author: KELLER, J,

text:
    Szilagyi v. Raicu

      Byron Yatron, for plaintiff.

      Kurt B. Geishauser, for defendant.

      May 18, 2005
   KELLER, J,

Beatrice Andrea Szilagyi, bom March 4,1998, daughter of the plaintiff, Samuel Szilagyi and defendant Tabitha Raicu, is the subject of the custody relocation order at issue. The parties to the action moved to this country from Romania several years ago. They were divorced July 2000, after which the plaintiff moved to Georgia to live with his brother and his family. The plaintiff lived in Georgia from August 2000 through November 2001. While the plaintiff lived in Georgia, Beatrice visited several times, for approximately two weeks at a time. The remainder of the time, the child lived with the defendant, Tabitha Raicu, in Berks County.

In June 2002, the plaintiff filed for partial physical custody of the minor child, and, by stipulated order of June 7, 2002, was granted partial physical custody. The plaintiff had custody of the minor child every other weekend — Friday from 4:30 p.m. to Sunday night at 7 p.m. After this order was entered, however, the defendant failed to allow the plaintiff to take part in the scheduled visitations on numerous occasions due to allegations being investigated by Berks County Children and Youth Services, arising in January 2002, that the plaintiff sexually abused the minor child.

The defendant filed a petition to modify custody on August 15, 2003, due to allegations of child abuse. On October 31, 2003, as a result of a status conference on the petition to modify, the custody order was modified. Due to the many issues surrounding this case, the order ultimately allowed the plaintiff more visitations, with Father not only having the child every other weekend, but also Tuesdays and Thursdays after school until 7 p.m. The order also included a provision that neither parent should file reports with Children and Youth Services accusing the other parent of misconduct.

On February 12, 2004, the minor child’s pediatrician reported another possible incident of child abuse to Berks County Children and Youth Services. On February 18, 2004, as a result of this allegation, as well as the many previous allegations beginning in January 2002, a dependency hearing took place. At that point, the parties agreed to have the child put in placement. The child remained in placement until the investigation was completed in July 2004. During the investigation all parties were interviewed and evaluated by Dr. Valliere. See N.T. relocation hearing, 1/14/05, 2/11/05, exhibit P4, pp. 54-62 (Beatrice Szilagyi), 63-69 (Samuel Szilagyi), 90-98 (Tabitha Raicu). During the child’s sessions, as well as to her foster parents, she recanted her allegations of abuse and said she felt uncomfortable lying. N.T. exhibit P4, pp. 57-58. As a result of the evaluations, it was determined that the defendant was unable to see the child unsupervised because she was believed to be coaching her daughter to bring allegations of abuse against her father. See N.T. exhibit P4, pp.70-71, 123-24.

As the allegations against the plaintiff were found to be unfounded, and after trial visits with the father went well, on November 5,2004, an order was entered transferring physical custody back to the father and, on November 10,2004, an order was entered transferring legal custody to the father. See N.T. exhibit P2, pp. 1-2; exhibit P3, pp. 1-4. At that point, the defendant was permitted only supervised visitation, to increase or decrease as recommended by Dr. Veronique Valliere, one time every other week. It was also required that the defendant could only speak English during the visits, as a result of the belief that the defendant was coaching the child. Children and Youth Services continued to be involved in the case to supervise the family. See N.T. exhibit P3, pp. 2-3.

On December 16, 2004, the plaintiff, unable to find suitable employment in Berks County, filed a relocation petition, requesting that he be permitted to take his daughter to Georgia to live with his family. This court set the hearing date for January 14,2005. However, prior to the hearing, on December 29,2004, the plaintiff moved back to Georgia with his family, and took Beatrice with him.

On January 14,2005, and February 11,2005, this court heard testimony regarding the plaintiff’s petition for relocation. On March 14, 2005, this court granted the plaintiff’s petition for relocation, finding that it was in the best interests of the minor child, Beatrice Andrea Szilagyi, to remain living with the plaintiff in Georgia. This court granted the defendant supervised visits two times per year for at least one hour at a time.

On April 13, 2005, the defendant filed a notice of appeal to this court’s order of March 14, 2005. On April 22, 2005, this court ordered the defendant to file a concise statement of matters complained of on appeal within 14 days. The defendant filed her concise statement raising one issue on appeal:

“(1) Whether the trial court erred in approving appellee’s relocation to Georgia with the minor child.” (Defendant’s concise statement of matters complained of on appeal, 5/9/05.)

The factors to be considered in determining whether the petitioner’s relocation petition should be granted are the factors delineated in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). “First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children, and is not the result of a momentary whim on the part of the custodial parent.” Id. at 184, 583 A.2d at 439. Next, the court must determine the motives for both parties, in wanting the relocation or challenging the relocation. It must be determined whether the motive is to keep the child from the non-custodial parent, and whether the custodial parent will cooperate with alternate visitation arrangements once the move occurs. Id. at 185, 583 A.2d at 439. Lastly, “the court must consider the availability of the realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the noncustodial parent.” Id. The necessity for an alternate visitation arrangement is not going to defeat a move that will benefit the custodial parent and the child. Id. The burden of showing that the move is going to significantly improve the quality of life for the parent and child is primarily upon the custodial parent requesting the relocation. However, both parties have the burden of showing that their motives are pure, either in desiring the move or trying to prevent it. Id. at 186, 583 A.2d at 440.

