author: GEORGE, J,

text:
    Kopp v. Tubies

      Larry W. Wolf, for plaintiff.

      Robert E. Campbell, for defendant.
    April 30, 2008
   GEORGE, J,

— This litigation commenced on August 11,2006 when Candace L. Kopp filed complaint against George O. Tubies seeking damages and/or specific performance of an alleged contract for the sale of real property located at 5807 Hanover Road, Conewago Township, Adams County, Pennsylvania. In addition to the cause of action based upon contract, Kopp pled causes of action for implied contract; unjust enrichment; and constructive trust. In his answer, Tubies denied the majority of the factual allegations and raised the statute of frauds as a defense. Following the close of the pleadings, Tubies moved for partial summary judgment seeking dismissal of the contract and constructive trust causes of action. By order of court dated September 18, 2007, Tubies’ motion for summary judgment on the breach of contract action was granted to the extent that Kopp sought specific performance for the transfer of the subject real estate. Tubies’ motion for summary judgment on the basis that the statute of frauds precluded a claim for constructive trust was denied based upon the authority of Silver v. Silver, 421 Pa. 533, 538-39, 219 A.2d 659, 661 (1966).

On September 19, 2007, a non-jury trial was held before this judge. At the conclusion of Kopp’s presentation of evidence, Tubies’ request for a demurrer on the cause of action for constructive trust was granted. At the conclusion of trial, judgment was entered in favor of Kopp and against Tubies on the breach of contract action in the amount of $26,008.91. Following this court’s denial of Kopp’s motion for post-trial relief, timely appeal has been filed to the Superior Court. In her appeal, Kopp challenges this court’s pretrial partial grant of summary judgment. Kopp further challenges this court’s grant of a demurrer to the cause of action based upon constructive trust. Kopp also argues that this court committed error during trial in granting Tubies’ objection to the introduction of an amortization schedule. Finally, Kopp raises a number of challenges to this court’s calculation of damages. Before addressing the specific issues raised by Kopp, a brief summary of the factual background is in order.

Although not entirely clear in the testimony, Kopp’s relationship with Tubies is derived from Tubies’ relationship with Kopp’s mother. Apparently, Tubies and Kopp’s mother, although not formally married, have resided together in a familial relationship for approximately 17 years. At some point in the past, Kopp owned a condominium unit in Penn Township, York County, Pennsylvania. Kopp’s financial circumstances, however, placed her in jeopardy of defaulting on the mortgage encumbering her condominium unit. On two separate occasions, foreclosure proceedings were commenced against her. Trial transcript, p. 42. On the earlier occasion, Kopp’s mother provided Kopp with cash sufficient to avoid foreclosure. On the second occasion, the foreclosure proceedings advanced to sheriff’s sale. In order to avoid sheriff’s sale, Kopp entered into a sales agreement with Tubies for the sale of the condominium unit. The agreement contemplated net sale proceeds in the amount of $ 19,261.5 5 to Kopp in the form of a note. The agreement further contemplated Kopp remaining in the condominium as a tenant of Tubies for some period of time pending Tubies’ resale of the condominium. Upon resale, the previously referred to note was payable to Kopp. In addition, Tubies agreed to a division of proceeds from the sale of the condominium to the extent the proceeds exceeded the price of his purchase of the property from Kopp. Although the terms of the agreement are much more specific, it is clear that the agreement was an effort to permit Kopp to retain the proceeds from her equity in the condominium which would have otherwise been lost entirely if the property had proceeded to sheriff’s sale.

Tubies exercised his right to resale the condominium which subsequently sold on August 26,2005 for the sum of $84,000. At that time, Kopp vacated the condominium as previously agreed. Kopp and Tubies entered into further oral discussions wherein a mobile home was purchased, titled in the name of Tubies, and placed on the vacant lot owned by Tubies at 5807 Hanover Road, Conewago Township, Adams County, Pennsylvania. Pursuant to their oral arrangement, Kopp moved into the mobile home and made regular monthly payments to Tubies. On October 29, 2005, a meeting occurred between Kopp and Tubies. Kopp’s daughter, Amy S. Shipley, kept notes of the discussion. Once completed, the notes were signed by Tubies. It is this document which Kopp claims to be the sales agreement for the sale of the Hanover Road property from Tubies to her.

As time passed, the relationship between the parties digressed. Thereafter, Tubies began taking action to evict Kopp from the property. Kopp subsequently initiated the subj ect action seeking a temporary injunction precluding her eviction and further seeking an order directing Tubies to surrender title of the Hanover Road property to her or, in the alternative, award damages in her favor.

Kopp initially challenges this court’s grant of summary judgment in favor of Tubies dismissing her claim for specific performance of the alleged contract. She claims that the October 29,2005 notes signed by Tubies evidence a writing for the sale of the subject real estate. In granting partial summary judgment, however, I ruled that the notes were insufficient to satisfy the requirements of the statute of frauds and dismissed the cause of action for specific performance.

The statute of frauds provides that oral contracts for the sale of land are invalid. 33 RS. §1. Fannin v. Cratty, 331 Pa. Super. 326, 331, 480 A.2d 1056, 1058 (1984). The statute of frauds will preclude a request for specific performance unless the terms of the agreement are sufficiently set forth and the property to be conveyed is sufficiently identified and described in writing. Pierro v. Pierro, 438 Pa. 119, 123, 264 A.2d 692, 694 (1970). It is essential that there be a definite present agreement in writing, every requisite element whereof is clearly and fully set forth therein. Gettemy v. Homestead Association of Westmoreland, 356 Pa. 475, 479, 52 A.2d 325, 327 (1947). Stated another way, the writing must definitely and conclusively evidence a meeting of the minds of the parties on all requisite terms of the agreement, nothing can be left to the future except actual performance. Id. citing Agnew v. Southern Ave. Land Co., 204 Pa. 192, 53 A. 752 (1902).

As mentioned, the writing upon which Kopp bases her claim for specific performance is the two pages of notes prepared by Kopp’s daughter and signed by Tubies. Notably, at the time this court ruled on the motion for summary judgment, there was no evidence of record that Kopp’s daughter, in signing the document, acted as agent on behalf of Kopp. As the statute of frauds clearly requires a written agreement executed by both parties, it is clear that the document relied upon by Kopp cannot meet this requirement.

Moreover, a review of the document relied upon by Kopp reveals that it lacks any description of the land at issue. Moreover, the document does not refer to an agreement to sell the property but rather references “land rent.” Critically, the language relied upon by Kopp as evidence of an agreement for the transfer of the property is couched in extremely speculative language. Rather than being definite and conclusive evidence of a meeting of the minds, the language relied upon by Kopp speaks in no such absolutes.

Kopp points out that Pennsylvania law permits a contract to be outside of the operation of the statute of frauds where the party seeking to enforce the conveyance has partially performed under the contract so as to render a decision inequitable and unjust. Glasgow v. G.R.C. Coal Co., 295 Pa. Super. 498, 503, 442 A.2d 249, 250 (1981). Thus, the well-settled rule that the statute of frauds prevents the entry of a decree of specific performance against the vendor under an oral contract excepts from its application circumstances where continuous and exclusive possession was taken under the contract and improvements were made by the purchaser not readily to be compensated in money, or other equitable considerations make it impossible to do justice except through a grant of specific performance. Id. citing Briggs v. Sackett, 275 Pa. Super. 13, 17, 418 A.2d 586, 589 (1980).

Kopp’s argument is misplaced, however, as neither the pleadings nor trial evidence established the performance of improvements by the buyer not readily compensable in money nor any other equitable consideration playing in favor of Kopp. In fact, the inequities, if any, weigh in favor of Tubies. Kopp, relying on an incomplete and contradictory set of notes, seeks to require Tubies to sell a lot to her at below-market rate and without any real consideration. Sitting in equity, I find nothing that leads me to conclude that justice requires a different result. Under these circumstances, the grant of partial summary judgment was appropriate.

Kopp’s challenge to this court’s demurrer on the count of constructive trust is similarly without merit. A constructive trust is a formula through which the conscience of equity finds expression. Chambers v. Chambers, 406 Pa. 50, 55, 176 A.2d 673, 675 (1962). When property is acquired under circumstances that the holder of the legal title may not in good conscience retain the beneficial interests, equity converts him to a trustee. Id. Thus, a constructive trust arises where a person holds title to a property subject to an equitable duty to convey it to another on the ground that he or she would be unjustly enriched if permitted to retain it. Pierro v. Pierro, supra, 438 Pa. at 127, 264 A.2d at 696. Before a constructive trust can arise, it is necessary that the owner of the property must have acquired title to it in some way that creates an equitable duty in favor of the person seeking to benefit from imposition of the trust. Shoemaker v. Lehigh Township, 544 Pa. 304, 311, 676 A.2d 216, 220 (1996).

