author: NEW, J.,

text:
    Everett v. Wenerowicz.

      February 19, 2013
   NEW, J.,

For the reasons that follow, this court respectfully requests Plaintiff Maurice Everett’s Appeal of this court’s order dated. January 22, 2013 be quashed on appeal.

PROCEDURAL AND FACTUAL HISTORY

Plaintiff Maurice Everett (hereinafter “plaintiff’) commenced this litigation by filing a Petition for Writ of Habeas Corpus (Ad Subjiciendum) (hereinafter “Writ”) pursuant to article I, section 14 of the Pennsylvania Constitution on December 31, 2012. On that same date, Plaintiff filed a motion to proceed In Forma Pauperis (hereinafter “IFP Petition”). On January 22, 2013, this court ordered an intra-divisional transfer of plaintiff’s writ and IFP petition from the civil trial division of the Court of Common Pleas of Philadelphia County to the criminal trial division of the Court of Common Pleas of Philadelphia County for the criminal trial division to determine Plaintiff’s Writ and IFP Petition.

Thereafter, on February 11, 2013, Plaintiff filed the instant appeal to the Superior Court. In support of his appeal, Plaintiff submitted an “Affidavit That Privilege of Writ of Habeas Corpus Has Been Suspended” (hereinafter “Affidavit”). In his Affidavit, Plaintiff avers the Court’s Order suspended his privilege of the Writ of Habeas Corpus in violation of “Pa. R.C.P. 206.1-206.7.” According to Plaintiff, this intra-divisional transfer of the matter constituted a transfer to a “court of a coordinate jurisdiction,” and as such, Plaintiff argues the January 22, 2013 Order is an interlocutory order appealable as of right under Pennsylvania Appellate Rules of Civil Procedure (hereinafter “Pa. R.A.P.”) 311(c).

LEGAL ANALYSIS

Pursuant to Pa. R.A.P. 311(c), Plaintiff has appealed this Court’s Order of January 22, 2013, which states:

And now, January 22, 2013, it is hereby ordered and decreed the above-captioned matter is transferred from the Civil Trial Division of the Court of Common Pleas of Philadelphia County to the Criminal Trial Division of the Court of Common Pleas of Philadelphia County, and this matter is to be determined by the Criminal Division.

Pa. R.A.P. 311(c) grants an appeal as of right from an interlocutory order based upon:

(c) Changes of venue, etc. An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.

The notes accompanying Pa. R.A.P. 311 with respect to this subdivision offer insightful guidance on this issue, providing:

Subdivision (c) covers orders that do not sustain venue, e.g., orders under Pa. R.C.P. 1006(d) and (e). However, the subdivision does not relate to a transfer under 42 Pa. C.S. § 933(c)(1) (concurrent and exclusive jurisdiction), 42 Pa. C.S. § 5103 (transfer of erroneously filed matter) or under any other similar provision of law, because such a transfer is not to a “court of coordinate jurisdiction” within the meaning of this rule ... other orders relating to subject matter jurisdiction (which for this purpose does not include questions as to the form of action, e.g., as between law and equity, or divisional assignment, see 42 Pa. C.S. § 952 (status of court divisions)) will be appealable under Rule 341 if jurisdiction is not sustained, and otherwise will be subject to rule 312.

In the case sub judice, the January order directed an intra-divisional transfer of Plaintiff’s Writ and IFP Petition from the civil trial division of the Court of Common Pleas of Philadelphia County to the criminal trial division of the same court. Upon a review of the plain meaning of rule 311(c) and relevant notes, it is clear this intra-divisional transfer does not constitute a transfer to a “court of coordinate jurisdiction” within the meaning of the rule. First, the January order transferred plaintiff’s case to a division within the same court, i.e., the trial division of the Philadelphia Court of Common Pleas. There is only one trial division in the Court of Common Pleas of Philadelphia County, which is comprised of the civil and criminal divisions. Thus, no transfer to another court occurred.

Second, the notes explain subdivision (c) covers orders under Pennsylvania Rules of Civil Procedure (hereinafter “Pa. R.C.P.”) 1006(d) and (e) wherein a court orders a transfer of a matter to another county on the issue of venue. Here, no party sought to transfer this matter to a court of another county in this Commonwealth under Pa. R.C.P. 1006(d) or (e). Further, as discussed above, the January order transferred the matter to a division within the same court rather than transfer Plaintiff’s case to another county. As such, the subject transfer is more akin to a divisional assignment or transfer of an erroneously filed matter, which the relevant notes state are unappealable under Pa. R.A.P. 311(c).

Thus, contrary to Plaintiff’s assertion contained in his Affidavit, the January Order did not transfer this matter to a “court of coordinate jurisdiction” within the meaning of Pa. R.A.P. 311(c), but rather directed an intra-divisional transfer within the same court. Accordingly, the Court’s Order of January 22, 2013 is an interlocutory order, not appealable as of right.

Moreover, it should be noted this Court’s intradivisional transfer of the matter is consistent with both statute and rule of law. Pennsylvania Rules of Criminal Procedure (hereinafter “Pa. R. Crim. R”) 108, governing venue in habeas corpus petitions, provides:

(A) A petition for writ of habeas corpus challenging the legality of the petitioner’s detention or confinement in a criminal matter shall be filed with the clerk of courts of the judicial district in which the order directing the petitioner’s detention or confinement was entered.

Pursuant to 42 Pa. C.S. § 6502, “[a]ny judge of a court of record may issue the writ of habeas corpus to inquire into the cause of detention of any person or for any other lawful purpose.” Thus, the transfer of this matter to the criminal trial division within the same court was permitted by both statute and rule of law.

Next, Plaintiff cannot appeal the Court’s Order of January 22, 2013 under Pa. R.A.P. 341 because such transfer did not constitute a “final order.” “An order is ‘final’ if its practical effect is to put the other party out of court, precluding him from presenting the merits of his claim.” As the Pennsylvania Superior Court stated:

generally, the policy underlying the principle that an order is not appealable unless it puts the appellant “out of court” is that piecemeal litigation should be avoided; the appellate courts will use their resources more economically if they review a case only once, rather than deciding one issue on one appeal, and another issue on a later appeal.

Despite the fact the docket indicates the January Order rendered a “final disposition” of Plaintiff’s case, the effect of the Order did not put Plaintiff “out of court.” Rather, the docket entry was entered administratively to effectuate the transfer of the matter to the criminal trial division for determination. At this time, no suspension of Plaintiff’s privilege of the writ of habeas corpus guaranteed under federal and state constitutions has occurred as Plaintiff’s Writ and IFP Petition are Currently Pending Determination by the criminal trial division of this Court.

Accordingly, the Order of January 22, 2013 is neither an interlocutory order appealable as of right nor a final order pursuant to Pa. R.A.P. 311 or 341. Thus, the Order of January 22,2013 constitutes an interlocutory order, not appealable at this time.

CONCLUSION

Wherefore, for the reasons stated above, it is respectfully requested plaintiff’s appeal of the court’s order of January 22, 2013 be quashed.

      . Plaintiff was not directed to file a 1925(b) Statement of Errors Complained of on Appeal.

      . See Plaintiff’s Affidavit. Upon review of the Affidavit, it appears Plaintiff’s argument is based upon article 1, section 14 of the Pennsylvania Constitution, Pa. Const, art. 1, § 14 (“[t]he privilege of habeas corpus shall not be suspended, unless when in the case of rebellion or invasion the public safety may require it.”) and 42 Pa. C.S. § 6501 (same).

      JPa. R.A.P. 311(c); see also Pa. R.C.P. 702.

      . Id. at Note.

      . Pa. R.C.P. 1006(d) concerns a request to transfer the matter to another county of proper venue within this Commonwealth pursuant to the doctrine offorum non conveniens.

        . Pa. R.A.P. 311 at Note.

      . Plaintiff has not sought an interlocutory appeal by permission of the court pursuant to Pa. R.A.P. 312.

      . Pa. R. Crim. P. 108(A).

      . 42 Pa. C.S. § 6502(a).

      . Further, although habeas corpus is a “civil remedy, regardless of whether the prisoner has been detained under civil or criminal process,” Commonwealth v. Wolfe, 413 Pa. Super. 583, 587, 605 A.2d 1271, 1273 (1992) (citations omitted), the Pennsylvania Supreme Court has held the Post Conviction Relief Act (hereinafter the “PCRA”) subsumes the remedy of habeas corpus in circumstances where the PCRA provides a remedy for the action. Commonwealth v. Peterkin, 554 Pa. 547, 552, 722 A.2d 638, 640 (1998) (explaining the habeas statute “continues to exist only in cases in which there is no remedy under the PCRA.”). In the case sub judice, plaintiff challenges the legality of his confinement and/or continued detention. Thus, without deciding, this court notes a possibility exists plaintiff’s writ may be treated as a PCRA petition under Pennsylvania law. See id.

      . Pa. R.A.P. 341(a) provides, in relevant part: “an appeal may be taken as of right from any final order of an administrative agency or lower court.”

      . Terpin v. Terpin, 314 Pa. Super. 376, 378, 460 A.2d 1188, 1189 (1983) (citation omitted).

      . Gordon v. Gordon, 293 Pa. Super. 491, 499,439 A.2d 683, 686-87 (1981), rev’d on other grounds, 545 Pa. 391, 681 A.2d 732(1996) (citations omitted).

      . This entry represents the method used to transfer the matter to the criminal trial division because the civil and criminal trial divisions operate under separate docketing systems.

      . See Criminal Docket attached as Exhibit “A.”


source: Caselaw Access Project

author: LACHMAN, /.,

license: Public Domain

text:
    Bochetto v. Dineling, Schreiber & Park.