In the case at hand, this court reviewed the above standard and carefully applied the facts of this case to the standard. Further, this court carefully reviewed all evaluations done by Dr. Valliere and her staff, and the recommendations resulting from the evaluations. First, this court reviewed the potential advantages of the proposed move for the custodial parent, here the father, and the minor child. This is a unique case in that this petition for relocation follows years of litigation in both custody court and juvenile court, arising from numerous allegations of sexual abuse by Father. Additionally, the parties came here from Romania and, because of the allegations of sexual abuse against the father, he was ostracized from the small Romanian community here in Berks County. N.T. at 14-16. Father was not welcome at any events in the community, which in turn hurt the minor child by not being able to participate. Additionally, the plaintiff attempted to find a job in Berks County, but after many attempts to find employment, he was unable to find a position. N.T. at 24-27. The defendant has a full-time job in Georgia, where he works first shift, allowing him to spend time with the child after she is done with school. The plaintiff further plans to work with his brother, in the near future, at his construction company. N.T. at 12-13. The home the child will be living in with the plaintiff and his family appears to be well suited for the child, and the child appears to be adjusting well. See N.T. exhibits PI (a)-(q). Importantly, Father has taken the child to a place where, first, they are free from the stigma from the sexual abuse allegations, second, the child will have some much needed stability, and third, where there are several members of his family that the child is familiar with from visits previously when defendant lived in Georgia in 2000-2001.

This court next carefully reviewed the motives of the parties. Again, due to the extensive background of this case, and the parties’ apparent continuously conflicting relationship, the determination of the true motives behind the parties’ actions were complicated to determine. Clearly, Father’s motive to move to Georgia is to make a better life for himself and his daughter. He has family there, a suitable house to live in and a strong Romanian Community to be a part of. This was not a decision the plaintiff made on a whim. In fact, it was discussed prior to the filing of the petition for relocation that he planned to move to Georgia because of the lies told about him and because his life was turned upside down. N.T. at 50, 60-61 This court acknowledges that the plaintiff did not wait for this court’s decision on the relocation petition before moving and that he took steps, when he arrived in Georgia, to contact the Children and Youth Services office there to transfer the case from Berks County to Georgia. Both of these actions seem to demonstrate that he was going to stay in Georgia no matter what this court determined. However, the plaintiff’s behavior is far less disturbing than the defendant’s behavior. The defendant clearly wants to get her daughter back, keep her daughter from the plaintiff, and has stated in her evaluations that she was afraid that Father wanted more time with their daughter. As stated above, part of the plaintiff’s motivation for the move may be to keep his daughter’s contact limited with the defendant. However, the court agrees with the plaintiff, as her contact is strictly limited by court order. The defendant’s actions in coaching the child to make false allegations of sexual abuse against her father clearly are terrible and, frankly, the defendant has put herself in this position by treating her child as a pawn in a game between herself and the plaintiff. As stated previously, the defendant’s visitation is very limited at this point by court order, and, therefore, in consideration of the parties’ actions thus far, this court believes the plaintiff was trying to give his daughter stability by moving to a place where she can begin to heal and actually enjoy her childhood.

Finally, this court reviewed alternate visitation schedules. Clearly the distance here is a factor; however, when the petition for relocation was filed, as stated above, the defendant had only bi-weekly supervised one-hour visitations with the child. This currently meant that mother had 26 hours of visitation a year. The plaintiff agreed that he would provide for transportation for visitations, and agreed to possibly once a month for two or three hours at a time to give mother the same amount of time had the child been in Berks County. By court order, the mother must continue counseling and, until Dr. Valliere finds that more visitations are warranted, the limited supervised visitation will continue. The defendant argues that she will be unable to gradually be reintroduced into her child’s life if the plaintiff is permitted to keep the child in Georgia She argues that there is no way that a substitute visitation arrangement can be created that will allow for gradual reintroduction. See N.T. at 70. However, again, this is not a normal case where the parties share custody, and the defendant is going from a considerable amount of visitation to limited visitation. The defendant now only has one-hour visits every other week. Certainly, if the plaintiff is willing to have the child come to Berks County once a month, that will be a sufficient arrangement, and may end up, depending on the length of the visits, giving the defendant more visitation time with the child. As Dr. Valliere and her staff see increased visitation as fit, the plaintiff will not need to plan more visits, but just change the length of the visits. This will allow the gradual reintroduction of the child into the defendant’s life, as well as provide a stable and loving environment for the child at this time. As a result, this court finds the alternate visitation schedule is fair to all parties involved.

