author: ALBRIGHT, J,

text:
    Commonwealth v. Brown

      Patricia E. Coonahan and Adrienne D. Jappe, for Commonwealth.

      Alton D. Brown, pro se.

      December 31, 2009
   ALBRIGHT, J,

The defendant, Alton D. Brown, appeals from the order of the undersigned, dated July 7, 2009, dismissing the defendant’s pro se second motion for post-conviction relief. For the reasons that follow, the trial court believes that Mr. Brown’s appeal is without merit and that the order of July 7, 2009 should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The defendant was found guilty following a jury trial on November 19, 1997 of two charges of robbery and two charges of possession of an instrument of crime with the intent to employ criminally. On January 8,1998, the Honorable Samuel W. Salus II (now retired) sentenced Mr. Brown to 10 to 20 years incarceration on one robbery conviction and a consecutive 10 to 20 years of imprisonment for the second robbery. On December 22,1998, the Superior Court affirmed the trial court’s judgment of sentence entered against Mr. Brown, following which the defendant filed a petition for allowance of appeal with the Supreme Court of Pennsylvania, which was subsequently denied by that court on June 16, 1999.

The defendant filed his first PCRA motion on April 20,2000 and his second PCRA motion on September 19, 2002, nearly two years after the date on which his appeal from his conviction and sentence became final, and while his first PCRA filing remained pending and unresolved. Accordingly, the trial court, by order dated October 10, 2002, deferred its consideration of the defendant’s second PCRA motion. Following a lengthy series of appeals and remands of Mr. Brown’s first PCRA motion, it was finally disposed of by the Pennsylvania Supreme Court which, by order dated November 21, 2007, denied the defendant’s petition for allowance of appeal and application for writ of mandamus.

Thereafter, by order, dated September 22, 2008, the undersigned advised Mr. Brown of the trial court’s intention to dismiss the defendant’s second PCRA motion without a hearing, to which Mr. Brown responded on October 6,2008. In an abundance of caution, the undersigned conducted an evidentiary hearing and argument on January 5, 2009. After its thorough review of the record, including the supplemental briefs submitted by the defendant and the Commonwealth, the trial court dismissed Mr. Brown’s second PCRA motion by order dated July 7, 2009. The defendant then filed a notice of appeal and an application for leave to continue in forma pauperis status on appeal, a request which was quickly granted and followed shortly thereafter by Mr. Brown’s submission of his concise statement of errors complained of on appeal asserting that:

“(1) The court erred in failing to grant a new sentencing hearing since petitioner was given an illegal sentence and was prevented from challenging its illegality by the Commonwealth and/or their agents; and, because the illegality of a sentence cannot be waived.”

DISCUSSION

The standard of review to be applied to claims raised on appeal from the denial of post-conviction relief is limited to determining whether the PCRA court’s findings are supported by the record and free from legal error. 42 Pa.C.S. §9541 et seq.; Commonwealth v. Gwynn, 596 Pa. 398, 404, 943 A.2d 940, 944 (2008). With the exception of three limited circumstances, a PCRA petition must be filed “within one year of the date the judgment becomes final.” 42 Pa.C.S. §9545(b)(l). “[T]he PCRA’s timeliness requirements are mandatory and jurisdictional in nature, [and therefore] no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner.” Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001) (quoting Commonwealth v. Murray, 562 Pa. 1, 5, 753 A.2d 201, 202-203 (2000)).

In addition, “when a defendant’s PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review.” Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000). (footnote omitted) Moreover, “[i]f the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S. §9545(b)(l) applies.” Id. (emphasis added) To prevail under an exception to the general one-year filing deadline, a defendant must plead and prove one of the following:

“(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
“(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
“(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.” 42 Pa.C.S. §9545(b)(l) (i)-(iii).

Finally, “[t]he subsequent petition must also be filed within 60 days of the date of the order which finally resolve[d] the previous PCRA petition, because this is the first ‘date the claim could have been presented.’ ” Id. (quoting 42 Pa.C.S. §9545(b)(2)).

In this case, the Pennsylvania Supreme Court, by order, dated June 16,1999, denied the defendant’s petition for allowance of appeal from his judgment of sentence. Thus, in the first instance, the defendant had one year and 90 days from the date on which his petition for allowance of appeal was denied within which to file any additional PCRA petitions. Id. at section 9545(b)(1), (3); Pa.R.Crim.P. 901(A); see U.S. Sup. Ct. R. 13. As noted above, Mr. Brown’s first PCRA motion, though timely filed, was not resolved until November 21, 2007, as a result of which his second PCRA filing of September 19,2002 was procedurally barred since his first PCRA motion was still pending. See Lark, 560 Pa. at 493, 746 A.2d at 588. “[A] subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition.”

The defendant’s second PCRA motion asserts primarily that he was improperly sentenced by the trial judge due to the latter’s alleged impermissible reliance upon 42 Pa.C.S. §9714 (“strike two” sentencing statute) and his imposition of a mandatory sentence as a consequence of Mr. Brown’s status as a “high risk dangerous offender” as defined under that statute. Mr. Brown’s contention is based upon the ruling in Commonwealth v. Butler, decided by the Pennsylvania Supreme Court on October 27, 2000, which held that title 42 section 9714 violated due process and was, therefore, unconstitutional. See Butler, 563 Pa. 324, 760 A.2d 384 (2000). Additionally, Mr. Brown claims that he was prevented from asserting, in a timely manner, that his sentence was invalid, since, during the time frame in question, he was allegedly held in an experimental behavioral modification unit where he was denied access to certain updated legal information, including, apparently, the reporting of the Butler case.

The Defendant’s Second PCRA Motion Is Untimely

The defendant’s second PCRA motion, filed on September 19, 2002, is untimely since such a petition must be filed “within one year of the date the judgment becomes final.” 42 Pa.C.S. §9545(b)(l). Given the “mandatory and jurisdictional” nature of the PCRA’s timeliness requirements, this court would normally be precluded from addressing the merits of the defendant’s claims since judgment in this case became final in September 1999. See Carr, 768 A.2d at 1167. Mr. Brown, however, has attempted to plead entitlement to the PCRA’s strict timeliness requirements by asserting that: (1) the statute under which he was sentenced as a “high risk dangerous offender” was rendered unconstitutional by Butler in October 2000; and (2) but for impermissible government interference which denied him access to updated legal information, he would have raised this claim previously. Thus, even though Mr. Brown’s second PCRA motion is believed to be untimely, the undersigned, in an abundance of caution, will address the merits of Mr. Brown’s second PCRA motion.

Affording the defendant the benefit of any doubt regarding the applicability of any one of the aforementioned exceptions, his second PCRA motion should not have been filed until after his first PCRA motion was resolved on November 21, 2007, and “within 60 days” of that same November 21 order of the Pemisyl vania Supreme Court because this is the first “date the claim could have been presented” by the defendant. See Lark, 560 Pa. at 493-94, 746 A.2d at 588 (quoting 42 Pa.C.S. §9545(b)(2)). Not only did Mr. Brown fail to timely file his second PCRA motion, but he also neglected to prove his entitlement to one of the three timeliness exceptions under title 42 section 9545(b)(1) (i-iii). Instead, the defendant asserted that he was “locked” up in “some kind of experimental behavior modification program in Pittsburgh” for “six years . . . from April 2000 to January 2006,” where he was allegedly denied access to “updated legal information.” (N.T. 1/5/09, at 12, 14.) Mr. Brown’s assertion that he was denied access to updated legal information from April 2000 until January 2006 is, in reality, completely irrelevant since he was not even permitted to file his second PCRA motion until at least November 21, 2007.

Furthermore, even if Mr. Brown’s alleged restrictive confinement from April 2000 until January 2006 was somehow relevant, he was, nevertheless, unable to prove, by a preponderance of the evidence, that such a confinement occurred. In fact, when prompted at the January 5, 2009 evidentiary hearing, Mr. Brown conceded that he had “nothing” to indicate or confirm that he had been restrained or confined in the aforementioned modification unit, nor was he able to produce any credible evidence from which the trial court might determine that his alleged restrictive placement had prevented him from his acknowledged filing of other “numerous motions and/or petitions” in this case “between April of 2000 and January of2006.” (N.T. 1/5/ 09, at 25.) Having failed to plead and prove, by a preponderance of the evidence, his entitlement to one of the three exceptions contained in title 42 section 9545(b)(1), the undersigned is without jurisdiction to either entertain Mr. Brown’s second PCRA motion in the first instance or to otherwise find it deserving of any favorable substantive consideration on its purported merits.