      Michael Miska, for plaintiff.

      James Lare, Zachary Ballard and John Salmon, for defendants.
    January 31, 2013
   LACHMAN, /.,

This case arises from the crash of an aircraft in Portugal. Defendants Piper Aircraft Inc., American Capital Ltd., and Dineling, Schriber & Park (“the moving defendants”) filed a Motion to Dismiss with Prejudice for Forum Non Conveniens pursuant to 42 Pa.C.S. § 5322(e). The court has entered an order granting that motion and dismissing this action on the condition that all of the defendants in this action submit written stipulations (1) accepting service of process in a subsequent action brought in Portugal alleging the same injuries and damages as set forth in the within action; (2) admitting jurisdiction in Portugal; and (3) waiving the statute of limitations defense in the subsequent action to be filed in Portugal. The stipulations must be filed with the Prothonotary and submitted to this court for approval within thirty (30) days of entry of the order on the docket.

The Model PA 34-2023 Seneca V aircraft at issue was manufactured by defendant Piper Aircraft in Florida in 1998. It was originally sold to Northern Air Inc. of Grand Rapids, MI, and then to S & S Aviation Inc. in Sylvania, Ohio. In 2001, it was sold to the Ben-Air Flight Academy in Belgium, where it was registered with the Belgium Civil Aviation Authority in January 2006. On June 18, 2009, Ben-Air leased the aircraft to a flight school in Portugal called Aeronautical Academy of Evora (“AAE”). From June 18, 2009 until the crash on September 15, 2009, the aircraft was maintained by AAE and/or CAE Global Academy (“CAE”).

AAE is an independent company but is part of the worldwide chain of flight schools operated by CAE. CAE operates flight schools in San Diego, CA and Phoenix, AZ. CAE has aviation training facilities in Morristown, NJ; Charlotte, NC; Dallas, TX; Miami FL; and San Francisco, CA. AAE and CAE do not have any facilities located in Pennsylvania or any connection to Pennsylvania.

On September 15, 2009, the aircraft was engaged in a nighttime training exercise when it broke up in flight and crashed in a field near Castro Verde, Portugal. All three occupants died; a flight instructor employed by AAE and two student pilots attending AAE. They were Spanish citizen Javier Terrón Sancho (the instructor), Dutch citizen Dennis Falize, and Andrew Miller, who had dual Dutch/ Australian citizenship.

GPIAA, the Portuguese equivalent of the NTSB, investigated the crash. Experts participated in the accident investigation from Piper, Continental Motors (the engine manufacturer) and other American companies whose products were incorporated into the accident aircraft. The remains of the accident aircraft are stored at a Portuguese university.

The Orphans’ Court of Philadelphia County appointed Pennsylvania attorney Robert C. Daniels to be the administrator of the Estates of Sancho, Falize, and Miller, Mr. Daniels and the parents of the victims brought this wrongful death and survival action in the Philadelphia Court of Common Pleas on September 2, 2011. The parents of the victims are citizens of Spain, the Netherlands, and the Dutch Antilles-Caribbean. Piper removed the case to the U.S. District Court for the Eastern District of Pennsylvania, but it was remanded back to the Court of Common Pleas. After Mr. Daniels’s death, he was replaced by attorney George Bochetto as administrator of the Estates.

Plaintiffs brought this case against fourteen American corporations (five of them various past or present Teledyne companies), and did not sue AAE or CAE. Plaintiffs assert several claims against each of the Defendants, including strict products liability, negligence, breach of express and implied warranty, fraud, misrepresentation and concealment, civil conspiracy, and concerted action. Plaintiffs’ theoiy of the case is focused on the design of the aircraft’s engine, which was manufactured in Alabama by Defendant Continental Motors Inc., a Delaware Company f/k/a Teledyne Continental Motors Inc. and/or Teledyne Continental Motors. The focus of the moving defendants’ theory of the case is on the maintenance and service (or lack thereof) given to the aircraft in Portugal by AAE and/ or CAE.

Defendants Textron, Cessna Aircraft Co., and McCauley Propeller Systems were dismissed from the case prior to the filing of the present Motion.

The remaining defendants have sparse connections with Pennsylvania and plaintiffs’ chosen forum in Philadelphia. Defendant American Capital is headquartered in Maryland, incorporated in Delaware, and maintains no offices in Pennsylvania. DefendantHoneywell’s singular connection, as manufacturer of the autopilot, is a Customer & Product Support Engineer located in Sewickley, Pennsylvania. The manufacturer of the aircraft’s engine, Defendant Continental Motors, is located in Alabama. Defendant Piper, manufacturer of the aircraft, is located in Florida. Defendant Dineling, Schreiber and Park (“DSP”) is a Pennsylvania banking and investment capital partnership and maintains its principal office location in Philadelphia. DSP is a former Piper shareholder which sold its interest more than eight years before the instant case was filed.

Plaintiffs’ complaint also names Teledyne Technologies, TDY Industries, Allegheny Technologies, and Allegheny Teledyne as defendants. Each of these manufacturers are based in the United States, as well as all witnesses associated with those manufacturers with knowledge of any manufacturing defects. At the time the engine included in the aircraft was sold, Defendant TDY Industries owned the operating division which constructed and sold the engine. Defendants Allegheny Teledyne, Allegheny Technologies, and TDY Industries are all affiliated with, but separate from, Defendant Continental Motors.

CAE maintains flight schools in California and Arizona, as well as a training facility in Florida. While CAE maintains a global presence and would likely be subject to personal jurisdiction in several American courts, Plaintiffs failed to demonstrate that CAE would be subject to personal jurisdiction in Pennsylvania. AAE also has no contacts in Pennsylvania.

The moving defendants filed the instant motion on February 24, 2012, asserting that this action should be dismissed on forum non conveniens grounds pursuant to 42 Pa.C.S. § 5322(e) because Portugal is a more convenient forum for this litigation. Defendants Teledyne Technologies, TDY Industries, Allegheny Technologies, and Allegheny Teledyne did not respond to the motion.

Forum non conveniens and a foreign country.

The Pennsylvania Superior Court addressed the issue of forum non conveniens in an international setting in Aerospace Finance Leasing, Inc. v. New Hampshire Insurance Co., 696 A.2d 810, 813 (Pa. Super. 1997). The Aerospace court recognized that Pa.R.C.P. 1006(d) applies to intrastate transfer from one county within Pennsylvania to another, and that 42 Pa.C.S. § 5322 applies to interstate forum disputes. In the international context, the Aerospace court adopted the reasoning and principles of the United States Supreme Court’s decision in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), as the proper framework for analyzing whether an action should be dismissed for forum non conveniens when a foreign country is asserted to be a more proper forum. Aerospace, 696 A.2d at 813.

Aerospace held that: (1) plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum; (2) that the trial court must weigh the private and public interest factors in deciding the defendants’ motion to dismiss; and (3) the decision whether to grant a forum non conveniens dismissal is left to the discretion of the trial court. Aerospace, 696 A.2d at 814, citing Piper, 454 U.S. at 255 (internal citation omitted).

Plaintiff argues that Portugal is not an available forum because the defendants have not consented to jurisdiction there, several of the plaintiffs’ claims are not recognized by Portuguese law, and their strict liability claims would be barred by a ten year statute of repose. The Superior Court’s holding in Aerospace that plaintiffs may not defeat a motion to dismiss on forum non conveniens because the substantive law in the alternative forum is less favorable than that in plaintiffs chosen forum dictates that this argument is without merit. Aerospace, 696 A.2d at 814. See, Piper, 454 U.S. at 247 (holding that the court of appeals erred in finding that plaintiffs may defeat a motion to dismiss on forum non conveniens grounds merely by showing that the substantive law to be applied in the alternative forum would be less favorable to the plaintiffs than that of their chosen forum). Likewise, the amount of damages potentially available to plaintiffs in Portugal, on the claims that Portuguese law allows, is irrelevant. Piper, 454 U.S. at 254-255 (finding that although the relatives of the decedents would not be able to rely on a strict liability theory if the case was dismissed for forum non conveniens for re-filing in Scottish courts, and although the potential damages award may be smaller there, there was no danger that the plaintiffs would be deprived of a remedy or treated unfairly).

An alternative forum is available for Plaintiffs to bring suit.

As a preliminary matter, “[p] roper application of the doctrine of forum non conveniens requires the trial court to make a finding, on the record, as to the availability of other forums and then exercise its discretion after considering all other factors.” Goodman v. Pizzutillo, 452 Pa.Super. 436, 446, 682 A.2d 363, 368 (1996). citing Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960). While the favorability of the substantive law in the chosen forum relative to that of the alternative forum is of no concern, the court must still determine the meaning Pennsylvania courts give to the term “available” in deciding whether an alternative forum is available to the plaintiffs.

The Superior Court has recognized that “no action will be dismissed unless an alternative forum is available to the plaintiff.” Humes v. Eckerd Corp., 2002 PA Super 285, 807 A.2d 290, 293-294, citing Poley v. Delmarva Power and Light Company, 2001 PA Super 182, 779 A.2d 544. Further, “ [dismissal of a complaint on the grounds of forum non conveniens should not be granted when such a decision results in the plaintiff being unable to institute an action elsewhere.” Farley v. McDonnell Douglas Truck Services, Inc., 432 Pa. Super. 456, 462, 638 A.2d 1027, 1030 (1994), citing Miller v. Gay, 323 Pa. Super, 466, 470 A.2d 1353 (1983). Pennsylvania courts do not have the authority to transfer matters to sister states, let alone to foreign countries. See Farley, 432 Pa. Super, at 467, 638 A.2d at 1032, citing Shears v. Rigley, 424 Pa. Super. 559, 623 A.2d 821 (1993). In the event that dismissal of the case would lead to jurisdictional problems in the alternative forum, the trial court “should either retain jurisdiction or dismiss on the condition that the defendants will accept service...when the case is brought in the new forum.” Farley, 432 Pa. Super, at 467, 638 A.2d at 1032, referring to Miller v. Gay, supra.