Therefore, after carefully reviewing all of the Gruber factors above, and after careful consideration of the facts of this case, this court finds that granting the plaintiff’s petition for relocation to Georgia was in the best interests of both the plaintiff and the minor child.

For all of the foregoing reasons, this court respectfully requests that this court’s order granting the plaintiff’s petition for relocation be affirmed, and the defendant’s appeal be denied.

      . The plaintiff and the child currently live in a home with the plaintiff’s brother and in-laws, which is not pictured. The exhibits relate to the home they will be living in after the end of the school year, also with the plaintiff’s brother and in-laws.


source: Caselaw Access Project

author: GENTILE, Member,

license: Public Domain

text:
    In the Matter of Joseph

      Disciplinary Board Docket no. 26 D.B. 1992, 79 D.B. 1993.
    April 13, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GENTILE, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

On April 19,2004, Marlene Evelyn Joseph filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania. Petitioner was disbarred on consent by order of the Supreme Court dated October 13,1993. This is petitioner’s second request for reinstatement. Her first petition for reinstatement was denied by order of the Supreme Court dated December 9,2002.

A reinstatement hearing was held on August 18,2004, before Hearing Committee 1.08 comprised of Chair John S. Summers, Esquire, and Members MargareteE. Choksi, Esquire and Patrick Charles Lord, Esquire. Petitioner was represented by Ellen C. Brotman, Esquire. Petitioner presented the testimony of six witnesses and testified on her own behalf.

The committee filed a report on January 18,2005, finding that petitioner met her burden of proof as to the requirements for reinstatement and recommending that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting of March 16, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Marlene Evelyn Joseph. She was bom in 1940 and was admitted to practice law in Pennsylvania in 1982. Her address is 2306 Faunce Street, Philadelphia, PA 19152.

(2) By letter dated October 2,1991, the Office of Disciplinary Counsel advised petitioner of a complaint filed against her by a former client, Eugene N. Paprocky. No response was filed by petitioner to the D.B.-7 letter.

(3) Petitioner made $7,742 in unauthorized withdrawals from Mr. Paprocky’s bank account, failed to respond to his demand for the return of these funds and converted these funds to her own personal use.

(4) By letter of May 21, 1992, Office of Disciplinary Counsel advised petitioner of a complaint made against her by her former client, Theresa Marie Wilson. No response was filed to this letter.

(5) Petitioner failed to obtain Ms. Wilson’s consent to settle a claim arising out of a July 30, 1990 accident in which Ms. Wilson’s minor son was injured. Petitioner failed to inform Ms. Wilson that her emotional distress claim had been settled in November 1990 and failed to advise Ms. Wilson that petitioner had received a $ 16,000 check to settle Ms. Wilson’s emotional distress claim. Petitioner fraudulently endorsed Ms. Wilson’s signature on the settlement check and then negotiated the check and converted the proceeds to her own benefit.

(6) Petitioner misled Ms. Wilson about the status of her emotional distress claim for over one year after the claim had been settled and did not inform Ms. Wilson about her misappropriation of the settlement proceeds until February 1992. Petitioner also did not comply with Ms. Wilson’s requests to pay her the proceeds of the settlement or to send Ms. Wilson her file.

(7) By letter dated July 17,1992, Office of Disciplinary Counsel advised petitioner of a complaint made against her by a former client, Edward Johnson. No response was filed by petitioner to the letter.

(8) Petitioner represented Mr. Johnson with respect to claims arising out of a September 2, 1990 accident in which he was injured. Petitioner failed to reduce the fee agreement to writing. When Mr. Johnson’s case settled in May 1991, Keystone Insurance sent a check dated June 3, 1991 to petitioner for $20,000 made payable to Mr. Johnson and petitioner. Upon receipt of the check, petitioner requested that Mr. Johnson endorse the check and accompany her to Jefferson Bank to negotiate it. Petitioner advised Mr. Johnson that she would deposit the check in her escrow account and then make distribution within five or six weeks.

(9) Mr. Johnson accompanied petitioner to Jefferson Bank where she negotiated the check and gave Mr. Johnson $2,000 in cash. Petitioner paid Mr. Johnson the remainder of the funds as follows: a Jefferson Bank check for $5,000 on June 3, 1991, a Jefferson Bank check for $2,000 on June 3, 1991, a check for $3,500, a check for $3,000 and a check for $1,850 dated April 4, 1991.

(10) By letter dated July 8,1993, Office of Disciplinary Counsel advised petitioner of a complaint made against her by Lois M. Dorety. No response was filed by petitioner to the letter.

(11) Petitioner was consulted by Cathy Dorety about representing her husband with respect to injuries he suffered in a car accident in May 1992. At that time, petitioner failed to inform the Doretys that she was on inactive status and was unable to represent them.

