application says “Occupied by Archie Jerger and group known as the Florida Boys.” On another page of the application is listed “Other known occupants of no. 75 Analomink Street, apartment no. 1 are known to be Michael T. Harreel a/k/a Rail; Karreem Johnson Jr. and Curtis D. Williams and Marcus S. Boomes.”

Members of the Monroe County Drug Task Force entered the residence through the rear door and once inside, found numerous people, including the defendant, Karen Meeker.

A subsequent search of the first floor uncovered marijuana in a storage area located inside the apartment, and cocaine was found hidden outside in the house foundation. Defendant was in a bedroom with several other people. She was searched, and 11 baggies of marijuana were found on her person.

After the defendant was arrested, she claimed that she lived and rented a separate apartment within the first floor of the building. This apartment was made by the erection of a piece of dry wall and a curtain which separated it from the back portion of the first floor. This wall did not exist when a previous search warrant was executed by the police in Febriiary of 1998 at this same house. Thus, we can find it was built recently. Defendant claims that she only uses the front door, an entrance on the opposite side from where the drug trafficking was seen, when she enters and leaves her apartment. She also claims to rent two rooms, a separate kitchen and a bathroom. The separate kitchen and bath exist, but there was contradictory testimony as to whether they could be used.

Count I of the criminal information charges defendant with possession with intent to manufacture or deliver a controlled substance, that being the cocaine found in the outside foundation. Defendant is also charged with possession of a small amount of marijuana and possession of drug paraphernalia in Counts II and III, respectively.

After a preliminary hearing, all charges were bound over to this court. On April 29,1999, defendant filed an omnibus pretrial motion requesting that we dismiss Count I, possession of cocaine with intent to deliver, and that we suppress the marijuana as charged in Count II. Count III, for possession of drug paraphernalia, was not contested.

After a hearing held May 29,1999, we requested both counsel to submit legal authority to support their positions. We received a legal memorandum from the defendant but received nothing from the Commonwealth.

Defendant is requesting dismissal of Count I of the information alleging a lack of evidence to establish a prima facie case that she was in possession of any of the cocaine found. The Commonwealth’s case appears to be one of constructive possession. “Where drugs are not found on a defendant’s person, constructive possession can be established by ‘showing that the defendant had power of control over and intended to exercise control [over] such substances.’ ” Commonwealth v. Ocasio, 422 Pa. Super. 272, 276, 619 A.2d 352, 354 (1993). An intent to maintain such conscious dominion may be inferred from the totality of the circumstances. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983).

In this case, the only evidence the Commonwealth presented was that the defendant was present inside the house with numerous other people when the warrant was executed. Where more than one person has equal access to where the drugs are stored, presence alone in conjunction with such access will not prove conscious dominion over the contraband. Commonwealth v. Davis, 331 Pa. Super. 285, 480 A.2d 1035 (1984). The Commonwealth must introduce evidence demonstrating defendant’s participation in the drug-related activity or evidence connecting defendant to the areas where the drugs are kept. Macolino, supra.

There was no evidence presented connecting defendant to the cocaine stored outside the premises or demonstrating that she participated in any cocaine-related activity. The drug traffic was taking place at the rear door, but the month-long video surveillance did not show Meeker entering or leaving this particular entrance. There was also no cocaine in the bedroom where she was found during the search. Furthermore, her name was not mentioned in the affidavit of probable cause. Because we find that the Commonwealth did not meet their burden of proof of showing a prima facie case on this count, defendant’s motion for dismissal of Count I is granted.

The defendant has also filed a motion to suppress the marijuana found on her person. We note initially that the information filed by the district attorney charges defendant with possession of a small amount of marijuana for personal use. Under the statutes cited, this requires less than 30 grams. While we have no evidence of how much the 11 baggies weighed, we must assume that the amount meets the statutory requirements.

Defendant’s first contention is that the search warrant was not validly issued by the district justice. Defendant asserts that the warrant did not describe that there were two separate apartments within the first floor, thereby making the warrant defective when the officers entered her bedroom. The warrant in this case only lists the address of 75 Analomink Street, first floor apartment, with no mention of a separate apartment on this floor.

The warrant clause of the Fourth Amendment of the United States Constitution mandates that a search warrant must particularly describe the place to be searched and the items to be seized. U.S. v. Maryland, 480 U.S. 79 (1987). A warrant’s validity must be assessed on the basis of the information the officers disclosed or should have disclosed to the issuing magistrate when they applied for the warrant. Commonwealth v. Kiessling, 380 Pa. Super. 442, 552 A.2d 270 (1988).

Even if we take as true that there was a separate apartment on the first floor at 75 Analomink Street, there is nothing in the record that would indicate that the officers had this information to disclose to the issuing magistrate at the time they applied for the warrant. We therefore find that the warrant was validly issued.

The second part of this analysis is whether the officer’s failure to realize the overbreadth of their warrant was objectively understandable and reasonable? Commonwealth v. [Norman] Wilson, 395 Pa. Super. 523, 577 A.2d 913 (1990).

In this Wilson case, the officers executed a search warrant for a house where it was alleged that illegal sales of alcoholic beverages were taking place. The defendant was one of several people who rented a room in the house, and he had two locks on his door for which he only had the keys. During the search, the officers kicked down defendant’s door and found contraband and alcohol. Defendant’s suppression motion argued that since he lived in a separate room apart from the residence, his room should not have been searched.