“A stipulation made by a defendant that he or she will submit to service of process and not raise the statute of limitations as a defense has been accepted by the courts as eliminating the concern regarding the availability of an alternate forum.” Jessop v. ACF Industries, LLC, 2004 Pa.Super. 367, 859 A.2d 801, 803 & n. 3, quoting Jones v. Borden, Inc., 455 Pa.Super. 110, 115, 687 A.2d 392, 395 (1996) (plurality). See, Wright v. Aventis Pasteur, Inc., 2006 Pa.Super. 203, 905 A.2d 544 (Texas existed as an alternative forum in that the defendants had consented to jurisdiction, accepted service in that state, and waived the defense of the statute of limitations). None of the moving defendants have so stipulated.

To be “available,” then, means that the court dismissing for forum non conveniens must be assured that the plaintiff will be capable of filing a case in the alternate forum and that the defendant will not raise any objections to jurisdiction or service, or raise the defense of the statute of limitations when the new case is filed. This court has fashioned such an order based on the order entered in Arnelian v. SmithKline Beecham Corp., 2005 Phila. Ct. Com. Pl. Lexis 7 (Ackerman, L), affirmed without opinion, 895 A.2d 643 (Pa. Super. 2006). Before the court will finally dismiss this action for forum non conveniens, every defendant must file stipulations admitting jurisdiction in Portugal, accepting service of process in the case to be filed in Portugal, and waiving the application of any statutes of limitations. If any defendant fails to file such a stipulation within thirty days, the court will not dismiss this action and it will be litigated in this forum. See, Farley, 432 Pa. Super, at 467, 638 A.2d at 1032.

That an alternative forum exists, however, is only a prerequisite for a court to dismiss on forum non conveniens grounds and is not dispositive of the issue.

Portugal is a more appropriate forum for this suit.

The Aerospace court adopted the holding in Piper that the court is to examine the private and public interest factors in assessing a motion to dismiss on forum non conveniens in the international context. Pennsylvania courts have much experience in this analysis. Under 42 Pa.C.S. § 5322(e), a trial court may dismiss a case, even when jurisdictional requirements are met, when the court determines that “in the interest of substantial justice the matter should be heard in another forum.” 42 Pa.C.S. § 5322(e)(emphasis added). “In determining whether ‘weighty reasons’ exist to overcome the plaintiff’s choice of forum, the trial court is required to examine both the private and public interest factors involved in the case.” Wright v. Aventis Pasteur, 905 A.2d at 548.

The private factors to consider are: (a) relative ease of access to sources of proof; (b) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (c) possibility of view of the premises, if a view of the premises may be appropriate; and (d) other practical problems that make trial of the case easy, expeditious and inexpensive. The public factors to consider are: (a) administrative difficulties of congested courts; (b) ensuring jury duty is not imposed on the people of a community with no relation to the litigation; and (c) the avoidance of courts having to untangle conflicts of laws problems and potentially applying a law foreign to such court. Wright, 905 A.2d at 548, citing D ’Alterio v. New Jersey Transit Rail Operations, Inc., 2004 PA Super 42, 845 A.2d 850, 852.

After considering the private and public factors in litigating in Pennsylvania versus Portugal, it is clear that Portugal is the appropriate place to conduct this litigation. An analysis of the private factors reveals the following. Neither the aircraft nor any of its component parts were designed or manufactured in Pennsylvania. The aircraft was permanently operating in Portugal at the time of the crash. Any non-party witnesses and those responsible for the maintenance of the aircraft, as well as maintenance records, are located in Portugal. Those responsible for conducting testing of the wreckage as part of the GPIAA investigation are located in Portugal. Neither the plaintiffs, nor their parents or successors, were citizens of Portugal or the United States and are not now citizens of either. The plane broke up in-flight and crashed in a field near Castro Verde, Portugal.

Whether the cause of the crash is the result of a defectively designed product, as plaintiffs contend, or poor maintenance in Portugal, as the moving defendants contend, is a fact question which does not impact the consideration of the private factors here. Further, that the plaintiffs have chosen to retain an attorney whose practice is located in their chosen forum is not a factor in the forum non conveniens analysis. Cinousis v. Hechinger Dep’t Store, 406 Pa. Super. 500, 504, 594 A.2d 731, 733 (1991).

The public factors also weigh heavily in favor of litigating this case in Portugal. Pennsylvania bears only a tangential relation to the facts of this case and it would be improper to burden a Pennsylvania jury with a case in which the community holds virtually no interest. Trial in Pennsylvania would require the court to engage in a conflict of laws analysis and likely apply Portuguese law to the case, a factor weighing heavily in favor of dismissal. Tyro Industries v. James A. Wood, Inc., 418 Pa. Super. 296, 301, 614 A.2d 279, 282(1992).

Additionally, the inability of the moving defendants to obtain proper service on CAE and AAE and to join them as additional defendants in Pennsylvania weighs very heavily in favor of dismissal. The present case shares important similarities with Piper in which an aircraft crash in Scotland killed the pilot and five passengers, all of whom were Scottish residents. Piper Aircraft Co. (“Piper”) manufactured the aircraft in Pennsylvania. Hartzell Propeller, Inc. (“Hartzell”) manufactured the propellers in Ohio. At the time of the crash, the aircraft was registered in Great Britain. Air Navigation and Trading Co., Ltd. owned and maintained the aircraft. McDonald Aviation, Ltd., a Scottish air taxi service, operated the aircraft. Both Air Navigation and McDonald were organized in the United Kingdom. The plane’s wreckage was housed in Famsborough, England. Piper, 454 U.S. at 238-239.

The personal representative of the estates of those killed in the crash brought suit against only Piper and Hartzell in the Superior Court of California under negligence and strict liability theories. The case was removed to the United States District Court for the Central District of California and then transferred to the Middle District of Pennsylvania. Both Piper and Hartzell subsequently moved to dismiss the case on forum non conveniens grounds. The district court granted the motion after noting that an alternative forum existed in Scotland. The United States Court of Appeals for the Third Circuit reversed and remanded for trial. The United States Supreme Court reversed the Third Circuit and affirmed the district court’s decision to dismiss the action. Piper, 454 U.S. at 261.

The Piper defendants argued that their inability in the federal case to implead the potential third-party defendants located in Scotland required holding the trial in Scotland. The defendants intended to counter plaintiff’s design defect claim by asserting that the negligence of other parties, including the pilot, the plane’s owners, or the charter company, relieved them of liability. Although the defendants, if they were held liable in the United States, may have been able to institute an action for contribution and indemnity in Scotland, the Supreme Court held that it would be far more convenient to resolve all claims in one trial. Forcing the defendants to pursue separate claims of contribution and indemnity would be “burdensome,” which is sufficient grounds to support dismissal on forum non conveniens. Piper, 454 U.S. at 259, referring to Pain v. United Technology Corp., 205 U.S.App.D.C. 229, 244, 637 F.2d 775,790 (1980) (relying on a similar argument in approving dismissal of an action arising out of a helicopter crash that took place in Norway).

In the instant case, the moving defendants intend to argue that the cause of the crash was improper maintenance of the aircraft on the part of AAE and/or CAE and not a design defect in the aircraft. The moving defendants are unable to obtain proper service on either AAE or CAE in Pennsylvania. The moving defendants’ case will be severely inhibited by their inability to join AAE and CAE in Pennsylvania. This weighs very heavily in finding that Portugal, where service may be made upon AAE and CAE, is a more appropriate and convenient forum.

For the reasons set forth above, the moving defendants have satisfied their heavy burden of showing, with detailed information of record, that weighty reasons exist to litigate this case in Portugal and not in Philadelphia, Pennsylvania.

FINAL ORDER

Defendants Piper Aircraft Inc., American Capital Ltd., and Dineling, Schriber & Park filed a Motion to Dismiss With Prejudice for Forum Non Conveniens pursuant to 42 Pa.C.S. § 5322(e). On September 27, 2012, the court entered an order granting that motion and dismissing this action on the condition that all of the defendants in this action submit written stipulations (1) accepting service of process in a subsequent action brought in Portugal alleging the same injuries and damages as set forth in the within action; (2) admitting jurisdiction in Portugal; and (3) waiving the statute of limitations defense in the subsequent action to be filed in Portugal.

All of the defendants in this case have filed of record the stipulations required by the order of September 27, 2012. American Capital Strategies LTD filed its stipulation on October 17,2012 at Control No. 12102068. Piper Aircraft Corporation filed its stipulation on October 17, 2012, at Control No. 12102067. Dineling, Schreiber & Park filed its stipulation on October 17, 2012, at Control No. 12102066. Honeywell international inc. filed its stipulation on October 22, 2012, at Control No. 12102459. Defendants Continental Motors Inc., Teledyne Technologies incorporated (improperly sued as Teledyne Technologies Inc.), TDY Industries Inc. (formerly known as Teledyne Industries, Inc., and now known as TDY Industries, LLC), Allegheny Technologies Incorporated and Allegheny Teledyne Inc., filed a joint stipulation on October 22, 2012, at Control No. 12102508.

