author: HODGE, J.,

text:
    Giammatteo v. York

      Susan M. Papa, for plaintiff

      Joseph J. Kearney, for defendant
    July 31, 2013
   HODGE, J.,

This matter was before the court for a custody trial. The plaintiff, Alyssa J. Giammatteo (hereinafter, “mother”), and the defendant, Robert J. York (hereinafter, “Father”), are the natural parents of two minor children, Chase York (hereinafter, “C.Y.”), bom May 4, 2002, and Ian York (hereinafter, “I.Y.”), bom January 11, 2006. Mother and father each desire primary custody of their minor children. The relevant procedural and historical background of this case is summarized as follows:

Mother and father began dating in 2001. They lived together at the maternal grandparents’ residence in 2002 when their oldest child, C. Y, was bom. Mother and father married on June 22, 2004. At that time, mother was going to school to become an x-ray technician, and father was employed at Wal-Mart. Later that year, mother and father moved to Hillsboro, Ohio because father was transferred to a Wal-Mart facility in that area. Mother and father both worked, and they shared the responsibility of caring for C.Y. When both parties worked, C.Y. went to daycare. When the parties’ second child, I.Y., was bom in 2006, the parties continued to work and share the parental responsibilities associated with caring for two young children.

In January, 2008, the parties returned to Edinburg, Lawrence County, Pennsylvania. Father’s own father passed away, and the parties decided to return to father’s mother’s (hereinafter, “paternal grandmother”) residence. Mother and father remained at paternal grandmother’s residence until November 2008 when the parties separated, and mother left paternal grandmother’s residence. Mother stated that she did not feel comfortable remaining at paternal grandmother’s residence after the parties’ separation, but she did not want to remove the children from their school in the middle of the school year. Mother permitted the children to remain primarily with father until she obtained her own residence; mother believed her decision was in the children’s best interests. Mother was additionally suffering from depression following her separation from father. Mother believed that until she got herself settled, it was in the children’s best interest to remain with father at paternal grandmother’s residence. Father was not working at the time, and he agreed to care primarily for the minor children.

Following the parties’ separation, mother regularly visited with the minor children. Although C.Y. began kindergarten, mother went to paternal grandmother’s residence almost every day to spend time with I. Y. Mother purchased her own residence in February, 2009, and began bringing the children to her residence on a weekly basis. During the summer of 2009, mother had primary custody of the children. When the 2009 school year began, father resumed primary custody. The parties continued to share custody of the minor children in this manner, and without court intervention for approximately two years.

During those two years, father remained at paternal grandmother’s residence. Father helped paternal grandmother adjust after the loss of her husband, and paternal grandmother helped father care for the minor children. After a period of time, father obtained new employment, and his family continued to assist him in caring for the minor children. Despite the parties’ personal problems, the minor children were well cared for, and they adjusted to the parties’ separation.

While employed at Wal-Mart in Cortland, Ohio, father became acquainted with Tina Kordes. Father and Tina became intimately involved, and Tina stated that she did not want to further their relationship while father and mother were still married. Father’s relationship with Tina was the basis for mother’s leaving father and their subsequent separation and divorce. Once the parties were separated, father introduced the minor children to Tina at the paternal grandmother’s residence. Tina moved into paternal grandmother’s house in 2009. Tina became involved in caring for the children on a daily basis; she was an integral part of father’s support system because she assisted with meals, scheduling, schoolwork, potty-training, and playing games with the children.

In October 2011, father obtained anew job in Ohio. He informed mother that he was moving with the children. Mother stated that the children told her that father was talking about moving, but father never discussed his move with Mother until a week prior to moving.

Prior to father’s move, C.Y. was enrolled in fourth grade in the Mohawk Area School District, and I.Y. was enrolled in Lawrence County HeadStart. Father was unable to enroll I.Y. in a preschool program in Ohio because the school year already started. Father also had trouble enrolling C.Y. in the Howland School District in Warren, Ohio, because father needed to have an order of the court stating that he was the primary custodian of C.Y. Father and mother had never needed the court to make a decision about custody, and father therefore did not have an order to give to the school. C.Y. consequently missed one month of school due to father’s inability to obtain the entirety of the necessary paperwork. Mother subsequently initiated the instant custody action.

The court entered a temporary custody order granting the parties shared legal custody. The court granted father primary custody, subject to mother’s partial custody every weekend. The custody schedule converted to mother enjoying primary custody in the summer months, with father exercising custody on weekends. The parties appeared before the court on March 2, 2012 and May 22, 2012 for a custody trial without completing the evidentiary phase of the trial.

On June 15,2012, mother filed a petition for protection from abuse order against father’s fiancée, Tina, on behalf of the minor children. In her petition, mother alleged that Tina disciplined the children in an abusive manner, and the children were afraid to remain at father’s residence.

Following a final protection from abuse hearing, the Honorable Senior Judge Eugene E. Fike denied mother’s petition, and the parties were directed to comply with the temporary custody order issued on December 19, 2011. Given the contentious relationship that subsequently developed between the parties, the court appointed a guardian ad litem for the minor children. The custody trial was continued to December 18, 2012, and the court completed the same on June 12, 2013. This case is now before the court for a determination regarding the parties’ completing requests for primary physical custody.

In any custody proceeding, the court’s main concern is the most appropriate custody arrangements for the minor children. 23 Pa.C.S.A. §5327(a); KB. v. C.B.F., 833 A.2d 767, 771 (Pa.Super. 2003). In a custody contest, such as the case now before the court, where the dispute arises between two parents, the burden of proof is shared equally between the parties, as the court will not presume that custody should be awarded to a particular parent. Id.

In making a determination, the court bases its findings on how the best interests of the child may be served. Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super. 2004). It is axiomatic that the paramount concern in a child custody case is the best interests of the child, and the court makes its determination based upon a consideration of all factors legitimately affecting the child’s physical, intellectual, moral and spiritual well being. Id. Specific factors that a court must consider are set forth in 23 Pa.C.S.A. §5328(a). The court will address each of these factors in the following discussion.

1) Which party is likely to encourage and permit frequent and continuing contact between the child and other party?

Throughout this custody trial, both mother and father testified to encouraging and permitting frequent and continuing contact between the two minor children and the other party. However, each party provided examples of specific incidences in which the other party did not allow contact and/or withheld information in regards to the children’s activities. Mother did not allow children to visit father on Fathers’ Day due to a pending protection from abuse order against father’s then girlfriend, Tina. Mother was reluctant to permit father to pick up children before the start of the 2012 school year.

Father, on the other hand, did not thoroughly discuss his relocation with the children to Warren, Ohio with mother. Father told mother a week prior to his move that he accepted a new job at PetSmart in Warren, Ohio, and that he was relocating with the children. Father told mother that it would be difficult to exchange custody every weekend because he was unclear of his new work schedule, and father believed that it would take too much time to transport the children given his move. Father’s relocation prompted mother to file the underlying custody complaint.

2) The present and past abuse committed by a party or member of the parties ’ household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

Father and the paternal grandmother each testified about instances where mother has grabbed C.Y. by the arm in such a manner that she left marks on his skin. Father and paternal grandmother also stated that Mother has excessively spanked C.Y. and displays other anger-related behavior issues.

Since the parties’ separation, mother has received help for her anger issues. All of father’s testimony and paternal grandmother’s testimony related to instances that occurred over three years ago. There have been no recent allegations. The court believes that mother has received proper treatment for her anger, and the court is not presently concerned about the children’s welfare while in her custody.