Instantly, the real estate at issue belonged solely to Tubies before any discussions took place between the parties. Tubies neither acquired the realty as a result of an arrangement with Kopp nor took title subject to any duty to convey it to Kopp. He purchased it, as his own, well before he entered into any subsequent arrangement with Kopp. As such, a constructive trust cannot be found to exist.

Kopp next argues that the court erred by failing to consider an alleged confidential relationship between the parties of which Tubies took advantage of in unjustly enriching himself. It is difficult to address this issue as Kopp’s argument is unclear. To the extent Kopp challenges this court’s credibility determination, the claim is meritless. It is well-settled that the trial court, sitting as fact-finder, is free to believe all, part, or none of the evidence presented. Stokes v. Gary Barbera Enterprises Inc., 783 A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723, 797 A.2d 915 (2002). While observing the demeanor of the witnesses from the witness stand, there was nothing to suggest an overbearing relationship between the parties. Although Kopp claimed to have trusted Tubies, her claim is somewhat belied by her later testimony. For instance, Kopp acknowledged having third parties that she relied upon review the sales agreement related to the sale of the condo. See trial transcript, p. 48. Additionally, Kopp was accompanied by her daughter during critical discussions with Tubies. Importantly, Kopp acknowledged that the purchase of the condominium by Tubies was an arm’s-length transaction. See tr., p. 45.

The puzzling nature of Kopp’s current claim arises from a paucity of any indication in the record that this court did not consider the extent of the relationship between the parties. As set forth above, the existence, or lack thereof, of a confidential relationship had no bearing on the lack of legal merit to Kopp’s claims for specific performance and constructive trust. Additionally, the final judgment in this matter resulted in a monetary award against Tubies and in favor of Kopp. Thus, there is no support in the record for Kopp’s claim that this court failed to consider evidence of the parties’ relationship or, if so, that Kopp was prejudiced. Accordingly, there is a lack of merit to this vague challenge.

Kopp’s claim of trial error in sustaining Tubies’ objection to exhibit 15 is meritless. Initially, I note that Kopp describes exhibit 15 as being an amortization schedule which was allegedly excluded by the court. The trial transcript, however, reflects the amortization schedule to be exhibit 14. The transcript further reflects that exhibit 14 was introduced and admitted as evidence without objection. See tr., p. 48. Kopp’s claim, therefore, is patently frivolous.

During trial, Kopp attempted to have her daughter testify in regard to mathematical calculations breaking down a monthly payment made to Tubies based upon the previously referenced amortization schedule. Although this court permitted limited testimony in that regard, objection to an exhibit summarizing her calculations was sustained as argumentative and unnecessarily cumulative. This court can only speculate that it is the preclusion of this evidence to which Kopp currently appeals. Nevertheless, it is meritless.

The admission of evidence is a matter committed to the sound discretion of the trial court. Commonwealth v. Edwards, 588 Pa. 151, 181, 903 A.2d 1139, 1156 (2006). The court’s evidentiary decisions will not be overturned absent an abuse of discretion. Id. The trial court is well within its prerogative in excluding evidence that in the context of the litigation is merely repetitive or time consuming. Thus, multiple sources of different evidence as well as multiple similar sources establishing the same fact are properly excluded. See Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003).

Instantly, Kopp was permitted to introduce the amortization schedule which she claimed corroborated her testimony. Additionally, her witness was permitted to summarize the argument which she claims supported her position. Although greater leeway may have been granted in a jury trial, there was no need to rehash this information in a non-jury setting as this court understood and considered the argument. Unfortunately for Kopp, it was not the preclusion of relevant evidence that resulted in the judgment but rather this court’s finding that the argument lacked credibility.

Kopp’s remaining challenges attack the amount of judgment entered in favor of Tubies. These challenges appear to be a combination of claims of legal error and abuse of discretion in the credibility determinations reached by this court. The challenges fail, however, because as previously mentioned, the trial court, sitting as fact-finder, is free to believe all, part, or none of the evidence presented. Makozy v. Makozy, 874 A.2d 1160, 1167 (Pa. Super. 2005). Although Kopp may very well disagree with this court’s conclusions, her disagreement is not a basis to revisit the judgment. Several of Kopp’s challenges in this regard lack merit as there is sufficient evidence of record to support this court’s conclusions.

Initially, Kopp challenges a monetary credit in favor of Tubies for past due rent on the condominium unit. One need look no further, however, than the testimony of Kopp to find evidence supporting the court’s conclusion. At trial, Kopp admitted she had agreed with Tubies to make rental payment while she resided in the condominium of $430 per month. Tr., pp. 14-15. She further acknowledged leasing the condominium for a five-month period. Tr., p. 68. She claims to have made three payments during that period of time totaling approximately $662. Tr., pp. 15-16. This court’s finding is further supported by paragraph 1 of the articles of agreement signed on March 2, 2005 which provides for a monthly rental payment of $430. Kopp’s non-specific statements of subsequent agreement with Tubies to reduce the monthly rent were rejected by this court as incredible.

Similarly, the record supports this court’s adjustment of the final award for payments made by Tubies for the sewage bill, insurance, step repair, water heater vent, water heater, and loan interest. The deductions are properly authorized by paragraph 2 of the March 2, 2005 articles of agreement which permit Tubies to deduct “any outstanding debts or obligations for rent or other costs or expenses that Kopp would owe Tubies.” To the extent that this language is ambiguous, Kopp acknowledged responsibility for the obligations. Tr., pp. 66-67. Moreover, this court found credible Tubies’ testimony that the parties had contemplated all such costs being deducted before distribution of any proceeds to Kopp. See generally, Tr., pp. 99-106.

In analyzing this issue, it is important to recognize that a number of the items which Kopp currently complains about were items which improved the condominium and enhanced its value to the benefit of both parties. For instance, the step repair, water heater vent, and new water heater were items installed to improve the marketability of the condominium. Importantly, those items were not credited to Tubies from Kopp’s share of the sale proceeds but rather were deducted from the sale price of the condominium prior to distribution of the proceeds. The distinction is significant as both Kopp and Tubies shared payment of those expenses. It is common practice that expenses related to the improvement of realty be deducted from the gross sales price prior to distribution. There is no reason to deviate from that equitable practice instantly.

Kopp’s final claim is that this court committed error in interpreting the contract to require any excess proceeds from the sale of the condominium to be equally divided after the payment of costs and expenses. Kopp suggests that the contract requires 100 percent of the excess proceeds to be paid to her. She cites a provision of the agreement which reads that “if Candace Kopp is current with her rental payment with George Tubies that upon the sale of the real estate, George Tubies will reimburse Candace Kopp for any excess equity that she might have had.” On the other hand, Tubies cites a specific reference in the agreement that the parties agree “to split any net proceeds . . . less the amount of any outstanding debts or obligations for rent or other costs or expenses that Kopp would owe Tubies.” This issue turns upon application of the rules of contract interpretation.

When interpreting the language of a contract, the intention of the parties is a paramount consideration. Thomas Rigging and Construction Co. Inc. v. Contraves Inc., 798 A.2d 753, 755 (Pa. Super. 2002). Where agreements contain clear and unambiguous terms, it is necessary only to examine the writing itself to give effect to the parties’ intent. Osial v. Cook, 803 A.2d 209, 213 (Pa. Super. 2002). A contract is ambiguous, however, if the terms are reasonably or fairly susceptible to different constructions and are capable of being understood in more than one sense. Cordero v. Potomac Insurance Co. of Illinois, 794 A.2d 897, 900 (Pa. Super. 2002). Where the language of a contract is ambiguous, the provision is to be construed against the drafter. Cordero, 794 A.2d at 900.

Undoubtedly, the language of the agreement could have been drafted more precisely. Nevertheless, there is no ambiguity in the language of the section cited by Kopp which requires, as a condition of distribution of proceeds, that Kopp be “current with her rental payments.” Testimony at trial was unequivocal in establishing that Kopp was delinquent on her rental payments to Tubies. Accordingly, the provision cited by Kopp is inapplicable as a condition precedent has not been met.

