author: HODGE, J.,

text:
    Osborne v. Osborne

      C.P. of Lawrence County,
    No. 11099 of 2010, C.A.

      Shawn B. Olson, for plaintiff.

      Deborah A. Shaw, for plaintiff.
    Sept. 30, 2014
   HODGE, J.,

Before the court for disposition are exceptions to the report and recommended order of the equitable distribution master. The plaintiff, Tracey Osborne (hereinafter, “wife”), and the defendant, Wesley Osborne (hereinafter, “husband”) were married on August 30, 1986 and separated on July 8, 2010. Wife is currently 50 years old. During the course of the parties’ marriage, wife worked as a Radiograph Technician, and wife financially contributed to the parties’ marriage. Wife continues to maintain full-time employment as a Radiograph Technician. Husband is currently 49 years old. Husband initially worked at a landscaping company and served as the primary wage earner. During the marriage, husband expanded his level of education at Penn State University and established several businesses relating to lawn service and contracting and wildlife control.

The parties own substantial marital assets, which are subject to equitable distribution. Their assets include fifteen pieces of real property valued at $1,184,000.00. The parties additionally owned personal property, vehicles and proceeds from an oil and gas lease. The marital debt is comprised of several mortgages, and personal and business loans. The marital debt equals approximately $415,597.16. Following several days of equitable distribution hearings, the master entered a report and recommended order dividing the marital estate. Pursuant to the master’s recommendations, wife was awarded specific pieces of real property, a lump sum equitable distribution award, counsel fees and spousal support.

Husband timely filed exceptions to the master’s report and recommendations. Husband contends that the master committed the following errors:

1. The master erred in awarding wife the following real property:
a. 294 Bedford Road, Pulaski Township;
b. 4857 Hillsville Road, Pulaski, PA;
c. 1927 State Route 208, Pulaski, PA; and
d. Tionesta Camp, Forest County, PA.
2. The master erred in assigning the full obligation for the following loans/lines of credit to Husband:
a. First Commonwealth Bank Consolidation loan;
b. Wells Fargo loan;
c. First Commonwealth Bank Commercial loan;
d. First Commonwealth Bank Business Line of Credit;
e. First Commonwealth Bank Excavator loan;
f. Loan from Husband’s parents regarding PNC Bank Line of Credit; and
g. All First Commonwealth Bank loans associated with High Hill Storage.
3. The master erred in failing to award husband credit for payments made on the marital liabilities after separation.
4. The master erred in assigning all personal property located at [the] Osborne Farm to wife.
5. The master made incorrect findings of fact regarding wife’s income and expenses.
6. The master erred in awarding wife alimony in the amount of $500.00 per month for eight years.
7. The master incorrectly applied the seventeen factors for awarding alimony.
8. The master erred in requiring husband to pay wife’s counsel fees in the amount of $5,100.00.
9. The master erred in failing to attribute to wife a portion of the tax liability associated with the receipt of the oil and gas lease bonus money and further erred in requiring husband to be fully responsible for payment of taxes.
10. The master erred in leasing the funds held in escrow to wife and [to the equitable distribution master for his fees].
11. The master erred in requiring husband to make a lump sum payment of $66,000.00 to wife.
12. The master erred in awarding wife 50% of any and all future oil and gas-mineral rights associated with the parties’ real estate.
13. The master erred in failing to totally discredit the appraisals of wife’s appraiser.
14. The master erred in failing to correctly identify the real property and in misidentifying real property.
15. The master made incorrect findings of fact and conclusions in determining the value of the real property owned by the parties.
16. The master provided insufficient findings as to the values of the real property.
17. The master erred in determining the value of the personal property.
18. The master erred in awarding wife more than 50% of the marital estate.
19. The master erred in awarding wife the Harley Davidson Sportster.
20. The master made incorrect findings of fact and conclusions in the discussion of the relevant factors considered under Section 3502(a) of the divorce code.
21. The master erred in determining the value of the 1971 Oldsmobile 442 and in failing to find that husband only owns a one-half interest in the automobile.
22. The master erred in calculating the net value of the marital estate.

In disposing of these exceptions, the court observes that while a master’s report is advisory only, it is to be given great deference. Fiorelli v. Fiorelli, 195 A.2d 369 (1964); Morschhauser v. Morschhauser, 516 A.2d 10 (1986). A reviewing court has a duty to make a complete and independent review of the proceeding below. Rollman v. Rollman, 421 A.2d 755 (1980).

In reviewing the master’s considerations, the report should be given “fullest consideration” particularly on issues of credibility. Kohl v. Kohl, 564 A.2d 222 (1989). The review is intended to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias, interest, and opposition to incontrovertible physical facts by which credibility may be ascertained. Rollman, supra. However, because the master is the person hearing the testimony and observing the demeanor and appearance of the witness, any issue of credibility must be resolved by giving the Master’s findings the fullest consideration. Rorabaugh v. Rorabaugh, 448 A.2d 64 (1982). With this standard in mind, the following is a discussion and disposition of the parties’ exceptions.

Husband’s Exception 1

Husband’s first exception contends that the master failed to appropriately weigh the testimony regarding the real property. Husband argues that the master failed to consider the fact that defendant is dependent upon the real property to maintain his business. Husband states that, by awarding wife the property located at 294 Bedford Road in Pulaski Township, Lawrence County, Pennsylvania, the master has significantly impaired husband’s ability to maintain his business. Husband contends that his business is dependent on retaining the Bedford Road property and the other properties awarded to wife.

The master’s report and recommendations indicated that the master heavily considered husband’s business and how a division of property would affect husband’s ability to maintain his business. The master specifically stated, “ [a]n additional consideration in that husband should retain more of the real property so he [can] continue operating the business.” Master’s report, p. 41. The master’s report goes on to analyze how a property award in husband’s favor would impact wife’s interest in the martial property. Id. Therefore, husband’s first argument that the master’s analysis fails to consider husband’s reliance on the property in continuing his business is unsupported by the record.

Husband further argues that his business will financially suffer if he does not receive the “bulk” of the marital property. Husband specifically takes exception to wife being awarded the property located at 294 Bedford Road, which husband refers to as the Osborne Farm. At the time of argument on husband’s exceptions, husband asserted that this piece of property is vital for his landscaping business. A review of the transcripts from the equitable distribution proceedings, however, indicates husband associated some level of necessity associated with each piece of property and the future success of his businesses. The 294 Bedford Road property contains a residence, which husband characterized as a rental property. For this reason, the master determined that it would be appropriate for wife to receive this property to live in or rent and otherwise generate additional income.

In a case like this, where the majority of the marital estate is invested in real, property, it is disingenuous for either party to expect an award of the entire marital estate when there are insufficient liquid assets to compensate the other spouse for their investment into the marriage. Husband and wife purchased the marital property over time as husband’s businesses developed. Wife’s work outside and inside the home substantially contributed to husband’s ability to successfully develop his businesses. Therefore, the court finds no error in the assignment of real property in the instant case.

Husband’s first exception is denied.
Husband’s Exception 2 and Husband’s Exception 3

Husband next contends that the master failed to provide husband credit for payments made on the marital liabilities following the parties’ separation. Beginning on page 33 of the master’s report, the master identifies each of the marital loans and liabilities. The loans and liabilities were outlined as follows:

a. First Commonwealth Bank Consolidation Loan
Balance @ Separation $151,325.16
Current Balance $139,502.60
b. Wells Fargo Home Mortgage
Balance @ Separation $102,207.06
Current Balance $78,277.60
Husband has made monthly payments
c. First Commonwealth Bank Commercial Loan
Balance @ Separation $38,477.65
Current Balance $23,482.68
d. First Commonwealth Bank Business Line of Credit
Balance @ Separation $19,863.62
Current Balance $17,506.49
e. First Commonwealth Bank Excavator Loan
Balance @ Separation $61,220.00
Current Balance $37,800.78
f. Storage Shelter Loans (Three Loans)
Balance @ Separation i. $43,695.79
ii. $31,816.79
iii. $38,666.63
$114,179.21
Current Balance
i. $27,796.76
ii. $12,761.50
iii. $26,901.64 $67,449.90
g. PNC Bank Line of Credit
Balance @ Separation $56,317.23
Current Balance $51,567.11

In distributing the marital debt, the master originally assigned the balance owed on the First Commonwealth Commercial loan to wife. The balance on this loan, and the amount assigned to wife equals $23,482.68. This loan was also obtained by the parties to consolidate their credit card debt; The parties offered the 294 Bedford Road property as collateral for this loan.

The master subsequently recommended that husband assume the First Commonwealth Commercial loan in order to achieve an equal division of the marital estate. The court finds this recommendation to be an error. This debt was incurred by both parties, and it is wife’s desire to obtain possession of the 294 Bedford Road property. Therefore the court believes it is appropriate to assign this liability to wife.

The remaining debts were also assigned to husband. Of the seven loans, the First Commonwealth Bank Business Line of Credit, the First Commonwealth Bank Excavator loan and the Storage Shelter loans were only used for purchases and debts associated with husband’s businesses. Husband will continue to own the businesses and receive income from the businesses. Therefore, the court finds no error in assigning these liabilities to husband.