Alternatively, mother filed a petition for protection from abuse order against father’s fiancée, Tina, while the custody trial was ongoing. However, mother’s petition was ultimately denied based upon the court’s finding that the allegations were unsupported. Additionally, the court acknowledges that father no longer has a relationship with Tina. The court is comfortable in concluding that the children are not at risk of harm in either party’s custody.

3) The parental duties performed by each party on behalf of the child.

The court finds that each parent currently possesses the ability to perform parental duties for the minor children, with the exception of time restraints. Mother did go through a period of depression during her separation from Father in which she was not able to fully perform parental duties. However, mother has since received treatment and is in a position where she is able to perform parental duties to the best of her abilities.

B oth mother and father have work schedules that impose on time that mother and father could spend performing parental duties for the minor children. Mother works from 4:00 pm to midnight; she is not there to perform many parental duties such as feeding the minor children, helping with schoolwork and putting the minor children to bed. Mother also has her fiance, Nate, to assist with these duties and the maternal grandparents close to her residence. She would be available in the morning to help the minor children get ready for school. Mother also testified that this schedule is flexible, and there is room for change if she were awarded primary custody.

Similarly, father’s hours at work do not allow him to fully perform all parental duties. Father typically works three different schedules throughout a seven day period: 7:00am to 5:00pm, 9:00am to 7:00pm or 12:00 noon to 10:00pm. Depending on his schedule given a specific day, father could potentially have more time available to perform parental duties than would mother. However, father does not have a support system nearby to rely on whenever he does need to be at the work and the minor children are not at school. Therefore, he would need to rely on third-party assistance to perform many parental duties while he is at work.

4) The need for stability and continuity in the child’s education, family life and community life.

At this point in the children’s lives, stability and continuity are extremely important factors. C.Y. will be entering sixth grade, and I.Y. will be entering first grade. They are familiar with the Howland School District and have formed strong friendships there. The minor children are both involved in the school’s wrestling program, and C.Y. is involved in soccer.

However, there have been significant changes in father’s household prior to the completion of the hearing. Father ended his relationship with Tina, and she is no longer living in the household. Father does not maintain a cordial relationship with Tina despite having a serious relationship with her for the past three years. Tina played a large role in the lives of the children since the parties separated.

As previously stated, father works three different shifts. Father also has changed jobs various times while being the primary custodian for the minor children, whereas Mother has been at the same job for a significant period of time with a stable schedule.

5) The availability of extended family.

Mother lives just a few minutes from her parents, the children’s maternal grandparents. Maternal grandmother does not work, and maternal grandfather only works three days a week. Father’s sister and paternal grandmother are also available to assist in caring for the minor children. However, father’s mother works three jobs. Paternal grandmother and father’s sister both live approximately 45 minutes away from father’s residence. Tina’s parents, who live in close proximity to father, are willing to still be involved and care for children. However, father has not asked Tina’s parents for assistance since his relationship with Tina ended, and Tina’s mother feels “caught in the middle” of their breakup.

6) The children’s sibling relationships.

The two minor children, although 4 years apart in age, are very close with each other, even voluntarily sharing bedrooms at one point in time. The children have always lived together, and the court believes that the children’s best interests can only be served by establishing a custody arrangement that permits the minor children to remain together.

7) The well-reasoned preference of the children, based on the children’s maturity and judgment.

C.Y. and I.Y. have both testified to wanting to spend as much time as possible with their parents. The minor children each display genuine love and affection for their mother and father; C.Y. and I.Y. stated that they enjoy spending time with each parent. The minor children gave the general impression to the court that they do not wish to make a preference in regards to which parent they would like to live with.

8) The attempts of a parent to turn the child against the other parent.

At the conception of this case, Tina played an integral part in the care-giving of the minor children, including helping with the preparation of meals, managing the children’s schedules, assisting with school work, etc. She also viewed herself as a mother-figure to the minor children, which led her to impede on the duties of Mother. Since the termination of father’s relationship with his girlfriend, father and mother have seen an increase in their communication between each other, leading this court to believe that father’s girlfriend did not want children to have optimal time with mother. Attorney Deborah Shaw, the children’s guardian ad litem, has acknowledged this same fact in her reports stating that father’s girlfriend needed to take a step back and allow parents to complete their parental duties. The court believes that the parties’ attitudes towards each other have dramatically improved since father’s relationship with Tina ended.

9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child, adequate for the child’s emotional needs?

Both parties have demonstrated that they are able to adequately care for the emotional needs of C.Y. and I.Y. Each party demonstrates a real love for the minor children and have played integral parts in raising bright and well-behaved young boys. Mother and father have created a stable, consistent, and nurturing relationship with these children, and the court hopes that this will continue into the future.

The court recognizes that, in the past, mother did not have the ability because of her own emotional needs, but this was a very brief period of time, less than a year. Mother has since demonstrated that those problems are no longer an issue and that she can provide a very stable and loving environment for the children.

Father also has a very stable relationship with the minor children. He has been the primary custodian since his separation from the plaintiff. While the court is not concerned about father’s ability to love the children, the court is concerned about father’s ability to tend to the children’s emotional needs on a daily basis given his current work schedule and lack of a support system.

10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child?

The court’s concerns are similar to those raised in section nine. The court is satisfied that each party pays close attention to the children’s needs. Additionally, both parents assist with homework, and enjoy playing games with C.Y. and I.Y. The children appear to be doing well in school, and they are developmentally on track.

The court is concerned that it will become more difficult for father to continue caring for C.Y. and I.Y. on the daily basis because Tina previously tended to the daily needs of the children when father worked. Tina prepared meals for the children. Tina assisted with homework, and she was very involved in their school activities.

11) The proximity of the residences of the parties.

Mother initially stated that the distance between the parties’ residences is part of the reason why she filed a custody complaint. Mother resides in New Castle, Pennsylvania, and father resides in Warren, Ohio. This is a distance of approximately 45-60 minutes. Although the distance may be inconvenient, it does not necessarily create a barrier for custody exchanges because the parties have met regularly at a half-way point in the past.

The distance in their parties’ residences does, however, affect the court’s ability to award an equal division of custody. The parties do not live in the same school district, and one party must therefore be awarded primary custody during the school year.

12) Each party’s availability to care for the children or ability to make appropriate child-care arrangements.

The court is satisfied that each party has an appropriate household to care for the children. Mother has a suitable home in New Castle, Pennsylvania, and father has a suitable home in Warren, Ohio. The court is concerned, however, about the parties’ ability to make appropriate child-care arrangements during the hours the custodial parent works. Mother typically works from 4:00 p.m. until midnight. When Mother is working, mother’s finance’, Nate, cares for the children when they return home from school. The maternal grandparents also provide daily assistance in caring for the minor children. Mother testified that her work schedule is flexible, and she would be willing to make other arrangements if she was awarded primary custody.

Father works three different schedules: 7:00 a.m. to 5:00 p.m.; 9:00 a.m. to 7:00 p.m.; or 12:00 noon to 10:00 p.m. Father typically works seven days a week. Father has been the primary custodian for the minor children, and due to his work scheduled frequently relied on Tina to care for the minor children. Since father ended his relationship with Tina, he has relied on third party caregivers to assist in watching the children when he works. Tina’s mother, Marge Kordes, testified that she is still willing to help father care for the children, but Marge also feels “caught in the middle” of her daughter’s break-up with father. Thus, it is likely that Father would need to rely on outside child-care.

13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.

There have been issues in the past where each party failed to properly communicate with the other. Father has withheld information about school activities and academic records. Mother, in turn, has become aggressive in her attempts to receive information from father. Early on during these custody proceedings, mother testified that father became reluctant to speak with mother after Tina moved in with father. Since father and Tina have separated mother and father have been communicating more appropriately, and the court encourages both parties to maintain open channels of communication for the children. In general, the court believes that mother is more willing to communicate with father about the minor children, but father has improved in this regard.