Similarly, there is no ambiguity in the language cited by Tubies that the net proceeds would be split to the extent they exceeded Tubies’ purchase price of $55,000. This provision is in accord with what credible testimony revealed at trial to be the intent of the parties. At the time of the transaction, Kopp was facing sheriff’s sale of the condominium. Experience teaches that in such circumstances, any equity Kopp would have had in the property would be lost. In order to preserve her approximately $19,600 in equity, the parties entered into an agreement wherein Tubies would save the property from foreclosure by purchasing the property from Kopp at the price she originally paid for it. After satisfying the mortgage, the difference between the mortgage and the original purchase price would remain Kopp’s profit. To the extent the parties received additional proceeds from the condominium’s resale, those proceeds would be equally divided. As Tubies testified at trial, the agreement was a win/win for both parties. Kopp was to receive her equity and a portion of the profit which would otherwise have been lost; Tubies was to receive a share of the profit as a result of his efforts and investment. Kopp’s current argument that Tubies went through this exercise and risk without any expectation of compensation is unrealistic. Accordingly, both the clear language of the contingency and this court’s factual determination as to the intention of the parties led to a judgment based upon a split of the sale proceeds from the condominium.

For the foregoing reasons, it is requested that judgment in this matter be affirmed.

      . Tubies also sought a motion in limine precluding introduction of notes apparently confirmed in writing by Tubies. That motion was denied.

      . Kopp’s concise statement of matters complained of on appeal mistakenly references this court’s ruling as a grant of Tubies’ motion in limine. In actuality, Tubies raised the issue through a motion for partial summary judgment.

      . The issues raised in paragraphs 1 and 3 of Kopp’s statement of matters complained of on appeal to be the same as this court’s dismissal of the cause of action for specific performance of the sale of realty was granted on the basis of a lack of compliance with the statute of frauds.

      . At trial, Kopp attempted to develop this evidence through testimony. Unfortunately for Kopp, the motion for summary judgment had already been granted as Kopp failed to cite evidence in the record establishing this element of her claim at the time the motion was under consideration. SeePa.R.C.P. 1035.3.

      . In her brief in opposition to the motion for partial summary judgment, Kopp did not suggest compliance with the statute of frauds but rather relied solely on the argument that partial performance of the oral agreement removed the contract from the requirements of the statute of frauds.

      . Kopp cites the following language: (5) How much does mom owe total? -25,155 40,000 65,000 if bought it all.

      . Kopp’s pleading is unclear in regard to what property she is claiming to have been held in constructive trust. In asking for judgment in her favor, she requested the court to impose a constructive trust in the real estate owned by Tubies. All parties to this litigation treated the pleading as a request for the imposition of constructive trust solely upon the land. Moreover, the judgment entered by this court fully reimburses Kopp for any funds she may claim to have used in supporting the purchase of the mobile home thereby making her fully whole.

      . Although Kopp’s testimony reflected that part of one of the payments was to pay Tubies for fixing her dryer, this court essentially credited all of her payment to rent. I note that the October 9, 2007 order contains a typographical error reflecting that Kopp was credited for payments in the amount of $662 against the rent. Nevertheless, the court properly calculated and credited payments for $662.20 ($2,150 rent minus $662.20 totals $1,487.80 due in delinquent rent).

      . Since Pennsylvania law recognizes that simple interest at the statutory rate is recoverable as damages for breach of contract from the time performance was due, Penneys v. Pennsylvania Railroad Co., 408 Pa. 276, 279, 183 A.2d 544, 546 (1962); Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 590 (Pa. Super. 2003), the verdict in this matter shall be molded to include interest in the amount of $2,398.96. A trial court may mold a verdict to include pre-judgment interest even after an appeal has been taken. Pittsburgh Construction Co. v. Griffith, 834 A.2d at 591. See also, Pa.R.A.P. 1701(b)(1).


source: Caselaw Access Project

author: VALASEK, P.J.,

license: Public Domain

text:
    Duncan v. Miller

      James C. Heneghan, for plaintiffs.

      David Rosenberg, for defendants Germy.

      Frank Wolf, for additional defendants Miller.

      April 8, 2008
   VALASEK, P.J.,

— Before the court for disposition is defendants Edward G. Germy and Judith M. Germy’s motion for summary judgment.

This court heard oral argument on the instant motion on April 4, 2008.

(1)Several witnesses testified that Lynn Miller leased a private residence situate at 1528 5th Avenue, Ford City, Armstrong County, Pennsylvania (the property) from defendants Edward G. Germy and Judith M. Germy, per a month-to-month oral lease, for $500 per month.

(2) Defendant Angela Miller testified that defendant Edward G. Germy had been to the property to supervise grass cutting up to five times prior to the dog-bite incident. Angela Miller deposition at 24.

(3) Defendant Angela Miller testified that she had taken the dog into the yard while defendant Edward G. Germy was present, and that the dog was probably muzzled at those times. Angela Miller deposition at 28-29.

(4)Defendant Angela Miller testified that defendant Edward G. Germy was at the apartment at least one time when the windows were open and the dog barked aggressively from inside the house. Angela Miller deposition at 41-42.

(5)Defendant Angela Miller testified that she posted “beware of dog” signs, approximately 18” by 12” each, on the front door, back door and backyard garage on the property approximately three months before the incident. Angela Miller deposition at 49-51.

(6) Defendant Angela Miller testified that the “beware of dog” signs were posted when defendant Edward G. Germy was at the property to cut the grass. Angela Miller deposition at 51.

(7) Additional defendant Kristi Miller testified that the “beware of dog” signs could be seen and read from the street. Kristi Miller deposition at 32-33.

(8) Defendant Edward G. Germy testified that he was on the property prior to the dog-bite incident to repair a hot water tank. Edward G. Germy deposition at 21.

(9) Defendant Edward G. Germy testified that he drove by the property weekly. Edward G. Germy deposition at 62.

(10) Defendant Judith M. Germy testified that she drove by the property weekly. Judith M. Germy deposition at 27.

(11) Additional defendant Kristi Miller testified that defendant Edward G. Germy knocked on the door to the property while the dog was living at the house, causing the dog to bark aggressively from inside. Kristi Miller deposition at 23-26.3

(12) Defendant Edward G. Germy testified that, upon learning of the dog-bite incident, he told Lynn Miller that the dog had to go. Edward G. Germy deposition at 32.

CONCLUSIONS OF LAW

(1) The standard for granting summary judgment is as follows:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Summary judgment is proper in cases in which ‘an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ We review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001). (citations omitted)

(2) “[A] landlord out of possession may be held liable for injuries by animals owned and maintained by his tenant when the landlord has knowledge of the presence of the dangerous animal and where he has the right to control or remove the animal by retaking possession of the premises.” Palermo by Palermo v. Nails, 334 Pa. Super. 544, 547, 483 A.2d 871, 873 (1984).

(3) Plaintiffs have presented sufficient evidence to, when viewed in their favor, support the conclusion that defendants Edward G. Germy and Judith M. Germy were landlords out of possession who knew of the presence of the dangerous animal on the property and who had the right to control or remove the animal by retaking possession of the premises. Therefore, the motion for summary judgment must be denied.

An appropriate order will be entered.

ORDER

And now, April 8, 2008, upon consideration of the parties’ briefs and oral arguments, the defendant’s motion for summary judgment is denied.


author: LASH, J.,

text:
    Slimmer v. Steininger

      John A. Hoffert, for plaintiff.

      Lisa D. Gentile, for defendant.
    April 17, 2008
   LASH, J.,

— This court held a child custody trial on April 14, 2008. The court makes the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Jennifer Slimmer (Mother), is an adult individual who currently resides at 742 North Eleventh Street, Reading, Berks County, Pennsylvania.

(2) Defendant, Richard T. Steininger (Father), is an adult individual who currently resides at 2806 Old Price-town Road, Temple, Berks County, Pennsylvania.

(3) Father and Mother are the natural parents of two minor children, Dakota James Steininger, born March 2, 2000, and Melissa Nicole Slimmer, born July 10, 2003.

(4) Mother currently resides with the minor children, her daughter, Selena Slimmer, born February 6, 1996, and Mother’s paternal grandparents, Richard and Marla Slimmer.

(5) Father currently resides with his father, Richard L. Steininger, and a third party described by Father as his father’s “godson,” Brian K. Kohl.

(6) Mother is currently unemployed.

(7) Father is employed with Temporary Star Staffing, working Monday through Friday from 6 a.m. to 2:30 p.m. and some Saturdays.

(8) The parties were never married but resided together. It appears they separated sometime in February of2002, later resuming their relationship for a short time, during which time Melissa was conceived.

(9) Mother resides in the Reading School District.

(10) Father resides in the Oley School District.

(11) The minor child, Dakota, attended Muhlenberg School until about two months ago, when he was transferred to Reading School District. He was transferred to the Reading School District because neither parent resided in the Muhlenberg School District.