Accordingly, pursuant to 42 Pa.C.S. 5322(e) and this court’s order and opinion dated September 27, 2012, it is hereby ordered and decreed that this case is dismissed with prejudice.

OPINION PER Pa.R.A.P. 1925(a)

Plaintiff George Bochetto, as Administrator of the Estates of Andrew Miller, Deceased; Dennis Falize, Deceased, and Javier Terrón Sancho, Deceased; and Plaintiffs Mark Miller, Susan Marie Miller, Dirk Jan Falize, Karin Den Turk, and Jose M. Terrón Sancho are appealing the final order granting the defendants’ motion to dismiss this action for forum non conveniens. The reasons for the order appear of record in this court’s order and opinion dated September 27, 2012, and in the final order dated December 10, 2012, copies of which are attached hereto.

ORDER

And now, September 27,2012, upon consideration of the Motion to Dismiss For Forum Non Conveniens pursuant to 42 Pa.C.S. § 5322(e) filed by Defendants Piper Aircraft Inc., American Capital Ltd., and Dineling, Schriber & Park; the plaintiffs’ response thereto; and the defendants’ reply, it is hereby ordered and decreed that defendants’ motion is conditionally granted. Plaintiffs’ complaint will be dismissed with prejudice after every defendant in this action files of record a written stipulation (1) accepting service of process in a subsequent action brought in Portugal alleging the same injuries and damages as set forth in the within action; (2) admitting jurisdiction in Portugal; and (3) waiving the statute of limitations defense in the subsequent action to be filed in Portugal. Said stipulations are to be filed with the prothonotary and submitted to this court for approval within Thirty (30) Days of the entry of this order on the docket.

      . While this case was before the U.S. District Court for the Eastern District of Pennsylvania, the Plaintiffs settled their claims against Defendants Textron Inc., Cessna Aircraft Co., and McCauley Propeller Systems and the federal court entered an order dismissing those Defendants. Plaintiffs filed a copy of that order with this Court. See Docket entry of March 26, 2012.


author: LUDGATE, J,

text:
    Commonwealth v. Miller.

      Jonathan Kurland, for plaintiff.

      Brie R. Halfond, for defendant.
    March 1, 2013
   LUDGATE, J,

Daniel Miller (hereinafter “defendant”) appeals his conviction and judgment of sentence.

On March 19, 2012, the Commonwealth filed a three count information against defendant in Docket No. 969-2012 consisting of the following offenses:

1) Count 1, aggravated assault, 18 Pa. C.S.A. Section 2702(a)(1);
2) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1); and
3) Count 3, endangering the welfare of a child, 18 Pa. C.S.A. Section 4304(a)(1).

On October 18, 2012, following a two-day jury trial, defendant was found guilty of the following:

1) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1); and
2) Count 3, endangering the welfare of a child, 18 Pa. C.S.A. Section 4304(a)(1).

On November 7, 2012, defendant appeared before this court for sentencing and the court imposed the following sentence:

1) Count 3, endangering the welfare of a child, 18 Pa. C.S.A. Section 4304 (a)(1), fourteen (14) months to sixty (60) months incarceration, 267 days time served.
2) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1), twelve months (12) to sixty months (60) incarceration, running consecutive to the sentence imposed in count 3.

On appeal, the defendant raises four (4) detailed claims of error. The court asks that the defendant’s appeal be denied, and his conviction and judgment of sentence affirmed.

I. FACTUAL BACKGROUND

D.M., the victim, is a six-month-old baby. She was bom premature and spent her first 11 days in the Neonatal Intensive Care Unit (NICU). Notes of Testimony (“N.T.”), Trial, at 126-127. Upon discharge from the NICU, D.M. was given an apnea monitor so her breathing could be monitored by her family. N.T., Trial at 126-127. On November 16,2011, at some point between approximately 3:00 P.M. and 5:00 P.M., at 329 Locust Street, Reading, Pennsylvania, Berks County, defendant was the sole adult in an upstairs room with his daughter, the victim, D.M.; her two-year-old brother, D.A.M.; and her four-year-old sister C.K. N.T., Trial, at 144-176. During the period of time in which defendant was alone with D.M., D.A.M. and C.K., Tamara Kerns, mother of D.M., and Rhonda Miller, defendant’s sister, were preparing dinner for the family. N.T., Trial at 157-160. While Ms. Kerns and Ms. Miller were preparing dinner, C.K., came downstairs and reported to her mother, Ms. Kerns, that D.M. was crying. N.T., Trial, at 157-160. Ms. Kerns went upstairs for a couple of minutes and calmed D.M. down. N.T., Trial, at 157-160.

After dinner, around 5:30 P.M., D.M. began to vomit. N.T., Trial, at 112 and 163. In response to D.M. ’s vomiting, Ms. Miller went out to purchase Pedialyte to see if the Pedialyte could curb D.M.’s vomiting. N.T., Trial, at 165-166. When Pedialyte proved unsuccessful, defendant called for an ambulance. N.T., Trial, at 166-167. While changing D.M. before the ambulance arrived, the defendant and Ms. Miller brought to Ms. Kerns’ attention that D.M. had bruises on her body. N.T., Trial, at 167-168.

When the ambulance arrived, D.M. was taken to the emergency room at Reading Hospital. By the morning of November 17, 2011, D.M. had already been transferred to the Children’s Hospital at Hershey Medical Center. Andrea Taroli M.D. was called in as a consultant. N.T., Trial, at 107-108. Dr. Taroli’s diagnosis of D.M.’s injuries included bruising around the kidney; bruising around the sternum and breast bone; subdural hemorrhages; subdural hemorrhages around the brain as well as around the spinal cord; retinal hemorrhages; and slight anemia, which represented blood loss into the bleeding around the brain and the bruises. N.T., Trial, at 113-115.

Dr. Taroli testified that D.M.’s injuries were caused by someone grasping the child and squeezing her chest about 12-18 hours prior to the time Dr. Taroli examined D.M., N.T., Trial, at 113-124.

On the same day as Dr. Taroli’s examination, C.K. told Nicole Robinson, an employee at Berks County Children and Youth Services, that she saw her father, in an angry state, “squish” D.M. N.T., Trial at 198-200 and 234-237. C.K. reiterated the same story to Ms. Robinson on December 15th, when C.K. used a doll to show Ms. Robinson how her father squeezed D.M. N.T., Trial, at 234-237.

On February 14, 2012, the defendant was arrested.

II. PROCEDURAL HISTORY

On October 18, 2012, following a two-day juiy trial, defendant was found guilty of the following:

1) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1); and
2) Count 3, dndangering the welfare of a child, 18 Pa. C.S.A. Section 4304 (a)(1).

On November 7, 2012, defendant appeared before this court for sentencing. The defendant’s offense gravity score, prior record score, applicable sentencing guidelines, and sentence recommendations were placed on the record:

The Court: ... So with a prior record score of 2, the offense gravity score for the Simple Assault?
Assistant District Attorney (Mr. Kurland): Is a 4, your honor, which would make the guidelines restorative sanctions to not less than 12 months - up to 12 months. The aggravated range going up to 15 months.
The Court: And mitigated wouldn’t be applicable.
Assistant District Attorney (Mr. Kurland): Correct.
The Court: And he was also charged with endangering the welfare of children.
Assistant District Attorney (Mr. Kurland): That —
The Court: Does that merge?
Assistant District Attorney (Mr. Kurland): No, it would not, your honor. It has different elements. That - he was at. That has an offense gravity score of 5. The standard range would be 3 to 14 months. The mitigated range would begin at restorative sanctions. The aggravated range would go up to 17 months.
The Court: And the defendant’s adopted the written presentence investigation report.
Why don’t you put the recommendation from the Commonwealth, and then, of course, I’ll hear from Mr. Fitzgerald.
Assistant District Attorney (Mr. Kurland): Thank you, your honor
Assistant District Attorney (Mr. Kurland): That on the endangering welfare of children, that you impose a sentence of 14 to 60 months, followed by 12 to 60 months on the simple assault. This would be a —
The Court: Twelve to how many months?
Assistant District Attorney (Mr. Kurland): To 60 months. It’s a misdemeanor of the first degree because the victim was under 12 —
Assistant District Attorney (Mr. Kurland): The total recommended sentence on both counts, your honor, would be 26 months to 120 months, or just over 2 years, with a maximum of 10 years. Your honor, we recognize — in making this recommendation, we understand the defendant was acquitted of aggravated assault. We also understand that the fact that the victim was a minor is accounted for in the grading of the simple assault. We also recognize the defendant’s prior offenses involving children is accounted for in the enhanced prior record score of 2 because the corruption of minors is worth one point in this because it’s an Ml offense involving children. However
The Court: And then the corruption of minors — you mean —
Assistant District Attorney (Mr. Kurland): His prior. His prior.
The Court: His prior record was a corruption of minors. How long ago?
Assistant District Attorney (Mr. Kurland): That was in 1999 out of Northampton County.
The Court: Okay.
Assistant District Attorney (Mr. Kurland): Recognizing and conceding all those facts, your honor, we still think there’s a reason — there’s a basis in reason for the court to adopt what is a standard-range-sentence recommendation and a max at the tail. One, while the grading of the simple assault recognizes the child being under 18, and that’s an element - or under 12 years of age, I think the court can also take note as an aggravating circumstance in fashioning the sentence that not only was the victim under 12, but the victim was 6 months old. The victim was one of the most defenseless of any children that abuse could be committed on. And the defendant knew at the time that he chose to abuse her that she had been in the NICU, she had been monitored, she had health problems. And even with the knowledge of that, he chose to take out this crime on the most defenseless of victims. Your honor also has a lot more awareness of the facts and background of this case from having presided at trial. And I would also note that when medical was called on for the victim, D.M., the defendant lied to medical providers when they were trying to save and help...
The defendant knew she was injured because he shook her. That’s not something he told any ambulance paramedic. That’s not something he told any doctor at Reading Hospital or NICU. So while they’re trying to help the victim and ascertain a correct patient history to be able to help, the defendant was more worried about saving his own skin and protecting himself than protecting the person he assaulted and that he was entrusted with, which I think should also be considered as an aggravating factor.
The Court: Except that you’re not asking for an aggravated —
Assistant District Attorney (Mr. Kurland): No. I’m not, but these are factors that I would suggest to the court justify a top-of-the-standard-range sentence, as well as a high tail that I recommended, too. And I frame them as aggravating factors even though I’m not asking for the aggravated range or asking the court to abandon the guidelines entirely. And your honor, the third factor why I think the recommendation the Commonwealth has is warranted necessitates me offering into evidence Tamara Kerns to give a victim statement to the court about the impact this crime has had on the victim and her family.
[Ms. Kerns testified that D.M. will be placed in foster care and adopted in the near future and would be unable to ever know her family. She also testified, and placed into evidence, a letter that the defendant sent her blaming Detective Martinez (and using the word “spick” to describe him) for the situation the defendant is in.]
And in addition, your honor, while I recognize the defendant’s Fifth Amendment privilege not to incriminate himself, and that should not be any kind of factor at all in sentencing, I’d suggest to you what Commonwealth Exhibit No. 2 demonstrates is that rather than exercise his guaranteed and revered right to remain silent, what the defendant chose to do for his crimes and for his offenses is blame other people for his actions...
Sentencing Hg. 11/7/12, at 4-13.
Defendant’s Attorney (Mr. Fitzgerald): I was going to ask for a - with regard to Count 3, endangering welfare of children, a sentence of 267 days to 23 months. Mr. Miller has 267 days time in, so it would be a time-served sentence. Followed by three years probation on the simple assault. These are both recommendations that fall within the guideline ranges. And certainly we’ve gone over those guideline ranges earlier.
The reason I’m asking for this sentence is certainly Mr. Miller has a prior record, one of which involves corruption of minors, which is certainly an offense that involves children. That particular offense, I believe, Mr. Miller was the oldest among teenagers, and they were shooting out some windows with a BB gun. I believe that was the basis of that corruption of minors charge. I’d also point out to the court that that is a - at this point, a 13 year-old case. He has a possession of marijuana, which is more recent, but still is five years old. So I’d ask the court to consider the age of his prior offenses. Also, as a result of the conviction, you heard Miss Kerns tell the court that the baby, D.M., who was the victim in this matter, is going to be put up for adoption. The other children are at foster homes. Mr. Miller, regardless of what kind of sentence he gets here today, is going to be losing his parental rights with regard to baby D.M. He’s not going to be a part of her life. He’s not going to have any contact with his children, so they’re going to be safe from that standpoint. And I’m sure the court could fashion a sentence whereby Mr. Miler’s not to have any contact with any other minor children unless he is supervised, if that is what the court would want to order. With regard to the letter that Mr. Kurland gave to the court, certainly I would characterize the use of the language as disrespectful. I don’t know — The Court: Racist, you know.
Defendant’s Attorney (Mr. Fitzgerald): Racist, yes. I agree with what Mr. Kurland said about it. However, I don’t know that it would rise to the level to perhaps influence the court to give a greater sentence than what the court might otherwise be disposed to.
Sentencing Hg. 11/7/12 at 14-16.
After recommendations were made, this court advised defendant of his right to speak:
The Court: Okay. Mr. Fitzgerald, I want to ask next if — if the defendant wishes to say anything, now is the time. You don’t have to speak, but if you want to say anything, this is the time to say it.
The Defendant: No.
Sentencing Hg. 11/7/12 at 15-16. Shortly thereafter, the court ordered the following sentence:
Endangering welfare of children, Count 3. The court notes as well that based upon what’s already on the record, these fall within the standard range. November 7th, of 2012, the sentence is that Daniel Miller be committed for a period of not less than 14 months nor more than 60 months to the Bureau of Corrections for confinement in a state correctional facility. The defendant is not RRRI eligible by statute. Effective today; 267 days time served. The defendant will enter into, and successfully complete, an anger management program.
As it relates to Count 2, the sentence is that the defendant be committed for a period of not less than 12 months nor more than 60 months to the Bureau of Corrections for confinement in a state correctional facility. The defendant is not RRRI eligible by statute. This sentence shall commence at the expiration of the sentence imposed at 969 of‘12, Count 3.
Sentencing Hg. 11/7/12, at 16-17.

On November 19, 2012, the defendant filed a timely post-sentence motion. On November 20, 2012, the court denied the defendant’s Post-Sentence Motion.

On December 17, 2012, the defendant filed a notice of appeal to the Superior Court. On December 17, 2012, the court ordered the defendant to file a Concise Statement of Matters Complained of on Appeal. The defendant filed a Petition for an Extension of Time to File a 1925(b) Statement, which was granted by this court on January 4, 2013. The defendant filed a Concise Statement on January 30,2013. This opinion is pursuant to Pa.R.App.P. 1925(a).

III. LEGAL ANALYSIS

On appeal, the defendant raises four (4) claims of error:

1. The evidence was insufficient to support the guilty verdicts for:

a) Count 2: simple assault, 18 Pa. C.S.A. Section 2701(a)(1), where the Commonwealth failed to prove beyond a reasonable doubt that Miller attempted to cause or intentionally, knowingly, or recklessly caused bodily injury to Juvenile, D.M.;
b) Count 3: endangering the welfare of children, 18 Pa. C.S.A. Section 4304(a)(1), where the Commonwealth failed to prove beyond a reasonable doubt that Miller, while being a parent, guardian or other person supervising the welfare of a child under 18 years of age, knowingly endangered the welfare of the child by violating a duty of care, protection or support.

2. The court erred by not granting a new trial on the basis that the guilty verdicts were so contrary to the weight of the evidence presented as to shock one’s sense of justice, where:

a) Tamara Kerns’ testimony was so unreliable, in that her testimony was contradictory and inconsistent in regards to material and non-material matters, that the resulting verdicts were based upon nothing more than surmise or conjecture;
b) Rhonda Miller’s testimony was so unreliable, in that her testimony was contradictory and inconsistent in regards to material and non-material matters, that the resulting verdicts were based upon nothing more than surmise or conjecture;
c) Juvenile, C.K.’s testimony, the only eyewitness testimony, was unreliable given her age at the time of the alleged incident and at the time of trial, and where C.K. had substantially difficulty in distinguishing between reality and fantasy.

3. The court abused it discretion by imposing consecutive sentences for Counts 2 and 3, resulting in an aggregate sentence of twenty-six (26) months’ to ten (10) years’ incarceration, where such sentencing scheme was manifestly excessive given the circumstances of the case.

4. The court abused its discretion by imposing a sentence of total confinement without considering the requisite factors under 42 Pa. C.S.A. Section 9725.

The court will consider each claim in turn.

1. The evidence was insufficient to support the guilty verdicts for:

a) Count 2: simple assault, 18 Pa. C.S.A. Section 2701(a)(1), where the Commonwealth failed to prove beyond a reasonable doubt that Miller attempted to cause or intentionally, knowingly, or recklessly caused bodily injury to Juvenile, D.M.;
b) Count 3: endangering the welfare of children, 18 Pa. C.S.A. Section 4304(a)(1), where the Commonwealth failed to prove beyond a reasonable doubt that Miller, while being a parent, guardian or other person supervising the welfare of a child under 18 years of age, knowingly endangered the welfare of the child by violating a duty of care, protection or support.

“As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.” Commonwealth v. Stays, — A.3d —, 2012 WL 727184, *5 (Pa. Super. 2012) (internal citations and quotations omitted). The court will address each claim of insufficient evidence in turn.

a. Count 2: Simple Assault, 18 Pa. C.S.A. Section 2701(a)(1)

The defendant argues that the evidence was insufficient to sustain a conviction for simple assault, 18 Pa. C.S.A. Section 2701(a)(1). A person is guilty of simple assault, 18 Pa. C.S.A. Section 2701(a)(1), if he “attempts to cause or intentionally, knowingly or recklessly causes bodily injrny to another.” Here, the Commonwealth presented testimony from Ms. Miller, Ms. Kerns and C.K., that the defendant was the sole adult with D.M. for a long period of time around 3:00-5:00 P.M. N.T., Trial at 158-160,198, and 214-216. Moreover, C.K. testified that she saw the defendant squeeze D.M. N.T., Trial, at 198-200. Furthermore, the Commonwealth provided testimony by Dr. Taroli that the injuries sustained by D.M. typically occur when someone grasps the child by the chest and squeezes. N.T., Trial, at 113. According to Dr. Taroli, “the constellation of all the signs and symptoms, the history of the vomiting and the bruises on the chest, the bleeding around the brain and the retinal hemorrhages all were — all pointed to one origin which was that the child was grasped by the chest with significant force and shaken to cause bleeding around the brain and behind the eyes.” N.T., Trial, at 115.