The First Commonwealth Bank Consolidation loan, Wells Fargo Home Mortgage and PNC Bank Line of Credit are a combination of debt incurred by both parties for marital and business purposes. The court will therefore analyze the character of each liability individually.

The First Commonwealth Bank Consolidation lan merged a large portion of marital debt incurred by the parties. Wife was responsible for incurring $50,548.60 of this debt. The remainder of this debt is a combination of the parties’ Chase Bank debit card, First National bank debit card, Sky Bank debit card and Bank of America debit card by husband on behalf of his businesses and the parties’ farm. Wife was required to pay on this loan during the marriage and following separation. Wife’s monthly payments equaled $1,000.00. Wife was often unable to make her monthly payment following the parties’ separation despite a court order being implemented requiring wife to make the $1,000.00 monthly payment. Alternatively, husband frequently made monthly payments following the parties’ separation. When Husband did make a monthly payment, he paid the sum of $500.00. Husband was compensated for his payments via a $4,500.00 distribution from the parties’ escrow account. See master’s report, p. 55.

Given the competing liability between the parties regarding the First Commonwealth Bank Consolidation loan, the court has considered assigning a portion of this debt to wife, but has concluded that doing so would create an inequitable division of the marital estate. Additionally, the court considers the fact that the portion of this debt incurred by wife was on behalf of the parties in an attempt to maintain the standard of living assumed in the marital residence during the parties’ marriage. The court finds that the debt incurred by wife, while possibly financially irresponsible, was not frivolous or self serving. Husband shall therefore assume responsibility for the remaining portion of the First Commonwealth Bank Consolidation Loan.

The Wells Fargo Home Mortgage encumbers the marital residence. It is husband’s desire to obtain possession of the marital residence, and the master’s recommendation is consistent with husband’s request. Therefore, the court finds no error in assigning this liability to husband.

The PNC Bank Line of Credit is more complicated in nature because the line of credit drawn from is owned by Husband’s parents. During the parties’ marriage, the parties borrowed $54,000.00 from husband’s parents’ line of credit to purchase office space for husband’s business. Husband drew an additional $4,500.00 following separation to avoid bank foreclosure on the marital residence. The evaluation of the assignment of this loan is consistent with its prior reasoning. The majority of this debt was incurred for the benefit of husband’s business. The balance of the debt was incurred by husband to save the marital residence, which has been awarded to husband. In general, the PNC Bank Line of Credit is attributed to debt favorable to husband. Therefore, the court finds no error in assigning this liability to husband.

Consistent with the court’s analysis set forth above, husband’s third exception is granted in part and denied in part.

Husband’s Exception 4

Husband’s fourth exception contends that the master erred in awarding wife all the personal property located at the 294 Bedford Road property to wife. The master determined the personal property located at this residence had a total net value of $27,475.00. The master sets forth in a footnote located on page 53 of his report that he awarded husband and wife the personal property located at the respective residences awarded to the parties. The master reasoned that the parties could “swap” any of the personal property located in the other’s residence if the award did not meet the parties’ desires. The court finds this recommendation to be reasonable. Husband’s fourth exception is therefore denied.

Husband’s Exception 5

Husband’s fifth exception argues that the master made incorrect findings of fact regarding wife’s income and expenses. In reviewing the master’s report, the court finds that each of the master’s factual findings is wholly supported by the notes of testimony, in addition to referencing the notes of testimony where such evidence was obtained. Husband’s fifth exception is denied.

Husband’s Exception 6

Husband’s sixth exception argues that the master erred in awarding wife alimony. As stated in the court’s analysis under husband’s seventh exception, the master carefiilly evaluated each of the seventeen factors in determining whether wife was entitled to an award of alimony. The master properly concluded that any marital misconduct displayed by wife was a result of wife attempting to maintain a financial status quo at the marital residence. Furthermore, the parties were married for a considerable period of time, and wife’s employment outside of the home enabled husband to pursue his career goals. The master additionally acknowledges that husband’s earning capacity was superior to wife’s, and that wife’s basic needs could not be sustained via her equitable distribution award because there is a deminimis liquid estate available to the parties. For these reasons, the master concluded that an award of alimony in the amount of $500.00 would be appropriate and the court agrees with the master’s conclusion. Husband’s sixth exception is therefore denied.

Husband’s Exception 7

Husband’s seventh exception contends that the master incorrectly applied the seventeen factors for awarding alimony. Husband specifically contends that the master failed to consider wife’s skills, training and employability in addition to her current employment. Husband believes that wife’s reasonable needs can be supported by continuing to work and through equitable distribution. Husband additionally argues that the master erred in not appropriately weighing the fact that wife received funds of approximately $21,000.00. These funds were paid to the parties when they executed gas leases for the properties owned by the parties in Lawrence County.

Areview ofthe master’s report justifies the court’s finding that each of the statutory factors set forth at 23 Pa.C.S.A. §3701 (b) were properly addressed by the master. Although some of the master’s analysis is incorporated by reference from the master’s analysis of the Section 3502 factors, the master’s analysis is thorough and fully supported by the evidentiary record. The master additionally considered the fact that wife’s equitable distribution award, though significant, is tangible in nature; thereby failing to provide wife the monetary support necessary to sustain her reasonable needs. The court concludes that husband’s seventh exception is without merit. Husband’s seventh exception is therefore denied.

Husband’s Exception 8

Husband’s eighth exception contends that the master erred in awarding wife counsel fees in the amount of $5,100.00. Husband specifically argues that the master failed to consider the fact that wife received an advance against equitable distribution in the amount of $15,000.00 for counsel fees and litigation expenses. The court finds this argument to be without merit. The master did in fact consider wife’s advance, see master’s report p. 66, however the master concluded that this advanced failed to adequately accommodate the expenses wife incurred through counsel fees and expert witnesses. Husband’s eighth exception is therefore denied.

Husband’s Exception 9

Husband’s next exception contends that it was error to assign the tax liability associated with oil and gas royalties solely to husband. Prior to the equitable distribution proceedings, the parties received the sum of $72,930.00 as a sign-on bonus under an oil and gas lease. The $72,930.00 was then placed in escrow with husband’s counsel. Each party received a $15,000.00 advance from these sums. Wife used her advance for payment of counsel fees. Husband subsequently received $21,733.14 from these sums, which husband applied towards the tax liability incurred from the original $72,930.00. A portion of the tax liability was penalties and interest (approximately $5,000.00) caused by husband’s failure to pay the tax. Thus, balance on the escrow funds equaled $21,196.86 at the time of equitable distribution.

Husband contends that the master assigned the total tax liability to husband, but husband’s contention is erroneous. The money used by husband to pay the tax liability was an additional withdrawal from the marital portion of money. Therefore, the tax liability was paid equally by husband and wife. Husband’s ninth exception is denied.

Husband’s Exception 10

Husband’s tenth exception contends that the master erred in releasing funds held in escrow to wife and to compensate the master for services rendered during the course of the equitable distribution proceedings. The court finds this contention to be entirely without merit as these funds were released from escrow upon proper petition and pursuant to prior orders issued from this court. Husband’s tenth exception is therefore denied.

Husband’s Exception 11

Husband’s eleventh exception contends that the master erred in awarding wife a lump sum payment of $66,000.00. In awarding wife a lump sum distribution, the master attempted to even out the equities distributed to the parties. Despite the contentions set forth by husband in his exceptions, husband was awarded a disproportionally larger percentage of the marital estate. Additionally, the court, upon review of the master’s assignment of financial debt and liability, increased wife’s debt, thereby decreasing husband’s debt. Based upon these findings, the court believes that the amount awarded to wife as a lump sum distribution is appropriate. Husband’s eleventh exception is therefore denied.

Husband’s Exception 12

Husband’s twelfth exception contends that the master erred in awarding wife fifty percent of any and all future oil and gas mineral rights associated with the parties’ real estate. The court finds husband’s exception to be correct. In their very nature, the receipt of oil and gas proceeds are speculative; to award one party a future right in an asset assigned to the opposing party fails to cause a final economic resolution to the equitable proceedings. Therefore, each party shall be awarded 100% of all future oil and gas mineral rights received from their respective properties. Husband’s twelfth exception is therefore granted.

Husband’s Exception 13

Husband’s thirteenth exception argues that the master erred in failing to totally discredit wife’s expert appraisers. The court finds no error in the master’s placement of credibility of wife’s appraisers; the master properly considered the appraiser’s credentials in determining his ability to testify as an expert. Furthermore, the master made adjustments to the valuations provided by wife due to any discrepancies in the expert’s testimony and offered report. The master also took into consideration husband’s appraisals prior to placing a value on any parcel of property owned by the parties. The court finds the master’s analysis to be appropriate. Husband’s thirteenth exception is therefore denied.

Husband’s Exception 14

Husband’s next exception states that the master erred in his identification of the real property owned by the parties. In reviewing the master’s report, the court did find inconsistencies made by the master when discussing several pieces of property. However, the court finds this error to be harmless because the master correctly identified the parcels in his identification of assets. Furthermore, the court has made appropriate adjustments to the master’s overall recommendation in other areas of this analysis, which the court believes cures any misconceptions that may have been caused. Husband’s fourteenth exception is therefore denied.