(12) After the parties’ separation, Mother, at some point, moved in with relatives in the Muhlenberg School District. At that time, she enrolled her eldest child, Selena, in the Muhlenberg School District. When Dakota became of school age, Mother and the minor children had already moved into Mother’s grandparents’ home in the City of Reading. However, Mother had continued to allow Selena to attend Muhlenberg School District and enrolled Dakota there as well, misadvising the Muhlenberg School District that they resided in Muhlenberg Township.

(13) Several custody orders have been entered in this case. The first was entered in September 20, 2002, by agreement, conferring upon Mother primary physical custody of Dakota, with Father to have partial custody every Saturday from 8 a.m. until 6 p.m. That order was amended on October 11,2002 to add provisions for Father’s Day and for Father to have telephone call privileges on Monday, Wednesday and Friday of each week.

(14) On or about August 11, 2005, Father filed a petition to modify custody, ostensibly to add Melissa to the custody order. The petition to modify resulted in an order being entered on November 23, 2005, following a conference before the custody master, setting forth, among other things, that Mother would retain primary physical custody of both minor children with Father to have partial custody of the minor children every weekend from Saturday at 6 p.m. until Sunday at 6 p.m., and every Thursday from 6:30 p.m. until 8 p.m.

(15) Another conference was scheduled resulting in a custody order being entered on July 24, 2006 by agreement of the parties. The order modified Father’s time with the minor children such that Father would now have the minor children on alternate weeks from Thursday after Father concluded his work until Sunday at 5 p.m., and on alternate Tuesdays from 4 p.m. until the minor children’s bedtime.

(16) The most recent order was entered September 11, 2006, modifying the previous order, with Father now having partial custody on alternate weekends from Thursday after Father concludes work until Sunday at 7 p.m., and every Tuesday from 4 p.m. until 8 p.m. The order also required the parties and Dakota to attend counseling with Dan Smith, a licensed social worker.

(17) On or about May 7, 2007, Father filed a petition to modify the custody order of September 11,2006. It is this petition to modify which is currently before the court.

(18) The parties were involved in several other court proceedings, including protection from abuse matters and investigations by Children and Youth Services.

(19) The first protection from abuse matter was filed by Mother against Father on April 2,2001 at docket no. 01 -3403,1.D. no. 1. Mother alleged that Father had been physically abusive for about a year. After an argument, he jammed his finger into her eye causing substantial injury. She alleges this altercation occurred in front of Dakota, who Father also “accidently” hit. That petition was resolved on April 9, 2001 by a final order being entered by agreement, setting forth that Father would have no contact with Mother, except for child custody purposes, for a period of 18 months.

(20) On January 27,2006, Mother filed a second petition at docket no. 01-3403,1.D. no. 2, requesting protection from abuse alleging that Father was stalking and threatening her. On February 3, 2006, the court, again by agreement, entered a final order setting forth that Father would have no contact with Mother, except for child custody purposes. The order was to remain in place for a period of 15 months.

(21) On February 22, 2006, Father was charged with indirect criminal contempt for violating the February 3, 2006 protection from abuse order. After hearing held on March 23, 2006, the Honorable Mary Ann Campbell dismissed the charge of indirect criminal contempt.

(22) On January 10,2006, Mother filed another protection from abuse petition (docket no. 06-7505,1.D. no. 1), this time on behalf of her three children, alleging that Father had improper, indecent contact with Melissa and that Dakota had also been touching Melissa. This matter resulted in a Children and Youth Services investigation. On July 31, 2006, the petition was dismissed by this court.

(23) On January 8,2008, Mother filed a new protection from abuse petition (docket no. 01-3403,1.D. no. 3) alleging an altercation occurring while Mother was sitting in the driver’s seat of her vehicle while Father was placing Dakota in the car seat on the right rear passenger seat. In her petition, she states: “He tried to rip the passenger seat out and when he could not do it, he spit at me and our son. He was halfway into the car and I tried to drive off. He climbed into the car and punched me again. I drove off and he jumped out slamming the car door hitting our son’s hand injuring two fingers on his right hand.” On March 19, 2008, Mother withdrew this petition.

(24) In addition to the Children Services investigation against Father, as already set forth, Mother’s home was also investigated by Children and Youth Services. In both cases, Children Services made a finding of “unfounded.”

II. DISCUSSION

The issue is primary physical custody. In making our determination, this court considered the testimony of the parties, in camera conferences with the minor children, testimony from the maternal grandmother, Debra S. Wessner, Mother’s paternal grandmother, Marla Slimmer, Mother’s other child, Selena Slimmer, two friends of the parties, Mary Ann Gagliardo and Jennifer Boyle, the counselor, Dan Smith, exhibits submitted by the parties, and the questionnaires, which the court directed the parties to answer and which have been made part of the court file.

Each party’s presentation at trial consisted almost exclusively of providing a list with examples of the other party’s poor conduct. This court heard that both parties were physically assaultive to the other. Each engaged in name calling and obscenities in front of the minor children. Each party refused to communicate to the other. Each party allowed situations to occur which could be physically unsafe to the minor children. Both parties violated court orders by their own admission. There were substantial credibility problems with both parties.

The parties appear to genuinely dislike each other. Although no psychological profile was presented, there is ample evidence that Mother is controlling and histrionic. Father has apassive/aggressive demeanor, resulting in him acting out. Both accuse the other of substance abuse, in Mother’s case alcohol, and in Father’s case drugs and alcohol. The hard feelings have extended to other family members, as well. Both parties appear oblivious to the terrible impact their conduct has on the minor children’s well-being.

Each party denies the other party’s allegations. Each party portrays himself or herself as a good parent and, for the most part, blameless for the protracted hostilities. It is from this unfortunate set of circumstances that we are called upon to discern what is best for these minor children.

Father was the first presenter. His first concern related to the inordinate amount of bruises he observes on the minor children. On one occasion, Mother broke Dakota’s right pinky figure during horseplay. On another occasion, Melissa fell off Mother’s front porch, splitting her lip open. On another occasion, Mother took the minor children to the swimming pool where they suffered substantial sunburn. The minor children, who were diagnosed early with respiratory ailments, are allegedly exposed to smoking, particularly when in the presence of the maternal grandmother. According to Father, the minor children are also not bathed properly when at Mother’s house.

Father believes that Mother is deliberately refusing to communicate with him and restricting access to the minor children by phone. Under the terms of the court order, Father is permitted phone calls with the minor children several times per week. He states that he only has the opportunity for about half of these phone conversations, as Mother refuses to answer the phone. She will not advise him on any activities at school or on issues involving the minor children’s medical care. She will not permit Father to sign Dakota up for sports.

He believes Mother and her family engage in calling him names and using obscene language in the presence of the minor children. Melissa, who is currently only 4 years old, has a habit of making an obscene gesture with her middle figure, which Father believes was taught to her by Mother or Mother’s grandmother.

Father believes that Mother in September of 2007, while attending a party, became so intoxicated that she was unable to care for her child. The host family took Mother’s car keys and required Mother to sleep at their house. Mother’s daughter was taken to a caretaker by a third party.

Father points out that Mother arranged for Dakota to attend the Muhlenberg School District, even though neither party resided in that district. Fie believes that Mother induced Dakota, as well as Selena, to lie to the Muhlenberg School District officials about where they resided.

When Mother took a vacation period approximately two weeks before Christmas, she denied Father any phone access to the minor children, resulting in Father not having any contact with the minor children for a little over two weeks, immediately before the Christmas holiday.

Father argues that Mother abuses the court system. In one example, he states that immediately after stating to the custody master that Father was “a good father,” Mother fabricated allegations regarding abuse of the minor children, resulting in an investigation by Children Services and the commencement of a protection from abuse action.

Father believes he would be more invested in the minor children’s day-to-day activities. He would like to have Dakota involved in baseball and soccer, which Father believes Dakota wants to do. Mother, however, has thwarted this. Father also denounces Mother’s actions regarding Cub Scouts. While enrolling Dakota in Cub Scouts, she pulled him out of the Cub Scout troop, and did so without telling Father. Father would like the opportunity to attend the Cub Scout meetings and participate.

Father believes that if he had custody of the minor children, they would be better cared for, reducing the number of injuries being suffered by the minor children. Unlike Mother, Father would cooperate with Mother in advising her of any medical problems, or school problems, for that matter, so that both parties could participate in a prompt and appropriate resolution.