In the final analysis, the Butler case, upon which Mr. Brown relies so heavily, was decided after Mr. Brown’s direct appeal was resolved and, consequently, has no retroactive effect and offers him no relief. See e.g., But ler, 563 Pa. 324, 760 A.2d 384; see also, Commonwealth v. Tilley, 566 Pa. 312, 318, 780 A.2d 649, 652 (2001). For instance, even if Mr. Brown were able to overcome all of the procedural hurdles outlined above, his reliance on Butler to support his contention that he was illegally sentenced is misplaced since Butler does not apply retroactively. In order to be given retroactive effect, not only must an issue be preserved at all stages, but the decision announcing the new rule of law must be handed down during the pendency of the defendant’s direct appeal. See Tilley, 566 Pa. at 318, 780 A.2d at 652 (citing Commonwealth v. Cabeza, 503 Pa. 228, 232-33, 469 A.2d 146, 148 (1983)). In this case, however, Mr. Brown’s direct appeal concluded on June 16,1999, and the Pennsylvania Supreme Court did not render the Butler decision until October 27, 2000. Therefore, since the Butler decision was not delivered until more than a year after the conclusion of Mr. Brown’s direct appeal, it has no application to this case and cannot be relied upon by the defendant to support his claim for post-conviction relief based upon the alleged illegality of the sentence imposed by the trial judge.

CONCLUSION

In accordance with the aforementioned, the trial court believes that the order, dated July 7, 2009, dismissing the defendant’s second PCRA motion, should be affirmed.

      . 42 Pa.C.S. §9541 etseq.


source: Caselaw Access Project

author: JENKINS, J.,

license: Public Domain

text:
    Commonwealth v. St. Dennis

      Joseph Lesniak, for Commonwealth.

      Patrick J. Connors, for defendant.

      December 17, 2009
   JENKINS, J.,

After a bench trial, the court found Joseph St. Dennis guilty of 10 counts of sexual assault, aggravated indecent assault, indecent assault and corruption of minors against E.M., his minor stepdaughter. The court also found St. Dennis guilty of aggravated indecent assault, indecent assault and corruption of minors against H.M, another minor stepdaughter.

The court sentenced St. Dennis to an aggregate sentence of 10-20 years imprisonment plus five years probation. N.T., 9/28/09, pp. 9-14. St. Dennis filed a timely appeal in which he challenges the sufficiency of the evidence against him. The court concludes that the evidence against St. Dennis was sufficient and recommends that his judgment of sentence be affirmed.

When reviewing a challenge to the sufficiency of the evidence, Pennsylvania appellate courts must view all the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, the verdict winner. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). The evidence is sufficient to support the verdict when it establishes each material element of the crime charged against the defendant beyond a reasonable doubt. Id. An appellate court “may not weigh the evidence and substitute [its] judgment for that of the fact-finder.” Commonwealth v. Cassidy, 447 Pa. Super. 192, 195, 668 A.2d 1143, 1144 (1995). “The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Cunningham, 805 A.2d 566, 571 (Pa. Super. 2002), alloc. denied, 573 Pa. 663, 820 A.2d 703 (2003). The facts and circumstances established by the Commonwealth

“need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.... Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006) (citing Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)).

Construed under these standards, the evidence adduced at trial was as follows: E.M., who is now 19 years old, is St. Dennis’ oldest stepdaughter. N.T., 6/16/09 (Tr. I), p. 12. She lived with St. Dennis from 2000 to 2007 along with her mother, two brothers and two sisters. Tr. I, p. 13. When E.M. was in high school, St. Dennis often forced her to undress in her mother’s room, lie on the bed while he touched her genitals and breasts, and then have vaginal intercourse from behind while she squatted on her hands and knees. Tr. I, pp. 18-22,70; exhibit C-1. The assaults began when she was 15 years old and continued until she moved in with her pastor at age 17. Tr. I, pp. 16,36,82-83. On three or four occasions, he made her stay home from school to have sex before he reported to work for his afternoon shift. Tr. I, pp. 22-23, 60. He also assaulted her after directing her mother to leave and shop for groceries. Tr. I, p. 31. E.M. never agreed to have intercourse with him and often cried during these episodes. Tr. I, pp. 19, 35.

On more than 10 occasions, St. Dennis visited E.M.’s bedroom in the middle of the night and “jerk off” (stroked his penis) while inserting his fingers in her vagina and fondling her. breasts and buttocks. Tr. I, pp. 26-29. The fact that E.M.’s younger sisters were sleeping in the same room did not deter him from visiting. Tr. I, pp. 26-27. One of E.M.’s sisters, H.M., observed several visits but was too young to figure out what was happening. Tr. I, pp. 88-90. St. Dennis demanded these nocturnal visits in return for permitting E.M. to attend social events. Tr. I, pp. 34-35, 68.

St. Dennis also spanked E.M. in the nude with a leather belt or wooden paddle. Tr. I, p. 24. On one occasion, he kept her home from school, handcuffed her to wooden poles that he stored in his closet and whipped her with a leather strap. Tr. I, p. 39. E.M.’s mother gave St. Dennis permission to impose corporal punishment. Tr. I, p. 42. The punishments were severe enough that E.M. could not sit down afterward or yelped when she sat down. Tr. I, pp. 62, 77.

When E.M. was 17, she moved in with her pastor to escape St. Dennis’ physical and sexual abuse. On January 15,2008, E.M. wrote a letter to her boyfriend which described St. Dennis’ sexual assaults and her beatings and stated that she endured these offenses to avoid further beatings and to obtain permission to go out with her friends. Tr. I, pp. 38-40; exhibit C-l. Her boyfriend sent the letter to her stepmother. Tr. I, pp. 44-45. In April 2008, E.M. met with police detectives and reported St. Dennis’ crimes. Tr. I, pp. 45-47; exhibit C-2.

H.M., who was 14 at the time of trial, testified that St. Dennis began touching her vagina in her bedroom when she was in fourth or fifth grade. Tr. I, pp. 91-95, 117. These incidents occurred more than 10 times during the first two to three years after her mother’s family moved in with St. Dennis. Tr. I, p. 96. She felt strange and sometimes cried when it happened. Tr. I, p. 95. She also observed St. Dennis hit her brothers and sisters with a belt or paddle. Tr. I, p. 97.

On April 18, 2008, Detective Sendak of the criminal investigation division met with E.M. and her mother, Rebecca St. Dennis, to discuss St. Dennis’ conduct. Tr. I, p. 144; Tr. II, pp. 39-40. Rebecca and a CYS employee asked all of the children besides E.M. whether St. Dennis had touched them, but none of them responded affirmatively. Tr. I, pp. 99,144-45. H.M. said that St. Dennis did not touch her because she was afraid that other people would think differently about her. Tr. I, pp. 99-100. One month later, however, Rebecca noticed H.M. acting peculiar and asked again if St. Dennis had touched her. Tr. I, pp. 145-46. H.M. said he had and began crying. Tr. I, p. 146. Rebecca then took H.M. to the police to report St. Dennis’ conduct. Tr. I, p. 146.

This evidence demonstrates St. Dennis’ guilt beyond a reasonable doubt for sexual assault against E.M. 18 Pa.C.S. 3124.1 defines sexual assault as follows: “Except as provided in section 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual intercourse), a person commits a felony of the second degree when that person engages in sexual intercourse... with a complainant without the complainant’s consent.” The legislature defines “sexual intercourse” as follows: “In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.” 18 Pa.C.S. §3101. The Commonwealth need not prove resistance to the sexual assault in order to sustain a conviction. Commonwealth v. Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004). The uncorroborated testimony of a sexual assault victim, if believed by the trier of fact, is sufficient to convict a defendant. Andrulewicz, supra, 911 A.2d at 166 (citing Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006)).

The evidence demonstrates that St. Dennis repeatedly committed sexual assault against E.M. by engaging in sexual intercourse with her without her consent. E.M.’s testimony, standing alone, is sufficient to establish multiple sexual assaults. Andrulewicz, supra. The fact that E.M. allowed herself to be violated in order to avoid brutal beatings and to have a social life graphically demonstrates her lack of consent.

The evidence also establishes St. Dennis’ criminal liability for indecent assault against E.M. and H.M. 18 Pa.C.S. §3126 prescribes in relevant part that a person is guilty of indecent assault if he

“has indecent contact with the complainant... for the purpose of arousing sexual desire in the person or the complainant and:
“(1) the person does so without the complainant’s consent;... [or]
“(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.” 18 Pa.C.S. §3126(a).
“Indecent contact” is “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person” 18 Pa.C.S. §3101. Here, St. Dennis repeatedly touched E.M.’s and H.M.’s vagina and E.M.’s breasts and buttocks while masturbating. These incidents violate section 3126(a)(1) because they took place without either victim’s consent. E.M. often cried when St. Dennis visited her bedroom at night to fondle her and permitted this contact only to avoid beatings and ensure her social life. H.M. felt strange and sometimes cried when St. Dennis touched her. Moreover, most of these episodes violated section 3126(a)(8), since H.M. was less than 16 at all times during these events, and E.M. was less than 16 for at least some of them.