As such, the Commonwealthpresented credible evidence that the defendant attempted to cause or intentionally, knowingly or recklessly caused bodily injury to another. Accordingly, the defendant’s argument fails.

b. Count 3: Endangering the welfare of children, 18 Pa. C.S.A. Section 4304(a)(1)

The defendant argues that the evidence was insufficient to sustain a conviction for endangering the welfare of children, 18 Pa. C.S.A. Section 4304(a)(1). “A parent, guardian or the person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection, or support.” 18 Pa. C.S.A. Section 4304(a)(1). Here, the Commonwealth presented testimony from both Ms. Kerns and Ms. Miller that the defendant was the sole adult and/or parent supervising D.M. prior to her vomiting and the discovery of her bodily injuries. Furthermore, the Commonwealth presented testimony from both Ms. Robinson, and C.K., that during the time defendant was the sole adult with D.M., C.K. witnessed the defendant, in an angry state, shake and squeeze D.M. NT., Trial, at 198-200, and 234-237.

Finally, according to Dr. Taroli, “the constellation of all the signs and symptoms, the history of the vomiting and the bruises on the chest, the bleeding around the brain and the retinal hemorrhages all were - all pointed to one origin which was that the child was grasped by the chest with significant force and shaken to cause bleeding around the brain and behind the eyes.” N.T., Trial, at 115.

As such, the Commonwealth presented a plethora of credible evidence that the defendant, an adult over 18 and the father of D.M., knowingly endangered D.M.’s welfare by shaking and squeezing her, violating a duty of care and protection he owed to his daughter. Accordingly, the defendant’s argument fails.

2. The court erred by not granting a new trial on the basis that the guilty verdicts were so contrary to the weight of the evidence presented as to shock one’s sense of justice, where:

a) Tamara Kerns’ testimony was so unreliable, in that her testimony was contradictory and inconsistent in regards to material and non-material matters, that the resulting verdicts were based upon nothing more than surmise or conjecture;
b) Rhonda Miller’s testimony was so unreliable, in that her testimony was contradictory and inconsistent in regards to material and non-material matters, that the resulting verdicts were based upon nothing more than surmise or conjecture;
c) Juvenile, C.K.’s testimony, the only eyewitness testimony, was unreliable given her age at the time of the alleged incident and at the time of trial, and where C.K. had substantially difficulty in distinguishing between reality and fantasy.

“A verdict is against the weight of the evidence ‘only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice.’” Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 652 (2008) (citing Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1036 (2007). “A weight of the evidence claim is primarily directed to the discretion of the judge who presided at trial, who only possesses ‘narrow authority’ to upset a jury verdict on a weight of the evidence claim. Assessing the credibility of witnesses at trial is within the sole discretion of the fact-finder.” Blakeney, 946 A.2d at 653 (internal citations omitted). Because claims a. and b. raise the same issue, the court will consolidate its response.

a. Tamara Kerns’ testimony was so unreliable, in that her testimony was contradictory and inconsistent in regards to material and non-material matters, that the resulting verdicts were based upon nothing more than surmise or conjecture.
b. Rhonda Miller’s testimony was so Unreliable, in that her testimony was contradictory and inconsistent in regards to material and non-material matters, that the resulting verdicts were based upon nothing more than surmise or conjecture.

In this case, the jury found the evidence and testimony provided by Ms. Kerns and Ms. Miller to be credible. Ms. Kerns’ and Ms. Miller’s testimony were nearly entirely consistent. The testimony included the following similarities: (1) Defendant was left alone with D.M. (and the other two children) around 3:00 - 5:00 RM. on November 16, 2011; (2) Ms. Kerns and Ms. Miller were preparing dinner in the kitchen during that time; (3) C.K. came downstairs during dinner preparations to report that D.M. was crying; (4) D.M. began vomiting after dinner; (5) Ms. Miller went to the store to buy Pedialyte to curb D.M.’s vomiting; and (6) bruises were noticed after, but not prior to defendant’s supervision of D.M. on November 16, 2011.

Furthermore, Commonwealth’s Exhibits Nos. 11 and 12, which were presented to the jury, tell a story that is consistent with what the jury heard from both Ms. Kerns and Ms. Miller. Commonwealth Exhibits Nos. 11 and 12, which displayed Ms. Kerns’ and Ms. Miller’s Welfare Card Purchases, allowed the jury to see proof that Ms. Kerns went to Amanda’s Grocery Store at 2:29 P.M. to buy supplies for dinner; and Ms. Miller went to Amanda’s Grocery Store to buy Pedialyte at 5:52 P.M.

While the defense brought out inconsistencies regarding who actually went to the store with Ms. Kerns at 2:29 P.M., it is well-settled that the “the jury is free to believe all, part, or none of the evidence...” Commonwealth v. Diggs, 949 A.2d 873, 879 (2008). Therefore, on this particular inconsistency, the jury could choose to believe or disbelieve either of the witnesses’ testimony.

Thus, the court does not find that the verdict was so contrary to the weight of the evidence that it shocks its sense of justice. As such, the defendant’s argument is meritless, and the argument fails.

c. Juvenile, C.K.’s testimony, the only eyewitness testimony, was unreliable given her age at the time of the alleged incident and at the time of trial, and where C.K. had substantially difficulty in distinguishing between reality and fantasy.

In this case, the jury found the evidence and testimony provided by C.K. to be credible. C.K.’s testimony provided similarities with the testimony of Ms. Kerns and Ms. Miller. All three testified that the defendant was the sole adult with D.M. prior to discovery of D.M.’s injuries.

Furthermore, C.K.’s claim that D.M. was shaken by defendant is wholly consistent with Dr. Taroli’s examination of the injuries D.M. sustained. N.T., Trial at 113-124. C.K. testified that Danilella was shaken, and Dr. Taroli testified that the bruises on D.M.’s “flank” represented someone’s thumb, and the bruises on the “front of the chest” represented someone’s fingertips as they squeezed D.M.’s chest. N.T., Trial at 113.

The fact that C.K. was four years old at the time of her testimony is of no matter. The following exchange took place during this court’s thorough competency examination of C.K.:

The Court: ... And what happens if you were to lie? That’s a bad thing or a good thing?
The Witness: Bad thing.
The Court: And would you get in trouble if you told a lie?
The witness: (no audible response).
The Court: is that a yes or no?
The witness: Yes.
N.T, Trial, at 193.

Thus, because the child witness understood that someone “would punish her if she told a lie, then this is sufficiently indicative of her understanding of the duty to tell the truth.” Commonwealth v. Short, 420 A.2d 694 (1980); see also Commonwealth v. Payton, 392 A.2d 723 (1978) (holding that a six year-old was competent to testify after indicating that her mother would punish her if she told a lie).

The court does not find that the verdict was so contrary to the weight of the evidence that it shocks its sense of justice. As such, the defendant’s argument is meritless, and it fails.

3. The court abused its discretion by imposing consecutive sentences for Counts 2 and 3, resulting in an aggregate sentence of twenty-six (26) months’ to ten (10) years’ incarceration, where such sentencing scheme was manifestly excessive given the circumstances of the case.

A challenge to the imposition of consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence. Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super.2005). Thus, defendant’s argument fails.

However, even if we were to consider defendant’s claim, we note that it lacks merit. “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Lewis, — A.3d —, 2012 WL 640745, *5, (Pa. Super. 2012) (citing Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)).

Thus, sentencing is vested in the discretion of the trial court, and a sentence must be unreasonable for the Superior Court to vacate the sentence. Commonwealth v. Walls, 926 A.2d 957, 962 (Pa.2007).

In the case sub judice, the court’s sentence was reasonable.

At sentencing the court stated the following:

The Court: The court here today will indicate that I have considered the testimony that was presented at trial, the testimony upon which the jury found this defendant guilty of simple assault and endangering the welfare of children. The court has considered the guideline ranges which were placed on the record, as well as the written presentence investigation report that the defendant adopted here today.

The court has considered that this act occurred against a six-month-old defenseless baby who had spent time in the NICU, who was already — who anybody with common sense would consider needed extra care, not to be shaken. The court has considered that it’s only by the grace of what everyone believes in that this child wasn’t damaged more seriously than she was. The court has considered that the defendant had a total and complete disregard for his duty as a parent, for his duty as a human being, for his duty as a decent person that you would not be harming a baby.

The court has considered that the defendant’s lack of remorse says more than perhaps anything. The letter where he referred to Detective Martinez with a racist term, it isn’t the racist term that the court is concerned with, but that just demonstrates that he never once said, I did something, I was angry at her, it was not good. No. The defendant has never done that. And even now at sentencing has never done that. I didn’t expect him to do it at trial. We all understand he doesn’t have to speak. But the fact that - Mr. Kurland makes a good point. When the medical people came, a child already at risk, already had a sleep apnea machine, already having the problems that she did, at that moment they needed to get accurate information, and the defendant chose to protect himself, again turning his back on his duty as a parent, as a person in charge of that child at that time.

Sentencing Hg. 11/7/12, at 16-18.

Thus, given all of the circumstances noted by this court, the sentence was not excessive. The sentence was reasonable and this court did not abuse its discretion. Therefore, defendant’s argument fails.

4. The Court abused its discretion by imposing a sentence of total confinement without considering the requisite factors under 42 Pa. C.S.A. Section 9725.

Defendant’s argument is without merit. Section 9725 reads:

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

Given all of the circumstances noted above by the court, there was detailed consideration given to the factors under 42 Pa. C.S.A. Section 9725. The court considered the nature and circumstances of the crime; the history and character of the defendant; and the rehabilitative needs of the defendant. A lesser sentence would depreciate the seriousness of this crime, which involved a father unapologetically shaking his six-month old “at risk” baby and refusing to give accurate information to the medics in order to help her.

IV. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the defendant’s appeal be denied and his conviction and judgment of sentence be affirmed.

      . This court recognizes that defendant’s children share the same initials. Therefore, the court will use “D.A.M” to identify defendant’s two-year-old son; and will use “D.M.” to identify defendant’s daughter, the six-month-old victim.


author: LASH, J.,

text:
    Rannels v. Rannels.