(12) Petitioner agreed to represent Mr. Dorety in defense of a suit filed against him in December 1992. The agreed fee was $2,500, to be paid in installments. Petitioner received $ 1,300 in fees from Cathy and Lois Dorety in January 1993. Petitioner failed to prepare a written fee agreement and failed to take action to protect Mr. Dorety’s interest in the pending case, resulting in a default judgment being entered against him. Petitioner also repeatedly failed to respondió Cathy Dorety’s telephone calls to discuss the case.

(13) On May 26,1993, petitioner spoke to Lois Dorety on the phone and misled her by advising that petitioner had referred the case to another attorney, had tried to contact the opposing attorney 10 or 15 times but he did not return her calls, that the opposing attorney was unethical and that petitioner would contact the Doretys in four or five days to update them on the status of the case. Petitioner thereafter failed to contact the Doretys and did not promptly refund the monies which she received, despite a written request by the Doretys.

(14) On June 1, 1992, an information was filed in the United States District Court for the Eastern District of Pennsylvania charging petitioner with one count of mail fraud and two counts of tax evasion.

(15) On June 2,1992, petitioner entered a plea of guilty to all three counts in the information.

(16) With respect to the mail fraud offense charged in Count One, petitioner represented Byrdie Jackson in a personal injury action in 1987. The fee agreement between petitioner and Ms. Jackson stated that petitioner would receive 40 percent of any recovery from Metropolitan Life Insurance Company as her attorney’s fee. On September 29, 1987, petitioner received a $15,000 check from Met Life on behalf of Ms. Jackson. Petitioner fraudulently forged Ms. Jackson’s signature on the check as well as on a release to Met Life. Petitioner then cashed the check, kept the $15,000 and never told Ms. Jackson of the settlement.

(17) With respect to the tax evasion offense charged in Counts Two and Three of the information, petitioner had tax returns for the years 1986 and 1989 prepared by her accountant based solely on the information that she provided to the accountant. The tax returns were false in that petitioner understated her income by approximately $76,000 for 1986, $102,000 for 1987, $81,000 for 1988 and $62,000 for 1989. Petitioner filed only the 1986 return. On April 19,1991, petitioner filed an amended return for 1986 and delinquent returns for 1987,1988 and 1989 wherein she reported her true income.

(18) Petitioner evaded taxes by not properly maintaining business bank accounts and by cashing numerous checks at check cashing agencies and at banks on which the checks were drawn. Petitioner understated her income to her accountant and falsified her expenses for the tax years 1986 through 1989. She also understated the amount she received from the sale of her house in 1987 by $30,000. While petitioner understated her income for four separate years, the information charged her with, and she pleaded guilty to, tax evasion with respect to her 1987 and 1988 tax returns. Petitioner’s federal sentencing guidelines were calculated based upon all four years in which she admitted understating her income.

(19) On June 29, 1993, petitioner was sentenced by the Honorable Franklin S. Van Antwerpen, Judge of the District Court, to 366 days in prison and three years of supervised release. She was ordered to continue to participate in Gamblers Anonymous and pay restitution to Ms. Jackson in the amount of $9,000 within five years after her release from prison. Full restitution was made to Ms. Jackson on February 10, 1994. Petitioner served her prison sentence at the federal prison in Lexington, Kentucky.

(20) Petitioner submitted a verified statement of resignation dated August 23, 1993, stating that she desired to resign from the bar of the Commonwealth based on her criminal convictions and four separate pending disciplinary complaints.

(21) On October 13,1993, petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania.

(22) On January 7, 1994, petitioner filed a statement of compliance pursuant to Rule 217(e), Pa.R.D.E., certifying that she had complied with the applicable provision of the Rules of Disciplinary Enforcement regarding notification of her disbarment.

(23) As of July 14,1999, petitioner satisfied all restitution obligations she owed to clients who filed claims with the Pennsylvania Lawyers Fund for Client Security.

(24) Petitioner settled her tax obligation to the Internal Revenue Service for the years 1986 to 1989 and 1995 to 1999 through an offer in compromise that was accepted on September 20,2000.

(25) During the time frame of petitioner’s professional misconduct, her mental condition was seriously disturbed and her judgment was impaired due to her addiction to gambling.

(26) Petitioner received outpatient psychotherapy focusing on her compulsive gambling from Charles V. Giannasio M.D., a board-certified psychiatrist, from November 1999 to date.

(27) Dr. Giannasio testified in support of petitioner’s recovery at her reinstatement hearing.

(28) Dr. Giannasio identified a causal connection between petitioner’s gambling and her theft of money in order to support the gambling. He testified that petitioner’s ongoing recovery has been integrated into her life. She attends Gamblers Anonymous meetings regularly and is involved in the Council of Compulsive Gambling. Her prognosis for recovery is veiy good.

(29) Petitioner’s current sponsor at Gamblers Anonymous is James Pappas, who testified in support of her recovery at the reinstatement hearing.

(30) Mr. Pappas is the executive director of the Council of Compulsive Gambling of Pennsylvania.