For similar reasons, the evidence establishes St. Dennis’ guilt for aggravated indecent assault under 18 Pa.C.S. §3125. This statute prescribes in relevant part:

“Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or. law enforcement procedures commits aggravated indecent assault if:
“(1) the person does so without the complainant’s consent;... [or]
“(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.” 18 Pa.C.S. §3125(a).

The statute further provides that “A person commits aggravated indecent assault of a child when the person violates subsection (a)(1)... and the complainant is less than 13 years of age.” 18 Pa.C.S. §3125(b).

With regard to E.M., St. Dennis violated section 3125(a)(1) by penetrating her genitals with his fingers for sexual gratification, a purpose other than good faith medical, hygienic or law enforcement procedures, without her consent. Many of these incidents occurred when she was 15 years old, thereby violating section 3125(a) (8). With respect to H.M., St. Dennis violated section 3125(b) by penetrating her with his fingers without her consent when she was less than 13 years old.

Finally, the evidence is sufficient to sustain St. Dennis’ convictions for corruption of minors. This offense is defined, in pertinent part, as “[w]hoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age . . . commits a misdemeanor of the first degree.” 18 Pa.C.S. §6301(a)(l). “Actions that tend to corrupt the morals of a minor are those that would offend the common sense of the community and the sense of decency, propriety and morality which most people entertain.” Commonwealth v. Snyder, 870 A.2d 336, 351 (Pa. Super. 2005) (citing Commonwealth v. DeWalt, 752 A.2d 915, 918 (Pa. Super. 2000)). Obviously, St. Dennis’ conduct offends the common sense of the community and most people’s sense of morality. Snyder, supra (sufficient evidence supported convictions for rape, involuntary deviate sexual intercourse, statutory sexual assault, indecent assault, and corruption of minors, where, inter alia, victim testified that from the time she was 7 years old, and on numerous occasions, defendant forced her to perform sexual acts).

For all of the foregoing reasons, the court respectfully recommends that St. Dennis’judgment of sentence be affirmed.

      . References to the second day of trial, June 17,2009, are denoted as “Tr. II”.


author: GRINE, J.,

text:
    In re Thevaos Estate

      Joseph P. Green, for caveator.

      Terry J. Williams, for Kish Bank.

      H. Amos Goodall, for Goodall & Yurchak.

      John A. Snyder, for Penn State University.
    February 8, 2010
   GRINE, J.,

Presently before the court is a petition brought by G. Philip Thevaos (caveator) requesting that the court overrule objections to a subpoena brought by Goodall & Yurchak P.C. Caveator claims that Goodall & Yurchak have, in their possession, documents relating to changes in the decedent’s estate which may or may not show that he was either unduly influenced or that he did not have the requisite capacity to make such changes.

DISCUSSION

Decedent Deno Thevaos was the uncle of caveator Philip Thevaos. Deno had no children at the time of his death. In early 1996, Deno consulted with Louis Glantz, Esquire to draft a will, a living trust, and a durable power of attorney. Deno was 76 years old when he went to Glantz for these documents. The 1996 will listed Philip and Philip’s father, Theo Thevaos as co-executors. The 1996 will directed that, upon Deno’s death, the co-executors pay Deno’s debts and then deposit the residue of the estate into a living trust (the 1996 trust). The eventual distribution of the trust was dependent on whether Deno’s wife Theola Thevaos predeceased Deno. If Theola survived Deno, the trust would provide her income for life, and then upon Theola’s death the bulk of the assets remaining in the trust were to be distributed to Philip. If Theola predeceased Deno, then all of Deno’s assets would be transferred into a credit shelter trust and then be distributed to Philip.

A durable power of attorney was also prepared by Glantz in 1996. The power of attorney gave Philip and Theo the power to manage Deno’s affairs, including the power to make financial and medical decisions on his behalf. A living will was also prepared which gave Theola the power to make medical decisions on Deno’s behalf if he was in “a terminal condition or in a state of permanent unconsciousness.” Philip was named as the substitute surrogate under the living will if Theola was unable to perform the duties enumerated.

In 2002, Deno suffered from a stroke. He also suffered from Alzheimer’s disease and dementia. In 2005, through their attorney at Rayback, Blanarik & Green, Theola and Deno changed their power of attorney and gave Omega Bank the power to make financial and medical decisions for Deno. The boilerplate language included in the 2005 power of attorney revoked “any prior power of attorney that [Deno] had executed prior” to the one he was currently signing.

In March 2006, Theola changed her power of attorney and removed Omega. Shortly thereafter Theola contacted Glantz and enquired as to whether Glantz could remove Omega as Deno’s power of attorney. Glantz refused to change Deno’s power of attorney, stating that he did not believe that Deno currently had the necessary mental capacity to do so.

In 2007, Theola and Deno met with Attorney H. Amos Goodall. Goodall prepared two new power of attorney documents for Deno; a limited power of attorney and a general power of attorney. The limited power of attorney named Norma Keller as Deno’s agent and also gave her the ability to change his general power of attorney. The general power of attorney named Theola and Kishacoquillas Valley National Bank as Deno’s agents. Goodall also created what was referred to as an “amended and restated revocable living trust” for Deno. The new trust, instead of giving the residue to Philip upon Deno’s death, gave the residue of Deno’s estate to The Pennsylvania State University. In fact, the 2007 trust gave nothing to Philip. Norma Keller signed the trust on Deno’s. behalf.

Theola died on August 26, 2008 and Deno died on February 18,2008. On February 19,2009 Philip filed an informal caveat. On February 26, 2009 Philip filed a formal caveat. The grounds listed in the formal caveat include:

“(4) The said writing is expected to be offered for probate by Frances Stephenson and by reason thereof certain material questions are in controversy between caveator and the said Frances H. Stephenson and Kishacoquillas Valley National Bank.
“(a) Whether at the time of the alleged execution of the writing Deno Thevaos Ed.D. was of sound and disposing mind, memory and understanding; and
“(b) Whether execution of the instrument was procured by the undue influence of Theola Thevaos, Frances H. Stephenson, Kishacoquillas Valley National Bank or any other individual or entity; and
“(c) Whether Theola Thevaos, Frances H. Stephenson, Kishacoquillas Valley National Bank,or any other individual or entity occupied a position of confidential relationship with Deno Thevaos Ed.D.”

Caveator served Goodall & Yurchak with a notice of intent to serve a subpoena to produce documents and things for discovery on June 30, 2009. Caveator requested correspondence between Goodall & Yurchak and Deno and Theola. Additionally, caveator requested correspondence between Goodall & Yurchak and third parties related to this matter such as Penn State, Kish Bank, physicians and other people. Goodall & Yurchak provided a brief two sentence objection to the notice sent by caveator. The objection read:

“Amos Goodall, Esquire, objects to caveator’s request for production of documents directed to Amos Goodall, Esquire, in that the material and knowledge held by Amos Goodall, Esquire, is privileged, confidential and beyond the scope of discovery. Non-privileged information has been provided by Kishacoquillas Valley National Bank in its responses.”

42 Pa.C.S. §5928 states “[i]n a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” Goodall & Yurchak has failed to communicate to caveator as to what materials they currently possess relating to Deno’s estate. Without being informed as to what documents and other materials Goodall & Yurchak currently possess related to Deno’s estate, the court is unable to assess whether they are generally protected by the attorney-client privilege. “While the attorney-client privilege is statutorily mandated, it has a number of requirements that must be satisfied in order to trigger its protections. First and foremost is the rule that the privilege applies only to confidential communications made by the client to the attorney in connection with providing legal services.” In re Estate of Wood, 818 A.2d 568, 571 (Pa. Super. 2003). The court, however, believes that Goodall & Yurchak is in possession of communications between their firm and third parties with whom they do not hold an attorney-client relationship. The court finds that these documents should be shared with caveator.

Caveator also claims that any materials held by Goodall & Yurchak relating to Deno’s estate are discoverable pursuant to a testamentary exception to the attorney-client privilege. Caveator was unable to cite to any Pennsylvania cases where a testamentary exception was created. Caveator was able to cite to several sources which discussed the testamentary exception and a United States Supreme Court case where the court addresses the purpose of the testamentary exception to the attorney-client privilege. Specifically in Swidler & Berlin v. United States, 524 U.S. 399 (1998), the Supreme Court discusses the rationale behind allowing a testamentary exception. They point out that such an exception is allowed because it “furthers the client’s intent.” Id. This court believes that a testamentary exception is proper in this case as well as in any case where a deceased holder of the attorney-client privilege is suspected of having been unduly influenced to change the planned disposition of his estate after his death. Therefore, the court finds that the testamentary exception applies in this case. The court believes that any documentation related to the change in Deno’s estate near the end of his life and after suffering a series of medical setbacks can only go to show what Deno’s intent was, and whether he was able to clearly communicate what he desired for his estate. Additionally, it is possible that any documentation provided by Goodall & Yurchak will either eliminate or affirm caveator’s belief that Deno may have been unduly influenced to make changes to his estate which eliminated his natural heir completely. The scope of this exception, however, is limited to communications made between Deno and Goodall & Yurchak.