The Superior Court agreed and determined that the search itself took place after the officers knew it was defendant’s separate room they were about to search. The police were fully aware, in other words, that prior to the search the defendant had a separate room and decided to search it anyway. Because the facts clearly illustrated “the police officers had no objectively understandable and reasonable reasons for not realizing the overbreadth of their warrant,” the evidence was suppressed. Id. at 526, 577 A.2d at 915. (emphasis added)

This case is distinguished from our facts. At the time of the search in this case, the officers had no information available to them that there was a separate apartment within the first floor premises. They were not even certain there was a second apartment when the search was being conducted due to the poorly constructed partition and curtain, because access to Meeker’s bedroom, where she was standing, could be made from other areas of the first floor. The officers could reasonably conclude that the first floor premises encompassed her room. Thus, unlike the officers in Wilson, we find that the police did have objective and understandable reasons for not realizing the overbreadth of their warrant.

However, our discussion does not end here because we must next determine whether the search of defendant’s body went beyond the authority of the warrant.

In a totally different Superior Court decision, Commonwealth v. [Robert] Wilson, 429 Pa. Super. 197, 631 A.2d 1356 (1993), the police obtained a warrant to search premises at E-25 Lloyd Street. The affidavit named only the occupants of the residence. Neither the affidavit nor the warrant authorized a search of the defendant, Robert Wilson, whose name did not appear anywhere in either instrument. Furthermore, the police did not have any prior information about this Wilson before they executed the warrant.

When the police entered the premises, they stopped the defendant who was running towards the rear of the building. They searched him and found drugs and arrested him for possession of cocaine. Defendant thereafter filed a suppression motion and argued the search went beyond the scope and authority of the search warrant.

Our Superior Court reversed the trial court and held that because the warrant did not mention the defendant, the police acted beyond authority of their warrant. Id. at 202, 631 A.2d at 1359. The court further held Pennsylvania law requires that every search warrant name, with particularity, the person or place to be searched. See Pa.R.Crim.P. 2005(e). In order to search or arrest others who may be present, the police must establish an independent probable cause. Id. In Wilson’s case, because the search warrant only authorized a search of the residence and named occupants not including Wilson, the police were required to have probable cause in order to search his person. Hence, the suppression motion was granted.

It so follows in this case. Neither the warrant nor the affidavit for the warrant mentions or references defendant. The police had no prior information about her before they made their entry. Again, the defendant was not shown entering the premises on the month-long surveillance tape.

Based on the evidence introduced by the Commonwealth at our hearing and a review of appellate law on these issues, which is very clear, we find that the police exceeded their authority as to this defendant. They had the right to detain her during the raid but without independent evidence giving them probable cause to believe she was somehow involved with the drug trafficking at this premises, a search inside her bra and in her crotch was unreasonable.

As we have stated many times in our opinions, our federal and state constitutions do not prohibit all searches and seizures. However, they do protect all citizens against unreasonable searches and seizures. We recognize drug task forces such as the one executing this warrant are formed to promote the “war on drugs.” We must remember that even in war, there are rules.

ORDER

And now, June 11,1999, defendant’s omnibus pretrial motion is granted.


author: NIX III, Member,

text:
    In re Anonymous No. 44 D.B. 95
    Disciplinary Board Docket no. 44 D.B. 95.
    November 13, 1997
   NIX III, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On September 27,1994, the respondent was convicted of theft by failure to make required disposition of funds received and theft by deception. This conviction constitutes a per se ground for discipline under Pa.R.D.E. 203(b)(1).

On February 15, 1995, a rule to show cause why respondent should not be placed on temporary suspension was issued by the Supreme Court.

On March 31,1995, the Supreme Court issued a temporary suspension and referred the matter to the Disciplinary Board.

A hearing was held on July 31, 1996 before Hearing Committee [ ] comprised of Chair [ ] Esquire, and Members [ ], Esquire, and [ ], Esquire.

Oral argument was held on September 17, 1997 before Chair Robert N. C. Nix III, Esquire, and Members Alfred Marroletti, Esquire and Thomas Elliott, Esquire.

The matter was adjudicated by the Disciplinary Board at the meeting held on October 4,1997.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, [ ], was admitted to practice law in the Commonwealth of Pennsylvania on or about October 13,1972.

(3) Respondent formerly maintained an office for the practice of law at [ ].

(4) Respondent’s last registered home address was [ ]•

(5) Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(6) Respondent was the subject of a criminal information filed in the Court of Common Pleas of [ ] County, Pennsylvania, on or about February 7, 1994.

(7) After trial in the Court of Common Pleas of [ ] County, Pennsylvania, before the Honorable [A], president judge of that county, respondent was convicted of two felonies of the third degree, to wit:

“(a) Theft by failure to make required disposition of funds received (18 Pa.C.S. §3927(a)); and
“(b) Theft by deception (18 Pa.C.S. §3922(a)(l).”

(8) On or about September 27, 1994, Judge [A] sentenced respondent as follows:

“For the charge under 18 Pa.C.S. §3927:
“Not less than six months, nor more than 23 months incarceration;
“Payment of a fine in the amount of $100;
“Reimbursement of the County of [ ] of all costs incurred in connection with the prosecution;
“Restitution in the amount of $25,000 to the Pennsylvania Lawyers Fund for Client Security.
“For the charge under 18 Pa.C.S. §3922:
“Sentence merged with that under 18 Pa.C.S. §3927.”

(9) After imposition of sentence, respondent appealed the judgment of sentence imposed upon him to the Superior Court of Pennsylvania, at Commonwealth v. [Respondent], no. [ ].

(10) Respondent was suspended from the practice of law by order of the Supreme Court of Pennsylvania dated March 31, 1995.

(11) The Superior Court of Pennsylvania, by memorandum dated September 18, 1995, affirmed the judgment and sentence of the Court of Common Pleas of [ ] County in respondent’s case.