Husband’s Exceptions 15, 16 and 17

Husband’s fifteenth, sixteenth and seventeenth exception all take issue with the master’s valuation of the parties’ real and personal property. With respect to the master’s valuation of the real properties, the master’s report indicates that the master considered the valuations offered by both husband and wife in making a determination. Where appropriate, typically where the expert evaluations were close in value, the master divided the differences of the valuation in reaching his determination. Alternatively, the master also considered the fact that in some instances, it was not appropriate to give full credibility to wife’s expert’s evaluation because the appraisals conducted were performed for lending and mortgaging purpose and not for the purpose of completing an equitable distribution evaluation. The master conducted a thorough evaluation of each piece of personal property and fully justified his assignment of value to the parties’ real property. The master’s evaluation was premised upon facts set forth in his analysis of each piece of real property. Each fact utilized by the master references a supporting reference to the notes of testimony. See e.g. master’s report pp. 14-23.

Similarly, the master performed his analysis of the valuation of the real property in a manner consistent with his valuation of the parties’ real property. See e.g. master’s report pp. 24-29. Husband’s fifteenth, sixteenth and seventeenth exceptions are therefore denied.

Husband’s Exception 18

Husband’s eighteenth exception contends that the master erred in awarding wife more than fifty percent of the marital estate. Given the court’s review of husband’s exceptions and the master’s recommendations, as well as the adjustments made thereto, the court finds husband’s eighteenth exception to be moot. Husband’s eighteenth exception is therefore denied.

Husband’s Exception 19

Husband’s nineteenth exception states that the master erred in awarding wife the Harley Davidson Sportster. The master valued the Sportster at $6,000.00. Master’s report p. 27. At the time of the Equitable Distribution Hearing, the Sportster was in husband’s possession. N.T. September 17, 2013, p. 62. This information is the only testimony received during the equitable distribution hearing. In reviewing the master’s report, the court determines that the master awarded Wife the Harley Davidson Sportster in order to achieve an overall equitable distribution of marital assets. The court therefore finds no error in the master’s recommendation. Husband’s nineteenth exception is therefore denied.

Husband’s Exception 20

Husband’s twentieth exception contends that the master made incorrect findings of fact and conclusions in his analysis of the statutory factors set forth in Section 3502(a) of the divorce code. A thorough review of the master’s report clearly indicates that each of the master’s evidentiary findings references the supporting testimony from the Equitable Distribution Hearing. After reviewing the master’s analysis of each of the equitable distribution factors, the court fails to find a conclusion that is unsupported by a fact, which is properly supported by the testimony provided. Husband’s twentieth exception is therefore denied.

Husband’s Exception 21

Husband’s twenty-first exception states that the master erred in determining the value of the parties’ 1971 Oldsmobile 442 and in failing to assign husband a greater interest in the vehicle. At the time of the equitable distribution hearing husband had possession of the 1971 Oldsmobile. N.T. September 17,2013, p. 62. Wife offered an appraised value for this vehicle of $7,500.00. In his post trial memorandum, Husband concurred with wife’s stated value. Therefore, the court finds no merit in husband’s contention that the master incorrectly valued the 1971 Oldsmobile.

Additionally, the master determined that wife would receive no interest in this vehicle; therefore, any existing marital interest was awarded to husband. The court therefore finds no error in the master’s recommendation. Husband’s twenty-first exception is therefore denied.

Husband’s Exception 22

Husband’s last exception contends that the master erred in calculating the net value of the marital estate. The court finds this exception to be vague in nature. However, the court has thoroughly addressed each of husband’s exceptions regarding specific contentions regarding the master’s findings and recommendation. Because the court believes that each of husband’s prior exceptions have been adequately addressed, the court will incorporate its prior analysis and deny husband’s last exception.

Consistent with the foregoing analysis, the court will enter the following order of court as a final resolution to the pending economic claims between the parties:

ORDER OF COURT

And now, this 30th day of September, 2014, this matter being before the court on defendant’s/husband’s exception to the report and recommendations of the equitable distribution master, with Shawn B. Olson, Esquire, appearing and representing the plaintiff/wife, Tracey Osborne, and with Deborah Shaw, Esquire, appearing and representing the defendant/husband, and in consideration of the arguments and briefs submitted by counsel, as well as the report and recommendations of the equitable distribution master, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1.The following real property is awarded to the defendant/husband, Wesley Osborne,

a. 767 High Hill Road, Pulaski, PA-Marital Residence;
b. High Hill Road-High Hill Lawn Service-Shop, Pulaski, PA;
c. 160 Shenango Street, Pulaski, PA;
d. 1946 Union Street, Pulaski, PA-Business Office;
e. 1966 State Route 208, Pulaski, PA-High Hill Storage;
f. Pulaski-Hubbard Road property;
g. High Hill Road property (6.36 acres);
h. High Hill Road property (1 acre);
i. Nassau Road Property;
j. Nancy’s Island; and
k. Campground Road Property.

2. The following real property is awarded to the plaintiff/wife, Tracey Osborne:

a. 294 Bedford Road, Pulaski Township-Osbome Farm;
b. 4857 Hillsville Road, Pulaski, PA;
c. 1927 State Route 208, Pulaski, PA; and
d. Tionesta Camp, Forest County, PA.

3. Wife shall assume full obligation for the First Commonwealth Bank Commercial Loan.

4. Husband shall assume full obligation for the following loans / lines of credit:

a. First Commonwealth Bank Consolidation Loan;
b. Wells Fargo Mortgage;
c. First Commonwealth Bank Business Line of Credit;
d. First Commonwealth Bank Excavator Loan;
e. Loan from Husband’s parents regarding PNC Bank
Line of Credit; and
f. All First Commonwealth Bank loans associated with the High Hill Storage.

4. Husband shall make a lump sum payment to wife of $66,000.00 within one hundred twenty (120) days.

5. Each party shall be solely responsible for any maintenance costs, taxes and insurances for the respective real estate each is retaining. Wife shall exit the marital residence within thirty (30) days of the date of this order. The parties shall transfer all interests either owns in the real estate being transferred to the other party within one hundred twenty (120) days.

Husband shall satisfy the First Commonwealth Commercial Loan within one hundred twenty (120) days. Husband may refinance or liquidate any property, real or personal, distributed to him for the purpose of satisfying the First Commonwealth Commercial Loan or $66,000.00 lump-sum payment to wife. Wife shall execute any documents required for husband to refinance or liquidate property. Husband shall indemnify and hold wife harmless for any of the obligations set forth in paragraph three (3).

6. Husband shall retain all personal property remaining at / in the marital residence, the business office, the High Hill Lawn Service shop and the High Hill Storage shelters. Husband shall also retain all firearms and contents of the safes remaining in the marital residence, with the exception of the one bag of coins belonging wife, which husband shall forward to wife.

7. Wife shall retain all personal property located at Osborne Farm and the contents of the Tionesta Camp safe. Wife shall also retain the items located at the Tionesta Camp, with the exceptions of the brown recliner, which shall be forwarded to husband, and the personal items belonging to the parties’ children.

8. Husband shall retain the Harley Davidson Softail, 1993 Ford kit car, 1971 Oldsmobile 442,2005 Ford F-150 in disrepair and all other trucks in his possession.

9. Wife shall retain the Harley Davidson Sportster.

10. Husband is awarded all business ownership rights associated with High Hill Lawn Service, Crit-R-Done, Osborne and Sons Trapping Supply and High Hill Storage. Wife shall have no interest therein.

11. Wife shall retain the retirement account she established following separation and the 2011 Jeep Patriot.

12. Each party shall own 100% of any and all oil-gas-mineral rights including rental payments, signing payments, deposits, bonus money, royalty percentages, future payments and any other benefit derived from such lease or sale of oil-gas-mineral rights associated with any of the real property assigned to each party pursuant to the provisions of this order of court.

Each party shall retain the $21,070.89 each received pursuant to the oil and gas lease signed in December of 2013.

With respect to general leases for houses, mobile homes or property, each party is awarded all such future ordinary rents generated by the renting of real property each is retaining.

13. Husband shall pay wife alimony in the amount of $500.00 per month beginning June 1, 2014 and terminating on May 31, 2022. The alimony award shall cease according to applicable law. The parties’ August 24, 2011 support agreement (memorandum of understanding) shall terminate effective June 1, 2014.

14. Each party is responsible for their respective health care insurance costs.

15. Husband shall compensate wife’s counsel $5,100.00 towards counsel Fees. The payment may be made in twelve (12) monthly installments of $425.00 each, beginning July 1, 2014 and ending June 30, 2015. The payments are due by the fifth day of each month.

16. The parties shall timely execute all documents necessary to effectuate any of the provisions of this order

17. The following sums shall be released from the escrow funds held by counsel for defendant:

a. $5,937.50 to the Prothonotary of Lawrence County for payment of master’s fees within twenty (20) days;
b. $9,879.68 to husband; and
c. $5,379.68 to wife.