(31) Mr. Pappas has known petitioner since 1997 and has had almost daily contact with her for the duration of that time.

(32) Mr. Pappas describes petitioner’s recovery as excellent.

(33) Several other character witnesses testified on behalf of petitioner, including her son and daughter-in-law, who are both attorneys licensed in Pennsylvania.

(34) These witnesses all verified that petitioner is in recovery from gambling.

(35) Petitioner worked at a variety of jobs subsequent to her release from prison. She worked as an administrative assistant for About Time Inc., from January 1995 through September 1997. She left when the company went into bankruptcy.

(36) Petitioner then held a series of jobs between 1997 and 2001, none lasting more than one year.

(37) Petitioner had difficulty finding work as a disbarred attorney.

(38) During this time petitioner cared for her ill parents, both of whom died in 2000.

(39) Beginning in February 2003, petitioner began work as a part-time administrative assistant in her son’s law office.

(40) Pier duties are generally administrative and clerical in nature. She prepares letters, answers the telephone, receives client information, receives payments from clients and issues receipt for payments.

(41) In March 2004, petitioner began working part-time for Sabatina and Associates as a paralegal. In that capacity petitioner does legal research and prepares legal correspondence.

(42) John Sabatina, Esquire, testified at the reinstatement hearing that petitioner’s quality of work is excellent and that if she was reinstated he would hire her without question.

(43) Petitioner expressed sincere remorse and an understanding that her actions hurt many people.

III. CONCLUSIONS OF LAW

(1) The misconduct for which petitioner was disbarred is not so egregious as to preclude immediate consideration of her petition for reinstatement.

(2) Petitioner has demonstrated by clear and convincing evidence that she possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania.

(3) Petitioner has demonstrated that her resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest.

IV. DISCUSSION

Petitioner’s request for reinstatement to the bar following disbarment is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). The Keller opinion articulates a threshold question which must be addressed before the requirements of Pa.R.D.E. 218(c)(3)(i) are considered. This threshold inquiry is whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon the integrity and standing of the bar or the administration of justice, nor be subversive of the public interest. Keller thus requires a determination that the original misconduct was not so offensive as to preclude reinstatement.

In the instant matter, petitioner was convicted of mail fraud and tax evasion and has admitted to committing various ethical violations involving conversion of client funds. The board and the Supreme Court have previously found that such misconduct is not so egregious as to prohibit reinstatement. In the Matter of Greenberg, 561 Pa. 154, 749 A.2d 434 (2000); In the Matter of Verlin, 557 Pa. 47, 731 A.2d 600 (1999), and In the Matter of Costigan, 541 Pa. 459, 664 A.2d 518 (1995). Accordingly, the board is satisfied that petitioner’s misconduct, while extremely serious, is not so offensive as to preclude reinstatement.

Having concluded that the nature of petitioner’s misconduct will not preclude reinstatement, the board must now determine whether petitioner has met her burden of proving by clear and convincing evidence that her resumption of the practice of law at this time would not have a detrimental impact on the integrity and standing of the bar, the administration of justice or the public interest, and that she has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania. Pa.R.D.E. 218(c)(3)(i). In order to make this determination, the board must consider the amount of time that has passed since petitioner was disbarred as well as her efforts at rehabilitation. In the Matter of Verlin, 557 Pa. 47, 731 A.2d 600 (1999).

As noted above, this is petitioner’s second request for reinstatement to the bar. In considering petitioner’s first petition for reinstatement, the board and the court found that petitioner did not demonstrate full and complete rehabilitative efforts. Specifically, the board, in its report of September 11,2002, found that petitioner made no effort at that time to verify payment of restitution to her client Eugene Paprocky. The board was also concerned about petitioner’s lack of consistent and steady employment.

Review of the instant record demonstrates that petitioner has addressed these specific concerns and met her burden of proof as to a qualitative rehabilitation period. In March 2003, petitioner gave her counsel a check for $8,400 to be placed in escrow for Mr. Paprocky. An escrow account is currently being maintained by the law firm of Carroll & Brotman. Between June 2003 and June 2004, petitioner, through her counsel, attempted to contact Mr. Paprocky nine times to advise him of the escrow account. Office of Disciplinary Counsel also tried to reach Mr. Paprocky, without success. The board is satisfied with petitioner’s efforts to contact Mr. Paprocky concerning his funds and believe these efforts are sufficient to overcome the concerns raised in 2002.

The second area of concern expressed by the board in its prior report was petitioner’s inconsistent work history since her release from prison. Her work experience since the denial of the first reinstatement petition has been significant, considering her personal circumstances. Petitioner works at her son’s law office and for Sabatina and Associates as a paralegal. Mr. Sabatina expressed satisfaction with petitioner’s work and indicated that he is willing to hire her after she is reinstated. By all accounts she is a valuable employee who is trusted to carry out important tasks for her employers.