As stated, Mother makes a similar attack on Father. She points out that he gouged her in the eye with his finger during an altercation, resulting in Mother having substantial problems which continue to this day. She obtained a protection from abuse order against him based on this incident. During another argument, while Mother was seated in the driver’s seat of her car and while Father was attempting to place Dakota in his car seat, the parties began arguing again. Mother claims that Father was attempting to hit her, and ultimately got angry when she tried to pull out, slamming the car door on Dakota’s finger. On another occasion, he slammed the door on Melissa’s finger, when she tried to enter his bedroom while he was loading a gun. On another occasion, Melissa tripped around the fireplace, resulting in her suffering burns to her hand. Father provided only minimal treatment on Melissa’s behalf.

Mother states that Father engages in inappropriate discipline. For example, he threatened to “handcuff the children to a pipe in the basement” if they misbehave.

Mother is concerned about Father’s brother, Kenneth A. Steininger, who has been convicted of sexually related offenses. Although the brother is currently incarcerated, Mother argues that Father had permitted him to have contact with the minor children, exercising poor judgment.

Mother states that Father makes no attempt to communicate with her regarding the welfare of the minor children. She has to bear the entire burden of maintenance for the minor children, including overseeing their school work, including making contacts with the school personnel, and insuring that they get proper medical attention.

Mother claims that Father has exhibited racist behavior. He was involved in an argument with an African-American family in front of Mother’s residence, ostensibly because he used offensive language. More central to the concerns of this case, Mother alleges that Father has called Selena a “spic,” based on her one-half Latino heritage. He also called her a “pig” to her face.

Mother believes the minor children are thriving under the current custody arrangement. Dakota’s grades have improved. He is doing particularly well at math. She is pleased with the Reading School District and with the tutoring Dakota is receiving in the reading class. She believes that she properly cares for and disciplines the minor children. As she has been involved in the minor children’s care from their birth and has taken on all maintenance and responsibilities, she believes it is inappropriate to consider any change in custody at this time.

At issue is primary physical custody. The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

Upon review, it is apparent that both parties have substantial limitations in their ability to parent the minor children. Most of these allegations and counter-allegations, while perhaps somewhat exaggerated, appear to have occurred and occur in the presence of at least one of the minor children. It remains to be seen what long-term deleterious effects these incidents will have on the minor children’s psychological health.

The altercation in Mother’s car provides a good composite of the interaction of these parties. In recalling this incident, both parties testified with certainty on what the other party did wrong, but minimized their own responsibility. What likely happened was that the parties got involved in an argument while Mother was seated and ready to drive off, while Father was leaning into the car through the right rear passenger door. The argument probably became physical. Mother hit the gas petal and jerked the car forward, creating a very dangerous situation for Father and Dakota. Father, angered by Mother’s actions and without regard to the position of Dakota, slammed the door on Dakota’s fingers.

We are also mindful of the parties’ disregard for the truth. For example, Mother had no difficulty in directing two of her children to lie to the Muhlenberg Township officials about where the children were residing. Ironically, while Mother, for the most part was truthful with the court about this matter, the maternal grandmother, who had been sequestered prior to her testimony, attempted to cover up the incident. For Father’s part, his statement regarding the car door incident, that the door accidently closed on Dakota’s fingers while Mother was driving away cannot be believed. Additionally, his statement that he accidentally poked his finger in Mother’s eye when he was trying to push her away stretches the imagination.

Both parties admitted intentionally disregarding a court order. In Mother’s case, she was ordered to permit Father to have telephone contact with the minor children on Saturdays. She refused because Father would not permit her to have contact with the minor children on the Saturdays they were visiting with him. In addition to her disrespect of the court, this establishes that she would rather engage in a spitting contest with Father than do what is best for the minor children by permitting them access to Father by telephone. Father also did not comply with the court order when he unilaterally stopped attending anger management classes.

Unfortunately, neither party is able to maintain a separate residence without support from their families. Neither party is able to provide the minor children with a bedroom of their own.

It is Father’s burden to establish that a change in custody is warranted. While he has successfully established that Mother’s capacity to parent is in many ways substandard, he has failed to establish that the minor children would be any better off with him. We cannot discern that his track record as a parent is superior to Mother’s. On the other hand, if we transfer custody to Father, Dakota would have to change school districts again. The minor children will also have substantially less contact with their half-sister, Selena.

The welfare of these minor children will not be determined by the custody schedule, but rather by whether the parents will set aside their spiteful and malicious conduct toward each other and begin to work together for the minor children’s sake. This will require giving the other party the benefit of the doubt, complying with the terms of the court order, and communicating. To facilitate this, the court will add some provisions to the order and will require strict compliance, with severe sanctions in the event a party is found to be in willful contempt of the court order.

We enter the following order:

ORDER

And now, April 17, 2008, the order of September 11, 2006 is vacated. In its place, the court, after trial held, hereby orders that custody of the parties’ minor children, Dakota James Steininger, bom March 2, 2000, and Melissa Nicole Slimmer, born July 10, 2003, shall be as follows:

(1) The parties shall share legal custody of the minor children.

(2) Plaintiff, Jennifer Slimmer (Mother), shall have primary physical custody of the minor children.

(3) Defendant, Richard T. Steininger (Father), shall have partial physical custody of the minor children on alternate weekends from Thursday after Father concludes work until Sunday at 7 p.m., and every Tuesday from 4 p.m. until 8 p.m.

(4) The parties shall alternate the following named holidays from 10 a.m. to 7 p.m., with Father having the first holiday after the date of this order: Easter, Memorial Day, July 4th, Labor Day and Thanksgiving.

(5) Mother shall have Mother’s Day each year and Father shall have Father’s Day each year from 10 a.m. to 7 p.m.

(6) The parties shall share the Christmas holiday on an alternating basis, such that Mother shall have custody of the minor children on even-numbered years from Christmas Eve at 1 p.m. to Christmas Day at 1 p.m., then Father shall have the minor children from Christmas Day at 1 p.m. to December 26 at 1 p.m., with the schedule to be reversed on odd-numbered years.

(7) Each party shall be entitled to two weeks of vacation time with the minor children. The vacationing party shall provide the non-vacationing party with at least 60 days written notice of the dates and times for said vacation. If the vacation times conflict, Mother’s vacation time shall take priority in odd-numbered years and Father’s shall take priority in even-numbered years.

(8) The holiday and vacation schedule shall take precedence over the regular custody schedule.

(9) When Father does not have custody of the minor children, he shall be permitted to have reasonable telephone call contact with the minor children every Monday, Wednesday, Friday, and Saturday during the period from 7 p.m. to 7:30 p.m. When Mother does not have custody of the minor children, she shall be permitted to have reasonable telephone call contact with the minor children on Saturdays during the period from 7 p.m. to 7:30 p.m.

(10) Neither party shall smoke in the presence of the minor children, neither shall smoke in their residence or any automobile in the presence of the minor children, and neither party shall permit third parties to smoke in their respective residences or automobiles when the minor children are present.

(11) Father shall purchase beds for the minor children for use during his custody time.

(12) When the minor children are in his custody, Father shall not have any loaded guns in his residence or automobile.

(13) If Father transports either minor child on his motorcycle, the minor child shall be wearing a motorcycle helmet approved for use by children.

(14) The parties and the minor child, Dakota, shall attend counseling with Dan Smith, Berkshire Psychiatric, 1200 Broadcasting Road, Suite 200, Reading, Pennsylvania 19610 (phone 610-375-0544). The parties shall call and schedule said counseling within 10 days of the date of this order. Mr. Smith shall engage in individual and family counseling with the parties and Dakota, as he deems appropriate.

(15) The minor child, Melissa, shall attend counseling with Emily Yego from Child & Family Services, Fourth and Penn Streets, Reading, Pennsylvania, until Ms. Yego no longer deems it necessary, or until further order of court.

(16) Each party is required to communicate with the other party regarding the minor children’s medical, dental, eye care, and educational issues. Each party shall ensure that the other party has access to all records of the minor children in a timely manner, as well as a schedule for activities.

(17) Each party shall be permitted to be present for the minor children’s activities, whether it be scouts, sports or any school-related activity. If a minor child desires to become involved in an activity or sport, neither party shall withhold consent to the activity, except for good cause shown.

(18) Neither party shall permit Father’s brother, Kenneth A. Steininger, to have any contact with the minor children, either directly or indirectly.

(19) The attached appendix shall be made a part of the within order.

(20) STRICT COMPLIANCE WITH THE TERMS OF THIS ORDER ARE REQUIRED.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the children:

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the children in school and the children’s medical status, including the right to obtain the necessary information directly from the children’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the children and the opportunity to participate in those decisions.