      Allan R. Kauffman, for plaintiff.

      Eric C. Diggan, for defendant.
    February 20, 2013
   LASH, J.,

The matters before this Court are the Exceptions filed by both parties to the Report and Recommendations of the Divorce Master, dated June 14, 2012. In his report, the master made findings on equitable distribution, alimony, counsel fees, costs and expenses.

The parties were married on May 23, 1970 and separated on November 14, 1998. Plaintiff, Carol A. Rannels (hereinafter “ex-wife”), filed the within divorce action on January 20, 2004. Defendant, Lynn L. Rannels (hereinafter “ex-husband”), then requested that the action be bifurcated, which was granted on November 30, 2004. A decree in divorce was then entered on February 3,2005, pursuant to section 3301(d) of the Divorce Code. No action on the ancillary claims were taken until November 12,2010 when ex-wife moved for appointment of a master. The master was appointed and conducted a hearing on the issues of distribution of property, support, alimony, counsel fees, costs and expenses on March 19, 2012.

Ex-husband was 67 years old at the time of the hearing, a former school teacher in the Wilson School District. He separated from his employment with the school district in June of 2000 and applied for disability retirement benefits under the Public School Employees’ Retirement System (hereinafter “PSERS”), due to significant hearing impairment and heart related issues. He began receiving monthly payments in the amount of Three Thousand one Hundred SixteenDollars andNinety-Six Cents ($3,116.96). He also receives social security retirement benefits in the amount of one Thousand Two Hundred Sixty-Four Dollars and Thirty Cents ($1,264.30), for a total current monthly income of Four Thousand Three Hundred Eighty-One Dollars and Twenty-Six Cents ($4,381.26) per month.

Ex-wife, age 65 at the time of the hearing, also has a degree in education, but worked only sporadically. She was employed in the Wilson School District from 2005 to 2008 in the Alternative Education Department, being paid Ten Dollars ($10.00) per hour for thirty-two (32) hours of work. Ex-wife is currently unemployed, relying on an inheritance for her needs, also receiving financial help from her son. The parties are also owners of a commercial real estate property located in Brecknock Township which they utilize for a water dispensing facility.

The Court of Berks County has adopted the procedures set forth in Pa.R.C.P. 1920.51 permitting divorce hearings to be heard by a master appointed by the Court. Under this procedure, the master conducts a hearing and is the fact finder for disposition of ancillary economic claims, among other things. Under Pa.R.C.P. 1920.55-2, either party may file exceptions to the master’s report within twenty (20) days, which is then reviewed by the court. In making its review, the Court shall give the master’s report great weight, although it is the Court who ultimately has the responsibility for making the final determination. Tagnani v. Tagnani, 654 A.2d 1136 (Pa.Super. 1995). On issues of credibility, the master’s findings must be given “the fullest consideration for it was the master who observed and heard the testimony and demeanor of various witnesses.” Anderson v. Anderson, 822 A.2d 824, 830 (Pa.Super. 2003), citing Schuback v. Schuback, 412 Pa.Super. 233, 603 A.2d 194, 196(1992).

In her exceptions, ex-wife claims that the master erred in determining that ex-husband’s pension payments are disability related and, therefore, not a marital asset. The master found that the disability payments represent income to ex-husband, “income designed to replace income he lost when he was forced to retire due to his disability.” Ex-wife argues that the pension is a retirement pension and as such, the pension and payments received by ex-husband are marital property subject to equitable distribution. She cites Ciliberti v. Ciliberti, 542 A.2d 580 (Pa. Super. 1998), for the proposition when “a portion of the employee’s spouses disability pension is representative of retirement benefits, the amount received by the disability employee in lieu of retirement benefits remains marital property subject to distribution.” Id. at p. 582. In Ciliberti, the husband received a police disability pension, which, at least in part, may have been received in lieu of a retirement pension. While the Divorce Code does not specifically address whether police disability payments can be deemed non-marital, the Superior Court found that it would be consistent to determine the pedigree of any type of disability payments in the same manner as the Divorce Code treats veteran’s disability pay. The Divorce Code sets forth at 23 P.S. §401(e)(6) that veteran’s benefits are not marital property “except for those benefits received by a veteran where such veteran has waived the portion of his military retirement pay in order to receive veteran’s compensation.”

Ex-husband’s pension is administered by PSERS under the Public School Employees’ Retirement Code (hereinafter “PSER Code”). Under the terms of the PSER Code, an employee is eligible for retirement benefits upon reaching “superannuation or normal retirement age,” which, depending upon his class of service and eligibility points, may be anywhere from age 60 to 65. As of the date of the hearing, Ex-husband had reached superannuation.

Ex-husband’s separation from Wilson School District in 2000 was due to his physical incapacities. The monthly payments he began receiving were clearly disability payments. Once ex-husband reached superannuation, however, he became eligible for retirement payments. This eligibility arguably rendered the purpose for the disability payments, to supplant lost income otherwise unavailable, moot. Under the Ciliberti analysis, any continuation of disability payments post-superannuation would be in lieu of retirement benefits. As the retirement benefits would be considered marital assets subject to equitable distribution, the disability payments post-superannuation would also be deemed marital property.

In a similar vein, ex-husband could be determined to be “ineligible” for continuation of disability benefits due to his eligibility for retirement benefits. In Homer v. Public School Employes’ Retirement Board, 692 A.2d 632 (Pa.Cmwlth. 1997), the Pennsylvania Commonwealth Court affirmed an order of the Public School Employes’ Retirement Board finding that the employee was ineligible for disability benefits because he reached superannuation prior to becoming disabled.

This Court finds that disability payments received by ex-husband from the time of separation from his employment to the date of superannuation are non-marital property. In making this determination, this Court is cognizant of the Pennsylvania Supreme Court’s holding in Drake v. Drake, 555 Pa. 481, 725 A.2d 717, at 723-724 (1999), where the court stated that, contrary to the intimations of the Superior Court in Ciliberti, disability payments are not “per se excluded from the definition of marital property.” Nevertheless, if ex-husband had not become disabled and had continued working, any salary he earned would be considered income and would not be marital property. The disability payments he received from the time of separation from Wilson High School until his superannuation replaced that loss of salary. It is appropriate to deem the replacement payments as income and non-marital.

Regarding payments received post-superannuation, it is not clear from the record whether the PSERS board made any determination regarding ex-husband’s continuing eligibility to receive disability payments post-superannuation. Even assuming no such action took place, it is apparent that the disability payments received post-superannuation would be received in lieu of retirement benefits, not in lieu of earnings. Under the Ciliberti analysis, the payments are a substitution for marital assets and, therefore, should likewise be deemed marital assets. Accordingly, this Court rules that all payments received by ex-husband post-superannuation are deemed marital assets.

Ex-wife contests the master’s conclusion that the value of ex-husband’s pension is One Hundred Forty-Six Thousand Two Hundred Eighty-One Dollars and Forty-Four Cents ($146,281.44). Ex-wife believes that the marital portion of the pension should have been valued at Seven Hundred Twenty-Six Thousand Eight Hundred Thirty-Eight Dollars ($726,838.00) as of July 5, 2011, based on an analysis provided by ex-wife’s expert, “Pension Analysis Consultants.”

In making his determination, the master relied upon documentation from PSERS to ex-husband setting forth the value of the retirement benefit to be One Hundred Forty-Six Thousand Two Hundred Eighty-One Dollars and Forty-Four Cents ($146,281.44), as of May 2, 2011. Also available to the master was an earlier offering from PSERS, dated January 16, 2004, listing a value at that time of Seventy-Two Thousand Three Hundred Fifty-One Dollars and Ninety-Two Cents ($72,351.92). The master found that the increase in the pension value from 2004 to 2011 was marital property, as ex-husband had made no contributions to the fund during that period. The master then applied the immediate offset method of distribution, awarding ex-husband the full value of the pension of One Hundred Forty-Six Thousand Two Hundred Eighty-One Dollars and Forty-Four Cents ($146,281.44).

Before turning to the valuation issue, this Court notes a concern. In assigning the full value of the pension to ex-husband, the master did not apply the coverture fraction, required by 23 Pa.C.S.A. §3501 (c). The parties’ separation preceded ex-husband’s separation from his employment. Thus, there may have been increases to the value of the pension resulting from efforts or contributions made by ex-husband after the parties’ separation, which would be deemed non-marital, and would have to be subtracted to arrive at a value for the portion of the pension that is marital.

The documents submitted by ex-wife from pension Analysis Consultants, Inc., are nothing more than a summary of certain pertinent figures, with a conclusion for “marital present value,” of seven Hundred Twenty-Six Thousand Eight Hundred Thirty-Eight Dollars ($726,838.00). There was no testimony and there is no written documentation providing an adequate foundation for these figures. While a similar criticism can be levied against the PSERS documents submitted by ex-husband, PSERS is responsible for the oversight and administration of ex-husband’s pension, and as such, its documents afford a greater indicia of reliability than the Pension Analysis Consultants, Inc.’s, documents. As the master’s decision was limited to a review of the documentation without further proof, he was within his discretion in accepting the PSERS documentations and figures.

This case is remanded to the master for further proceedings consistent with this opinion. In reviewing the matter, the master may want to consider utilizing a deferred distribution method. It may be less cumbersome, considering the pension is now in pay status, with ex-husband receiving defined monthly payments to be terminated upon his death, and because the remaining estate is fairly modest. Also, the master did find it necessary to provide an income stream to ex-wife in the previous recommendation, which he handled through an alimony award.