ORDER

And now, February 8,2010, the court overrules Goodall & Yurchak RC.’s objections to caveator’s subpoena and orders that Goodall & Yurchak provide caveator with the documents requested in caveator’s subpoena pursuant to the following parameters:

(1) All communications between Deno Thevaos and Goodall & Yurchak.

(2) All communications related to the estate of Deno Thevaos between Goodall & Yurchak and third parties with whom Goodall & Yurchak does not maintain an attorney-client relationship with regards to the estate of Deno Thevaos.

(3) All other documents which are otherwise discoverable in the normal course of litigation.

Goodall & Yurchak will provide, to the court, a log of any additional items related to the estate of Deno Thevaos which Goodall & Yurchak believes are not discoverable pursuant to the above order. The court will make any necessary rulings upon receipt of such a log.


author: LUNSFORD, J.,

text:
    Target National Bank v. Kilbride

      Gregg L. Morris, for plaintiff.

      Mark S. Weaver, for defendant.
    February 5, 2010
   LUNSFORD, J.,

Presently before the court are the preliminary objections of defendant, Laurie J. Kilbride. Defendant’s preliminary objections are in response to an amended complaint filed by plaintiff, Target National Bank, seeking to collect on a credit card debt. After consideration of each party’s briefs, the preliminary objections are granted in part and denied in part.

BACKGROUND

On September 7,2009, plaintiff, Target National Bank, filed a complaint in civil action against defendant, Laurie J. Kilbride, seeking damages in the amount $9,916.19 on theories of account stated, breach of contract and quantum meruit. On October 12, 2009, defendant filed preliminary objections to plaintiff’s complaint. In response, plaintiff filed an amended complaint on October 30, 2009, again seeking $9,916.19 under the aforementioned theories and attached thereto a written customer agreement and billing statements dated January 27,2007 to September 27,2009. Defendant again filed preliminary objections to the amended complaint on November 17, 2009, raising issues of insufficient specificity in a pleading under Pa.R.C.P. 1028(a)(3) and failure of a pleading to conform to law or rule of court under Pa.R.C.P. 1028(a) (3). Timely briefs were filed by both plaintiff and defendant.

DISCUSSION

I. Failure To Attach a Signed, Written Contract Between Plaintiff and Defendant

Defendant argues that the credit card customer agreement plaintiff attached to the amended complaint is not signed by the defendant. Additionally, defendant points out that the on the attached customer agreement is April 2005 and the billing statements attached to the amended complaint begin on January 27, 2009. As required by Pa.R.C.P. 1019(h) and 1019(i), when any claim or defense is based upon an agreement, and the agreement is in writing, the agreement between plaintiff and defendant must be attached to the pleading. Pa.R.C.P. 1019(h). If the writing is not available to the pleader, the pleader may provide the reason for the unavailability of the writing and state the substance of the writing in the pleading. Pa.R.C.P. 1019(i). In Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 345 (Pa. Super. 2003), the court reaffirmed this attachment requirement when it provided that a creditor must “attach the writings which assertedly establish [the creditor’s] right to a judgment.” See also, World Wide Asset Purchasing LLC v. Stern, 153 Pitts. Leg. J. 111 (Allegheny Cty. 2004) (holding that the required attachments include the application signed by the consumer and any other relevant terms and conditions which govern the issuer’s claims).

In this case, plaintiff has not attached the signed writing to its pleading, nor has it set forth a reason for failing to attach the writing. As a result, plaintiff is in violation ofPa.R.C.P. 1019(h) and 1019(i). Therefore, defendant’s preliminary objection is granted.

II. Sufficiency of Plaintiff’s Amended Complaint Under Rule 1028(a)(3)

Defendant argues plaintiff has failed to aver sufficient facts to make a claim for account stated. In order to establish an account stated claim, “there must be a contract between the parties, that is, an express or implied promise by the debtor to the creditor.” Waiter H.E. Jaeger, 15 Williston on Contracts §1862 at 566 (3d ed. 1972). Furthermore, where there is a cause of action on an account stated, “the account must be rendered, and the other party must accept, agree to, or acquiesce in the correctness of the account.” Target National Bank v. Samanez, AR07-009777, 2007 D.&C. Dec. Lexis 433 (Allegheny Cty. 2007). As the court held in Ryon v. Andershonis, 42 D.&C.2d 86, 87 (Schuylkill Cty. 1967), the plaintiff must state an allegation that the defendant “assented to the correctness of the account submitted to him.” Additionally, as the court held in C-E Glass v. Ryan, 70 D.&C.2d 251, 253 (Beaver Cty. 1975), when presenting allegations of defendant’s assent to the amount owed, “something more than mere acquiescence by failure to take exception to a series of statements of accounts received in the mail is required.” See also, Target National, 2007 D.&C. Dec. Lexis at *13.

Therefore, in this case, while plaintiff has alleged an amount owed by defendant, the stated amount is contested by defendant. Plaintiff’s allegations of defendant’s assent to the amount owed go no further than stating that defendant received monthly statements in the mail and failed to respond to them. As the court in C-E Glass held, something more than merely failing to respond to statements received in the mail is required to demonstrate defendant’s assent. C-E Glass at 253. As a result, plaintiff has failed to establish a prima facie case of account stated and defendant’s preliminary objection is granted.

III. Quantum Meruit

Defendant also takes issue with the validity of plaintiff’s quantum meruit claim. Defendant raised the issue as part of the challenge to the sufficiency of plaintiff’s amended complaint.

In count three of the amended complaint, pleading in the alternative, plaintiff raises the issue of quantum meruit as an alternative theory to recover damages. Quantum meruit is a quasi-contractual remedy where a contract is implied in law under a theory of unjust enrichment. Ragnar Benson Inc. v. Bethel Mart Associates, 308 Pa. Super. 405, 454 A.2d 599 (1982). Parties are expressly permitted to plead in the alternative under the Pennsylvania Rules of Civil Procedure. See Pa.R.C.P. 1020(c); Lugo v. Farmers Pride Inc., 967 A.2d 963 (Pa. Super. 2009). Plaintiff structured the first count of its amended complaint as an account stated and the second count of the amended complaint as a breach of contract. Plaintiff is pleading the quantum meruit claim in case the alleged harm to plaintiff is not redressed under the claims raised in either count one or two. Therefore, the quantum meruit claim is sufficiently specific and permissible under law and defendant’s preliminary objection is overruled.

ORDER

And now, February 5, 2010, upon consideration of defendant’s preliminary objections to plaintiff’s amended complaint, it is ordered that defendant’s preliminary objections are granted in part, plaintiff shall have 20 days to file an amended complaint with respect to parts I and II of this opinion. Defendant’s preliminary objections are denied in respect to part III of this opinion.


author: LASH, J,

text:
    Pennypacker v. Mace

      Barbara H. Behringer, for plaintiff.

      Lisa D. Gentile, for defendant.
    January 26, 2010
   LASH, J,

The matters before this court are two custody complaints, the first involving the parties’ elder child and the second being filed after the birth of the parties’ younger child. The matters were consolidated and trial was held on January 21,2010. This court enters the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Deliverance H. Pennypacker (Mother), is an adult individual who currently resides at 628 North Reading Avenue, New Berlinville, Berks County, Pennsylvania 19525.

(2) Defendant, Jeremiah A. Mace (Father), is an adult individual residing at 637 Swamp Pike Road, Gilbertsville, Berks County, Pennsylvania 19525.

(3) Both parties reside in the Boyertown School District.

(4) The parties are the natural parents of two minor children, Isaiah M. Mace, born October 18, 2005, and Serenity Pennypacker, bom June 29, 2009 (minor children).

(5) The parties are currently husband and wife. The parties are separated, but no divorce action has been filed.

(6) The parties separated on July 31,2008, when Father obtained a temporary protection from abuse order against Mother, evicting Mother from the parties’ residence, a trailer, located in Barto, Pennsylvania.

(7) When Mother was evicted, she took up residence at her current location, which is the home of her mother, Stacey Lynn Hart (maternal grandmother), her husband, Warren Hart, and the couple’s two adopted children, Skyler Hart, born July 26,2000, and Tristin Daniel Hart, born August 14, 2002.