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

(3) Neither party shall alienate nor permit to attempt to alienate the children from the other party. While in the presence of the children, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the children should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the children out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their children.

(6) The parties shall, at all times, consider the children’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

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

(8) The parties should remember that they cannot teach their children proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor children.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children to unnecessary apprehension and failure of expectations.

(D) The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the children.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.


author: BUCCI, J,

text:
    Commonwealth v. Grady

      David Long, assistant public defender, for defendant/ appellant.

      James Goldsmith, assistant district attorney, for Commonwealth/appellee.
    April 28, 2008
   BUCCI, J,

PROCEDURAL HISTORY

On December 15, 2006, appellant was convicted following a jury trial of robbery (two counts), burglary, resisting arrest, and possession of a controlled substance (cocaine) on docket number CP-06-CR-0003632-2005; robbery (two counts) and simple assault on docket number CP-06-CR-0003634-2005; and robbery on docket number CP-06-CR-0004060-2005. He was sentenced on February 13, 2007 to life in prison without parole. On March 23, 2007, appellant filed a notice of appeal to the Pennsylvania Superior Court. By agreement of all the parties, the case was remanded for resentencing on November 20, 2007.

On January 24,2008, appellant was resentenced to an aggregate sentence of 30 to 60 years incarceration. Appellant filed timely post-sentence motions which were denied, and on March 5,2008, he filed a notice of appeal to the Pennsylvania Superior Court. On March 12,2008, this court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure 1925(b). Appellant filed a concise statement on March 26, 2008, raising the following issues:

(1) The trial court abused its discretion by entering manifestly excessive and unreasonable sentences following the remand by the Superior Court, which had vacated the three concurrent life sentences entered pursuant to Pennsylvania’s Three Strikes Statute in these matters, this court entered consecutive statutory maximum sentences for robbery, amounting to an aggregate 30-60 years.

(2) The factors enumerated in the Sentencing Code do not militate in favor of total confinement of the length imposed on this case.

(3) Insufficient reasons appear of record as to why this particular sentence was imposed, and the sentence imposed failed to adequately consider the Sentencing Code criteria.

(4) The court’s sentencing discretion was not exercised in accordance with all the applicable statutory and decisional requirements.

(5) The trial court abused its discretion entering consecutive sentences, and thereby sentencing appellant to an aggregate term of incarceration of30-60 years, which effectively is a life sentence, additionally the consecutive nature of the sentences apply all of the 956 days credit accrued thus far throughout the history of this matter to 3632-2005 only, and effectively adding even more time to the sentence.

(6) The trial court abused its discretion by sentencing appellant in violation of the spirit of the previous ruling of the Superior Court in this matter which vacated the life sentences previously entered.

STATEMENT OF FACTS

At issue at trial was appellant’s involvement in three separate but similar robberies that took place within a few days of each other. The first robbery occurred on Saturday, June 11,2005. On that date, appellant robbed the Citi-Mart Convenience Store located at 1000 Chestnut Street, Reading, Berks County, Pennsylvania. He pointed a black handgun at the store manager, Prem Daryanani and demanded money from the cash register. Notes of Testimony, juiy trial, 12/13/06, at 68-72. After appellant ordered another employee, Jose Ortiz, to lie down on the floor, Mr. Daryanani removed all the $20 bills from the cash register and gave them to appellant. N.T., jury trial, 12/13/06, at 72-74. Appellant fled with approximately $320. N.T., jury trial, 12/13/06, at 83. Mr. Daryanani recognized appellant as a regular customer and both Mr. Daryanani and Mr. Ortiz, were able to identify appellant in a police photo line-up four days after the robbery. N.T., jury trial, 12/13/06, at 69, 79-83, 107-12.

On Tuesday, June 14, 2005, appellant robbed Vasilia Vardaxis’ second-hand clothing store located at 908 Penn Street, Reading, Berks County, Pennsylvania. As Ms. Vardaxis was helping appellant locate a pair of jeans, he grabbed her neck and covered her mouth with his hand so that she couldn’t scream. N.T., jury trial, 12/13/06, at 130. He threatened to kill her if she did not give him everything she had. N.T., jury trial, 12/13/06, at 130. Appellant then pushed Ms. Vardaxis to the floor and held her down until he could remove a small bag she wore around her waist to hold change when she was working in her store. N.T., jury trial, 12/13/06, at 133-34. As he was leaving he stepped on her, injuring her leg. N.T., jury trial, 12/13/06, at 133-34. Ms. Vardaxis estimated that appellant stole approximately $100 in change, as well as two gold chains worth approximately $50. N.T., jury trial, 12/13/06, at 134-35.

Ms. Vardaxis saw appellant’s picture in the newspaper on June 16, 2005 and identified him as the person who robbed her. N.T., jury trial, 12/13/06, at 141-44.

Appellant was also identified by Cocheta Setalsingh, a customer in Ms. Vardaxis’ store. Although Ms. Setalsingh did not witness the robbery, she was present in the store when appellant first entered and she identified appellant in a police photographic line-up. N.T., jury trial, 12/13/06, at 151-55.

The following day, June 15, 2005, appellant robbed Daniel’s Restaurant, located at 944 Penn Street, Reading, Berks County, Pennsylvania. Carl Newpher arrived at the store shortly before 7:30 a.m. to open it for the owner, Florin Hrezdac. N.T., jury trial, 12/14/06, at 174. After entering the store, he turned on a light and turned off the alarm. N.T., jury trial, 12/14/06, at 176. As he turned around, he saw appellant right behind him. N.T., jury trial, 12/14/06, at 176. Appellant informed Mr. Newpher that he had a gun and demanded money. N.T., jury trial, 12/14/06, at 175-76. When Mr. Newpher tried to turn around, appellant struck him on the back of the head with a hard object, threw him on the floor, then pulled him up and pushed him behind the counter to the cash register. N.T., jury trial, 12/14/06, at 178-81. Appellant ordered Mr. Newpher to open the cash register. N.T., jury trial, 12/14/06, at 181-82.

Mr. Newpher opened the cash register and appellant took out the bills and the cash drawer. N.T., jury trial, 12/14/06, at 182. He escaped with approximately $240. N.T., jury trial, 12/14/06, at 222. However, he was apprehended by police a few blocks away at Seventh and Franklin Streets. N.T., jury trial, 12/14/06, at 238-39, 258-60. While appellant was being detained by police, he was identified by Mr. Newpher, as well as Mr. Hrezdac, who identified appellant after viewing a video surveillance tape from his store. N.T., jury trial, 12/14/06, at 196-97, 217-22. Following these positive identifications, Reading Police officers attempted to place appellant under arrest, but he tried to run. N.T., jury trial, 12/14/06, at 245, 261-62. It took three police officers to restrain him. N.T., jury trial, 12/14/06, at 245, 261-62.

Mr. Newpher was treated at St. Joseph’s Hospital. He needed five stitches to the back of his head and he suffered a serious contusion to his hip. N.T., jury trial, 12/14/06, at 181,189. He was unable to walk, even with a cane, for two weeks after the incident, and he needed a cane to walk for another month. N.T., jury trial, 12/14/06, at 189.

DISCUSSION

All of appellant’s issues challenge his sentence.

An appellant has no absolute right to appellate review of his sentence. 42 Pa.C.S. §9781; Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). Rather, the appellant may have his sentence reviewed on appeal only if the Superior Court determines that “there is a substantial question that [this] sentence ... is not appropriate under the sentencing code.” Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004), appeal denied, 584 Pa. 684, 881 A.2d 818 (2005), cert. denied, Bromley v. Pennsylvania, 126 S.Ct. 1089 (U.S. 2006); Commonwealth v. Mouzon, 571 Pa. 419, 425, 812 A.2d 617, 621 (2002).

For a substantial question to exist, appellant must state reasons that create doubt that this court sentenced appellant without appropriately considering the sentencing guidelines or the norms underlying the sentencing process. Commonwealth v. Mouzon, 571 Pa. 419, 434, 812 A.2d 617, 627 (2002); see also, Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999).

If a sentence is within the statutory guidelines, a substantial question can be raised as to excessiveness only if the sentence is “so manifestly excessive as to constitute too severe a punishment. ” Commonwealth v. Mouzon, 571 Pa. 419, 431, 812 A.2d 617, 624 (2002). (emphasis in original) Similarly, a substantial question is generally not presented by challenges to consecutive sentences or by claims that the trial court improperly discounted mitigating factors. Commonwealth v. Johnson, 873 A.2d 704, 709 n.2 (Pa. Super. 2005); Commonwealth v. Lopez, 426 Pa. Super. 625, 630, 627 A.2d 1229, 1231-32 (1993). Given these standards, many of appellant’s claims fail to raise a substantial question for review.