14) The history of drugs or alcohol abuse of a party or member of a party’s household.

No evidence was presented that would cause this court to conclude that drug and/or alcohol abuse is a concern with either parent.

15) The mental and physical condition of a part or member of a party’s household.

As discussed in prior sections of the court’s analysis, mother previously demonstrated anger management issues. However, the court is satisfied that both parties are mentally and physically stable at this time.

Based upon the court’s findings, as set forth above, the court concludes that the children’s interests are best served with mother as their primaiy custodian. Since the separation, mother has put forth efforts to create a stable environment for her children. She has maintained a steady job and schedule since the separation, in addition to purchasing a suitable house in close proximity to the maternal grandparents. Although father has played the role of primary custodian since the separation, the court feels that his current lack of a support system in conjunction with his aggressive work schedule does not put him in the best position to fully adhere to the interests of the minor children. The parties have recently been in better communication since father’s separation from Tina, and the court hopes that this will continue despite the change in the custodial arrangement. Proper communication is key for the continued success of any custody arrangement. Although the parties may not agree at times, it is in the best interests of C.Y and I.Y. that mother and father continue to communicate in a cordial manner.

In accordance with this opinion, the court will enter the following order:

ORDER OF COURT

And now, this 31st day of July 2013, with this matter being before the court for a custody trial, with the plaintiff/mother, Alyssa J. Giammatteo, appearing and being represented by Susan M. Papa, Esquire, and with the defendant/father, Robert J. York, appearing and being represented by Joseph J. Kearney, Esquire, and the court having made an extensive review of the record in the above-captioned case and after considering the testimony and evidence presented to the court, it is hereby ordered and decreed as follows:

1. The parties shall have shared legal custody of the minor children, C.I., bom May 4, 2002, and I.Y., bom January 11, 2006.
2. Plaintiff/mother is awarded primary physical custody of the minor children, subject to the partial custody rights of the defendant/father. The custodial party has the obligation to foster and encourage a healthy relationship between the minor children and the non-custodial party.
3. Defendant/father is awarded partial custody rights with the minor children every first, second, and fourth weekend of the month from Friday at 7:30 p.m. until Sunday at 7:30 p.m.
4. During the summer months, the custody provisions set forth above shall alternate to provide plaintiff/mother with custody of the minor children eveiy first, second, and fourth weekend of the month from Saturday at 9:00 a.m. until Sunday at 7:30 p.m. Defendant/father shall have the children at all other times in the summer.
5. The provisions of this custody order shall take effect on the first full week of the 2013-2014 school year, so that plaintiff/mother is exercising primary physical custody at that time.
6. For August 2013 only, defendant/father shall have ten (10) consecutive days of partial custody as the parties mutually agree. In the event the parties cannot mutually agree, defendant/father shall have partial custody of the minor children from Friday, August 9, 2013 at 7:30 p.m. through Sunday, August 18, 2013 at 7:30 p.m. It is the court’s intention to provide defendant/father with an additional period of partial custody prior to the foregoing provisions being implemented.
7. Each party shall have two (2) non-consecutive weeks of vacation with the minor children every year. Both parties shall provide the other party with a minimum of (30) days written notice of his or her requested weeks of vacation, defendant/father’s shall have preference in the even numbered years, and plaintiff/mother shall have preference in the odd numbered years.
8. Holidays shall be split between the parties. On even numbered years, the minor children shall spend Halloween with defendant/father, Thanksgiving with plaintiff/mother, Christmas Day with defendant/father, New Year’s Day with plaintiff/mother, Easter with defendant/father, Fourth of July with plaintiff/mother, C.Y.’s and I.Y.’s birthdays with defendant/father.
9. On odd numbered years, the children shall spend Halloween with plaintiff/mother, Thanksgiving with defendant/father, Christmas Day with plaintiff/mother, New Year’s Day with defendant/father, Easter with plaintiff/mother, fourth of July with defendant/father, C.Y.’s and I.Y.’s birthdays with plaintiff/mother.
10. Custody on all other holidays shall be as the parties mutually agree.
11. The exchange of the children shall remain in Hubbard, Ohio at the Burger King at Truck World.
12. Transportation may be provided by a family member or someone well known to the children. All parties and anyone else involved with transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania, including those regarding children safety restraint apparatus in any vehicle used to transport the children.
13. The parties may modify the terms of the above custody and partial custody provisions as they both agree. One parent shall not modify these provisions without the consent of the other.
14. The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter and to comply with all provisions contained in the order(s). Failure to do so may result in sanctions being imposed by the court upon the offending party including the suspension of custody and payment of attorney’s fees.
15. While in the presence of the children, neither plaintiff/mother nor defendant/father shall refer to or make any kind of remark about the other party in a negative or derogatory manner. Each parental figure shall be referred to by their appropriate role such as mom, dad, grandma, etc.
16. This court retains jurisdiction of this custody case.
17. The parties shall abide by the terms of the appendix attached hereto, incorporated herein, and made a part hereof.
18. The prothonotary shall properly serve notice of this order of court and opinion upon counsel of record for the parties.

APPENDIX TO CUSTODY ORDER

Certain rules of conduct are set forth below and are binding on all parties. The breach of any rule may subject the breaching party to contempt of court or form a basis to modify the custody order. If these general rules conflict with any specific provision of the custody order, the order shall prevail.

RULE 1. The custody or visitation provisions of the foregoing custody order are to be considered as the minimum requirements. The parties are free to expand the provisions by mutual agreement. No party can unilaterally, (i.e. as he or she pleases) increase or decrease periods of custody or visitation without consent from the other parent. RULE 2. The parties shall not undertake or permit the influencing of the mind of the child(ren) against any party. Any communication or statement which is in any manner derogatory to the other party, obscene, or profane shall not be made to or in the presence of the children.)
RULE 3. The parties shall not argue or engage in heated discussion in the presence of the child(ren).
RULE 4. The parties shall not question the child(ren) as to the personal behavior of the other party, except as necessary to insure the personal safety and welfare of the child(ren). No child shall be used as an informant or carrier of tales to either party.
RULE 5. The parties may not make extravagant promises to the child(ren) for the purpose of influencing the child(ren)’s loyalty at the expense of the other party. Any promise made to the child(ren) by either party should be made only with the full intention of expectation of fulfilling the promise.


source: Caselaw Access Project

author: TUNNELL, J.,

license: Public Domain

text:
    In the Matter of Antonio Mancilla

      Lewis P. Hannah, for petitioner

      Seamus M. Lavin, for respondents
    July 31, 2013
   TUNNELL, J.,

This case concerns whether the funds in the decedent’s profit sharing account should be disbursed to his widow or, under his written change of beneficiary designation, to his five children instead.

Antonio Mancilla (“decedent”) passed away on December 30, 2011 survived by a wife and five children. He resided at 1233 East Lincoln Highway, Apt. 1, Coatesville, PA 19320. Decedent married Renata Mancilla (“petitioner”) on August 5, 2005. On October 28, 2011, decedent filed for divorce against petitioner. Decedent also filed an affidavit under the Divorce Code, 20 Pa. C.S. §3301(d), asserting (a) that the parties separated in July 2009 and have continued to live separate and apart for a period of at least two years; and (b) that the marriage is irretrievably broken. Petitioner never filed a counter-affidavit denying the sworn assertions made in decedents’ affidavit. Decedent passed away two months later, unable to finalize the divorce proceedings.