(8) Approximately two days after the temporary order was entered, Father relocated from the marital residence to his current residence, which is the home of his parents, Stan and Koreen Mace. Also residing in that home is Father’s brother, Joshua.

(9) On July 30, 2008, this court entered a final order on the protection from abuse petition, by agreement without admission, with the order to expire in one year. The order contained temporary custody provisions setting forth that Father would have primary custody of the minor child, Isaiah, and that Mother would have visits to take place every Friday and Saturday from 9 a.m. until 8 p.m. and every Sunday from 12 noon to 5 p.m., to take place at the paternal grandparents’ home.

(10) On or about August 26, 2008, Mother filed a complaint for custody to docket no. 08-9784, I.D. #2. This resulted in an order being entered December 8,2008 on motion of the custody support master setting forth, among other things, that Father would retain primary physical custody of Isaiah and Mother would have partial physical custody of Isaiah every Friday from 12 noon to Sunday at 12 noon, so long as Mother was residing in the maternal grandmother’s home.

(11) Subsequent to the birth of Serenity, on February 17, 2009, Father filed a custody complaint, seeking primary custody of Serenity. He also filed a petition for emergency relief alleging, among other things, that Mother was refusing to allow Father to see Serenity and that Mother was neglecting and abusing Serenity.

These actions were filed to docket no. 08-9784,1.D. #3.

(12) The parties reached an agreement to resolve the emergency petition, which was entered as an order of court on March 4, 2009, setting forth that the parties would share custody of Serenity on a 50/50 basis, so long as Mother was residing in the residence of the maternal grandmother, as follows: In week one, Father would have custody from Wednesday at 12 p.m. until Friday at 12 p.m., then Mother would commence custody from Friday at 12 p.m. until Sunday at 12 p.m., then Father would resume custody from Sunday at 12 p.m. until Tuesday at 12 p.m., and then Mother would resume custody from Tuesday at 12 p.m. until Wednesday at 12 p.m. In week two, Mother would then have custody from Wednesday at 12 p.m. until Thursday at 12 p.m., then Father would have custody from Thursday at 12 p.m. until Friday at 12 p.m., then Mother would have custody from Friday at 12 p.m. until Sunday at 12 p.m., then Father would have custody from Sunday at 12 p.m. until Tuesday at 12 p.m., and then Mother would have custody from Tuesday at 12 p.m. until Wednesday at 12 p.m., with the aforesaid two weeks schedule to continue to alternate.

(13) On March 30, 2009, Mother filed a petition to modify the custody order entered December 8, 2008 regarding Isaiah. By order of March 31, 2009, the two actions were then consolidated.

(14) Father is currently employed at Armstrong Landscaping. During the months from March to December, he works from Monday through Friday from 9 a.m. to 3 p.m. From December to March, he works part-time approximately 10 hours per week.

(15) Mother is currently employed at CVS Pharmacy in Boyertown. She has a flexible schedule, providing that on some days she would work eight hours and other days four hours, contingent upon the child custody schedule.

(16) The court ordered an independent psychological evaluation to be performed by Ivan L. Torres Ed.D. Dr. Torres conducted interviews with the parties, the maternal grandmother and her husband, the paternal grandparents, Steven Shaner, an individual who resided with the parties at one time and who dated Mother, and the maternal grandmother’s adopted children, Tristin and Skyler. Dr. Torres also reviewed the court dockets and conducted an in-home inspection of both households. He then provided an evaluation report, dated August 26, 2009. Subsequently, Dr. Torres conducted an additional in-home evaluation of both residences and provided an updated report, dated the date of trial, January 21, 2010.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, the maternal and paternal grandmothers, a friend of the parties, Joie Florner, a friend of the paternal grandmother’s, Barbara Ann Schultz, a former girlfriend of Father’s, Allisha Walters, the report and testimony of Dr. Torres, and the exhibits submitted by the parties.

Both parties seek primary custody of the minor children.

Father presented first. He set forth that during the time the parties resided together, he was the primary caretaker of Isaiah.

He fed the minor child, changed the minor child’s diapers, and tended to all his needs. When Serenity was born, the parties had already separated and according to Father, Mother had denied him access. He then filed an emergency petition within a month, resulting in him obtaining shared custody of Serenity.

Father states that the paternal grandparents provide him a strong support system. They are available when he is working or involved in one of his activities, such as volunteer firefighting. Flowever, he, as well as the paternal grandmother, make it clear that the responsibilities for the care of the minor children are Father’s, not the grandparents.

Father admits that he has in the past been involved in improper activities. He admits being involved with a friend shooting BB gun pellets into windows of unattended parked vehicles, for which- he was arrested. He also admits involvement in marijuana and cocaine use. He is currently on probation. However, he states that his bad behavior is in the past. He cites his decision to volunteer to fight fires. He also has attended parenting classes held at the Boyertown Public Library. In essence, he states that while the minor children are with him, they benefit from a stable, healthy, happy home.

Father and his witnesses categorize Mother’s ability to care for her minor children in Mother’s household as abysmal. There are allegations of abuse, including discipline by biting, which Mother allegedly learned from the maternal grandmother. There are marks consistent with pinching. Father alleged that Mother has thrown Isaiah across the floor, and Mother strikes the minor children.

Father alleges that Mother is inattentive and provides little, if any, care when the minor children are with her. He states that she refused to change diapers. Often, Isaiah would remain in wet diapers until he came home from work. She would not feed the minor children when they were hungry because she was too lazy to get up from the couch, although she was willing to do so to feed herself. She locks the minor children in their room and does not respond when they cry, even for a period of up to two hours, nor checks on them to see if there is any significant problem. She is constantly bickering with the maternal grandmother. On one occasion, according to Ms. Homer, Isaiah fell down the steps because the gate at the top of the steps was not properly secured. Ms. Horner warned Mother of this but she, nevertheless, did nothing to safeguard Isaiah’s safety. Isaiah was bitten by a dog on one occasion. Father also alleges that the household is unsanitary with a stench from cat urine and feces. One of Father’s witnesses also maintained that the maternal grandmother restricted Isaiah from running to visit with the paternal grandmother during a chance encounter at a garage sale.

Father also questions Mother’s involvement with other men. An individual named Steven Shaner, who was a mutual friend, has significant emotional and abuse issues of his own, and cannot be permitted to be around the minor children. Father believes that Mother maintains a relationship with him. Mother has also searched on the internet for companions and has advertised herself in a provocative manner. Father believes that Mother’s household is unsafe and that Mother should not be permitted visits unless they are supervised.

Mother was involved in an altercation at a Wal-Mart store with another woman, in the presence of Isaiah. She was arrested for this incident and is not permitted on the Wal-Mart premises.

Mother testified that she was the primary caretaker of Isaiah, not Father, until the protection from abuse order was entered. She states that she was responsible for Isaiah’s caretaking when the parties resided together. She states that she fed, bathed, and diapered the minor children, taking them to their medical visits. Further, Father could not be trusted. She alleges that Father was addicted to Ritalin, that when his Ritalin prescription ran out, he resorted to cocaine, and that he was usually either high or sleeping, being completely unavailable to care for Isaiah.

Mother maintains that her current household is appropriate, but that Father’s household must be evaluated, particularly whether Father even resides there. She alleges that Father resides at the Barto Hotel with his girlfriend and that the paternal grandparents care for the minor children when they are supposed to be in Father’s care. One of Father’s girlfriends testified that the two of them did live together in the Barto Hotel for several weeks, including during times when Father was scheduled to care for the minor children.

Mother also has serious concerns about Father’s brother, Joshua, who resides in the paternal grandparents’ home. She states that she was advised by Father that Joshua had sexually abused Father when he was young. Joshua has also been diagnosed with mental health problems and was committed for a period of time. Mother is concerned about having her minor children exposed to Joshua.

Mother categorically denies Father’s allegations. She denies that she abuses the minor children in any way. She denies that she has ever bitten the minor children, that her mother has ever bitten her, or that this occurs in her household. In fact, she states she doesn’t even spank the minor children. She denies any relationship with Steven Shaner. She denies that she has any improper involvement with men. She denies that her household is unsanitary. She denies that she leaves the minor children unattended or refuses to check on them, instead leaving them locked in the room. She does state that Isaiah sometimes wants to sleep with her and that she would have to put Isaiah back in his bedroom and lock him in so that he would learn the responsibility of sleeping in his own bed.

Mother and the maternal grandmother deny that they have a poor relationship. The maternal grandmother states that Mother can live with her as long as necessary. The maternal grandmother states that any smell of cat urine did not come from her house, but from the neighbor’s house who had 60 cats at one time. The neighbors relocated due to foreclosure, and the house next door has now been cleaned up and the smell no longer exists. The maternal grandmother does admit, however, that she has six cats and several dogs.