However, even if the appellate court finds a substantial question has been raised, the standard for review is well-settled. A sentence will not be overturned unless the record shows a manifest abuse of discretion, which is more than mere error in judgment. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004), appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005), citing Commonwealth v. Cunningham, 805 A.2d 566 (Pa. Super. 2002). A manifest abuse of discretion may be found only where the record establishes 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. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).

This rule of deference applies even where a sentence exceeds the sentencing guidelines, as long as the sentence is within the statutory limits and the court states valid grounds for the sentence. See e.g., Commonwealth v. Martin, 416 Pa. Super. 507, 611 A.2d 731 (1992) (ratifying a trial court’s upward departure from the “advisory” sentencing guidelines).

The decision of the sentencing judge should be given great deference since he is in the best position to view the defendant and evaluate the individual circumstances of the case. See Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). A sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Here, this court did just that.

At the time of sentencing, the sentencing guidelines were placed on the record in accordance with 42 Pa.C.S. §9721(d), and, contrary to appellant’s contentions, this court placed its reasons for its sentence on the record. In addition, this court incorporated by reference the testimony of the original sentencing hearing. This court carefully considered the applicable mandatory minimum sentences; appellant’s age and prior record; the serious nature of the crimes; the impact on the victims; the need to protect the community and deter similar future conduct; the recommendation of the district attorney; appellant’s personal characteristics and potential to rehabilitate; and appellant’s statements.

As is noted on the record, this court read appellant’s pre-sentence investigation report and was aware of appellant’s individual rehabilitative needs and mitigating circumstances. However, appellant committed not one, but three violent robberies within a week, terrorizing his elderly victims. Furthermore, appellant is a repeat violent offender who has failed to take advantage of previous opportunities to rehabilitate and who has failed to take responsibility for his actions. Accordingly, this court concluded that appellant was a poor candidate for rehabilitation and that he posed a continuing danger to the public.

Considering the gravity of the offenses, the impact on the victims, and the need to protect the community from additional victimization, this court’s decision to impose consecutive sentences is neither unreasonable nor an abuse of discretion. Therefore, appellant’s claims that his sentence is manifestly excessive must be denied.

Additionally, Appellant’s claim that this court did not properly consider the factors enumerated in the Sentencing Code, as well as other applicable statutory and decisional requirements is without any merit. As discussed above, this court considered numerous factors enumerated in the Sentencing Code to justify the lengthy sentence including the appellant’s danger to the public and the serious nature of the offenses. See 42 Pa.C.S. §9725.

Finally, appellant claims that this court violated “the spirit of the previous ruling of the Superior Court in this matter.” The Superior Court’s order remanding this case merely states:

“Upon consideration of the joint application to remand filed by appellant and appellee, the Commonwealth, on September 4,2007, the application is hereby granted, the sentences imposed February 13, 2007 are hereby vacated, and the case is remanded for resentencing in accordance with applicable case law. Jurisdiction is relinquished.” Order, Pennsylvania Superior Court, 11/20/07.

This court did resentence appellant in accordance with applicable case law and for all the reasons discussed above, did not err in doing so.

CONCLUSION

This court respectfully submits that appellant’s assignments of error should be denied and his judgment of sentence affirmed.

      . 18 Pa.C.S. §3701(a)(l)(ii) and 18 Pa.C.S. §3701(a)(l)(iv).

      . 18 Pa.C.S. §3502(a).

      . 18 Pa.C.S. §5104.

      .35 P.S. §780-113(a)(16).

      . 18 Pa.C.S. §3701(a)(l)(ii) and 18 Pa.C.S. §3701(a)(l)(iv).

      . 18 Pa.C.S. §2701(a)(1).

      . 18 Pa.C.S. §3701(a)(l)(ii).

      . Appellant was sentenced as second strike offender pursuant to 42 Pa.C.S. §9714, which meant that he faced a mandatory minimum sentence of 10 years incarceration for each robbery conviction.

      . CP-06-CR-0004060-2005.

      . CP-06-CR-0003634-2005.

      . CP-06-CR-0003632-2005.


author: RUFE, J.,

text:
    Wiggins v. Wiggins

      Patricia H. Cooley and Kevin J. Handy, for plaintiff.

      Francis J. Sullivan, for defendant.
    April 15, 2008
   RUFE, J.,

— Petitioner, W. Stover Wiggins, (Husband), has appealed the March 19,2008 order of this court wherein we sustained the preliminary objections of Jude Wiggins (Wife). That order also dismissed petitioner’s complaint, with prejudice. We offer this opinion in support of our decision.

BACKGROUND — DIVORCE PROCEEDINGS

Husband and Wife were married on July 14, 1985. They were divorced on May 16,2007. Husband filed the divorce complaint on November 13, 2001, which was docketed at Bucks County Court of Common Pleas docketno. AO6-01-64055-26. On January 11,2002, Wife filed an answer and counterclaim in divorce. The docket reflects the parties engaged in protracted litigation. This included not only the divorce action, but alimony pendente lite, petitions in equity for special relief, support, equitable distribution, petitions for counsel fees, costs and expert fees.

On May 16, 2007, the parties appeared before Bucks County Honorable Alan M. Rubenstein in connection with the resolution of the parties’ financial and economic interests, and to conclude the equitable distribution aspect of the divorce. On that date, the parties, both represented by counsel, entered into a property settlement agreement. After a colloquy concerning the parties’ voluntary and knowing acceptance of the agreement, the court granted the decree in divorce. The divorce decree states that the parties further agree that the court of common pleas, “retains continuing jurisdiction ... for the purposes of ensuring compliance with, and enforcement of, the terms of the agreement.”

Notwithstanding the divorce and the agreement, the parties continued to litigate related issues. By order dated July 6, 2007, the parties’ dispute concerning the division of personal property was submitted to binding arbitration to be held on October 26,2007. On October 5, 2007, Wife filed a petition for specific performance and petition for contempt against Husband seeking specific performance of the agreement. On October 17, 2007, Judge Rubenstein entered an order setting forth a rule returnable date of November 5, 2007, for a response to be filed by Husband and a hearing date of November 20, 2007, to consider Wife’s contempt petition.

In his response, Husband asserted that the agreement was invalid and unenforceable because of Wife’s “false, fraudulent and material misrepresentations and/or omissions” to Husband concerning the parties’ prenuptial agreement. Those allegations are also set forth in the civil action complaint filed before the undersigned and to be addressed herein.

In addition to initiating the civil action, and in furtherance of the divorce action, on October 24,2007, Husband also filed an emergency petition for special relief for stay of proceedings and to freeze assets of Wife, as well as to continue the binding arbitration conference with the master’s office, previously scheduled by Judge Ruben-stein, for October 26, 2007. On October 26, 2007, Wife filed a response to Husband’s emergency petition.

CIVIL PROCEEDING

In this civil action Husband raises the following causes of action against Wife: (1) fraud and/or fraudulent inducement, (2) material misrepresentation to induce agreement, (3) breach of contract, (4) breach of contract-breach of duty of good faith and fair dealing, and (5) breach of confidential relationship. Husband contends that Wife fraudulently induced him to execute the property settlement agreement by failing to disclose to him, in 2002, the existence of a prenuptial agreement, as well as failing to provide him with a copy of the prenuptial agreement.

Husband contends that he asked Wife, at the beginning of the divorce proceedings, to produce the prenuptial agreement. That was done through correspondence between their respective counsel, on August 21,2002, and September 5, 2002. Wife’s representation through her attorney, in 2002, was that to the best of her recollection there was no existing agreement and no “original” in her possession at the home.

Husband represents that he found the original, signed copy of the prenuptial agreement, at the marital residence, among other documents belonging to Wife. Husband had regained possession of the marital residence after finalization of the divorce. He asserts that Wife had a duty and obligation to disclose to him the existence of the prenuptial agreement and/or provide it to him; and further, that Wife had a duty to not make false, fraudulent and material misrepresentations and/or omissions to Husband concerning the existence and location of the said agreement. Husband asserts that he relied on these misrepresentations and omissions in entering the property settlement agreement, which included significantly less favorable terms for him.

Based on these allegations Husband filed this civil action seeking to recover all monies and property received by Wife, from Husband, during the divorce proceedings. This includes all alimony pendente lite and/or spousal support, his attorney fees, Wife’s attorney fees, and Wife’s expert fees. He also seeks to recover loss of past and future earnings, as well as damages for severe emotional distress.