Petitioner has been disbarred since 1993. She has done everything in her power at this time to right the wrongs she inflicted on others, and to take charge of her own life and control her gambling addiction. She expressed sincere remorse and comprehends the gravity of her misconduct. Petitioner has fulfilled her Continuing Legal Education requirements and is gainfully employed as a paralegal. Petitioner provided the testimony of character witnesses who attested to her recovery from a gambling addiction and who support her re-admission without hesitation. By all accounts, petitioner has met her burden of proof and is ready for reinstatement to the bar of the Supreme Court of Pennsylvania.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Marlene Evelyn Joseph, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Curran did not participate in the matter.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 16, 2005 adjudication.

ORDER

And now, July 15, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated April 13, 2005, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: MINORA, J,

text:
    Minick v. MTD Products Inc.

      Nicholas Mattise, for plaintiffs.

      MarkF. McKenna, for defendant.
    October 26, 2005
   MINORA, J,

I. INTRODUCTION

Currently before the court is the motion for summary judgment of the defendant, MTD Products Inc. By way of background and according to the facts as set forth by the non-movant plaintiff, the record reveals the following.

On May 8,1991, Melinda Minick, then age 3, lost her right foot and most of the toes on her left foot when she was run over by a lawn tractor operated by her mother, Catherine Minick, while Mrs. Minick was backing up. (CM deposition pp. 25-41.)

The lawn tractor was an 11-horsepower lawn tractor with a removable 36-inch cutting deck manufactured by MTD and sold under the name Service Star. It had been purchased new by Melinda Minick’s grandfather, Ivan Aten, from Nicholas Lumber, a True Value dealer. The corporate representative of MTD, Gunther Plamper, testified that this lawn tractor was manufactured between the end of 1985 and the end of 1987 or early 1988 and they made some changes by 1988 that were not on this machine. (Plamper I pp. 26-27.)

The lawn tractor had a no-cut-in-reverse (NCIR) feature, which, when connected and operational, would prevent the mower blade from turning when the mower was in reverse. This safety feature had to be, and had been, disconnected when its owner, Mr. Aten, had taken apart the lawn tractor and put in a new rear end/transaxle prior to the spring of 2001. (Aten deposition pp. 32-37, 45-48.) The NCIR feature had a simple male-female connector underneath the transmission/shift cover of the tractor. It had not been reconnected when the lawn tractor was re-assembled by Robert Minick, Melinda’s father, prior to May 8,2001, and was not operational at the time of this accident. Mr. Minick testified that he was not even aware that this feature existed until after his daughter’s injury. (Robert Minick deposition pp. 16-22, 28-34.)

The lawn tractor had nothing to prevent its operation if the no-cut-in-reverse (NCIR) safety feature was not operational. (Plamper I pp. 68-70.) Although this was not a situation where the NCIR feature had been intentionally disconnected and intentionally not reconnected, MTD’s corporate representative, Gunther Plamper, testified that MTD had conducted a survey in 1986 to find out whether people used or did not use the NCIR feature, and found that 47.5 percent disconnected the NCIR. (Plamper I pp. 75-79.) In fact, Plamper testified that MTD began using the NCIR system in 1982 (Plamper II pp. 26-27) and MTD was aware from the very beginning that people disconnected the NCIR feature. (Plamper I p. 69.) However, despite that knowledge, MTD never changed the design of the NCIR system. (Plamper I p. 79.)

Mr. Aten testified that he did receive the owners’ guide/ manual with the tractor but had not had it for years before this accident, and did not think either his daughter or son-in-law had seen it. (Aten deposition pp. 16, 28, 65.) Although both Melinda’s mother and father testified that they had never seen, nor had the opportunity to read, the operator’s manual, even if they had read the manual, it failed to clearly identify the NCIR feature and the importance of it being operational before operating the tractor. While the tractor did have some instructions on the transmission/gear shift cover, they also failed to identify the NCIR feature and the importance of it being operational before operating the tractor.

Catherine Minick testified that she had used her father’s Service Star rider mower in 1989, in cutting her grass at their home, which they had purchased in 1989. (CM deposition pp. 12-14.) Their lot was approximately an acre with grass in front and grass to the rear. (CM deposition pp. 8-9.) She had never seen or read the instruction manual for the riding mower and no one had told her how to operate this particular one, since she had learned how to operate a riding mower when she was younger, living at her parents’ house. She had not noticed whether the lawn mower cut the grass while in reverse (CM deposition pp. 41-42) and she was not aware of the NCIR feature until after this accident, although she had read the instructions present on the lawn mower itself. (CM deposition pp. 43-45.)

On March 8, 1991, she had begun cutting the grass about 11 a.m. with her two young daughters — age 3 (Melinda) and age 2 — in the rear of the house by the basketball hoop. When she came to the rear of the house, her two daughters were sitting on a stone wall. She turned off the riding mower, got them off the wall and put them back over by the basketball hoop and told them to stay there. She had then gone back to the riding mower, started it up, looked to her right and rear to check on her kids, who were still over by the basketball hoop, put the rider mower in reverse, and moved about five feet when she felt a bump, jumped off the mower, pulled Melinda out from underneath and ran toward the house with her. (CM deposition pp. 25-41.)