18. Wife’s petition for contempt and for special relief filed on August 26, 2014 is denied. The court finds that wife has presented insufficient evidence to sustain a finding of contempt.

19. The prothonotary shall serve a copy of this order and opinion to counsel of record for the parties.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Rohner v. Atkinson

      C.P. of Lackawanna County,
    No 9345 CV 2013

      Gletus P. Lyman, for plaintiff.

      J. Freedley Hunsicker, Jr, for defendants.
    Aug. 14, 2014
   ZULICK, J.,

Plaintiff Wayne Rohner filed a complaint seeking reinstatement and damages under the Pennsylvania Whistleblower Law, 43 P.S. §1423 (1991) and for termination of at-will employment in violation of public policy on February 28, 2014. Defendants Annette Atkinson, Michael J. Dwyer, Mitchell K. Marcus, supervisors of Middle Smithfield Township and the township itself have filed preliminary objections to the complaint.

Mr. Rohner alleges in his complaint that while serving as Middle Smithfield Township Zoning Officer, he refused a certificate of compliance during building construction as requested by the East Stroudsburg Area School District (ESASD). The supervisors then suspended him as zoning officer, replaced him and ultimately fired him. His complaint alleges causes of action under the Whistleblower Law, 43 P.S. §1423 (1991) and for termination of an at-will employment in violation of public policy.

Defendants filed preliminary objections to both counts of the complaint. Mr. Rohner filed an amended complaint and the defendants again filed preliminary objections. Defendants challenge the whistleblower claim by contending that: (1) there was no good-faith report of wrongdoing, (2) any wrongdoing that did occur was minimal or technical in nature, and (3) Mr. Rohner cannot establish a causal connection between his alleged reports of wrongdoing and his termination. Finally, defendants obj ect to Rohner’s claim that he was terminated in violation of public policy. Both parties briefed their positions, and the matter was argued before the court on June 2, 2014.

DISCUSSION

When considering preliminary objections, “all well-pleaded allegations, and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Defendant’s objections are in the nature of a demurrer.
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Albert v. Erie Ins. Exchange, 65 A.3d 923, 927 (Pa. Super. 2013) (citations omitted).

The Whistleblower Law provides, in pertinent part:

(a) Persons not to be discharged. — No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste.

43 P.S. § 1423 (1991). “In order to make out a case of retaliatory termination, a plaintiff must plead: (1) wrongdoing and (2) a casual connection between the report of wrongdoing and adverse employment action.” McAndrew v. Bucks County Bd. of Com’rs, 982 F.Supp.2d 491, 503 (E.D. Pa. 2013).

Defendants contend that actions taken by Mr. Rohner in his capacity as a zoning officer do not constitute a report of wrongdoing under the whistleblower statute. Specifically, they argue that Mr. Rohner’s denial of a certificate of compliance to the ESASD as part of his ordinary job duties did not give him whistleblower protection. This question has not been addressed by Pennsylvania’s appellate courts.

Federal courts have considered the question under federal law. The federal Whistleblower Protection Act (WPA) provided:

[A government official may not] take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee...because of...any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

5 U.S.C. § 2302(b)(8) (1994). This language was similar to that found in the Pennsylvania Whistleblower Law.

The question of whether the federal Whistleblower Protection Act protected employees who disclosed information in the course of their regular duties was addressed in Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001). There, the court held that these employees were not protected by the act:

We find no clear evidence in the legislative history of the WPA, apart from the history of the 1994 amendment discussed below, that the WPA was designed to trigger protection for performance of normal duties. The WPA was established to protect employees who go above and beyond the call of duty and report infractions of law that are hidden.”

Id. at 1353.

Congress later amended the WPA, enacting the Whistleblower Protection Enhancement Act in 2012. It provided, in part:

If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from [5 U.S.C. § 2302(b)(8)] if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.

Pub. L. no. 112-199, 126 Stat. 1465, WPEA § 101. Following this amendment, persons making disclosures in the normal course of their duties were protected by the WPEA. Pennsylvania has not amended the Whistleblower Law to add these protections.

A New Jersey appellate court denied an employee’s claim under the Conscientious Employee Protection Act (CEPA),N.J.S.A. 34:19-1 to-8, holding that an employee’s report in line with regular job duties does not state a claim. In Massarano v. New Jersey Transit, 948 A.2d 653 (N.J. Super. A.D. 2008), a former security manager brought action against New Jersey Transit under CEPA. The court, in finding that summary judgment for defendants was proper, stated:

Even if we were to find that the disposal of the documents violated public policy, plaintiff’s reporting the disposal to Watson did not make her a whistle-blower under the statute. We agree with the trial court’s analysis that plaintiff was merely doing her job as the security operations manager by reporting her findings and her opinion to Watson.

Id. at 663.See also Gianfrancesco v. Laborers International Union of North America Local 594, 2013 WL 2296759 (D.N.J. 2013) and cases cited in that opinion finding a “job duty exception” to the CEPA.

Here Mr. Rohner was acting within the scope of his responsibilities as the township zoning officer. He refused to grant a certificate of compliance to the school district because in his view the district had not fully complied with the township-approved plans of the project. This was not a report of wrongdoing or waste as contemplated by the Whistleblower Law. If it were, every denial of a certificate of completion by a zoning officer carrying out his or her duties under the law would be a report of wrongdoing.

The Pennsylvania Municipalities Planning Code, 53 P.S. §10614, provides as, follows:

§ 10614. Appointment and powers of zoning officer
For the administration of a zoning ordinance, a zoning officer, who shall not hold any elective office in the municipality, shall be appointed. The zoning officer shall meet qualifications established by the municipality and shall be able to demonstrate to the satisfaction of the municipality a working knowledge of municipal zoning. The zoning officer shall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance. Zoning officers may be authorized to institute civil enforcement proceedings as a means of enforcement when acting within the scope of their employment.

53 P.S. § 10614.

The Pennsylvania Commonwealth Court has discussed the purpose of the Whistleblower Law:

The plain intent of the law is to protect from retaliation employees who make good-faith efforts to alert authorities to governmental waste and wrongdoing. Rodgers has made allegations tracking the language of the law and providing some specifics in regard to what he observed and how he reported it. He has alleged the ultimate facts that he reported specific types of wrongdoing both orally and in writing and that he was chastised and otherwise adversely affected as a direct result of his actions.

Podgurski v. Pennsylvania State University, 722 A.2d 730, 732 (Pa. Super. 1998).

Mr. Rohner’s denial of the certificate of compliance was not a report outside of that which was required of him in his everyday job description. This was not the reporting of wrongdoing or government waste that is actionable under the Whistleblower Law.

Since I determine that Mr. Rohner’s actions as a zoning officer did not constitute a report of wrongdoing or government waste under the Whistleblower Law, I do not reach the defendants’ arguments that the alleged wrongdoing was minor or technical in nature. However, if I had, this preliminary objection would not be granted at this early stage in the pleadings because there are disputed facts about the size of the approved pavilion and the shortcomings in the actual construction. Likewise, the defense argument that there is no causal connection shown between Mr. Rohner’s actions on the ESASD plans and his firings involves facts which are not yet fully developed of record, and this preliminary objection would be denied.

The defendants also object to count two of Mr. Rohner’s complaint, which seeks damages for termination contrary to public policy. Our supreme court has outlined the limits of a suit for wrongful termination of at-will employment on public policy grounds:

[A]s a general proposition, the presumption of all non-contractual employment relations is that it is at-will and that this presumption is an extremely strong one. An employee will be entitled to bring a cause of action for a termination of that relationship only in the most limited of circumstances where the termination implicates a clear mandate of public policy in this Commonwealth.

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000).

Mr. Rohner is an at-will employee. The position of zoning officer is statutorily created. The statute does not mention a term of years. See 53 P.S. §10614. The Legislature, in making the zoning officer an employee at-will, must have foreseen circumstances in which the officer’s employers, unhappy with his or her decision(s) in applying the zoning ordinance, might choose to terminate the zoning officer’s employment. Nonetheless, the Commonwealth did not extend further protections to the zoning officer. If this court were to pronounce that public policy prevents supervisors from terminating a zoning officer whose decisions they disagree with, it would be building a moat around the zoning officer that the legislature has not established by law.

The Pennsylvania Superior Court recently denied a claim for wrongful termination under the public policy exception to at-will employment in Mikhail v. Pennsylvania Organization for Women in Early Recovery, 63 A.3d 313 (Pa. Super. 2013). There a therapist refused to include a sex offender in a group therapy session for victims of sexual abuse because to do so would violate her professional ethics. She was fired, and sued, contending that the employer’s actions violated public policy. The court stated:

In our judicial system, the power of the courts to declare pronouncements of public policy is sharply restricted. Rather, it is for the legislature to formulate the public policies of the Commonwealth. The right of a court to declare what is or is not in accord with public policy exists only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it. Only in the clearest of cases may a court make public policy the basis of its decision.

Id. at 317-18.

The superior court upheld the trial court’s dismissal of the complaint on preliminary objections. The court held that where “the act to be performed turns upon a question of judgment, as to its legality or ethical nature, the employer should not be precluded from conducting its business where the professional’s opinion is open to question.” Id. at 321.