(12) Thereafter, no further appeals were filed.

(13) Respondent served the sentence of incarceration imposed upon him by the Court of Common Pleas of [ ] County.

(14) In the matter for which respondent was convicted of two third-degree felonies, supra, respondent received the sum of $25,000 in the context of civil litigation from another attorney, [B], on or about May 21, 1993.

(15) At the time that respondent received the $25,000, respondent signed an agreement with [B] whereby respondent would hold the $25,000 in respondent’s escrow account and, upon occurrence of a condition, would immediately return the entire amount to [B].

(16) After receiving the $25,000, respondent began to make withdrawals from his escrow account and spent the funds on his own personal matters.

(17) By late summer or early fall of 1993, the money was almost entirely gone, whereupon respondent discussed the money with his clients and received their permission to apply it against his own fees in the matter.

(18) Respondent had converted and spent all of the $25,000 before he made any attempt to consult with legal counsel for advice as to whether he had any right to the money.

(19) On or about September 8, 1993, [B] called upon respondent to release the $25,000 from escrow.

(20) In response to [B’s] request, respondent delayed to the point that [B] petitioned the [ ] County Court of Common Pleas to enjoin respondent from moving any of the $25,000 from his escrow account.

(21) During a conference on the injunction issue, in chambers with Judge [C] of the [ ] County Court of Common Pleas, respondent lied to the court about the presence of the $25,000 in his escrow account.

(22) During the course of his criminal trial, and in post-trial motions, respondent attempted to raise the defense that he was entitled to have taken the $25,000 as he did. Respondent characterizes this view as a “justification” or “privilege” defense. The opinion of the [ ] County Court of Common Pleas ruled against respondent as to this defense.

(23) Respondent also raised his “justification” and/or “privilege” defense in his appeal of his criminal conviction to the Superior Court of Pennsylvania. The Superior Court also found no merit in respondent’s position in quashing his appeal and affirming his conviction.

III. CONCLUSIONS OF LAW

As a result of his conviction of crimes for which he has been suspended, pursuant to Rule 214, Pa.R.D.E., respondent has engaged in misconduct which constitutes an independent ground for discipline pursuant to Rule 203(b)(1), Pa.R.D.E.

Respondent’s criminal conduct and conviction for that conduct constitutes a violation of Rules of Professional Conduct 8.4(b) and 8.4(c).

Respondent’s conversion of funds constitutes a violation of R.P.C. 1.15(a) and 1.15(b).

IV. DISCUSSION

On February 15, 1996, respondent was the subject of an order of the Supreme Court of Pennsylvania directing him to show cause why he should not be placed on temporary suspension based on his having been convicted in the Court of Common Pleas of [ ] County of the offense of theft by failure to make required disposition of funds received in violation of 18 Pa.C.S. §3927. Respondent was also convicted of theft by deception in violation of 18 Pa.C.S. §3922. Each of these convictions is a third-degree felony punishable by imprisonment for a period of time up to seven years. On March 31, 1995, the rule of February 15, 1995 was made final and respondent was placed on temporary suspension.

Clearly, respondent’s misconduct resulted in a serious crime that constitutes an independent ground for discipline. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). Therefore, the only issue before this board is the appropriate discipline. The Hearing Committee was divided in its recommended discipline, the majority favored disbarment, while the dissenting member favored a three-year suspension. Respondent, in his efforts to convince this board that a three-year suspension is the appropriate discipline, must overcome two major hurdles.

The initial issue is whether this board is bound by the facts and circumstances surrounding the conviction as determined by a jury when deciding the issue of respondent’s intent to convert funds. Respondent, in his brief to the oral argument panel, conceded that he is collaterally estopped from raising the issue of his intent to convert the funds in question. In the alternative, he would ask this board to review the case law and find that a period of suspension and not disbarment is the appropriate discipline. This is clearly the only responsibility of this board. In Office of Disciplinary Counsel v. Costigan, 526 Pa. 16, 584 A.2d 96 (1990), it was determined that a disciplinary hearing is not to be used as an opportunity to relitigate a conviction or elements of it. To support his position that suspension, rather than disbarment, is the appropriate discipline, respondent relies on a number of cases that resulted in less than disbarment in instances of conversion of funds.

In Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989), an attorney was given a two-year suspension as a result of the attorney’s dishonesty and forgery; however, that determination was the result of the showing of a psychiatric disorder in mitigation.

In In re Anonymous No. 66 D.B. 84, 17 D.&C.4th, 414 (1992), an attorney who deposited funds into a personal, nonsegregated bank account, from which he withdrew monies to satisfy personal obligations, was suspended for two and one-half years.

In Office of Disciplinary Counsel v. Kanuck, 517 Pa. 160, 535 A.2d 69 (1987), an attorney’s commingling of client funds and the borrowing of those funds resulted in a five-year suspension.

Clearly, respondent’s discipline to this point warrants a suspension of anywhere from three years to disbarment. Having reached this decision, this board must determine whether any additional factors exist that would warrant disbarment rather than a suspension.

During a conference on the underlying injunction issue, in chambers with a judge of the Court of Common Pleas of [ ] County, respondent lied to the court about the presence of the $25,000 in his escrow account. In addition, during this same conference, respondent agreed to a court order enjoining him from releasing any of the $25,000 from his escrow account, at a time when he was fully aware that the monies had already been spent. Although respondent did lie to the court, he urges us to take note that it was due to panic and he shortly, thereafter, advised the court of the truth. In addition, respondent also raised the issue that the false statement was not made during a judicial proceeding. This defense was also raised in responding to respondent’s false statements to opposing counsel. This board cannot agree with respondent’s position that making false statements to a judge and fellow attorney outside of a judicial proceeding is any less egregious than making false statements during a judicial proceeding or at any other time. Further, the misconduct in the instant case can only be seen as an aggravating factor.