Robert Minick, Melinda’s father, and Catherine Minick’s husband, testified that he had never seen or read the instruction manual for the Service Star rider mower (Robert Minick deposition pp. 5-6), which his father-in-law, Ivan Aten, would bring back and forth. He and his wife had used it to cut their grass beginning with when they moved into their present home in 1990. (Robert Minick deposition pp. 12-14.) He had read the instructions on the mower but was not really aware of the NCIR feature. (Robert Minick deposition pp. 24, 30, 34.) He had made repairs to this rider mower, such as repairing a tie-rod, the starter solenoid and wires leading to the solenoid, but had not done anything to and did not notice the wires and connecting plugs for the safety seat and NCIR. (Robert Minick deposition pp. 24-28.) He was aware that it did cut while it was in reverse but never really paid attention to that. (Robert Minick deposition p. 23.) After the accident he went and looked at the lawn mower and spoke with the father-in-law and found that it had a NCIR feature that had been disconnected and was not operable at the time of the accident. (Robert Minick deposition pp. 16-22, 28-34.)

Ivan Aten, who owned the Service Star lawn mower, testified that he was an over-the-road truck driver and is often gone for periods of time. Prior to the spring of2001, he had taken apart the Service Star lawn tractor and put in a new rear end and left it apart, with the cutting deck apart from the tractor, the battery out of the tractor, the belts off and the shift area cover off. The connector for the NCIR system had been, and had to be, disconnected to take out the battery or to work on the rear end. He also said that Bob Minick had taken the lawn mower and its various parts back to his house in the early spring of2001 to put it back together and use. (Aten deposition pp. 32-37,45-48.) Gunther Plamper testified as the corporate representative of MTD in 1996 (Plamper I) and November 19, 2003 (Plamper II). He has been the vice president of product development and safely since 1994. Prior to that he was chief engineer of consumer products since 1970.

Seventy-five percent of MTD’s gross revenues are related to the sale of rotary mowers of which half is from riding mowers. (Plamper I p. 23.) MTD had in 1986 and has roughly one-third of the riding mowers market, and in 1986 that was roughly 300,000 mowers per year. (Plamper I pp. 56-57.) Studies had shown that there were approximately 200 injuries to children per year, in and prior to 1986, from riding mower back-up incidents. (Plamper II pp. 24-26.)

Mr. Plamper had inspected this mower in August of 1994 and, based on its features, determined that it was probably produced in 1986 (based on its features it could not have been produced earlier than late 1985 and no later than 1987). (Plamper I pp. 26-27.) This model was in the 600 group which was their highest selling rider mower group. (Plamper I p. 35.)

The seat kill switch, which would stop the rider mower and the blades when the person got off the seat, had a simple male and female plug connection that had a locking device that would at least require someone to use a screwdriver to take it apart. You could not just pull it apart. (Plamper I p. 63.)

In contrast, the NCIR safety device also had a simple male and female plug connection, but without any locking device and could just be pulled apart. (Plamper I pp. 66-68.)

Again, Mr. Plamper acknowledged that the lawn tractor had nothing to prevent its operation if the NCIR safety feature was not operational (Plamper I pp. 68-70) and that MTD’s survey in 1986 found that 47.5 percent disconnected the NCIR. (Plamper I pp. 75-79.) In fact, Mr. Plamper testified that MTD began using the NCIR system in 1982. (Plamper II pp. 26-27.) MTD was aware from the very beginning that people disconnected the NCIR feature. (Plamper I. p. 69.) However, despite that knowledge, MTD never changed the design of the NCIR system. (Plamper I p. 79.)

Amidst that factual background, this matter has slowly progressed through the discovery stage. Eventually, the defendant filed this instant motion for summary judgment on March 23, 2005, based on five contentions:

(1) The subject lawn tractor was substantially modified after it left defendant’s custody and control.

(2) Plaintiff has failed to identify any breach of duty on the part of defendant and, therefore, is unable to maintain a negligence action.

(3) Plaintiff, Robert Minick Jr.’s, claim for breach of warranty must fail since it was brought after the four-year statute of limitations period expired.

(4) Insufficient evidence of record exists to support plaintiffs’ claim for punitive damages.

(5) Sufficient evidence of record exists to establish that the accident at issue was caused solely by the negligence of Catherine Minick.

The motion for summary judgment has been thoroughly briefed and argued before the undersigned on June 14, 2005 and is now ripe for disposition.

II. ISSUE(S)

Is the defendant, MTD Products Inc. entitled to summary judgment as a matter of law on any of the five contentions set forth above?