Here, the Legislature has given the supervisors the power to fire the zoning officer if they do not approve of the way the officer enforces the ordinance. Likewise, the electorate has the power to disagree with the supervisors’ approach at the next election. It is not obvious that the Mr. Rohner’s firing was contrary to the public policy of the Commonwealth. Accordingly, defendants’ preliminary objection will be granted.

ORDER

And now, this 14th day of August, 2014, following argument and upon consideration of the briefs of the parties, it is ordered that defendants’ demurrer to Plaintiff’s claims under the Whistleblower Law and the public policy exception to employment at will are granted and plaintiff’s complaint is dismissed.

      . However, the court did so on grounds other than those relied upon by the trial court.


author: HIGGINS, J.,

text:
    Wilkins & Associates, Commercial Brokers v. Strauser Nature’s Helpers

      C.P. of Monroe County,
    No. 2446 CIVIL 2014

      Joseph P McDonald, Jr., for plaintiff.

      Malcolm J. Gross, for defendant.
    Aug. 8, 2014
   HIGGINS, J.,

On March 28, 2014, plaintiff, Wilkins & Associates, Commercial Brokers (“plaintiff’), filed a complaint against defendant, Strauser Nature’s Helper (“Strauser”), for breach of contract and civil fraud. The action arose after plaintiff, a property management company, hired Strauser to perform snow and ice removal at certain properties that plaintiff manages. Plaintiff claims that Strauser breached its contract by failing to perform the work in a good and workmanlike manner. In addition, plaintiff claims that Strauser made certain representations about the quality of its equipment and work in order to secure a contract with plaintiff which amounts to civil fraud. On April 28, 2014, Strauser filed preliminary objections to plaintiff’s complaint. On May 7, 2014, plaintiff filed preliminary objections to Strauser’s preliminary objections. The court heard oral arguments from the parties on July 7,2014, and we are now prepares to rule on the parties’ preliminary objections.

In ruling on preliminary objections, we must accept as true all well-pleaded, material and relevant facts, along with all reasonably deducible inferences therefrom. Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999). We need not accept as true, however, “conclusions of law, unwarranted inferences from the facts, argumentative allegations or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998). When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the clearest of cases. King v. Detroit Tool Co., 682 A.2d 313, 314 (Pa. Super. 1996). With these standards in mind, we will first address plaintiff’s preliminary objection to Strauser’s preliminary objections.

Plaintiff objects to the late filing of Strauser’s preliminary objections. Pa.R.C.P. 1026(a) provides in relevant part that, “every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.” While plaintiff is correct that the rule states “shall” be filed, Pa. R.C.P. 126 states that, ‘[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Although Strauser filed its preliminary objections five days after the requirement in the rules of civil procedure, we shall disregard this error as it does not affect the substantial rights of plaintiff. Plaintiff’s preliminary objections are overruled.

Next we address Strauser’s objection pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4) that plaintiff’s allegations of civil fraud. To prove civil fraud, plaintiff must prove the following: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994) (citation omitted).

Plaintiff’s complaint avers that Strauser made certain representations about its equipment and its professionalism and attention to detail in performing snow and ice removal. Plaintiff’s complaint ¶5. In accepting all well-pleaded material and relevant facts, including all reasonably deducible inferences, we conclude that plaintiff has set forth a cause of action for civil fraud. “[A]t the very least a ‘[pjlaintiff must set forth the exact statements or actions plaintiff alleges constitute the fraudulent misrepresentations.’” Id. at 545, citing McGinn v. Valloti, 363 Pa. Super. 88, 525 A.2d 732, 734 (1987). See also McClellan v. Health Maint. Org. of Pennsylvania, 413 Pa. Super. 128, 604 A.2d 1053, 1059 (1992). For example, plaintiff avers that Strauser made representations that its equipment is the best and would minimize turf damage. Plaintiff alleges that the representations were false and Strauser used these representations to secure the contracts with plaintiff. Although the representations may not amount to civil fraud, at this point in the proceedings, we are required to accept all well-pleaded relevant facts, along with the reasonably deductible inferences therefrom, as true. Plaintiff has met this bare minimum for civil fraud arising from Strauser’s alleged misrepresentation, accordingly, we must overrule this objection.

Plaintiff complains that the preliminary objections filed by Strauser amounts to a “speaking demurrer” which should be denied and dismissed.

A “speaking demurrer” defined as “one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected to, or, in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of pleading.” BLACKS LAW DICTIONARY 299 (6th ed.1991). A “speaking demurrer” cannot be considered in sustaining a preliminary objection.

Regal Industrial Corp. v. Crum & Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005). Plaintiff argues that Strauser raises a defense that its use of subcontractors was within the parameters of the contract. The interpretation of the contracts is for the fact finder and cannot be considered in sustaining a preliminary objection. However, we have determined above that that plaintiff has set forth a cause of action for civil fraud. Accordingly, we overrule this objection.

Next, Strauser objects to the insufficient specificity in plaintiff’s complaint. Specifically, Strauser argues that it is entitled to more specific pleadings regarding the damages and properties to which plaintiff is referring to in the complaint. Pennsylvania is a fact-pleading jurisdiction, accordingly a “complaint must not only give the defendant notice of what the plaintiffs’ claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim.” Youndt v. First National Bank of Port Allegany, 868 A2d 539, 544 (Pa. Super. 2005) (citation omitted). After reviewing plaintiff’s complaint we are satisfied that it contained sufficient facts to allow Strauser to formulate a defense. Any additional information can be obtained through discovery. Strauser’s preliminary objection on this issue is overruled.

In its last preliminary objection, Strauser requests plaintiff’s request for punitive and open ended damages to be stricken. The assessment of punitive damages is proper “when a person’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.” SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702 (Pa. 1991) (citation omitted). Punitive damages are awarded to punish that person for such conduct. Id. In SHV Coal, our Supreme Court adopted Section 908(2) of Restatement (Second) of Torts, stated as follows:

(2) 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. In assessing punitive damages, the trier of the fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

In reviewing plaintiff’s complaint, we find that it does not contain any allegations suggesting Strauser’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct. Accepting as true the material allegations contained in plaintiff’s complaint, we cannot infer that Strauser’s conduct is outrageous or due to any evil motive or reckless indifference to the rights of plaintiff. Accordingly, we must sustain Strauser’s preliminary objections and strike any request for punitive and open ended damages.

Accordingly, we enter the following order.

ORDER

And now, this 8th day of August, 2014, after oral argument and upon consideration of the preliminary objections filed by the parties, it is hereby ordered as follows:

1. Plaintiff’s preliminary objections to the late filing of defendant’s preliminary objections are overruled.

2. Defendant’s preliminary objections to punitive damages and open ended damages requested by plaintiff are sustained.

3. The remainder of defendant’s preliminary objections are overruled.


text:
    Pocono Medical Center v. East Stroudsburg Area School District

      C.P. of Monroe County,
    No. 1178 CV 2014

      Marc R. Wolfe, for petitioner.

      Christopher S. Brown, for respondents.
    Aug. 19, 2014
   ZULICK, J.,

This case arises out of the Monroe County Assessment Office’s Interim Notice of property assessment of the new Hughes Cancer Center, which was opened by Pocono Medical Center in 2012. The Monroe County Assessment Office issued an interim assessment to “Pocono Hospital” with an effective date of April 30, 2013. PMC failed to timely appeal from the interim notice.

PMC seeks leave to appeal the interim assessment nunc pro tunc in No. 1178 CV 2014 (the “Nunc Pro Tunc Petition”). PMC filed its petition to appeal interim tax assessment nunc pro tunc on February 20, 2014. A rule was issued on the petition and the East Stroudsburg Area School District filed an answer on March 14, 2014. The case was listed for argument on July 7, 2014.

PMC also filed a complaint in No. 1179 CV 2014 on February 20, 2014, seeking a refund of the taxes already paid pursuant to the interim assessment (the “petition for refund”). ESASD filed an answer to the complaint on March 14, 2014 and then a motion for judgment on the pleadings on May 30, 2014. The motion for judgment on the pleadings was also listed for argument on July 7,2014.

While there is no dispute that the Hughes building should be tax exempt going forward, ESASD has contested the relief sought by PMC in both cases. ESASD alleges in the proceedings on the nunc pro tunc petition, that PMC lacks a legitimate excuse for its failure to appeal the interim notice, and that a seven month delay is too long as a matter of law. ESASD contends in the complaint for refund proceedings that the matter has already been decided, and that PMC is barred from receiving a refund by operation of law. The cases have been briefed, and the matters were argued before the court on July 7, 2014.

DISCUSSION

I. Petition to Appeal Nunc Pro Tunc

This case was listed for argument on petition and answer. No hearing has been held on disputed facts. The facts are thus those admitted in the answer and all averments responsive to the petition which are set forth in the answer. See P.R.C.P. 206.7.