At the time of this death, decedent was an employee of Pelet Welding, Inc. (“Pelet”). He participated in a profit sharing plan (“the Pelet Plan”) administered by Pelet. Under the plan, in default of any written designation by him, petitioner was the sole beneficiary of the plan. On January 19, 2011, decedent signed a beneficiary designation form for his Pelet Plan account naming only his children as his beneficiaries. He did not obtain the consent of his wife, as he was required to do by the Pelet Plan. Decedent repeatedly asked petitioner to sign the waiver of beneficiary rights in his account in the Pelet Plan, but she refused. Decedent thus also died without a signed waiver from petitioner to transfer beneficiary rights. On Februaiy 11, 2013, petitioner Renata Mancilla filed a petition to show cause why she should not receive the proceeds of the Pelet Plan.

Respondents are two of the decedent’s children, Tracey and Anthony Mancilla. They argue that, due to the ongoing divorce proceedings at the time of decedents’ death and the change of the beneficiaries of decedents’ Pelet Plan account, the petitioner should not receive any proceeds. Alternatively, they argue that under 20 Pa. C.S.A. §2106, the petitioner should have no share in these benefits because under the forfeiture provisions of that section she either willfully neglected him, refused to perform her duties to support him, or willfully and maliciously deserted him. Accordingly, she should have no right in any of the “personal estate of the decedent” under the terms of that section.

At trial, petitioner conceded that she did indeed receive a copy of the divorce complaint filed by decedent shortly before his death but filed no counter-affidavit. She testified that the averment in the divorce complaint stating that she and the decedent had been separated since July 2009 was untrue. Petitioner’s legal residence remained at the marital home shared by her and decedent. This is the same address that appears on her driver’s license as well as her bills. Petitioner also filed a joint tax return as recently as March of 2011 for the 2010 tax year indicating their status as married. It is clear to the court that, just because a spousal couple does not necessarily live under the same roof, it is not the equivalent of desertion. Were it otherwise, eveiy separation would constitute desertion. Petitioner continued to see the decedent on a regular basis. He would give her money, and she would provide tender felicities. That was their pattern and evident agreement. An additional reason why the challenge under §2106 of the PEF Code cannot succeed is that this section clearly pertains to the “personal estate” of the decedent. No citation is necessary for the proposition that the proceeds of a profit-sharing plan pass not by will, but by a contractual designation, and are thus distributed outside of the probate estate altogether.

However, the court finds that the case really turns instead on whether Pennsylvania law applies to this issue, or whether federal law has pre-empted it. The Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. §§1001-1461, is a federal law which establishes minimum standards for pension and profit sharing plans in private industry and provides for extensive rules on the federal income tax effects of transactions associated with employee benefit plans. ERISA was enacted to protect the interests of employee benefit plan participants and their beneficiaries by: (1) requiring the disclosure of financial and other information concerning the plan to beneficiaries; (2) establishing standards of conduct for plan fiduciaries; and (3) providing for appropriate remedies and access to the federal courts. Section 514 of ERISA preempts all state laws that relate to any employee benefit plan, with certain, enumerated exceptions. The most important exceptions — i.e. state laws that survive despite the fact that they may relate to an employee benefit plan — are state insurance, banking, or securities laws, generally applicable criminal laws, and domestic relations orders that meet ERISA’s qualification requirements. Under ERISA, pre-emption is presumed if the state law “relates to” any employee benefit plan, as the court finds to be the case here. See generally, In Re: Estate of Sauers, 613 Pa. 186, 32, A.3d 1241 (2011).

Respondents have conceded, as they must, that ERISA indeed trumps 20 Pa. C.S.A. §6111.2 in the Divorce Code, which would otherwise allow them to prevail on the issue. This section is entitled “Effect of Divorce on Designation of Beneficiaries” and, prior to amendment in 2010, specified that if a person is divorced at the time of his death having designated his spouse as a beneficiary of a profit sharing plan or similar arrangement any designation in favor of his former spouse which was revocable by him after the divorce shall become ineffective for all purposes and shall be construed as if such former spouse had predeceased him, with several exceptions. That provision was determined by our Supreme Court to be pre-empted by ERISA in In Re: Estate of Sauers, supra. (After the 2010 amendment, §6111.2 was made applicable where the divorce was pending at death and grounds were established, making any designation in favor of a participant’s spouse generally ineffective; these are to be construed as though the spouse had predeceased the participant. As a result, such a spouse would not be entitled to any plan benefits.)

Respondents next turn to the section preceding at 20 Pa.C.S.A. §6111.1. This relates to “Modification by Divorce or Pending Divorce” and provides that:

Any provision in a conveyance which was revocable by a conveyor at the time of the conveyor’s death and which was to take effect at or after the conveyor’s death in favor of or relating to the conveyor’s spouse shall become ineffective for all purposes unless it appears in the governing instrument that the provision was intended to survive a divorce, if the conveyor:
1. is divorced from such spouse after making the conveyance; or
2. dies domiciled in this Commonwealth during the course of the divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa. C.S. §3323 (relating to decree of court) and grounds have been established as provided in 23 Pa. C.S. §3323(g).

Respondents claim that grounds were established for divorce by petitioner’s failure to file a counter-affidavit. As to ERISA, respondents argue that ERISA allows for modifications to benefit plans in specific instances (citing ERISA Subtitle B, Part 2 Section 1056 and Part 5 §§1144 and 1155). However, as noted above, these exceptions do not assist petitioner; the exceptions relate to state insurance, banking or security laws, criminal laws, and qualified domestic relations orders.

Salient provisions of the Pelet Plan include the following:

Article VI Beneficiaries
3.6.1 Designation of Beneficiaries. Subject to the provisions of Section 2.5.7, each participant shall have the right to designate a Beneficiary or Beneficiaries and contingent or successive Beneficiaries to receive any benefits provided by this Plan that become payable upon the Participant’s death. The Participant may change the Beneficiaries at any time by the filing of a new designation with the Plan Administrator, and the most recent designation shall govern. In the absence of a designation, the Designated Beneficiary shall be the surviving spouse of the Participant, unless such surviving spouse consents in writing to an alternate designation and the terms of such consent acknowledge the effect of such alternate designation and the consent is witnessed by a representative of the Plan or by a notary public. The designation of a Beneficiary other than the spouse of the Participant or an optional form of benefit with the consent of such spouse may not be changed without the consent of such spouse, and any consent must acknowledge the specific non-spouse Beneficiary, including any class of Beneficiaries or any contingent Beneficiaries, unless the spouse expressly permits designations by the Participant without any further spousal consent. Regardless of any prior designation, a Participant, at any time, may designate his spouse as Beneficiary, and with respect to Accounts providing annuities, may also designate the form of benefit as a Qualified Joint and Survivor Annuity, (emphasis added)
Article XI Miscellaneous
3.11.9 Governing Law. The provisions of this Plan shall be construed, administered and enforced in accordance with the provisions of the Act and, to the extent applicable, the laws of the state specified in the Adoption Agreement...

(“Act” is defined in Article II as “the Employee Retirement Income Security Act of 1974, as amended from time to time.”)

ERISA mandates that qualified plans contain certain mandatory spousal benefits provisions. It is clear to the court that the Pelet Plan is an ERISA-qualified plan, and that it was drafted to comply with this federal law and acquire its accompanying benefits. ERISA requires the plan to provide that a spouse must waive his or her right to be the participant’s beneficiary in writing, 29 U.S.C. § 1055(c)(2), and requires that death benefits go to the surviving spouse absent a spousal waiver. 29 U.S.C. §105 5(b). Although the plan contains a choice of law provision that makes reference to Pennsylvania law, by the plan’s own terms, Pennsylvania law is only applicable to the extent it is not pre-empted by ERISA.