In Office of Disciplinary Counsel v. Holston, 533 Pa. 78, 619 A.2d 1054 (1993), and Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981), it was clearly determined that false statements to a tribunal, whether it be a judge or another, resulted in disbarment. Although we agree with Disciplinary Counsel that any act of lying or deceiving a judge is sufficient to warrant disbarment, this board does not believe such action standing alone in this case mandates disbarment. However, given the fact that in the instant case, respondent’s theft which on its own merit would amount to a suspension of at least three years, combined with respondent’s act of lying to the court, leaves us no choice but to recommend that respondent be disbarred and the disbarment be made retroactive to March 31, 1995, the date of respondent’s temporary suspension.

Another circumstance noted by the board in reaching a final disposition in this matter is the fact that at the oral argument, respondent was asked if restitution has been made to the Pennsylvania Lawyers Fund for Client Security. Respondent informed the board that, to date, $2,500 of the original $25,000 wrongfully taken, has been paid.

This board is always troubled when it is forced to discipline any attorney and such a decision is made all the more difficult when that same attorney has pillars of his community testify as to his good standing in the community. Unfortunately, such testimony is not enough, given the degree of misconduct in the instant case.

Y. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be disbarred retroactive to March 31, 1995.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Messrs. Saltz, Marroletti, Schultz and Cunningham did not participate in the October 4, 1997 adjudication.

ORDER

Upon consideration of the report and recommendations of the Disciplinary Board dated November 13,1997, and the briefs filed, it is hereby ordered that [respondent] be and he is disbarred from the bar of this Commonwealth, retroactive to March 31, 1995, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: STALLONE, J.,

text:
    Goodyear v. Pennsylvania Steel Foundry & Machine Co.

      C.P. of Berks County,
    no. 97-10453.

      John W. Roland, for plaintiff.

      John J. Speicher and M. Theresa Johnson, for defendants.
    January 8, 1999
   STALLONE, J.,

This action arises out of the termination of the employment of the plaintiff, Daniel M. Goodyear, with defendant Pennsylvania Steel Foundry & Machine Company.

Between 1986 and June 1995, Goodyear was the sole shareholder, president and chief executive officer of PA Steel. In June 1995, Goodyear sold his entire ownership interest in PA Steel to Citation Corporation. In connection with the sale, Goodyear entered into a written “employment and noncompetition agreement” with PA Steel on June 12, 1995, pursuant to which he would remain the president and chief executive officer of PA Steel for a period of five years from the date of the agreement. Section 2.1 of the agreement provides that, during that five-year term, Goodyear could not “compete” with Citation Corporation, in accordance with the specific terms set forth in section 2.1, regardless of whether or not he remained employed with PA Steel during the full five-year term of the agreement. Section 2.2 of the agreement further provides that:

“Consideration For Restrictive Covenant. In the event that Goodyear’s employment is terminated prior to the end of the five-year term hereof for whatsoever reason, whether by death or disability of Goodyear, or by either Goodyear or the company with or without good cause, as consideration for the restrictive covenant of Goodyear, and in consideration of Goodyear consenting to the sale of the business and entering into this agreement, the company agrees to pay to Goodyear, his assignee or his estate: (i) $8,333 per month and (ii) annual payments in an amount equal to the incentive bonus payments that he would have been entitled to receive if he had been employed for the remainder of the five-year term hereof, except that he shall receive an amount equal to 15 percent of the incentive bonus base to the extent that it exceeds $600,000 per year (with the increase from $500,000 to $600,000 being prorated for the year in which his employment is terminated).”

In 1996, following the execution of the agreement, defendant Atchison Corporation, whose president was defendant Hugh Aiken, acquired all of the stock of PA Steel from Citation Corporation.

Goodyear was subsequently terminated from his employment on October 15,1997. He then commenced this civil action against PA Steel, Atchison and Aiken by filing a complaint in which he asserts claims for breach of contract, violation of the Pennsylvania Wage Payment and Collection Law, tortious interference with contractual relations and defamation.

The defendants filed an answer to Goodyear’s complaint along with new matter and a counterclaim. In Count III of their counterclaim, the defendants are seeking the entry of a declaratory judgment by this court that, although they have been making the payments to Goodyear which are required by section 2.2 of the agreement, they are under no legal obligation to do so because these payments do not constitute “wages” under the Pennsylvania Wage Payment and Collection Law, which provides an employee with a statutory remedy for an employer’s breach of a contractual obligation to pay wages. Their concern is that, if they continue to pay this monthly amount to Goodyear while this action is pending but ultimately prevail at trial, they will not be able to recoup these payments from Goodyear.

Following the close of the pleadings and discovery, the parties filed cross-motions for summary judgment in which they each claim that they are entitled to judgment on Count III of the defendants’ counterclaim. Goodyear argues that the amounts payable to him under section 2.2 of the agreement constitute “wages” under the Pennsylvania Wage Payment and Collection Law, while the defendants contend that they are not and that they merely constitute “consideration” for Goodyear’s agreement to enter into the restrictive covenant.

As a result of the recent amendments to the Pennsylvania Rules of Civil Procedure governing summary judgments, the practice and legal standard for granting them is now unclouded. After the relevant pleadings are closed, any party may move for summary judgment. Pa.R.C.P. 1035.2; see also, Ertel v. Patriot-News Company, 544 Pa. 93, 98, 674 A.2d 1038, 1042 (1996). A motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Dublin by Dublin v. Shuster, 410 Pa. Super. 1, 598 A.2d 1296 (1991); Beach v. Burns International Security Services, 406 Pa. Super. 160, 593 A.2d 1285 (1991). The parties have agreed that there are no genuine issues of material fact to be determined by a fact-finder relative to Count III of the defendants’ counterclaim and, therefore, that the sole issue before this court is one of law to determine whether, under Pennsylvania law, the payments in question constitute “wages” under the Pennsylvania Wage Payment and Collection Law.