The following facts are admitted in the pleadings. PMC operates a hospital and related medical facilities on East Brown Street in East Stroudsburg. PMC built the new Hughes Cancer Center building on tax exempt land it owned adjacent to the existing PMC facilities. The Hughes Cancer Center opened on June 18, 2012 and is connected to the PMC facility by a skywalk over East Brown Street. The Monroe County Assessment Office issued an interim notice of property assessment for the new Hughes Cancer Center with an effective date of April 30,2013. The interim notice was mailed to “Pocono Hospital” which was listed as the owner. The date of the interim property assessment notice was June 13, 2013. The notice stated in part:

This is a notice of a change in the assessed value on the property described below. If you are aggrieved by this new assessment, a written statement of intention to appeal must be filed with the Monroe County Board of Assessment Appeals, located at the Monroe County Assessment Office...
IMPORTANT: YOUR STATEMENT OF INTENTION TO APPEAL MUST BE FILED WITH THE BOARD WITHIN FORTY (40) DAYS OF THE DATE OF THIS NOTICE.
Date ofNotice: 06/13/13
Name of Owner: POCONO HOSPITAL
Taxing District: 05 East Stroudsburg
Property Code # 05-1 3 3 6-1 c
Pin# 057311170181660
Property Description:
Effective Date of Interim Assessment: 04/30/13

PMC claims that it has no record of having received the notice, but ESASD denies that claim. See ESASD Answer to Petition, ¶ 10. PMC did not file an appeal within forty days of the date of the interim assessment.

PMC petitioned the Monroe County Board of Assessment Appeals (MCBAA) on August 26, 2013 for a determination that the new Hughes Cancer Center building was tax exempt. The petition was granted by the MCBAA for the tax year beginning January 1, 2014, but the MCBAA denied tax exemption for the 2013 interim and 2013-2014 school taxes, because no appeal was filed from the interim assessment.

PMC served a claim for a refund of the 2013 taxes upon ESASD on October 16, 2013. The ESASD Board denied this request by a 9-0 vote on October 21, 2013. PMC Petition, Exhibit E, Letter of Attorney Brown of October 22, 2013. PMC’s counsel sent a letter to counsel for ESASD on November 20, 2013, advising ESASD that the Borough of East Stroudsburg and the County of Monroe had agreed to refund the 2013 taxes.

PMC’s letter indicated that if ESASD wouldn’t agree to refund the taxes, PMC would file a complaint seeking a refund pursuant to 72 P.S. §5566b. Id., Exhibit F, Letter of Attorney Wolfe of November 20,2013. ESASD responded on December 18, 2013 that it would not refund the taxes. PMC filed the petition to appeal interim tax assessment nunc pro tunc in No. 1178 Civil 2014 and the complaint seeking a refund of the taxes in No. 1179 Civil 2014 on February 20, 2014.

The statutory time limits for filing a tax assessment appeal are mandatory and a judicial extension of the period for appeal is generally not granted. See Connor v. Westmoreland County Bd. of Assessment Appeal, 598 A.2d 610, 612 (Pa. Cmwlth. 1991). Leave to file an appeal nunc pro tunc may be granted, however, when the petitioner demonstrates that extraordinary circumstances, such as fraud or its equivalent, or that negligence on the part of administrative officials has led to the untimely appeal. Id. In Connor, the commonwealth court noted that the failure to properly send a notice may constitute a breakdown in administrative operations, deemed to be equivalent to negligence on the part of administrative officials, warranting the grant of relief. Id. Accord Union Electric Corp. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000).

The petitioner must also demonstrate that the untimely appeal was filed with reasonable diligence after the necessity for action was realized. H.D. v. Dep’t of Pub. Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000); Kaminski v. Montgomery County Bd. of Assessment Appeals, 657 A.2d 1028, 1031 (Pa. Cmwlth. 1995). See also Amicone v. Rok, 839 A.2d 1109, 1114 (Pa. Super. 2003).

PMC alleges that the assessment office was negligent for two reasons in this case: (1) the new Hughes Cancer Center was exempt from taxation and should not have been assessed for taxes; and (2) that the interim assessment was mailed to “Pocono Hospital” and not “Pocono Medical Center”.

PMC correctly points out that the Hughes Cancer Center has been given tax exempt status as a result of the ruling of the MCBAA on October 2, 2013. That ruling determined that the Hughes Cancer Center was tax exempt for the tax year beginning on January 1, 2014. However, that determination was made after the MCBAA followed statutory procedures to assess newly constructed buildings and PMC filed an appeal from the assessment. The Consolidated County Assessment Law provides in 53 Pa.C.S.A. §8817 (2011) in part as follows:

§8817. Changes in assessed valuation
(a) General rule. — In addition to other authorization provided in this chapter, the assessors may change the assessed valuation on real property when a parcel of land is subdivided in to smaller parcels or when improvements are made to real property or existing improvements are removed from real property or are destroyed. The recording of a subdivision plan shall not constitute grounds for assessment increases until lots are sold or improvements are installed. The painting of a building or the normal regular repairs to a building aggregating $2,500 or less in value annually shall not be deemed cause for a change in valuation.

Id.

When new construction occurs and is assessed pursuant to Section 8817, the assessment office makes an addition to the assessment roll:

(b) Interim revisions to assessment roll. — The county assessment office is authorized to make additions and revisions to the assessment roll at any time in the year to change the assessments of existing properties pursuant to section 8817 (relating to changes in assessed valuation) or add properties and improvements to property mistakenly omitted from the assessment roll as long as notice is provided in accordance with section 8844 (relating to notices, appeals and certification of values). All additions and revisions shall be a supplement to the assessment roll for levy and collection of taxes for the tax year for which the assessment roll was originally prepared.

53 Pa.C.S.A. §8841(c).

The county assessment office is directed to mail this interim notice to the property owner:

§8844. Notices, appeals and certification of values
(a) Notices. — The county assessment office shall mail to each record property owner, at the last known address of the record property owner, and to the affected taxing districts notice of any change in assessment or new assessment made pursuant to section 8841(c) (relating to assessment roll and interim revisions). The notice shall state:
(1) Mailing date.
(2) Property location.
(3) Parcel identifier.
(4) Effective date.
(5) Established predetermined ratio.
(6) Base-year value.
(7) Old assessment.
(8) New assessment, including the assessment of each parcel of land and the assessed value of any improvements.
(b) Mailing and notice of appeal. — The notice shall be mailed within five days from the date the county assessment office makes the change or addition to its official records. The notice shall state that any persons aggrieved by the assessment and the affected taxing districts may file an appeal to the board within 40 days of the date of the notice. The appeal shall be in writing and shall identify the following:
(1) Appellant.
(2) Property location.
(3) Owner.
(4) Assessment or assessments by which the person is aggrieved.
(5) Address to which notice of the time and place for a hearing of the appeal shall be mailed.

53 Pa.C.S.A. §8844.

PMC’s first contention, that it was error for the assessment office to issue the interim assessment notice in the first place, has no merit. The assessor is given the statutory right to reassess a property when there is new construction. The property owner then has the right to challenge the assessment and establish that the newly constructed improvement is also tax exempt, which PMC successfully did in this case for taxes from 2014 forward. The assessor’s office acted in accordance with its statutory duty in imposing the interim assessment in the first place.

PMC next contends that there was an administrative breakdown because the assessor’s attempt to notify PMC was inadequate. The assessor’s office sent the interim assessment notice to “Pocono Hospital, 206 East Brown St, East Stroudsburg, PA 18301”. PMC Petition, ¶9, Exhibit A. The assessor is required by statute to send the interim assessment notice to the “record property owner, at the last known address of the record property owner...” 53 Pa.C.S. §8844(a). PMC argues in its petition that this notice was flawed because the assessor “negligently failed to address the interim tax notices to the vice president of finance or any specific person, and PMC has no record of receiving the interim notices.” PMC Petition, ¶25. PMC goes further in its brief to argue that the assessor “provided notice to a large complex organization that did not use the correct name of PMC nor was the notice directed to the attention of the president or any other member of PMC’s executive management nor to the attention of any specific department in the Medical Center such as the finance department.” PMC Brief, page 4.

The assessor is required by law to send assessment notices to the “record property owner, at the last known address of the record property owner.” 53 Pa.C.S.A. §8844(a). PMC’s petition states that in 1988, the name of the institution was changed from “Pocono Hospital” to “Pocono Medical Center.” However, the pleadings do not establish that the “record property owner” name was ever changed. Nor do the pleadings establish that the assessor sent the interim tax notice to an address other than the “last known address of the property owner.” PMC has not made a factual record that PMC ever made any effort to change the address of the institution on the records of the assessor to the name of Pocono Medical Center, or to direct the assessor to send any notices to a particular officer or employee of the institution. The assessor served the notice at the last address of record, in accordance with the County Assessment Law. Finally, ESASD states in its answer that “(s)ince. ESASD does send and has regularly sent all tax bills to PMC at substantially the same address and directed in the substantially same manner as the interim notice at issue, ESASD is aware of no reason why the interim notice would not have reached PMC’s attention...” ESASD Answer, paragraph 10. PMC has failed to establish that the manner of service constituted a breakdown of an administrative function.