In our order of March 19, 2008, we sustained Wife’s preliminary obj ections on the grounds of a prior pending action. In making this determination, pursuant to Pa.R.C.P. 1028(a)(6), we found the same parties, the same rights, and the same relief sought, were involved in the divorce action before Judge Rubenstein as in this civil action. In Husband’s response and counterclaim to Wife’s petition for contempt in the divorce action, he incorporates by reference the allegations in the civil complaint. In his petition for special relief for stay of proceedings and to freeze assets, he suggests that a stay must be ordered as this civil action was pending.

Husband maintains that Wife’s petition for specific performance and contempt of the property settlement agreement, in the divorce action, was filed as a calculated effort to thwart his pursuing a claim for fraudulent concealment after his counsel informed Wife’s counsel that the prenuptial agreement had been found at the former marital residence, and Husband was considering his legal options. Even if that were true, Wife appropriately filed a petition in the divorce proceeding.

It is Husband’s position that neither the divorce action, which is concluded, nor the family court’s continuing jurisdiction to enforce the terms of the property settlement agreement, bars him from this civil action. He asserts the damages he now seeks are in tort and the property settlement agreement under the Divorce Code does not limit his legal, equitable, contractual and due process rights to challenge the agreement in this civil action.

The preliminary objections raised by Wife, in addition (1) to raising the prior pending action, also include; (2) a challenge to the jurisdiction of the civil division of this court hearing this matter; (3) a demurrer stating the prenuptial agreement as attached to the complaint is not a true and correct copy, because schedules referenced are not attached; (4) that Wife did not receive independent legal advice as to its execution; and (5) it does not provide full and fair disclosure of either party’s assets, making it defective on its face and unenforceable. Wife also raises a demurrer for legal insufficiency, as Counts I and II fail to state a claim for fraud. And finally, under the gist of the action doctrine, Wife asserts that Husband cannot recover tort damages in a contract action, that Pennsylvania law does not recognize punitive damages as a separate cause of action, and that Husband’s complaint fails to allege “egregious conduct” or an “evil motive” on the part of Wife, to support an award of punitive damages.

For the reasons herein, we disagree with Husband’s position, and dismiss his action with prejudice. Husband’s assertion, in support of initiating this civil action, that the divorce action was concluded, is self-serving. While the divorce decree was entered in May 2007, and Judge Rubenstein retained jurisdiction with regard to the enforcement of the agreement, a review of the pleadings supports the view that matters under Bucks County docket no. AO6-01-64055 are still active and pending.

While we find the pendency of a prior action sufficient to sustain the preliminary objections and dismiss the complaint, we briefly address Wife’s remaining objections. At the outset, Husband has attempted to establish his case for fraud and misrepresentation so that he can seek the remedies and damages in tort in a separate civil action beyond the scope of the Divorce Code. 23 Pa.C.S. §3105. Wife has challenged Husband’s claims for compensatory and punitive damages raised in Counts I and II of Husband’s complaint. These counts state that the agreement should be “set aside and declared null and void” based on Wife’s failure to provide the document. To be successful in these counts, Husband would have to establish the following elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity and recklessness as to whether it is true or false; (4) made with the intent of misleading another into relying upon it; (5) justifiable reliance upon the misrepresentation; and (6) that the resulting injury was proximately caused by the reasonable reliance. Perlberger v. Perlberger, 32 F. Supp.2d 197, 209-10 (E.D. Pa. 1998) (citing Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.23d 882, 889 (1994). We agree that Husband did not establish the necessary elements.

Husband’s minimal attempts to inquire about, and acquire, the prenuptial agreement, fall substantially below standards of reasonable, justifiable reliance and due diligence. Two inquiries at the outset of a divorce proceeding, in a matter that included extensive legal proceedings for almost five years until the divorce decree was entered, are not adequate effort to establish fraud and/or misrepresentation. Husband failed to persuade the court that his reliance was reasonable, justifiable and diligent. His position is not that he was unaware of such an agreement, but that Wife’s failure to produce the document caused his resulting damages. As we expressed to the parties’ counsel at oral argument before this court on March 19, 2007, the assumption by Husband that asking Wife twice for a document, and expecting she would have willingly accommodated his request, in the midst of the bitter proceedings dissolving the parties’ marriage, was not at all reasonable. We place no judgment on whether Wife was, or was not, as she represents, aware of the whereabouts or existence of the prenuptial agreement. That is irrelevant to Husband’s failure to make a more complete attempt at obtaining such information. The record does not reflect Husband acted reasonably in relying on Wife’s alleged misrepresentation in light of the nature of the litigation in divorce. Other than his representation that he requested the document twice, he did not raise the prenuptial agreement as a defense to Wife’s counterclaim for equitable distribution or in any other proceedings involving the resolution of the parties’ financial and economic interests, nor did he ever file a motion to compel Wife to produce the document. We find these facts strong evidence against Husband’s current position wherein he argues strenuously at the significant impact on his negotiations in the property settlement because he lacked this document.

Because we believe our decision, supra, is dispositive of Husband’s complaint, we will touch only briefly on the other matters raised by Wife. Wife also objected to Husband’s complaint on the grounds that such actions are barred by the gist of the action doctrine. Husband’s claim is that the gist of the action doctrine is not applicable here because it is not applicable to fraudulent inducement or negligent misrepresentation claims. However, since we have already addressed, and do not accept, the assertion that Husband acted reasonably and established a cause of action in fraud or misrepresentation it follows that Husband’s argument regarding this gist of the action doctrine fails.

Wife also objected to Husband’s claim for breach of contract — breach of the duty of good faith and fair dealing, in that such a claim cannot be raised as a separate and distinct action from the breach of contract. And finally, Wife objected to Husband’s claim for attorney’s fees and punitive damages. Husband sought damages in the nature of reimbursement for monies paid to Wife during the course of the divorce proceedings, including alimony pendente lite, counsel fees, expert fees, as well as his own counsel fees, damages for loss of earnings and severe emotional distress. He also sought punitive damages, counsel fees and costs. As in Wife’s position regarding the gist of the action doctrine, Husband would have needed to establish a claim for fraudulent inducement to be successful in pursuing these damages. Husband has not alleged any statutory or contractual basis for attorney’s fees as is required by law to recover. Furthermore, Husband has not alleged facts to establish the sort of egregious conduct necessary for an award of punitive damages. Therefore, Husband is not entitled to the damages he sought.

While we addressed the issues raised by the parties, we feel compelled to also address the recent case of Annechino v. Joire, 946 A.2d 121 (Pa. Super. 2008). While factually dissimilar in that Wife’s argument in that case sought to have Husband bring a separate civil action when seeking to enforce the relevant property settlement agreement, it is the comprehensive discussion of the Divorce Code, 23 Pa.C.S. §3101 et seq., that draws our attention to the instant matter. We incorporate a salient section of that discussion herein:

“Wife claims that section 3104(a) limits the jurisdiction and enforcement powers under section 3105 to those matters that have been raised in the pleadings. Because the legislature has clearly set forth its intent and objectives, and because it has granted the courts continuing jurisdiction and broad enforcement powers, we do not read the Divorce Code in the restrictive manner Wife advocates. Instead we read section 3105 to permit the courts to enforce the parties’ agreement even if not incorporated or merged into the decree, and even if not specifically raised in the divorce pleadings. We decline to read this section in isolation. To do so would discourage the resolution of economic claims by agreement and send economic claims relating to divorce over to the civil division as a breach of contract claim, precisely the situation the legislature intended to change by the 1988 amendments.

“The General Assembly’s aim was to extend the Divorce Code’s remedies, sanctions and vehicles of enforcement to agreements covering certain matters ancillary to divorce.

“[S]ince the court has personal jurisdiction over the parties to the divorce action, section 3323(f) is a catchall provision, granting not only broad enforcement powers, but ‘full equity and jurisdiction’ to issue orders necessary to protect the interests of the parties and effectuate economic justice and insure the fair and just settlement of the parties’ property rights. 23 Pa.C.S. §3323(f).” Annechino, supra.

We found the divorce matter before Judge Rubenstein to be a prior pending action. We were not convinced that Husband acted reasonably nor that Wife acted fraudulently. And, finally, we suggest the Annechino case provides support and authority as to the legislative intent in properly maintaining actions under the Divorce Code.

For all of the above reasons, we sustained Wife’s preliminary objections and dismissed Husband’s complaint in our order of March 19, 2008.

      . Count I — fraud and/or fraudulent inducement. Count II — material misrepresentation to induce agreement.