In determining this issue, we look first to the following definition of the term “wages” in section 260.2(a) of the Pennsylvania. Wage Payment and Collection Law: “all earnings of an employee, regardless of whether determined on time, task, piece, commission or other method of calculation. The term ‘wages’ also includes fringe benefits or wage supplements whether payable by the employer from his funds or from amounts withheld from the employes’ [sic] pay by the employer.”

That section of the Pennsylvania Wage Payment and Collection Law further defines “fringe benefits or wage supplements” to include: “all monetary employer payments to provide benefits under any employe [sic] benefit plan, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974,29 U.S.C. §1001 et seq.; as well as separation, vacation, holiday, or guaranteed pay; reimbursement for expenses; union dues withheld from the employes’ [sic] pay by the employer; and any other amount to be paid pursuant to an agreement to the employe, [sic] a third party or fund for the benefit of employes [sic].”

Our review of the case law submitted by the parties leads us to conclude that the case of Bowers v. Neti Technologies Inc., 690 F. Supp. 349 (E.D. Pa. 1988) (Gawthrop, J.), is controlling. There, the plaintiffs, R. Dennis Bowers and Roger H. Folts, entered into separate written employment agreements with Phoenix Companies Inc., pursuant to which Bowers became the “chief executive officer” and Folts became the “chief operating officer” of Phoenix. Both Bowers and Folts became shareholders of Phoenix upon commencing employment with Phoenix. Their employment agreements provided, inter alia, that upon the termination of their employment with Phoenix (other than for cause or by reason of death or disability):

“Employee shall have the option, but shall not be required, to sell all or part of the stock then owned by him and the Company shall buy such stock so offered for an amount equal to its then current value.”

Bowers and Folts were subsequently terminated from their employment with Phoenix. They then filed suit seeking to recover, inter alia, the “stock repurchase payments” under the Pennsylvania Wage Payment and Collection Law. The defendants named in the suit filed a motion for judgment on the pleadings, arguing that these payments did not qualify as “wages” under the Pennsylvania Wage Payment and Collection Law. In rejecting that argument, Judge Gawthrop of the United States District Court for the Eastern District of Pennsylvania reasoned as follows at page 357 of his opinion:

“I conclude that the stock repurchase payments were offered by defendants to plaintiffs to encourage plaintiffs to join Phoenix as employees . . . they were certainly ‘wages’ within the broad definition of the WPCL in that they were payments pursuant to agreement and they were offered to plaintiffs as employees, and not for some reason entirely unrelated to their employment by Phoenix.”

In the action at bar, we find that the defendants offered these payments to Goodyear, pursuant to the agreement, in order to encourage him to work for PA Steel instead of for a competitor; they were not to be paid to him simply as consideration for his agreement to enter into a restrictive covenant. Goodyear had been the sole shareholder, president and chief executive officer of PA Steel for the prior 10-year period and his knowledge and experience would be an asset to PA Steel as it moved forward under new ownership. Therefore, we conclude that the payments required by section 2.2 of the agreement clearly fall within the definition of “wages” under the Pennsylvania Wage Payment and Collection Law.

Accordingly, we enter the following attached order.

ORDER

And now, January 8, 1999, it is hereby ordered that:

(1) The defendants’ motion for summary judgment relative to the declaratory judgment request in Count III of the defendants’ counterclaim is denied; and

(2) The plaintiff’s motion for summary judgment relative to the declaratory judgment request in Count III of the defendants’ counterclaim is granted. Accordingly, judgment is hereby entered in favor of the plaintiff and against the defendants on Count III of the defendants’ counterclaim.

      . Title 43, 43 P.S. §260.1 et seq. (Supp. 1999).

      . All italicized type appearing in this opinion is for emphasis purposes only.

      . Bowers and Folts also sought to recover “severance pay” provided for in their employment agreements as “wages” under the Pennsylvania Wage Payment and Collection Law which is not an issue in the action at bar.


author: WETTICK, J.,

text:
    Louis J. Viglione Contracting Inc. v. F. F. Monroeville Associates
    C.P. of Allegheny County,
    no. GD98-007450.

      Jeffrey T. Morris, for petitioner.

      Andrew R. Duff, for respondent F. F. Monroeville Associates.

      David M. Priselac, for respondent Bridges PBT.
    January 12, 1999
   WETTICK, J.,

The renewed petition of Louis j. Viglione Contracting Inc. to vacate or modify arbitration award pursuant to 42 Pa.C.S. §7341 is the subject of this opinion and order of court.

This petition arises out of common-law arbitration proceedings involving a construction project in which F. F. Monroeville Associates was the owner, Bridges PBT was the general contractor, and Viglione was the subcontractor. The construction project involved the erection of a grocery store and an adjoining parking lot. Viglione’s work involved the parking lot. In the arbitration proceedings, (1) Monroeville and Bridges raised claims against each other that were based on a dispute over the quality of Bridges’ work (including the work of Bridges’ subcontractors) and (2) Bridges and Viglione raised claims against each other based on disputes over the quality of Viglione’s work.

Viglione and Bridges agree that two issues were to be resolved by the arbitration panel — the dispute between Monroeville and Bridges regarding payments that were due under the agreement between the owner and the general contractor and the dispute between Bridges and Viglione regarding payments that were due under the subcontract between the contractor and this subcontractor.