The court holds that based on the terms of the plan, and as a matter of law, ERISA preempts Pennsylvania law at §6111.1 of the Divorce Code.

As stated above, ERISA was enacted to establish national uniformity among benefit plans. 120 CONG. REC. 29, 197 (1974): “With the preemption of the field, we round out the protection afforded participants by eliminating the threat of conflicting and inconsistent state and local regulation.” See also Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004). A key purpose of ERISA, therefore, is to provide uniform administrative schemes for employers, plan administrators, and fiduciaries to follow in administering and processing employee benefit plans. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987).

Borrowing from the opinion in Estate of Sauers, supra, permitting state statutory schemes such as §6111.1 to remain viable would force fiduciaries to “maintain a familiarity with the divorce laws of all 50 States so that they can update their plans as necessary.... This ‘tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction’ is exactly the burden ERISA seeks to eliminate.” Id. at 151, 121 S. Ct. 1322 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142, 111 S. Ct. 478, 112 L.Ed.2d 474 (1990)).

It was true of §6111.2, and just as true of §6111.1. Nor does the 2010 amendment to the latter cure any preemption problem.

An appropriate order follows.


author: NEALON, J.,

text:
    Rockwell v. Knott

      Albert J. Evans, for plaintiff

      Gary N. Stewart, for defendants
    August 13, 2013
   NEALON, J.,

Defendants’ motion for partial summary judgment in this motor vehicle litigation raises a novel issue of apparent first impression in this Commonwealth: whether a motorist, who is involved in an accident while looking downward at the display screen of a global positioning system (“GPS”) application on a cell phone, rather than at the roadway, may be liable for punitive damages? A motorist arguably may engage in recklessly indifferent conduct, and thereby be potentially liable for punitive damages, if [s]he completely diverts his or her attention from the roadway to observe a low positioned GPS device and nevertheless continues to travel on the roadway until [s]he collides with another vehicle. However, the record does not contain any evidence indicating that the defendant driver was viewing his GPS device, rather than the road and oncoming traffic, at the time that he removed his foot from the brake and initiated a left turn into plaintiff’s path of travel. Therefore, plaintiff’s proffered proof of the defendant driver’s alleged outrageous conduct is insufficient as a matter of law, and defendants’ motion for partial summary judgment will be granted.

I. FACTUAL BACKGROUND

This personal injury suit arises out of an automobile accident which occurred on August 24, 2011, at the intersection of East Union Street and North Washington Street in Wilkes-Barre, Luzerne County. At that time, plaintiff, Steven Rockwell (“Rockwell”), was travelling eastbound on East Union Street, while defendant, Glenn Knott (“Knott”), was proceeding in a westerly direction on East Union Street. (Docket entry no. 7 at ¶¶6, 14; docket entry no. 18 at ¶¶6, 14). Knott was operating a Ford Van that was owned by his employer, defendant, New Prime, Inc. (“New Prime”), and was acting within the course and scope of his employment with New Prime at that time. (Docket entry no. 7 at ¶¶6-7; docket entry no. 18 at ¶¶6-7).

Knott brought his vehicle to a stop in the westbound, left-hand travelling lane of East Union Street, “intending to turn left onto the southbound lane of North Washington Street.” (Docket entry no. 7 at ¶¶9, 22; docket entry no. 18 at ¶¶9, 22). Rockwell has alleged in his amended complaint that as a Knott was stopped at the intersection, he “began fidgeting with his GPS unit, taking his eyes off of the road,” and diverted his attention “from oncoming traffic for a substantial and significant amount of time.” (Docket entry no. 7 at ¶¶11-12). Knott and New Prime have specifically denied those allegations in their responsive pleading. (Docket entry no. 18 at ¶¶11-12). Rockwell further avers that “[a]s [he] attempted to drive through the foregoing intersection in the eastbound lane of East Union Street, Mr. Knott abruptly turned left into Mr. Rockwell’s lane.” (Docket entry no. 7 at ¶16). Knott and New Prime have also denied that assertion, and contend to the contrary that “Rockwell’s motorcycle struck Glenn Knott’s vehicle.” (Docket entry no. 18 at ¶16).

Rockwell commenced this action on February 17, 2012, and asserted a negligence claim against Knott, a vicarious liability claim against New Prime, and a direct claim against New Prime for negligent hiring and training of Knott. (Docket entry no. 7 at ¶¶21-53). In count IV of the amended complaint, Rockwell seeks to recover punitive damages from Knott and New Prime. Rockwell alleges that “Knott knew that it was dangerous to operate his GPS at the same time that he was operating a vehicle,” and “knowingly and intentionally chose to be distracted by his GPS system while he was operating a motor vehicle.” (Id. at ¶¶56,59). Rockwell further maintains that “New Prime knowingly and intentionally failed to train, inform, educate, and prohibit its employees from acting as distracted drivers and from operating a GPS system while driving.” (Id. at ¶67). As a result of that alleged “willful, wanton or reckless behavior” by Knott and New Prime, Rockwell advances a claim for punitive damages. (Id. at p. 14).

During Knott’s discovery deposition, he testified that on August 24, 2011, New Prime instructed him to drive a fellow employee from its Pittston business to a bus station in Wilkes-Barre, and since Knott was unfamiliar with that particular site, he printed MapQuest directions to that location. (Deposition of Glenn Knott dated 6/7/12, attached as exhibit A to docket entry nos. 26 and 28, at pp. 18, 44). However, after following those directions and arriving at the destination that had been provided by MapQuest, Knott and his co-employee discovered that the bus station had relocated. (Id. at p. 44). Consequently, Knott contacted New Prime’s dispatcher, obtained the correct address for the bus station, and programmed that new address into the GPS application on his wireless communications cell phone. (Id. at pp. 47-48). Knott then placed his cell phone in the lower center console and angled its screen towards him so that he “could see it” as he drove to the bus station. (Id. at p. 47).

According to Knott, once he arrived at the intersection of East Union Street and North Washington Street, he “stopped” the van, “took a glance down at [his] GPS... just to make sure [he] was on the right street,” and then “glanced back up” at “the Washington Street sign” before taking his foot off the brake. (Id. at pp. 50-51). When questioned further regarding the use of his GPS and the circumstances surrounding the accident, Knott testified:

Q. Now, let me make sure your testimony is accurate. When that last vehicle goes through the intersection, the last car you see, you look down at your GPS?
A. Yes, as it was coming through the intersection, I took a glance down to the GPS to make sure it was Washington, like the road I was going on was the correct road, yes.
* * *
Q. And when you looked down at the GPS, the car coming in the opposite direction was already in the intersection, the last car.
A. Yes.
Q. Then what did you do then?
A. I looked forward to see my lane was clear and I — that’s why I perceived the lane was clear. I didn’t see anyone in the straight lane.
* * *
Q. And then you started to move, turn, make your left-turn?
A. I took my foot off the brake and it moved forward.
Q. Help me understand that just so we’re clear. I don’t want to misunderstand what you’re saying. So you looked up at the street sign. You see it says Washington Street, and then you take your foot off the brake.
A. Yes.
Q. And at the time you take your foot off the brake, where are you looking?
A. Well, I was moving my eyes down towards the street in front of me.
Q. So when you took your foot off the brake, you were moving your eyes from the Washington Street sign down to the —
A. To the street in front of me, yes.
Q. And when you took your foot off the brake, the vehicle started to move forward?
A. Yes.
Q. And did you have the wheel turned one way?
A. Yes.
Q. What way did you have it turned?
A. Turn left to make the turn.
Q. Did you put your foot on the gas at all?
A. No.
* * *
Q. And your vehicle was already moving at the first — when you first saw the motorcycle?
A. This, when I first saw it, yes, and then I hit the brake.
Q. And then you hit the brake. When you hit the brake, did your vehicle stop immediately?
A. I believe it stopped like right prior to impact, yes.