Mother also complains that Father does not comply with the court-ordered custody schedule, often showing up early, as much as an hour early, with the minor children. He also comes early to pick the minor children up on occasion. Mother testified that Father refuses to permit her phone contact with the minor children when they are in his care.

Dr. Torres provided some very strong opinions. Fie found that both parents were immature, presenting high-risk factors for the minor children. Regarding Father, he has a history of substance abuse and impulsive behaviors resulting in a criminal histoiy. His embattled relationship with Mother has impacted on the well-being of the minor children. Mother is immature to the point that she is not yet emancipated. Fler lifestyle is unstable. Her partner choices are inappropriate, based on deficits in moral development. Dr. Torres alleges that Mother appears unable to determine the consequences of her sexual and other impulsive behaviors, as well as the negative outcomes of her maladaptive behaviors.

Dr. Torres believes that the paternal grandparents are appropriate caregivers and are the one source of stability for the minor children. On the other hand, the maternal grandmother and her husband do not appear invested in caring for the minor children.

Father’s household is appropriate. On the other hand, Mother’s household is cluttered and unsanitary. Dr. Torres reported a significant cat stench when he was there for the first visit, which had been alleviated during the second visit. However, there are still examples of lack of cleanliness, including failure to clean the bathtub. The quarters are cramped, with Mother, Serenity, and Skyler sleeping in one room and Tristan and Isaiah in another room.

Dr. Torres recommends that the parties should share legal custody with Father to have primary custody, so long as he resides in the home of the paternal grandparents. Mother can have visits, but the visits should be held in the paternal grandparents’ home or some other safe environment. Isaiah should receive therapeutic intervention focused on strengthening his expressive and emotional domains. Finally, Steven Shaner should have no contact with either minor child due to the risk factors present in his life.

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).

This case is difficult, primarily because both parents are immature. Neither appears capable of living independently of his or her parents. Both parents have questionable backgrounds. They were previously combative and now refuse to communicate. Both are willing to jump into new relationships without apparent regard for the minor children.

With that being said, Father has apparently made some strides. It appears that he does have concerns for the minor children and has worked to provide proper maintenance. His enrollment in parenting classes is commendable and appropriate. His work with the volunteer fire company shows his willingness to provide aid to the community.

Importantly, the paternal grandparents provide an appropriate home. While it is important that Father eventually become separated from them and become independently able to sustain himself and his minor children, for the short term, the arrangement is beneficial for the minor children.

We note Mother’s concern that Father spends time outside the household when he has a relationship with another woman. This has taken place in the past and could very well continue to be happening. Father must recognize that his first responsibility must be to his minor children and that it is not the paternal grandparents’ duty to be the primary caretakers of the minor children. Nevertheless, Father needs to have an opportunity to have a social life, and it is not improper for the paternal grandparents to periodically baby-sit. Further, in this matter, there does not appear to be any other viable alternative.

While both parents need to work toward improvement, at least Father is making some effort. Mother does not appear to want to exert any energy. Father’s categorization that Mother would rather sit on a chair than attend to the minor children, even when they needed to be fed or diapered, is believable. The parties’ friend, Joie Florner, testified of an occasion where Mother stuffed a banana peel inside Ms. Horner’s sofa rather than get up and throw it away. Her marked obesity at her young age is evidence of her sedentary lifestyle. This may be one reason why the maternal grandmother does not want to get involved in the care of the minor children, for if she did, Mother would be “off the hook” and the maternal grandmother would find herself with all of the responsibilities.

We also find Mother’s testimony to lack any credibility. Mother was unfortunately very capable of making broad and absolute denials of nearly all of the allegations against her, even when facing strong evidence to the contrary. She appears to be defensive, with low self-esteem, and is unable to accept responsibility. The allegations regarding her willingness to bite the minor children as punishment is particularly troubling. Further, her living arrangements are crammed, cluttered, and unclean. Finally, Mother appears quite capable of introducing new boyfriends into the lives of the minor children, which boyfriends may be of questionable character and potentially harmful to the minor children.

For all these reasons, we award Father primary custody of both minor children. Mother shall be permitted partial custody on alternate weekends. These visits will be permitted to be unsupervised. We are hopeful that providing specified conditions in the order will be sufficient protection for the minor children. Moreover, visits supervised by the paternal grandparents, as suggested by Dr. Torres, would create a different set of problems because of the poor relationship between Mother and the paternal grandparents. Also, Children Services has investigated Mother’s household and did not find a need for services from the agency. If there are any further problems, this court can quickly intervene and impose whatever requirements are necessary.

We enter the following order:

ORDER

And now, January 26, 2010, after trial held, custody of the parties’ minor children, Isaiah M. Mace, born October 18,2005, and Serenity Pennypacker, born June 29, 2009 (minor children), shall be as follows:

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

(2) Defendant, Jeremiah A. Mace (Father), shall have primary custody of the minor children.

(3) Plaintiff, Deliverance H. Pennypacker (Mother), shall have partial physical custody of the minor children on alternate weekends from Friday at 6 p.m. to Sunday at 6 p.m., and at such other times as the parties may agree.

(4) The parties shall alternate the following named holidays each year from 9 a.m. to 8 p.m., with Mother having the next 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 9 a.m. to 6 p.m.

(6) Regarding Christmas, the parties shall alternate schedules such that in odd-numbered years, Mother shall have custody from December 24 at 2 p.m. to December 25 at 2 p.m., and Father shall have December 25 at 2 p.m. through December 26 at 2 p.m., with the parties to switch in even-numbered years.

(7) Each party shall be entitled to one week of uninterrupted time with the minor children for purposes of vacation. The vacationing party shall provide the non-vacationing party with at least 60 days written notice of the dates and times for said vacation.

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

(9) Neither party shall commit any act against either minor child which rises to the level of abuse. Specifically, no parent, nor other caretaker, shall be permitted to bite any minor child at any time.

(10) Steven Shaner shall not be permitted to have any contact with the minor children at any time.

(11) Mother shall not allow any friends, including boyfriends of hers, to have unsupervised contact with the minor children.

(12) The minor children shall be properly fed and their cleanliness maintained at all times.

(13) Each parent shall take parenting courses. Each party shall be responsible for his or her own costs.

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

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: FRIEDMAN, J,

text:
    Alex Development LLC v. Gateway Motels Inc.

      Wayne M. Chiurazzi, for plaintiffs.

      Bridget M. Gillespie, for defendants.
    February 9, 2010
   FRIEDMAN, J,

An interim opinion suggesting the appeal should not be quashed was filed on an urgent basis, in the interest of justice. The opinion here will seek to explain why we entered the order complained of on appeal.

PROCEDURAL HISTORY

This case has a somewhat convoluted procedural history and involves appeals from orders of both the undersigned and of the Honorable Ronald W. Folino, also of this court. As a hint of what is to come, the caption above is used for convenience only and is actually incorrect. We will attempt to outline the procedural history below.

The captioned action was begun by the filing of a complaint by Alex Development LLC and CE-Monroe-ville L.P. as the original plaintiffs. On November 21, 2008, all of the defendants filed preliminary objections which included, inter alia, an objection claiming improper service of the complaint. On February 23, 2009, the Honorable W. Terrence O’Brien of this court sustained the objection regarding service of process. On April 27,2009, plaintiffs filed defendants’ acceptance of service of the complaint. Defendants again filed preliminary objections. On June 25, 2009, an amended complaint was filed without leave of court, naming Alex Development LLC and CE-Monroeville L.P. as the plaintiffs. On June 26, 2009, Judge Folino entered an order “that the oral motion to strike is granted and the amended complaint filed on June 25,2009 is stricken. It is further ordered, adjudged and decreed that defendants’ preliminary objections are sustained in part. Counts II, III and IV are dismissed with prejudice. Count V is severed with CE-Monroeville to file within 20 days a complaint in a separate action with respect to Count V. Plaintiff Alex Development is to file within 20 days a more specific pleading with respect to Count I, specifically identifying the alleged hazardous substance and the damages alleged. The request for attorney’s fees and delay damages are stricken.” (emphasis added) The import of this order is that Judge Folino concluded that only Alex Development had a claim under Count I of the original complaint and that only CE-Monroeville had a claim under Count V. That is, he concluded that those two plaintiffs did not have similar claims against the defendants named.

On July 21, 2009, plaintiff Alex Development filed a second amended complaint in this action. On the same day, plaintiff CE-Monroeville L.P. filed a complaint which, although a separate document, was nonetheless filed at the same docket number and therefore was filed in the same action as the ongoing proceedings, GD 08-12904. The defendants filed preliminary objections to Alex Development’s second amended complaint and to CE-Monroeville’s complaint, and both plaintiffs filed preliminary objections to preliminary objections. All of these were argued before the undersigned on September 15, 2009.