In March 1998, the arbitrators entered the following award:

“Award Of Arbitrators
“We, The Undersigned Arbitrators, having been designated in accordance with the arbitration agreement entered into by the above-named parties, and dated March 28, 1994, and having been duly sworn and having duly heard the proofs and allegations of the parties, hereby Award as follows:
“(1) With Respect To The Claim Of Bridges PBT against F. F. Monroeville Associates: F. F. Monroeville Associates shall pay to Bridges PBT the sum of $ 169,020.
“(2) Each party shall bear its own legal fees and costs.
“(3) The compensation of the arbitrators totaling $7,690.78 shall be borne equally by Bridges PBT and F. F. Monroeville Associates.
“(4) The administrative fees and expenses of the American Arbitration Association totaling $7,819.66 shall be borne equally by Bridges PBT and F. F. Monroeville Associates. Therefore, F. F. Monroeville Associates shall pay to the American Arbitration Association the sum of $889.65 for that portion of its share of administrative fees and expenses still due the association, F. F. Monroeville Associates shall pay to Bridges PBT the sum of $803.20 for that portion of its share of administrative fees and expenses previously advanced by Bridges PBT to the association. Louis J. Viglione Contracting Inc. shall pay to the American Arbitration Association the sum of $ 1,700 for that portion of its share of administrative fees and expenses (which includes the postponement fee and filing fee of Louis J. Viglione Contracting Inc.) still due the association.
“This award is in full settlement of all claims and offsets submitted to this arbitration as between claimant and respondent. No finding or award is rendered with respect to claims of or against Louis J. Viglione Contracting Inc.”

Viglione filed a petition to vacate or modify the arbitration award on the ground that the arbitrators had failed to consider the claims between Bridges and Viglione. Bridges opposed the petition on the ground that the award should be construed as rejecting the claims of both Viglione and Bridges.

I concluded that it was not entirely clear from the face of the award whether the arbitrators had not considered the claims that Viglione and Bridges had raised against each other or whether they had rejected the claims of both parties. Consequently, through the following January 22, 1998 order, I resubmitted the arbitration award to the arbitrators for clarification:

“Order
“Upon consideration of petitioner’s petition to vacate or modify the March 1998 arbitration award,
“it appearing that a court may resubmit an arbitration award to the arbitrators for clarification (McIntosh v. State Farm Fire and Casualty Co., 425 Pa. Super. 311, 625 A.2d 63 (1993));
“it appearing that petitioner’s petition to vacate is based on its contention that the arbitrators did not consider petitioner’s claims against Bridges and Bridges’ claims against petitioner;
“it appearing that the petition is based on paragraph 5 of the award of arbitrators states: ‘No finding or award is rendered with respect to claims of or against Louis J. Viglione Contracting Inc.’; and
“it appearing that Bridges seeks dismissal of the petition to vacate on the ground that the arbitrators could not have decided this case without deciding these claims; thus, through paragraph 5 of the March 1998 award of arbitrators, the arbitrators were actually saying that after considering the claims involving petitioner and Bridges, they decided to award Bridges nothing on its claim and to award petitioner nothing on its claim,
“It is hereby ordered that the arbitration award is resubmitted to the arbitrators for clarification.”

In September 1998, the arbitrators rendered the following clarification of award of arbitrators:

“Clarification Of Award Of Arbitrators
“We, The Undersigned Arbitrators, having been designated in accordance with the arbitration agreement entered into by the above-named parties, and dated March 28,1994, and having previously rendered an award, and pursuant to Judge Wettick’s order dated July 22, 1998, do hereby Decide as follows:
“At the outset of the arbitration hearings, based on the representations of Bridges and Viglione through their respective counsel, the claims by and between Bridges and Viglione were to be agreed upon by the parties and/ or their counsel and the arbitrators were not to consider such claims.
“Subsequently, Bridges and Viglione through their respective counsel requested the arbitrators decide the claims by and between Bridges and Viglione. As a result the arbitrators requested information/evidence supporting such claims. No evidence supporting the claims was ever submitted/presented.
“There being no evidence to support the claims, no award is made to either Bridges or Viglione on their claims against each other.”

On the basis of the clarification, I find that the arbitrators denied Bridges’ claims against Viglione and Vigli-one’s claims against Bridges.

In Viglione’s renewed petition to vacate or modify, Viglione contends that the arbitrators had to determine the adequacy of the work performed by Viglione under its contract with Bridges in order to decide the dispute between Bridges and F. F. Monroeville. Furthermore, the arbitrators had ample evidence upon which to make a ruling respecting the claims between Viglione and Bridges. Consequently, the award should be set aside on the ground that it is irregular, incomplete, unjust, and unconscionable.

The standard for vacating or modifying a common-law arbitration award is governed by 42 Pa.C.S. §7341 which reads as follows:

“The award of an arbitrator in a nonjudicial arbitration ... is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.”

Under Pennsylvania law, an “other irregularity” may be found only when there is a defect in the process or procedure employed in the arbitration which rises to a level commensurate with fraud, misconduct, or corruption. A court is without authority to vacate an arbitration award on the ground that the arbitration award is clearly contrary to the evidence that a party submitted. Duquesne Light Co. v. New Warwick Mining Co., 443 Pa. Super. 53, 64, 660 A.2d 1341, 1346-47 (1995).

In the present case, the arbitrators gave the parties a full hearing. Viglione’s only objection is that the arbitration award is blatantly at odds with the evidence that the parties introduced and that the arbitrators considered.