(Id atpp. 57, 59-61).

After the close of discovery and following the filing of a certificate of readiness for trial, Knott and New Prime filed a motion for partial summary judgment with respect to Rockwell’s punitive damages claim. Knott submits that there is no evidence in the record to support the allegations in Rockwell’s pleading that Knott “was looking at his GPS when he began to make the left hand turn, i.e., that he violated a traffic law and was distracted.” (Docket entry no. 26 at p. 5). In the alternative, Knott posits that even “assuming arguendo that Mr. Knott was looking at his GPS when he began to turn left, such an act does not constitute evidence to satisfy the heightened legal standard necessary to prove a claim for punitive damages.” (Id. at p. 8). New Prime similarly maintains that the record lacks any proof that New Prime’s hiring and supervision of Knott constituted wanton, willful or recklessly indifferent conduct, particularly since Rockwell “has produced no evidence to demonstrate that Knott was not properly supervised or managed while working as a security guard.” (Id. at p. 10).

In opposition to defendants’ motion for partial summary judgment, Rockwell cites the deposition testimony of Knott’s supervisor, Richard Yarborough, who stated that all New Prime drivers are advised “not [to] use GPS” because [t]hey’re dangerous” and “take your attention from the road.” (Docket entry no. 26, exhibit C at p. 26). Rockwell asserts that Knott “ignored this directive” and “proceeded to drive ‘blindfolded’ despite being specifically instructed not to do so by Mr. Yarborough.” (Docket entry no. 26 at p. 5). Rockwell further argues that Knott has “not cited any case law that specifically addresses whether or not the use of a GPS while driving constitutes the type of recklessness that supports a punitive damages claim,” and that “in cases such as the one at bar, it is not the province of the court to opine on the propriety of imposing punitive damages, as it is well-settled that the decision of whether to award punitive damages and the amount to be awarded are within the discretion of the fact finder, in this case the jury.” (Id. at p. 6).

As for his punitive damages claim against New Prime, Rockwell contends that “New Prime’s failure to explain to Mr. Knott how to get from Pittston to the Wilkes Barre bus terminal can be construed as reckless indifference, because it knew that the terminal was a destination that Mr. Knott may be required to travel.” (Id. at p. 7). Based upon that reasoning, Rockwell argues that “a reasonable jury could infer that New Prime failed to properly train, education and/or supervisor its employees.” (Id.). Defendants’ motion for partial summary judgment was scheduled for oral argument on July 17,2013, but the parties later agreed to submit this matter on briefs and without the necessity of oral argument.

II. DISCUSSION

(A) STANDARD OF REVIEW

Summary judgment is appropriate “only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013). In making that determination, the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. State Farm Fire and Casualty Company v. DeCoster, 61 A.3d 40, 45 (Pa. Super. 2013). However, “[wjhere the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment.” E.R. Linde Construction Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013); Rock v. Rangos, 61 A.3d 239, 250 (Pa. Super. 2013). The failure of the non-moving party “to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.” J.P Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261 (Pa. Super. 2013); Wright v. Eastman, 63 A.3d 281, 284 (Pa. Super. 2013). Where the facts are so clear that reasonable minds could not differ that a verdict should be entered in favor of the moving party, a trial court may properly enter summary judgment. Hovis, supra; Shiner v. Ralston, 64.A.3d 1,4 (Pa. Super. 2013).

(B) DISTRACTED DRIVING CLAIM

Rockwell contends that Knott’s use of his GPS while driving, when coupled with his supervisor’s admonition to avoid use of a GPS while operating a vehicle, requires submission of the punitive damages claim to the jury based upon “the fact that [Knott] was practically operating a motor vehicle blindfolded after being told of the dangerous (sic) associated with the same and voluntarily ignoring those warnings.” (Docket entry no. 26 at p. 6). “Punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.” J.J. DeLuca Co. v. Toll Naval Associates, 56 A.3d 402, 415-416 (Pa. Super. 2012). Wanton misconduct or reckless indifference “means that ‘the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” Weston v. Northampton Personal Care, Inc., 62 A.3d 947, 961 (Pa. Super. 2013) (quoting Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743, 745 (1980)). “Thus, in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison v. Luddy, 582 Pa. 114, 124, 870 A.2d 766, 772 (2005); Millan v. Pennsylvania American Water Co., 25 Pa. D. & C. 5th 181, 186 (Lacka. Co. 2012).

Punitive damages claims have been permitted against motorists in narrow sets of circumstances indicating unreasonable actions by defendants in conscious disregard of known or obvious risks which pose a high probability of harm to others. In Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970), the Superior Court of Pennsylvania addressed the merits of a punitive damages claim against a drunken driver, and held that “we believe that driving while under the influence of intoxicating liquor with its very great potential for harm and serious injuiy may under certain circumstances be deemed ‘outrageous conduct’ and ‘a reckless indifference to the interests of others’ sufficient to allow the imposition of punitive damages.” Id. at 40, 268 A.2d at 160. Accord Schwab v. Bates, 12 Pa. D. & C. 4th 162, 167-168 (Westmoreland County 1991) (plaintiff may recover punitive damages from estate of deceased tortfeasor who was driving while intoxicated at time of fatal accident). Other courts have allowed punitive damages claims to proceed against sober motorists who otherwise engage in wanton or reckless conduct. See, e.g., Dillow v. Myers, 916 A.2d 698, 702 (Pa. Super. 2007) (“Allowing a truck to go out on the road where the load could not properly be distributed because of a broken loading rack; not braking when travelling down hills so that the truck exceeded the speed limit; driving with limited visibility because the listing of the back of the truck obscured the view from the side mirror; and changing lanes under these circumstances without signaling is sufficient evidence to justify a jury’s conclusion that the Defendants’ conduct was outrageous.”), app. denied, 594 Pa. 713, 937 A.2d 445 (2007); Freethy v. Goike, 2011 WL 7177007, at *6 (Lacka. Co. 2011) (since “[t]he operation of a vehicle in a construction zone arguably requires greater care and caution by motorists due to the presence of construction workers and equipment, altered routes, excavated road surfaces, traffic congestion, slower moving vehicles, and sudden stopping by those vehicles,” punitive damages claim could proceed against defendant who “ignored a posted stop sign, operated her vehicle at an excessive rate of speed, and rear-ended a vehicle directly in front of her” in a construction zone); Hough v. Meyer, 55 Pa. D. & C. 4th, 473, 476-477, 493 (Fayette Co. 2002) (punitive damages were recoverable based upon truck driver’s conscious decision to drive his vehicle onto plaintiffs’ property and into their home after driver lost control of his truck due to brake failure); Claypoole v. Miller, 43 Pa. D. & C. 4th 526, 528 (Butler Co. 1999) (“...a jury could reasonably interpret defendant Miller’s actions of operating a vehicle when she knew she was having trouble staying awake as reckless, wanton and outrageous conduct.”); Faust v. Stish, 43 Pa. D. & C. 4th 134, 138 (Monroe Co. 1999) (“However, applying one’s brakes while travelling at a high rate of speed with the knowledge that there is a vehicle directly behind you also travelling at a high rate of speed and other vehicles on the same roadway moving at much slower speed may constitute reckless indifference to the right of other motor vehicle occupants to safely travel on the Commonwealth’s roadways.”).