After argument, the undersigned overruled both sets of plaintiffs’ preliminary objections to preliminaiy objections. As to defendants’ preliminary objections to Alex Development’s second amended complaint, we sustained in part and overruled in part. And most importantly for the purposes of the current appeal, as to defendants’ preliminary objections to CE-Monroeville’s complaint, we entered the following order:

“[T]he complaint of CE-Monroeville is dismissed, with prejudice, for non-compliance with the prior order of Folino, J.
“It is further ordered that counsel for plaintiff CEMonroeville must reimburse defendants for their attorney’s fees and costs incurred in filing their preliminary objections because the filing of the complaint in this action was frivolous and in blatant disregard of the June 26,2009 order severing CE-Monroeville from this action. The counsel for defendants shall file an affidavit in support of fees warranted within 10 days, if a stipulation of that amount cannot be reached. The court will notify the parties of how it intends to reach a decision regarding the proper amount if an affidavit is filed.”

On September 28,2009, plaintiff CE-Monroeville filed a motion for reconsideration of our order dismissing their complaint. We vacated the order pending consideration of the motion. After the parties filed briefs and affidavits, on October 8, 2009 we reinstated our prior order and dismissed CE-Monroeville’s complaint, again with prejudice. We also awarded $1,500 in counsel fees as a sanction against plaintiff. Plaintiff CE-Monroeville then filed the notice of appeal at issue here.

Meanwhile, plaintiff CE-Monroeville appears to have submitted a motion for clarification to Judge Folino regarding his June 26,2009 order which, inter alia, severed CE-Monroeville’s claim and directed it to file “a complaint in a separate action.” (That motion for clarification was not docketed.) On November 24, 2009, Judge Folino denied the motion for clarification. Plaintiff CEMonroeville filed another notice of appeal from that order.

In its statement of matters complained of on appeal, plaintiff CE-Monroeville raised two issues:

“(A) The court committed error of law in granting defendants’ preliminary objections based upon plaintiff’s filing of its complaint with the Allegheny County Department of Court Records under the original docket number for this case. The court held that the Honorable Judge Folino’s order of June 26, 2009, in which Judge Folino ordered the plaintiff to file the plaintiff’s complaint ‘in a separate action’ mandated that such complaint be filed under a separate docket number and the plaintiff’s filing of the pleading under the original docket number demanded that said complaint be dismissed with prejudice. However, neither Pennsylvania case law nor the Pennsylvania Rules of Civil Procedure define the term ‘separate action’ as requiring a separate docket number.
“(B) The court committed error of law in awarding sanctions against the plaintiff for ‘frivolous and blatant disregard of the June 26,2009 order’ by filing said complaint under the original docket number. At most, the actions of the plaintiff constituted an honest misinterpretation of Judge Folino’s ambiguous order of June 26, 2009, authored by defendants’ counsel, and did not warrant the award of sanctions against the plaintiff.”

DISCUSSION

We enforced Judge Folino’s ruling that there was a misj oinder of plaintiffs. Plaintiff CE-Monroeville did not follow his directive and did not ask to appeal Judge Folino’s order at that time. We assumed that CE-Monroe-ville’s failure to comply with his directive required us to dismiss CE-Monroeville’s action with prejudice. We should not be expected to presume that any prior order entered in the case by a judge of coordinate jurisdiction was incorrect and should therefore be ignored by us. We assumed then, and continue to assume, that Judge Folino was correct. If either plaintiff thought his order was incorrect, the proper approach was to appeal. His order was final as to CE-Monroeville if that plaintiff wanted to remain joined with Alex Development in this action.

We believe we were correct in dismissing the complaint that clearly violated Judge Folino’s order. We believed at the time that dismissal with prejudice was appropriate. On appeal, CE-Monroeville does not address this. Instead, CE-Monroeville says that it misinterpreted the meaning of “a separate action,” and also states that, “However, neither Pennsylvania case law nor the Pennsylvania Rules of Civil Procedure define the term ‘separate action’ as requiring a separate docket number.”

The term “civil action” is explained in Pa.R.C.P. 1001:

“Rule 1001. Definition. Scope
“(a) As used in this chapter and in Rule 1506 and 1531 through 1535, ‘action’ means a civil action brought in or appealed to any court which is subject to these rules.
“(b) There shall be a ‘civil action’ in which shall be brought all claims for relief heretofore asserted in
“(1) the action of assumpsit,
“(2) the action of trespass, and
“(3) the action in equity.
“(c) Other forms of action which incorporate these rules by reference shall be known as ‘civil action — (type of action).’”

In other words, a “civil action” or an “action” is the word used by attorneys and judges to mean “a case.” It is virtually axiomatic. The “prothonotary” (now in this county, the department of court records, civil division) is required to give each civil action (or case) a separate docket number. When an action (or case) is severed, as was done by Judge Folino because of a misjoinder, the severed portion, here CE-Monroeville’s claims, must be re-filed at a new docket number. No civil action may have two different complaints each with a different plaintiff.

We leave any issue of the propriety of severing CEMonroeville’s claim to be addressed by Judge Folino and by the Superior Court.

      . The Superior Court has indicated, in a per curiam order dated December 29,2009, that it will hear the appeal of Judge Folino’s order (Superior Court docket number 2055 WDA 2009) and the appeal of the order of the undersigned (1787 WDA 2009) as if a single appeal. The court also indicated therein that it has not made “a final determination as to the propriety of either appeal.”


author: PICCIONE, J.,

text:
    First National Bank of Pennsylvania v. Kelly

      Daniel J. Birsic and Joseph A. Fidler, for plaintiffs.

      P. Raymond Bartholomew, for defendants Kelly.

      James W. Manolis, for additional defendants Mace.
    January 11, 2010
   PICCIONE, J.,

Before this court for disposition are the additional defendants’ preliminary objections to the defendants’ complaint. The current action arose out of a guaranty agreement between First National Bank of Pennsylvania, successor by merger to the First National Bank of Slippery Rock (plaintiff) and Timothy S. Kelly and Sharon L. Kelly (defendants). In the guaranty dated May 24,2002, the defendants agreed to assume all of the obligations of K & M Feeds Inc. to the plaintiff. On December 1, 2008, the plaintiff filed a complaint alleging that the defendants were in default under the guaranty and that the defendants owed $313,781.36 to the plaintiff.

On July 2, 2009, the defendants filed their complaint joining additional defendants. In it, the defendants allege that, together with Carl V. Mace and Cindy A. Mace (additional defendants), they became involved with K & M in December of 1995. Several years later, the additional defendants agreed to purchase the defendants’ shares in K & M for $40,000. A promissory judgment note and an agreement fixing the buyout price were signed on January 1, 2002. According to the complaint, the defendants then entered into the guaranty agreement with the plaintiff because they recognized that K & M would need financing. In April of 2004, the defendants transferred their stock in K & M to the additional defendants in exchange for the additional defendants’ oral promise that the defendants would be released from any obligations related to K & M. The defendants allege that they detrimentally relied upon the additional defendants’ promise and that the additional defendants are responsible for K & M’s debt to the plaintiff.

On August 17, 2009, the additional defendants filed the following preliminary objections to the defendants’ complaint: (1) misjoinder of a cause of action; (2) legal insufficiency of a pleading; and (3) insufficient factual specificity. Oral argument regarding the preliminary objections was held before this court on October 26, 2009.

Under Rule 1028 of the Pennsylvania Rules of Civil Procedure, any party may file preliminary objections to any pleading, and the specific grounds on which such preliminary objections may be based are elucidated in the express language of the Rule. Pa.R.C.P. 1028. Rule 1028 requires that all preliminary objections specifically state the grounds upon which they relied. Foster v. Peat Marwick Main & Co., 18 Pa. Commw. 147, 156, 587 A.2d 382, 386 (1991).

In their first preliminary objection, the additional defendants assert that joinder was improper in these proceedings. “A person not previously a party who is j oined as an additional defendant may object to the joinder by filing preliminary objections asserting prejudice or any other grounds set forth in Rule 1028.” Pa.R.C.P. 2253(c). Rule 2252 governs the right to join additional defendants and provides, in pertinent part:

“(a) Except as provided by Rule 1706.1, any party may join as an additional defendant any person not a party to the action who may be
“(1) solely liable on the underlying cause of action against the joining party, or ...
“(4) liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based.” Pa.R.C.P. 2252(a).

This rule is to be “broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of the transaction or occurrence on which [the] plaintiff’s cause of action is based.” Garrett Electronics Corporation v. Kampel Enterprises Inc., 382 Pa. Super. 352, 354, 555 A.2d 216, 217 (1989). Courts have favored the policy of broadly interpreting Rule 2252 “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution.” Hileman v. Morelli, 413 Pa. Super. 316, 325, 605 A.2d 377, 382 (1992).