A primary purpose of common-law arbitration is to reduce the time and expense involved in resolving disputes by utilizing a process that ends with the arbitration award. Consequently, errors of the law or the failure of the arbitrators to render awards that have some relationship to the evidence that the parties introduced are not a basis for judicial intervention. See Chervenak, Keane & Co. Inc. v. Hotel Rittenhouse Associates Inc., 328 Pa. Super. 357, 361, 477 A.2d 482, 485 (1984); Crown Parking Corp. v. Gateway Towers Condominium Associates, 142 P.L.J. 381 (1993), and cases cited therein.

For these reasons, I enter the following order of court:

ORDER

On January 12, 1999, it is hereby ordered that the renewed petition of Louis J. Viglione Contracting Inc. to vacate or modify arbitration award pursuant to 42 Pa.C.S. §7341 is denied.

      . In its brief, Viglione contends that Bridges’ claim against Viglione is based solely on Monroeville’s claim against Bridges for defective work. Bridges’ brief appears to disagree with the characterization of the claim in this fashion.


author: WALLACH MILLER, J.,

text:
    Commonwealth v. Lawley

      C.P. of Monroe County,
    no. 475 Criminal 1999.

      Sherri A. Stephan, assistant district attorney, for Commonwealth.

      Erik J. Conrad, for defendant.
    September 15, 1999
   WALLACH MILLER, J.,

On March 3, 1999, about 1:30 a.m., defendant Erin Marie Lawley was enjoying libations at the Thirsty Camel, a drinking establishment in Tannersville, Monroe County, Pennsylvania. Lawley got into a heated argument with her boyfriend, Dudley, in the bar. At that time, David Lampe, the proprietor of the bar, encountered the arguing couple and inquired of Lawley “if she was okay.” Lawley responded in the negative, and Lampe asked Dudley to leave the bar, which he did. Soon thereafter, when Lampe questioned Lawley about her welfare, she told him that “he’s got my car keys. Could you go out with me? I want to get my car keys.” Lampe dutifully complied, and they went outside.

In the Thirsty Camel’s parking lot, an altercation between Dudley and Lampe ensued and the White Knight Lampe found himself being pummeled on the head by the damsel in distress, first with a beer bottle and then her coffee cup. Lawley apparently didn’t like the fact that Lampe had wrestled her boyfriend to the ground and was sitting on top of him. Lampe suffered lacerations to the side of his head and forehead, requiring stitches and staples.

Officer Kresge of the Pocono Township Police Department arrived on the scene in uniform in a marked patrol car. He observed that Ms. Lawley was very agitated and upset and was being held back by another patron. She had a strong odor of an alcoholic beverage on her breath, glassy eyes and was off balance when she walked. Officer Kresge testified that he concluded she was in a drunken and intoxicated state, but she understood his questions and could answer them. He testified further that when he arrived on the scene he thought the fight was between Lampe and Dudley and that the defendant was merely a witness. He asked her what was going on. At that time, Lawley told Officer Kresge that she hit Mr. Lampe over the head with a beer bottle. Officer Kresge then placed Lawley under arrest, handcuffed her, put her in the patrol car and took her to Pocono Township police headquarters.

At police headquarters, which was described at our hearing as one large room, Lawley and Dudley were separated by about six or seven feet. Officer Kresge testified that while he was questioning Dudley, who was not under arrest, defendant kept interrupting Dudley’s account of the evening, adding things and correcting him. During this time, she said that she hit Lampe over the head with a bottle that would not break so she went and got a coffee cup and hit him with that.

At no time did Officer Kresge or any other officer inform the defendant of her rights to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Based on her own statements, she was charged with aggravated assault, 18 Pa.C.S. §2702(a)(l); simple assault, 18 Pa.C.S. §2701(a)(l); disorderly conduct, 18 Pa.C.S. §5503; and public drunkenness, 18 Pa.C.S. §5505. A preliminary hearing was held before a district justice on March 30, 1999 after which all charges were bound over to this court.

Defendant has filed an omnibus pretrial motion asking us to suppress all statements she made to the Pocono Township police. At a hearing held before this court on August 26,1999, the Commonwealth presented the transcript from the preliminary hearing and supplemented it with further testimony from Officer Kresge. At the hearing, we asked both parties to submit case law in support of their respective positions. The defendant has submitted a brief. The Commonwealth has failed to file a brief.

When a defendant seeks to suppress evidence, the Commonwealth has the burden of going forward with the evidence and establishing that the challenged evidence was not obtained in violation of the defendant’s rights. (Pa.R.C.P. 323(h).)

Defendant Lawley argues that regardless of whether the Miranda rights were provided to her at the time the police questioned and obtained statements from her, both at the scene of the incident and back at police headquarters, she was intoxicated to a degree to render her incapable of making any intelligent decisions and/or to making knowing, intelligent and voluntary decisions with regards to waiving her rights and making incriminating statements without consulting or having the presence of counsel. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At the hearing, the Commonwealth maintained Officer Kresge was merely gathering information at the Thirsty Camel, and at that time defendant was not the target of the investigation. Furthermore, with respect to the statements made by defendant at police headquarters, the Commonwealth argues that she voluntarily blurted them out, and that she was never subjected to any interrogation or questioning at the station, and thus was not entitled to her Miranda warnings.

We grant the defendant’s motion, in part, however, not for the reasons she presents. The first statement by the defendant in the parking lot was in response to legitimate general information gathering questions by the police. The questions asked by the police were not asked of the defendant to elicit incriminating statements, but merely to ascertain what had happened. This was not a custodial interrogation. It is well established that a gratuitous utterance, unsolicited by the police is admissible. Commonwealth v. Hughes, 536 Pa. 355, 371, 639 A.2d 763, 771 (1994). We find the defendant’s first statement “that she hit Lampe over the head with a beer bottle” was not the product of police interrogation and therefore is not subject to suppression.