Although no Pennsylvania appellate court has yet to address the viability of a punitive damages claim predicated upon a motorist’s use of an interactive wireless communications device or GPS application at the time of an accident, several trial courts in Pennsylvania have considered the recoverability of punitive damages in accidents involving cell phone use or text-based communication on a wireless communications device. In Kondash v. Latimer, No. 09 CV 8622 (Lacka. Co. Nov. 19, 2012), visiting Senior Judge Harold A. Thomson, Jr., declined to grant a motion to strike that was filed by a defendant who allegedly caused an accident while “talking on, texting or otherwise utilizing a wireless phone, personal digital assistant (“PDA”) or other handheld device.” Id. at p. 2. Rejecting defendant’s attempt to strike the foregoing texting and cell phone use allegations, the Kondash court reasoned:

We agree that the authorities have not yet spoken directly to this particular issue. However, the Plaintiffs’ suggestion regarding municipal statutes that address driving while utilizing hand-held devices is well-taken. The Kondashes point out that several municipalities in the Commonwealth, including Allentown and Harrisburg, have enacted laws which make it illegal for a driver to use such a device while driving. From this circumstance, the Plaintiffs infer that the illegalization of this act reflects the dangerous, and possibly deadly consequences of shifting part of one’s complete attention and gaze away from driving and towards talking, texting or emailing from a smart phone.
It remains to be seen whether Defendant Lattimer was doing anything of the sort at the time of the accident. Discovery has not concluded, and the facts are very much in question. We are not speculating about what happened to cause this accident, but we are ruling that it is possible that a jury may be called on [to] consider whether communicating on a PDA while driving is a wanton and reckless act, in instances where the driver is involved in an accident and is responsible to some degree We will overrule the Defendant’s preliminary objection raising this very new question of law, which is far from clear and free from doubt, in the attached Order.

Id. at pp. 3-4.

In contrast, the court in Xander v. Kiss, 2012 WL 168326 (Northampton Co. 2012), concluded that a punitive damages claim against a defendant who “was speaking on his cellular telephone at the time of the accident” could proceed forward only if there was some “additional indicia of recklessness” besides the mere use of a cell phone. Id. at *2. More recently, Monroe County Judge Arthur L. Zulick similarly concluded in Platukis v. Pocono Segway Tours, LLC, No. 6941 CV 2012 (Monroe Co. April 8, 2013) that cell phone usage alone does not give rise to a claim for punitive damages. In sustaining a demurrer that was filed by a defendant who “was using a cellular phone at the time of the collision, and was operating the Segway at an excessive rate of speed,” Judge Zulick reasoned that “[w]hile using a cellular phone while operating a motor vehicle is undoubtedly risky, that alone still does not give rise to the state of mind necessary to find [defendant] acted recklessly.” Id. at p.3. See also Leonard v. Schlabach, No. A.D. 2012-172, at p. 9 (Crawford Co. July 16,2012) (citing Xander with approval, dismissing punitive damages claim against defendant who was allegedly using his cell phone while driving, and concluding that “it appears that the proper inquiry here is whether the allegations in Plaintiffs’ complaint constitute the type of ‘additional indicators’ or aggravating factors that could elevate Defendant’s conduct from mere negligence to the type of willful, wanton or reckless conduct that would justify punitive damages.”).

The only reported federal court rulings in Pennsylvania have likewise reached conflicting conclusions in cases involving cell phone use while driving. In Pennington v. King, 2009 WL 415718 (E.D. Pa. 2009), U.S. District Judge Gene E.K. Pratter denied “Defendant’s Motion for Partial Summary Judgment as to Plaintiffs’ claim for punitive damages” based upon proof that defendant “was distracted by his cellular phone conversation and was operating his tractor-trailer in a widely erratic manner so as to prevent [plaintiff] from passing him.” Id. at * 6. However, in Piester v. Hickey, 2012 WL 935789 (E.D. Pa. 2012), U.S. Magistrate Judge Lynne Sitarski adopted the standard articulated in Xander “that a properly-pled punitive damages claim requires additional facts, such as well-pled allegations that defendant exceeded the posted speed limit, or disregarded traffic signals, or otherwise drove erratically.” Id. at * 4 (emphasis in original). Since the plaintiffs in Piester did not aver additional facts “supporting a claim for outrageous behavior sufficient to establish Defendants’ ‘evil motive’ or ‘reckless indifference’ to Plaintiffs’ rights,” the punitive damages claim was dismissed. Id.

Other jurisdictions have also applied different approaches when analyzing punitive damages claims against motorists who have allegedly caused accidents while speaking on cell phones. Most of those courts agree that cell phone usage alone is insufficient to support an award of punitive damages. See Thompson v. Cooper, 290 P.3d 393, 402 (Alaska 2012) (“We have never ruled that using a cell phone while driving, alone, amounts to reckless indifference, and we decline to do so here.”). Some jurisdictions have concluded that the use of a cell phone, in combination with a violation of a Vehicle Code provision or other recognized rule of the road, creates a triable issue of fact regarding the recovery of punitive damages. See McLane v. Rich Transport, Inc., 2012 WL 3257658, at *6 (E.D. Ark. 2012) (denying motion for partial summary judgment relative to punitive damages claim against tractor trailer driver who was talking on his cell phone and had driven more than seventy hours in the eight-day period before the accident, in violation of 49 C.F.R. 392.3); Gaddis v. Hegler, 2011 WL 2111801, at * 4 (S.D. Miss. 2011) (denying motion to dismiss punitive damages claim against driver who “ran a red light, and ignored other warnings signs immediately prior to the accident because she was talking on her cell phone.”); Laney v. Schneider National Carriers, Inc., 2011 WL 1667434, at * 3 (N.D. Okla. 2011) (denying motion for partial summary judgment as to request for punitive damages against tractor trailer driver who was allegedly using his cell phone, travelling too fast for the existing road conditions, and fatigued because he was not in compliance with the hours of service regulations); Howell v. Kusters, 2010 WL 877510, at * 2 (Del. Super. 2010) (granting plaintiff’s motion to amend complaint to include claim for punitive damages against motorist who “was travelling up to twenty miles over the speed limit as she approached the intersection” and “was talking on her cell phone as she went through the red light, and entered the intersection.”); Hoskins v. King, 676 F.Supp.2d 441, 444-445, 451 (D.S.C. 2009) (punitive damages could be recovered against driver who “was talking on her mobile phone” and “in the process of attending to her dogs in the front seat or manipulating the car stereo when she struck [plaintiff].”). Other courts have adopted a heightened test that requires proof of “other aggravating circumstances,” beyond violations of the rules of the road, in order to recover punitive damages from a motorist who is using a cell phone at the time of the accident. See Lindsey v. Clinch County Glass, Inc., 312 Ga. App. 534, 536, 718 S.E.2d 806, 808 (2011) (stating that “evidence of mobile phone use did not, without more, establish a policy or pattern of dangerous driving,” and affirming dismissal of punitive damages claim since “there is no evidence of a policy or pattern of dangerous driving or other aggravating circumstances.”).

Texting while driving significantly increases the degree of driver distraction since it requires the motorist to completely divert his or her attention from the roadway as [s]he focuses upon the mobile device. As such, texting poses a much greater risk to pedestrians and other motorists than speaking on a cell phone. Cf. Sipler v. Trans Am Trucking, Inc., 2010 WL 4929393, at * 4 (D.N.J. 2010) (dismissing punitive damages claim against tractor trailer driver who “was talking on his hands-free cell phone at the time of the collision,” and finding that “[wjhile such conduct may be negligent, it does not show wanton and willful disregard of Plaintiffs’ safety....”). Indeed, section 3316(a) of the Pennsylvania Vehicle Code, 75 Pa.C.S., only bans text messaging while driving and does not prohibit a motorist from engaging in cell phone conversations while driving. See Harding, The Failure of State Texting-While-Driving Laws, 13 U. Pitt. J. Tech. L. & Pol’y 1, 13 (Spring 2013); Franklin, 117 Penn. St. L. Rev. at 178.