“[Jjoinder of additional defendants is not permitted where allegations contained in the original complaint and allegations contained in the joinder complaint relate to different harms to be proven with different evidence as to different occurrences happening at different times.” Gordon v. Sokolow, 434 Pa. Super. 208, 215, 642 A.2d 1096, 1100 (1994).

“Where the joining defendants allege joinder on the basis that the additional defendants were (1) alone liable to the plaintiff; (2) that additional defendants were jointly or severally liable with appellant, i.e., for contribution; or (3) that additional defendants were liable over to the joining defendants by way of indemnification, pursuant to section 2252(a)(l)-(3), ‘the only substantive limitation placed upon the right to join an additional defendant on any of these grounds is that liability must be premised upon the same cause of action alleged by the plaintiff in his or her complaint.”’ Gordon, 434 Pa. Super. at 214, 642 A.2d at 1099 (citing Svetz for Svetz v. Land Tool Co., 355 Pa. Super. 230, 235, 513 A.2d 403, 404-405 (1986)).

“The same cause of action alleged by the plaintiff” has been broadly construed as requiring only that the “additional defendant’s liability [be] related to the original claim which plaintiff asserts against the original defendant.” Gordon, 434 Pa. Super. at 215, 642 A.2d at 1099 (citing Somers v. Gross, 393 Pa. Super. 509, 514, 574 A.2d 1056, 1058 (1990)).

The additional defendants argue that their purported liability to the defendants is not sufficiently related to the plaintiff’s claim against the defendants; however, a “defendant’s cause of action against an indemnitor, although not the same cause of action alleged by the plaintiff, is related to it.” Fulmer v. Duquesne Light Company, 374 Pa. Super. 537, 542, 543 A.2d 1100, 1102 (1988). Because the additional defendant’s liability depends on whether the defendant is held liable to the plaintiff, it can be said that the joinder claim arises from the same occurrence upon which the original claim is based. Id. Joinder of the additional defendants serves the added purpose of avoiding multiple lawsuits by compelling eveiy interested party to defend against the plaintiff’s action at the same time. Accordingly, the additional defendants ’ preliminary objection regarding joinder is hereby overruled.

In their second preliminary objection, the additional defendants assert that the defendants’ complaint fails to set forth a cause of action for which relief may be granted. When ruling on a preliminary objection in the nature of a demurrer, the court must accept as true all material facts set forth in the pleading, as well as all reasonable inferences deducible from such facts. Carde nas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001). However, the court is not required to accept as true “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Envirotest Partners v. PennDOT, 664 A.2d 208, 211 (Pa. Commw. 1995) (citing Meier v. Maleski, 167 Pa. Commw. 458, 648 A.2d 595 (1994)). Preliminary objections should be sustained only in those instances where it appears with certainty that the law would not permit recovery. Id.

In support of the demurrer, the additional defendants first contend that detrimental reliance does not exist because the defendants were required to transfer their K & M stock at the time of the January 1,2002 agreement. Therefore, the defendants could not have relied on the additional defendants’ April of 2004 promise to assume any debts of K & M when the defendants transferred their stock two years later.

Detrimental reliance is another name for promissory estoppel. Peluso v. Kistner, 970 A.2d 530, 533 (Pa. Commw. 2009). “Under this theory, a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcing the promise.” Matarazzo v. Millers Mutual Group Inc., 927 A.2d 689, 692 (Pa. Commw. 2007). The reliance on the promise provides the consideration for the formation of the contract, the breach of which is actionable. Travers v. Cameron County School District, 117 Pa. Commw. 606, 544 A.2d 547 (1988).

Although the defendants were already obligated to transfer their stock under a prior agreement, it cannot be said with certainty that the law would not permit recovery. Paragraph 9 of the defendants’ complaint states that “defendant Timothy S. Kelly signed over his stock in K & M Feeds Inc. to Carl V. Mace, all on the good faith belief that the defendants were being released of any and all liability to The First National Bank of Slippery Rock under the 2002 guaranty undertaking and any other liability connected with K & M Feeds Inc.” In promising to release the defendants of all K & M obligations, the additional defendants should have reasonably expected to induce the defendants to transfer the stock. The defendants did, in fact, transfer the stock. The additional defendants then failed to honor their promise to pay the plaintiff. If their agreement is not enforced, the defendants could be forced to pay $313,781.36 to the plaintiff. Accepting as true all of the material facts and reasonable inferences from those facts, the court finds that defendants’ complaint sets forth the necessary facts to establish a claim for detrimental reliance.

The additional defendants further assert that the defendants’ complaint is legally insufficient with respect to Cindy A. Mace. They argue that Ms. Mace did not receive anything in exchange for her purported oral promise, and therefore, the defendants’ claim against her fails for a lack of consideration. As stated above, the detrimental reliance on the promise provides the necessary consideration for the formation of a contract. Travers, 117 Pa. Commw. at 613, 544 A.2d at 551. Accordingly, the defendants’ claim against Ms. Mace cannot fail for lack of consideration.

In their final preliminary objection, the additional defendants argue that the defendants’ complaint is not sufficiently specific. Rule 1028(a)(3) of the Pennsylvania Rules of Civil Procedure provides that a party may file a preliminary objection based upon “insufficient specificity in a pleading.” Pa.R.C.P. 1028(a)(3).

“The pertinent question under Rule 1028(a)(3) is whether the complaint is sufficiently clear to enable the defendant to prepare his defense, or whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). (internal citations and quotation marks omitted)

Clearly, a complaint must provide the defendant with notice of what the plaintiff’s claims are, the grounds upon which they rest and formulate the issues by summarizing the material facts to support the claims. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission (PGC), 950 A.2d 1120, 1134 (Pa. Commw. 2008). (citations omitted)

The additional defendants initially argue that they are not able to respond to the defendants’ complaint because the terms of the January 1, 2002 agreement attached to the complaint are not clear. In accordance with Pa.R.C.P. 1019(i), the defendants attached a copy of the contract to their complaint. An examination of the contract reveals that all of the material terms of the agreement are set forth in a clear and concise manner. The additional defendants fail to identify any specific shortcomings with the document. Therefore, the court finds that the terms of the agreement are sufficiently specific to permit the additional defendants to form a response.

The additional defendants again claim they are unable to respond to the complaint because the terms of the release agreement referred to in paragraph 8 of the defendants’ complaint are not identified and the complaint does not indicate whether the release agreement is oral or written. Paragraph 8 states: “In April of2004, the additional defendants agreed to release the defendants from any and all... obligations for which the defendants had personally obligated themselves on behalf of K & M Feeds Inc.; and the defendants agreed to put said release in writing. The documentation in this regard was handled by Attorney Robert D. Clark in New Wilmington.” Rule 1019 requires that a pleading “state specifically if the agreement is oral or written.” Pa.R.C.P. 1019(h). In the event that the agreement is in writing and a copy is unavailable to the pleader, “it is sufficient so to state, together with the reason, and to set forth the substance in writing.” Pa.R.C.P. 1019(i).

The defendants failed to “specifically state” whether the agreement is oral or written. Although the defendants indicate that documentation regarding the agreement is in the possession of Attorney Clark, the defendants do not explain why such documentation is “not accessible” to them. Further, the defendants do not set forth the substance of the agreement if it is unavailable and in writing.

The defendants’ complaint is insufficiently specific as it fails to adequately apprise the additional defendants’ of the contents of their April 2004 agreement. Therefore, the court denies the additional defendants’ misjoinder and legal insufficiency preliminary objections, but grants the preliminary objections regarding the amended complaint’s lack of specificity. The defendants are permitted to amend the complaint to remedy the aforementioned infirmities.

ORDER

And now, January 11, 2010, the court having held a hearing on October 26,2009 regarding additional defendants’ preliminary objections to defendants’ complaint, with P. Raymond Bartholomew, Esquire, appearing and representing the defendants, and James W. Manolis, Esquire, appearing and representing the additional defendants, and Daniel J. Birsic, Esquire, and Joseph A. Fidler, Esquire, representing the plaintiff, the court finds and it is hereby ordered and decreed as follows:

(1) Additional defendants’ preliminary objection alleging misjoinder is hereby overruled pursuant to the attached opinion.

(2) Additional defendants’ preliminary objection alleging legal insufficiency is hereby overruled pursuant to the attached opinion.

(3) Additional defendants’ preliminary objection alleging insufficient specificity is hereby sustained pursuant to the attached opinion.

(4) Defendants are granted a period of 20 days from the date of this order to file an amended complaint.

(5) The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.