PMC has a second hurdle to cross to obtain leave to file an appeal nunc pro tunc. Even if PMC established that a breakdown of an administrative function of the assessor’s office occurred due to inadequate notice of the interim assessment, “[t]he petition to file an appeal nunc pro tunc must be filed within a reasonable time.” Amicone v. Rok, 839 A.2d 1109, 1113 (Pa. Super. 2003). Here, the date of notice of the interim assessment was June 13, 2013. PMC had forty days in which to appeal, which meant a deadline for an appeal of July 23, 2013. PMC did not make a record of when its agents first became aware of the interim assessment. PMC states in its brief that “(o)n or about July 30, 2013, shortly after learning of the assessment, PMC petitioned the Monroe County Board of Assessment Appeals for a determination that the new Hughes Cancer Center is tax exempt.” PMC Brief, page 6. If this contention is accurate, PMC was aware of the interim assessment within a week, or perhaps days, after the missed deadline for appeal. However, PMC did not seek leave to file the appeal nunc pro tunc at that point; rather PMC petitioned the Monroe County Board of Assessment Appeals “for a determination that the new Hughes Cancer Center building is tax exempt.” PMC Petition, ¶15.

The MCBAA decided on October 2, 2013 to grant PMC tax exempt status for the tax year beginning January 1, 2014, but the Board found that no appeal had been taken on the interim assessment, and granted no relief for 2013 taxes. The Board suggested that PMC apply to the taxing authorities for a refund of the taxes, since PMC had paid them under protest. PMC pursued that strategy, and it was successful as far as Borough of East Stroudsburg and Monroe County taxes were concerned. The ESASD School Board, however, voted to deny PMC the requested refund on October 21,2013. PMC asked ESASD to reconsider by letter of November 20, 2013, pointing out that the other two taxing bodies had refunded the taxes. The ESASD Board declined to do so. This was communicated to PMC by letter of December 18, 2013. PMC filed its petition for leave to file an appeal nunc pro tunc on February 20,2014.

ESASD argues that approximately seven months passed between the time PMC discovered the interim assessment and the filing of its request for nunc pro tunc appeal. In Commonwealth, Dept of Transp,, Bureau of Traffic Safety v. Johnson, 569 A.2d 409 (Pa. Cmwlth. 1990), the defendant petitioned to appeal nunc pro tunc from a suspension of his driver’s license. His petition was filed approximately two months after his missed deadline. The Johnson court held that this was too long:

A review of the record indicates that Johnson has not established any facts which would indicate that the two month delay in filing the appeal after he was aware of the suspension was the result of non-negligent happenstance. Accordingly, we must conclude that the trial court erred as a matter of law. Because we have concluded that the trial court did not have jurisdiction insofar as Johnson’s appeal was untimely we need not address the merits of the trial court’s determination.

Johnson, 569 A.2d at 411.

The superior court considered a situation where a timely notice of appeal from a magisterial district judge was rejected by the prothonotary due to form requirements in Amicone v. Rok 839 A.2d 1109 (Pa. Super. 2003). Four months after the prothonotary’s rejection of the document, Rok filed for leave to appeal nunc pro tunc. The court found that the prothonotary should not have rejected the original appeal, but denied the petition for leave to file the appeal nunc pro tunc because it was not filed within a reasonable time of the prothonotary’s rejection of the appeal.

Thus, it is clear that, whatever extraordinary circumstance is alleged as the reason for the late filing of the appeal-fraud, breakdown of the court’s operation through default of its officers, or non-negligent conduct on the part of appellant, appellant’s attorney, or the attorney’s staff-the petition to file the appeal nunc pro tunc must be filed within a reasonable time after the occurrence of the extraordinary circumstance

Id. at 1114.

The commonwealth court recently ruled that a four month delay in filing the petition for leave to file nunc pro tunc was too long. In Smalis v. Allegheny County Bd. of Property Assessment, 2013 WL 3946234 (Pa. Cmwlth. 2013) (Memorandum opinion; cited here only for its persuasive value) the defendant lost an appeal before the assessment appeal board on March 21, 2011. He claimed that he was not properly served with mail notice of that decision and he did not file a timely appeal. Approximately four months later, he filed a petition for leave to file an appeal nunc pro tunc. The court found this to have been an unreasonable delay;

Here, Smalis’s own factual averments demonstrate that he failed to act with reasonable diligence. Specifically, he avers that he appeared before the board in March 2011, seeking to appeal the assessments on his property for the tax years 2000 through 2010. According to his averments and exhibits, the board denied him relief on March 21, 2011. Although the record does not reveal what initially caused Smalis to begin the assessment appeal process, the board’s denial clearly served as notice that his appeals were untimely and that further action was required if relief was believed to be warranted. Despite the board’s denial, Smalis’s petition was not filed with common pleas until almost four months later, in July. There is no evidence to explain this delay and based upon precedent, that delay constitutes a lack of reasonable diligence as a matter law. See Dep’t of Transp., Bureau of Traffic Safety v. Johnson, 131 Pa.Cmwlth. 51, 569 A.2d 409, 411 (Pa.Cmwlth.1990) (lack of reasonable diligence demonstrated by two month delay). Accordingly, common pleas did not en in denying leave to appeal nunc pro tunc.

Id. atp. 3.

PMC explains its delay in filing the petition for almost seven months by arguing that it was pursuing an alternate remedy. It established that the Hughes Cancer Center was in fact an exempt use through the MCBAA, and then sought to persuade the taxing authorities to refund the taxes it had paid under protest. This strategy worked for two of the three taxing authorities. However, even if the court excludes the time period that PMC pursued these avenues, PMC knew shortly after December 18, 2013 that ESASD would not refund the taxes. PMC still did not file its petition for leave to appeal until February 20, 2014, which is longer than the forty day time period PMC originally had to appeal. This was not a reasonable delay under the circumstances. PMC’s request to appeal nunc pro tunc will be denied.

II. Petition for Refund

PMC has additionally sought arefund of the $ 185,534.93 it has paid in assessments for the Hughes Cancer Center for the 2012-2013 and 2013-2014 tax years. PMC argues, and ESASD agrees, that the Hughes Cancer Center meets the requirements of a purely public charity under 10 P.S. § 375. PMC contends that it is entitled to a refund of taxes paid pursuant to erroneous assessments. ESASD counters that the claim for refund is barred by statute. ESASD has filed a motion for judgment on the pleadings.

Pa.R.C.P. 1034 governs motions for judgment on the pleadings. It states, ‘After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a). After consideration of such a motion, “[t]he court shall enter such judgment or order as shall be proper on the pleadings. Pa.R.C.P. 1034(b).

A motion for judgment on the pleadings is exclusively limited to the pleadings themselves; no other outside material may be considered. P.R.C.P. 1034, Giddings v. Tartler, 567 A.2d 766, 767 (Pa. Cmwlth. 1979). Amotion for judgment on the pleadings “summarily dispose[s] of a case before trial where there exists no genuine issue of fact and which entitles the moving party to judgment as a matter of law.” Id.

PMC seeks a refund pursuant to 72 P.S. § 5566c, which provides:

In the event of refusal or failure on the part of authorities of the political subdivision involved to make any such refund of taxes, license fees, penalties, fines or other moneys to which the political subdivision is not legally entitled, or refusal or failure to pay interest as required by section 1, then the aggrieved person or corporation shall have the right to bring suit for and recover any such taxes, interest, license fees, penalties, fines or other moneys to which the political subdivision is not legally entitled, subject to the limitation herein provided, by instituting an action in assumpsit in the court of common pleas of the county wherein such political subdivision is located.

72 P.S. § 5566c. While § 5566c would seem to require ESASD to pay PMC a refund for the interim assessments, it must be read in conjunction with 72 P.S. § 5566b, which states:

The right to a refund afforded by this act may not be resorted to in any case in which the taxpayer involved had or has available under any other statute, ordinance or resolution, a specific remedy by way of review, appeal, refund or otherwise, for recovery of moneys paid as aforesaid, unless the claim for refund is for the recovery of moneys paid under a provision of a statute, ordinance or resolution subsequently held, by final judgment of a court of competent jurisdiction, to be unconstitutional, or under an interpretation of such provision subsequently held by such court, to be erroneous.

72 P.S. § 5566b (emphasis added). PMC had an alternative method to challenge the interim assessments, namely a timely appeal. The Pennsylvania Supreme Court has explained that:

[i]f no appeal is taken from the assessment of taxes within the time allowed by law it becomes binding and conclusive [, and] neither the common pleas nor an appellate court can afford any relief.
* * *
Such a result “is salutary because the revenue base of taxing bodies should not be left open indefinitely” to retrospective claims. Lincoln Philadelphia Realty Associates I v. Board of Revision of Taxes of City and County of Philadelphia, 563 Pa. 189, 210-211, 758 A.2d 1178, 1190(2000) (quotation omitted).

This principle applies not only where the taxpayer challenges the amount of an assessment but also where the taxpayer claims to be exempt from taxation. See Academy Plaza Associates, Ltd. v. Board of Revision of Taxes, City of Philadelphia, 503 A.2d 1101, 1102-03 (Pa. Cmwlth. 1986) (noting that a court has no jurisdiction to resurrect the question of a real property tax exemption); Locust Lake Village Property Owners Ass’n, Inc. v. Monroe County Bd. of Assessment Appeals 940 A.2d 591, 596 (Pa. Cmwlth. 2008).