Both parties filed exceptions to the master’s resolution of the parties’ commercial water business. Ex-wife contends that the master failed to consider that ex-husband has made and continues to make “substantial profits” from the water business, sharing none of those profits with ex-wife. She also argues that he erred in the valuation of the business at Forty Thousand Dollars ($40,000.00). Ex-husband likewise contests the master’s valuation, also arguing that the master erred in limiting ex-husband’s award of the business to a “life estate,” and was unfair in placing the value of the life estate on ex-husband’s side of the asset ledger.

Since 1978, the parties ran a water vending business known as Crystal Springs located along Route 222, in Brecknock Township, Berks County. (N.T. p. 16). The business is situated on land jointly owned by the parties. (N.T. p. 22). Ex-husband testified the business is a sole proprietorship. (N.T. p. 206).

Crystal Springs consists of three (3) spring water wells and is open 24 hours a day. (N.T. p. 18). The water is dispensed through a coin operated vending machine which draws water from the wells. (N.T. p. 17). The original water machines have been replaced with dollar machines. (N.T. p. 17). Usually, ex-husband would collect the money from the machines and deposit it at a local bank. (N.T. pp. 18-19). The business revenue grew over time. For the period January to November 1999, Crystal Springs realized approximately Ninety Thousand Dollars ($90,000.00) in gross receipts. (N.T. pp. 19, 41).

Ex-wife was assisting in the business and stopped working there in November 1999 when ex-husband gave her Three Hundred Dollars ($300.00) and told her he was retiring from Wilson School District and that she was not to return to the business, also suggesting that she obtain a teaching job. (N.T. p. 17). Ex-wife has received no money from the business since that time. (N.T. p. 22).

At a point in time post-separation, PennDOT reconstructed Route 222 adjoining the Crystal Springs property. As a result, the property no longer had access to highway frontage. To address this problem, ex-husband purchased a small parcel of land in February of2008 from PennDOT for Three Thousand Five Hundred Dollars ($3,500.00), (N.T. pp. 130-131), purchasing the property with non-marital funds.

Ex-husband submitted a county tax bill for 2010 setting forth an assessed value for the Crystal Springs property of Twenty Thousand Six Hundred Dollars ($20,600.00). (N.T. p. 123). He said the County Tax Assessment Office “annexed” the parcel he purchased in 2008 to the adjacent Crystal Springs land and assessed both parcels as one property. (N.T. p. 133). There is no real estate appraisal in the record for the property but ex-husband opined that the 2010 assessed value is “accurate.” (N.T. pp. 133-134).

Ex-husband presented a property insurance declaration page for the period of June 5, 2010 through June 5, 2011 showing an insured value of Ten Thousand Dollars ($10,000.00). (N.T. p. 124). He explained this policy insured the coin-vending machine located on the property. The insured value has been consistent from the date of the parties’ separation to the present. (N.T. pp. 124-125).

Ex-husband has closed two (2) of the three (3) wells on the site. One of these wells was closed because the Pennsylvania Department of Environmental Protection tested the water and subsequently required ex-husband to perform periodic testing, the cost of which he could not afford. (N.T. pp. 125-126). The remaining well is tested several times a year. (N.T. pp. 129-192).

Ex-husband testified that between 1988 and 2008 the business turned a profit “some of the years.” (N.T. p. 191). However, the business had no profit for the last four (4) years. (N.T. p. 190). He believes the site has value as a commercial property because of highway access. (N.T. p. 193). He said the business, exclusive of the land, has no value because he cannot move it and it cannot be sold without the land. (N.T. pp. 193-194). Further, he opines that the only reason the property has value is due to the road frontage he purchased from PennDOT. (N.T. p. 207).

The master struggled with assigning a value to the business because of conflicting evidence and the lack of documentation. For instance, neither party placed into evidence Crystal Spring’s bank records. Faced with these difficulties, the master valued the business at Forty Thousand Dollars ($40,000.00), representing the sum of the real estate assessed value, the value of the equipment which had been insured for Ten Thousand Dollars ($10,000.00), and the wages set forth in Schedule C of ex-husband’s 2003 federal income tax return amounting to Eight Thousand Two Hundred Dollars ($8,200.00). (Exhibit P-6).

The master’s award to ex-husband of the water dispensing business is specifically set forth in the proposed decree, where it states:

...The right to operate the Crystal Springs water dispensing business plus the real estate on which the business is located which has a value of $40,000.00. The right to operate the business shall include, but not necessarily be limited to, the right to make all decisions on the operation and maintenance of the business, the right to receive all income from the business, and the obligation to pay all of the obligations arising out of operation and maintenance of the business. Husband shall indemnify and hold wife harmless from any and all obligations and claims arising out of his operation and maintenance of the business while it is in his control. However, the business and the surrounding real estate shall remain in joint names. In the event of the death of Husband, Wife shall become the sole owner of the business with all of the rights and responsibilities attendant thereto, In addition, husband may elect to transfer of all his right, title and interest in the business and surrounding real estate during his lifetime in which case Wife shall have the right to ownership and operation of the business, in the event that Husband shall transfer his right, title and interest in the business and real estate to Wife during his lifetime his alimony payments shall be reduced as set forth in this Decree.

Regarding the valuation, ex-husband argues that the parties agreed that the fair market value of the real estate equals Twenty Thousand Six Hundred Dollars ($20,600.00). In fact, ex-wife did represent that in her “Proposed Decree And Recommendation for Equitable Distribution” that the real estate should be valued at Twenty Thousand Six Hundred Dollars ($20,600.00).

Adding Ten Thousand Dollars ($10,000.00) for the equipment,baseduponrepresentations by theparties to their insurance company, appears reasonable. The additional Nine Thousand Four Hundred Dollars ($9,400.00) by the master is entirely speculative. The master felt it necessary to add this figure based on his recognition that the business has some value. Given the lack of information available, the master’s estimate of value appears to be sensible.

Ex-husband complains that the master should have reduced the value by the fair market value of the land purchased by ex-husband in 2008 by Thirty-Five Hundred Dollars ($3,500.00). Ex-husband points out that this parcel was purchased post-separation with non-marital assets and should not be included in the value of the real estate or business. Unfortunately, it is not clear whether the master took this into account in reaching his Forty-Thousand Dollar ($40,000.00) figure. Even assuming the master did not properly consider this issue, ex-husband’s complaint is offset by other considerations. The real estate appears to be undervalued, being based on a 2010 assessment, which is not indicative of current fair market value, but reflects a 2010 fair market value less the common level ratio applicable at that time. Further, ex-husband conceded that the real estate has commercial value due to its location. Accordingly, this court accepts the master’s conclusion as appropriate.

We turn then to ex-husband’s concern that the master granted ex-husband a “life estate” only and should not have placed the value of the property at Forty Thousand Dollars ($40,000.00) on ex-husband’s side of the ledger.

Ex-husband is not correct in asserting that he was granted a life estate. The master permitted both parties to retain ownership, and in the event of death of one of the parties, the other party would become sole owner. The master did restrict sale.

ORDER

And now, February 20, 2013, after argument held, disposition of the ancillary economic claims in divorce are remanded to the master for further proceedings consistent with this opinion. The parties shall submit to the master further information on ex-husband’s pension, including any contributions made by ex-husband post-separation of the parties, ex-husband’s date of superannuation, whether the retirement pension is currently in pay status, whether the monthly retirement payments would be in the same amount as monthly disability payments, and any other information necessary to assist the master in making his recommendation.

The matter is also remanded to the master to reconsider the findings made regarding the parties’ water dispensing business, to make additional findings consistent with this opinion.

      . Defendant, Lynn L. Rannels (hereinafter “ex-husband”), had filed a previous divorce action in Cameron County on September 24, 2001 resulting in a judge of that county entering a decree in divorce on May 28, 2002. However, ex-wife, claiming she had no notice of the Cameron County action, filed a motion to vacate the decree, which was granted by the Cameron County Court on December 11,2003.

      . 23 Pa.C.S.A. §3301(d).

      . Master’s Report and Recommendation, tenth page.

      . 23 RS. § 401(e)(6) has now been replaced by 23 Pa.C.S.A. § 3501(a)(6).

      .24 Pa.C.S.A. §8101, etseq.

      . According to correspondence sent by PSERS dated January 16, 2001 (Defendant’s Exhibit 30), Ex-husband reached superannuation at age 62 in 2007.

      . This Court cannot determine through the record whether ex-husband’s retirement payments would be identical to his disability payments. He appears to qualify for a standard single life disability annuity under 24 Pa.C.S.A. §8344. As such, ex-husband may receive the same monthly payments as enjoyed under the maximum single life annuity provisions set forth in 24 Pa.C.S.A. §8342. On remand, the master shall receive evidence and make a finding to resolve this question.

      . Under §8344 of the PSER Code, 24 Pa.C.S.A. §8344, the PSERS board has authority to make a determination to end disability payments if an employee is no longer eligible for the disability annuity.

      . The Supreme Court noted that the divorce code speaks only to veteran’s disability payments. The Supreme Court’s implication is that the Superior Court may have overreached in finding that the Divorce Code sufficiently addresses disability payments, as marital or non-marital, through an analogy to veteran’s disability benefits.

      . 23 Pa.C.S.A. §3501(C)(2).

      . On this issue and others, the master was saddled with a lack of evidence sufficient to make a competent ruling. On remand, adequate documentation from PSERS should be proffered.

      . Ex-Wife’s Exceptions 1, 2, and 6.

      . Ex-Wife’s Exception No. 5.

      . Ex-Husband’s Exception B.