A motorist’s use of a GPS device may, or may not, cause distracted driving depending upon the type and placement of the GPS device and the concomitant operation of the vehicle. Portable GPS navigation devices are equipped with brackets which enable the device to be mounted on the surface of the dashboard or affixed to the windshield without obstructing the driver’s view of the roadway or diverting the operator’s eyes from the roadway. See Saulen, “The Machine Knows! What Legal Implications Arise for GPS Device Manufacturers When Drivers Following Their GPS Device Instructions Cause an Accident?, 44 New Eng. L. Rev. 159, 166 (Fall 2009). Smart phone owners may also purchase a holder which will enable them to attach their phone to the windshield when using it as a GPS device. Allen, 2011 Techno-Gift Guide, 28 No. 8 GPSolo 36, 48 (Dec. 2011) (“If you know someone who wants to use an iPhone as a GPS device, consider getting a holder that will attach the iPhone to the windshield so that it can receive the satellite signal and the display can be seen hands-free.”). Knott apparently did not possess such a bracket or holder since his cell phone was located in the cup holder of the center console at the time of the accident.

The position of the GPS device, the extent of the driver’s distraction, and the distance travelled by the vehicle during that period of diversion are important factors in determining whether the motorist is chargeable with outrageous conduct. See Westray v. Wright, 834 N.E.2d 173, 180-181 (Ind. 2005) (semi-truck driver who “looked down at the open map on the seat next to him to verify driving directions” for a matter of seconds “was clearly negligent in the operation of his vehicle,” but was not liable for punitive damages). If the GPS device is affixed to the dashboard or windshield of the vehicle, such that the operator maintains peripheral vision of the roadway, a motorist’s split second glimpse at its screen is akin to a momentary glance at a speedometer or side or rearview mirror, and does not constitute reckless indifference or wanton misconduct. However, if a driver completely diverts his or her attention from the roadway to view a GPS device which is not located on the dashboard or windshield, and continues to travel in his or her vehicle without any view of the roadway or other traffic, [s]he may be deemed reckless.

In light of Richard Yarborough’s testimony that New Prime’s drivers are cautioned against using GPS navigation systems since such devices divert their attention from the roadway, a genuine issue of material fact exists as to whether Knott had a subjective appreciation of the risk of harm posed by use of a GPS. Although Rockwell alleged in his amended complaint that Knott’s attention was diverted “for a substantial and significant amount of time” due to the GPS device, the summary judgment record is devoid of any such proof. Even when viewed in the light most favorable to Rockwell, the record reflects that as the final approaching vehicle entered the intersection from the opposite direction, Knott looked at the GPS to ensure that he was at the correct intersection. Knott then “glanced back up” at the street sign for Washington Street, looked forward in the direction of oncoming traffic, and proceeded to take his foot off the brake as he began his left turn. Reasonable minds could not differ that such conduct by Knott does not constitute reckless, distracted driving.

If the record contained some evidence suggesting that Knott was viewing the GPS device positioned in the lower center console as he proceeded to make a left turn without yielding the right of way to Rockwell, in violation of Section 3322 of the Vehicle Code, 75 Pa.C.S., an issue of fact would exist as to whether Knott’s recklessly indifferent conduct warrants the submission of Rockwell’s punitive damages claim to the jury. At the summary judgment stage, Rockwell can no longer rely upon his averment that Knott was so distracted “for a substantial and significant amount of time,” and no such evidence is present in the record submitted for review. As a result, Rockwell’s evidence in support of his punitive damages claim against Knott is insufficient as a matter of law, and Knott’s motion for partial summary judgment will be granted.

(C) HIRING AND SUPERVISION OF KNOTT

In addition to his punitive damages claim against New Prime based upon its vicarious liability for Knott’s actions, Rockwell has asserted a separate claim for punitive damages against New Prime based upon its alleged willful failure “to train, inform, educate, and prohibit its employees from acting as distracted drivers and from operating a GPS system while driving.” (Docket entry no. 7 at ¶67). The only evidence submitted by Rockwell in support of that independent claim is the deposition testimony of Knott’s supervisor, Richard Yarborough. (Docket entry no. 26, exhibit C).

Mr. Yarborough testified that Knott received safety training known as “the Smith System,” which is “a defensive and awareness-type course” involving “videos, tests, as well as on-the-road driving with a coach or instructor.” (Id. at p. 22). Knott was also required to satisfactorily complete an over-the-road driving test in the presence of an instructor. (Id. at pp. 23-24). When asked by Knott’s counsel to describe any “training that you give a security guard like Glenn Knott” relating to the use of GPS devices, Mr. Yarborough stated:

...we tell our drivers the same thing: Do not use GPS’s. They’re dangerous. They take your attention from the road, which is what the Smith System and our defensive driving is all about. You have to be aware of the road. And if you’re looking down texting, using a GPS, any type of device, even cell phones — they’re required to have headsets...not handhelds, but headsets.

(Id. at p. 26).

The only evidence that has been presented by Rockwell does not create a triable issue of fact as to whether New Prime willfully or wantonly failed to train or supervise its employees with respect to the dangers of distracted driving and use of GPS devices while operating a vehicle. Once again, Rockwell may not rely upon the averments of his amended complaint to create a genuine issue of material fact in that regard. Accordingly, New Prime’s motion for partial summary judgment as to Rockwell’s direct and vicarious claims for punitive damages will be granted. An appropriate order follows.

ORDER

And now, this 13th day of August, 2013, upon consideration of the “Motion for Partial Summaiy Judgment to Dismiss Claims for Punitive Damages” filed by defendants, Glenn Knott and New Prime, Inc., and the exhibits and memoranda of law submitted by the parties, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. The motion for partial summary judgment of defendants, Glenn Knott and New Prime, Inc., is granted; and
2. Count IV of the amended complaint setting forth claims for punitive damages against defendants, Glenn Knott and New Prime, Inc., is dismissed.

      . GPS navigation applications are commonly used on modem cell phones, such as iPhones and similar wireless communications devices, to provide location and directional assistance. Oxton, The Search Incident to Arrest Exception Plays Catch Up: Why Police May No Longer Search Cell Phones Incident to Arrest Without a Warrant, 43 Creighton L. Rev. 1157, 1203 (June 2010). The GPS receivers “can determine latitude, longitude, altitude, direction, and speed by receiving and processing location information from the transmissions of the four nearest orbiting GPS satellites.” Serwin, Habte & Brown, Privacy In An Interconnected World, 28 No.4 GPSolo 34, 35 (June 2011).

      . Questions arose as to whether the municipal ordinances banning texting while driving were preempted by state law or otherwise in conflict with the Pennsylvania Vehicle Code, and in 2012, Pennsylvania “became the 35th state in the United States to enact a ban on text messaging while driving.” Franklin, Done With Distracted Driving: Implications of Pennsylvania’s Ban on Text-Based Communication While Driving Under the State Constitution, 117 Penn St. L. Rev. 171, 176 (Summer 2012). Section 3316(a) of the Vehicle Code became effective on March 8,2012, and provides that “[n]o driver shall operate a motor vehicle on a highway or trafflcway in this Commonwealth while using an interactive wireless communications device to send, read or write a text-based communication while the vehicle is in motion.” 75 Pa.C.S. §3316(a). A “text-based communication” is defined as “a text message, instant message, electronic mail or other written communication composed or received on an interactive wireless communications device.” 75 Pa.C.S. §3316(f).