Therefore, 72 P.S. § 5566b prohibits PMC’s suit for a refund. As this can be determined from the pleadings, ESASD’s motion for judgment on the pleadings will be granted.

No relief will be granted on PMC’s petitions. The law requires this, subject to possible review by an appellate court. However no one should be satisfied with this result. Some additional effort to give PMC notice of a large new tax assessment being imposed on a newly constructed cancer center on previously exempt property might have prevented this oversight. The county and the Borough seem to have recognized this. The School District has not. The result is payment of a large tax bill by a charitable entity that is now and was then tax exempt.

ORDER

And now, this 19th day of August, 2014, following consideration of Pocono Medical Center’s petition to appeal interim tax assessment notice nunc pro tunc and the arguments and briefs of the parties, it is ordered that Pocono Medical Center’s petition is denied.

      . The court finds that PMC’s claim for leave to appeal nunc pro tunc has no merit, so ESASD’s argument that the same is barred by res judicata need not be addressed.

      . The court has found that PMC’s refund claim is barred by statute, so ESASD’s argument that the same is barred by res judicata need not be addressed.


author: FORD, J.,

text:
    In re Weiss

      C.P. of Lehigh County,
    No. CP-39-JV-17-1995

      Michael T. Edwards, for Commonwealth.

      Charles W. Gordon and Lisa M. Spitale, for petitioner.
    Sept. 10, 2014
   FORD, J.,

On March 7,2014, counsel for the petitioner, Peter Hans Weiss, filed two documents with the court. One is entitled “motion to expunge juvenile records” and the other is entitled “petition for expungement of juvenile record.” The petitioner seeks expungement of two separate sets of juvenile charges. The first set pertains to felony drug charges that were brought against the petitioner in 1994. Petitioner, Mr. Weiss, is entitled to expungement of these records. He also seeks expungement of records regarding his adjudication in 1996 of serious sexual assaults. The petitioner is not entitled to expungement of these latter records.

I conducted a hearing on the petitions on June 13,2014. Petitioner filed a brief in support of his petitions.

Petitioner, Mr. Weiss, was bom on August 21, 1980. A juvenile petition was filed against him on December 9, 1994, when petitioner was 14 years old, for “manufacture, delivery or possession with intent to manufacture” a controlled substance. The 1994 allegations resolved with a consent decree that was entered on March 16, 1995. There is no indication in the record that there ever was a violation of the consent decree by the petitioner. Thus, the consent decree expired six months after March 16, 1995. See Pa.RJ.C.P. 373(B). A year and a half after entry of the consent decree, the sex offense allegations were filed against the petitioner. In these circumstances, under 18 Pa.C.S. § 9123(a)(2) which is a section of the Criminal History Record Information Act (CHRIA), 18 Pa.C.S. §§ 9101-9183, petitioner is entitled to expungement of the records regarding the drug offenses.

On November 27, 1996, the Commonwealth filed a juvenile petition charging petitioner in Paragraph 1 with aggravated indecent assault, 18 Pa.C.S. § 3125(7); in paragraph 2 with aggravated indecent assault, 18 Pa.C.S. § 3125(8); in paragraph 3 with indecent assault, 18 Pa.C.S. § 3126(a)(7); and in Paragraph 4 with indecent assault, 18 Pa.C.S. § 3126(a)(8). Paragraphs 1 and 2 alleged felony offenses. Paragraphs 3 and 4 alleged misdemeanor offenses. According to the petition, Mr. Weiss committed these offenses shortly after his 16th birthday on his stepsister who was less than 13 years old.

On December 3, 1996, petitioner was found to have committed all four offenses and was adjudicated delinquent. He was committed to Renewal Centers in Quakertown, Pennsylvania for treatment for several issues. The petitioner failed to adjust to this placement due to incidents that he had with staff and a peer. By order dated March 20, 1997, the petitioner was terminated from his placement at Renewal Centers and committed to a dual diagnosis placement at Specialized Treatment Services in Mercer, Pennsylvania. By order dated March 18, 1998, the petitioner was successfully released from Specialized Treatment Services and placed on probation which included participation in the Independent Living Program at Valley Youth House. With his continued positive adjustment, the petitioner was successfully released from probation by order dated August 24,1998.

The petitioner, Mr. Weiss, now lives in Emmaus with his wife of six years and two children. He is remorseful for the crimes that he committed as a juvenile and he has committed no other crimes since then. He has always had full-time employment during his adult years. The sex offenses have adversely impacted his job. He is a mason and has job restrictions in terms of where he can do his work due to these sex offenses. For example, he has restrictions for work near schools. Due to the sex offenses, the petitioner also cannot fully participate in his children’s activities by coaching them or volunteering at their schools.

Eric Holben, the petitioner’s former probation officer, testified at the June 13 hearing. Mr. Holben recounted petitioner’s positive adjustment and progress through treatment after his initial difficulties. It was clear that Mr. Holben admires petitioner for the responsible life he has fashioned for himself and for his family since his teenage transgressions.

Provisions of CHRIA control the issue of expungement of the adjudication for these sex offenses. The circumstances under which juvenile offenses may not be expunged are listed at 18 C.S. § 9123(a.l). It reads that expungement

shall not apply if any of the following apply:

(1) The individual meets all of the following:
(i) Was 14 years of age or older at the time the individual committed an offense which, if committed by an adult, would be classified as:
(A) An offense under section 3121 (relating to rape), 3123 (relating to involuntary deviate sexual intercourse) or 3125 (relating to aggravated indecent assault).
(B) Attempt, solicitation or conspiracy to commit an offense under section 3121, 3123 or 3125.
(ii) Was adjudicated delinquent for the offense under subparagraph (i).

Petitioner was older than 14 when he committed the aggravated indecent assaults, crimes then and still defined at 18 Pa.C.S. § 3125. He was adjudicated delinquent for his offenses. Thus, based on 18 Pa.C.S. § 9123(a.l)(l), the court cannot order expungement of adjudication records of these aggravated indecent assaults.

Petitioner challenges the court’s use of subsection (a.l) of Pa.C.S. § 9123 (listing the exceptions to when expungement can be granted) in deciding this issue because his adjudication for the sex offenses occurred prior to the enactment of this subsection. Petitioner correctly notes that subsection (a. 1) to Pa.C.S. § 9123 became effective on December 20,2012, after his adjudication on December 3, 1996. Petitioner asserts that use of that subsection would be an ex post facto violation.

There is no ex post facto issue in this case so an ex post facto analysis would not be appropriate. Earlier this year, when petitioner filed the pleadings that are now before the court, 18 Pa.C.S. § 9123(a.l) was already in effect so it must be used to decide whether the requests for expungement should be granted. To put it another way, I did not apply this statute retroactively.

If I am incorrect and an ex post facto examination is proper, the Superior Court has held that the expungement provisions of CHRIA apply retroactively to juvenile proceedings which occurred prior to enactment of CHRIA so long as ex post facto principles are not violated. In re Interest of John W., 300 Pa. Super. 293, 297, 446 A.2d 621, 623 (1982). In ruling that the version of 18 Pa.C.S. § 9123 in existence when an expungement petition is filed should be used to analyze a petition seeking expungement of juvenile records where the underlying juvenile proceedings occurred prior to enactment of CHRIA, the Superior Court stated:

[Section] 9123 of CHRIA does not fall within the parameters of any one of these ex post facto categories formulated by [Calder v. Bull, 3 U.S. 386 (1798) (the seminal United States Supreme Court case specifying what constitutes ex post facto legislation)]. It does not alter the degree and form of punishment; it does not create new or greater criminal offense categories for acts committed prior to its enactment; and it does not affect evidentiary rules. In short, it does not alter a petitioner’s position to his disadvantage. CHRIA is an attempt to settle the rift created by years of applying a balance of interest test to expungement issues.

Id. at 296-97, 446 A.2d at 623; See also In re Jacobs, 334 Pa. Super. 613, 483 A.2d 907 (1984).

Application of subsection (a.l) of 18 Pa.C.S. § 9123 to petitioner’s expungement petition does not impinge on the prohibition against ex post facto legislation. Subsection (a.l) simply prohibits expungement of juvenile records of adjudications for a class of enumerated sex offenses. It does not increase the punishment for those offenses, create new offenses or alter the rules of evidence. Any detrimental effect petitioner experiences as a result of the continued existence of his juvenile record would be a collateral consequence of his adjudication, not a new punishment. See In re R.R., 57 A.3d 134 (Pa. Super. 2012).

What the petitioner has done with his life for the many years since his juvenile offenses is commendable. The court and providers of sex offender treatment would hope that all who become patients for such treatment would adopt the responsible, productive life that petitioner has forged. Unfortunately for the petitioner, he cannot secure the expungement that he seeks under the statute which controls his requests which statute, incidentally, was enacted for salutary purposes. On the other hand, petitioner may be a candidate for a pardon through the Pennsylvania Board of Pardons and then expungement through the court.