We find the Commonwealth’s arguments persuasive with respect to the statement made at the Thirsty Camel, but not to the statements made at the police station. See Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968) as cited in Commonwealth v. Slaton, 383 Pa. Super. 301, 556 A.2d 1343 (1989). In Bordner, the defendant made six incriminating statements to the police without the benefit of warnings required by Miranda v. Arizona. The trial court suppressed five of the six statements, holding that upon making the initial inculpatory statement, the defendant had become the focus of the police investigation and, thus, Miranda warnings should have been given prior to any questioning by the police.

Furthermore, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an individual must be warned of his or her right to remain silent before the initiation of custodial interrogation. Statements obtained by the police during a custodial interrogation without prior Miranda warnings are presumed to be given without a knowing and intelligent waiver, and are subject to suppression. Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089 (1999). To determine if a person is in custody for Miranda purposes, however, depends on whether the person is physically denied his freedom of action in any significant way, or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by the interrogation. Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994) citing Commonwealth v. O’Shea, 456 Pa. 288, 318 A.2d 713 (1974), cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 685 (1974).

Clearly, when the defendant made the initial statement to the police at the Thirsty Camel, she became the focus of the police investigation. This fact is evidenced by the conduct of the police — they handcuffed her, arrested her and took her into custody. It was at this time that the defendant became entitled to Miranda warnings.

Because she was denied this, any information gleaned subsequent is subject to suppression. Here, the Commonwealth argues they were not questioning the defendant and, as such, she was not entitled to Miranda warnings. We are not persuaded. The defendant was handcuffed, in custody and in the interrogation room within earshot of Dudley who was being interrogated. It is clear in light of these facts that any statements made at the station by the defendant are subject to suppression.

ORDER

And now, September 15, 1999, defendant’s omnibus pretrial motion is denied in part and granted in part.


author: THOMPSON, J.,

text:
    Schoffstall v. Nationwide Insurance Co.

      C.P. of York County,
    no. 94-SU-04190-04.

      James D. Greenberg, for plaintiff.

      Lee E. Ullman, for defendant.

      Peter D. Solymos and Robert H. Davis Jr., for deponent.
    November 9, 1999
   THOMPSON, J.,

Before the court for disposition are the objections of deponent, Ellen G. Gewen, Esq., to questions posed to her by the plaintiff during a deposition conducted on July 13,1999. Ms. Gewen is a former employee of the defendant Nationwide Insurance Company. The present deposition was permitted to proceed with certain limitations by the opinion and order of Judge Richard H. Horn, filed on October 27, 1998, in response to the defendant’s motion to quash.

The question before us presently is the scope of Judge Horn’s opinion and order. The deponent and the defendant contend that Judge Horn’s opinion and order prohibit the plaintiff from discovering information which Ms. Gewen may or may not have been privy to during her representation of Nationwide in her handling of bad faith claims. The plaintiff contends that Judge Horn’s opinion and order cannot be read that narrowly. After a careful reading of the opinion and order, we conclude that it does prevent the plaintiff from inquiring into several of the areas outlined in their letter to chambers dated July 29, 1999.

Judge Horn’s opinion and order limited the plaintiff to the two following specific areas of inquiry. First, does the testimony of Jay Carlin, Esquire, regarding the philosophy/intent of Nationwide managers who handle commercial lines of insurance, apply to managers who handled personal lines of insurance during the time of the Hannigan v. Schoffstall case? Secondly, has Nationwide at any time attempted to influence or suppress any testimony by Ellen B. Gewen, Esquire? After a careful review of the deposition transcript it is clear that Ms. Gewen has answered the questions related to these two areas. Questions number 2 through 7 posed by the plaintiff as outlined in his letter to chambers are clearly an attempt to obtain information which Ms. Gewen would have obtained in confidence as an attorney representing Nationwide in connection with bad faith claims. There is no question that this information would be protected by the attorney-client privilege and/or the work product doctrine and that it was intended to be excluded by Judge Horn’s opinion and order.

Only the first question posed by the plaintiff in their letter to chambers is relevant to Judge Horn’s area of allowable inquiry. The first question delves into the area of the payment of attorney’s fees. If Nationwide is in fact paying Ms. Gewen’s counsel fees in connection with this litigation, it may be some evidence that Ms. Gewen was offered something of value to influence or suppress her testimony. Whether or not this information would be relevant and admissible at trial is another matter. On this question, the plaintiff will not be permitted to depose Ms. Gewen further, rather the answer to this question and this question alone may be obtained by interrogatory.

An appropriate order consistent with the foregoing follows.

ORDER

And now, to wit, November 9, 1999, for the reasons set forth in the foregoing opinion, it is hereby ordered as follows:

(1) Objections 2-7 raised in the plaintiff’s letter to chambers dated July 29, 1999 will be sustained.

(2) We will permit question 1 raised in plaintiff’s letter to chambers dated July 29,1999 to be answered by a single interrogatory. The interrogatory will ask verbatim the question asked at page 21 line 21 of the deposition of Ellen B. Gewen, Esq., taken on July 13,1999. To avoid confusion the question is “[w]ho is paying your bill for legal services associated with Mr. Solymos’s representation of you in this matter.”

(3) Ms. Gewen will not be subject to further depositions or interrogatories by the plaintiff in this matter.

(4) The prothonotary shall serve a copy of this memorandum and order on counsel as required by law.

      . All correspondence sent directly to chambers in connection with the present issue will be filed contemporaneously with the filing of this memorandum and order.