III. DISCUSSION

A. General Standards for Summary Judgment

Summary judgment may be granted when there is no issue of material fact and the moving party is entitled to relief as a matter of law. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Most importantly, the record must be reviewed 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. Pa.R.C.P. 1035.2; Young v. PennDOT, 560 Pa. 373, 744 A.2d 1276 (2000); Murphy v. Duquesne University of The Holy Ghost, 565 Pa. 571, 111 A.2d 418 (2001); Downey v. Crozer-Chester Medical Center, 817 A.2d 517 (Pa. Super. 2003); Lackawanna Ambulance Association Inc. v. Throop Community Ambulance Association Inc., 106 Lacka. Jurist 96, 98 (2005).

With these general principles in mind, we now examine the defendant’s specific contentions as to summary judgment.

B. The Substantial Change Defense

It is true that a manufacturer or provider of a product may defend on the basis of substantial change in the product after it left the manufacturer’s or provider’s control. However, for the substantial change defense to be successful, the evidence must show that the injury would not have occurred if the alteration had not occurred and that the alteration was not foreseeable, (emphasis added) More importantly, the question of foreseeability is normally left for the juty. Eck v. Powermatic Houdaille, 364 Pa. Super. 178, 527 A.2d 1012 (1987); Thompson v. Motch & Merryweather Machinery, 358 Pa. Super. 149, 516 A.2d 1226 (1986); D’Antona v. Hampton Grinding Wheel Company, 225 Pa. Super. 120, 310 A.2d 307 (1973). See also, Powell v. Drumheller, 539 Pa. 484, 495, 653 A.2d 619, 624 (1995).

Defendant relies on Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997). However, in Davis, there was no evidence that the blenders at issue in Davis were routinely being used without safety devices preventing the cutting blade injuries suffered in that case.

Moreover, we agree with plaintiffs that a substantial change is not a proper defense or basis for summary judgment since evidence exists for a jury to determine whether the disconnection of the NCIR system was a foreseeable change that MTD acknowledged it knew of from the very beginning, prior to its sale of this tractor. Additionally, plaintiffs have presented enough evidence to submit to a jury that the owners’ manual and warnings on the tractor were inadequate concerning the existence and function of the NCIR feature and the importance of having it operational before operating the tractor.

In our case, there is evidence that 47.5 percent of users routinely disconnected the NCIR mechanism by defendant’s own survey. See Harley v. Makita USA Inc., 1997 WL 197936 (F. Supp. E.D. Pa. 1997) which refused to apply Davis for similar reasons.

Even our Supreme Court in Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003) called into doubt its own mixing of strict liability and negligence terminology in Davis, thus rendering Davis a tenuous case to grant summary judgment on.

Since we feel the issue of foreseeability is best left to a jury and we have doubts as to the clear meaning of Davis, we will resolve all doubts in favor of the nonmovant and deny defendant’s motion for summary judgment based on the substantial change defense. See Lackawanna Ambulance Inc. v. Throop Community Am bulance Association Inc., 106 Lacka. Jurist 96, 98 (2005) and the cases cited therein.

C. Plaintiffs ’Alleged Failure To Identify a Breach of Duty Thus Negating Their Negligence Action

It is axiomatic that in order to maintain a negligence action, the plaintiff must show that the defendant had a duty “to conform to a certain standard of conduct”; that the defendant breached that duty; that such breach caused the injury in question; and actual loss or damage occurred. Phillips v. Cricket Liqhters, supra.

Plaintiffs’ expert report of Joseph E. Shelley Ph.D., PE, clearly establishes a prima facie case of breach of duty which can be submitted to a jury. The crux of Dr. Shelley’s report was that the design which allowed operation of the machine when the safety system was inoperable was a serious design defect which could have been rectified through the use of a simple diagnostic circuit governing the continuity of the connection or wiring of the NCIR system, so that if the wiring of the NCIR system became disconnected and the NCIR system was inoperable, the engine would stall. (See Shelley report pp. 17-18, 22-23.)

It is axiomatic that if the NCIR feature was necessary for the safe operation of the MTD mower, then and in that event, NCIR should not be easily bypassed, disconnected or nullified and resultantly unsafe operation of the mower still be mechanically allowed.

Therefore, defendants’ motion for summary judgment based on an alleged failure to identify a breach of duty will be denied.

D. Plaintiffs Concede to Defendant That Plaintiffs ’ Breach of Warranty Claims Must Be Dismissed Since They Were Not Brought Within Four Years of the Date the Product at Issue Was Purchased (See Plaintiffs ’ Brief at p. 9 and 13; 13 Pa. C.S. §2725)

Therefore, we will dismiss plaintiffs’ breach of warranty claims with prejudice.

E. The Insufficiency of the Evidence of Record in Regards to Punitive Damages

In product liability cases grounded in a theoiy of strict liability, plaintiff may seek punitive damages as well as compensatory damages, and such punitive damages are awarded in rare instances, to punish and deter outrageous, extreme and egregious behavior. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983 (Pa. Super. 2005).

Ordinary negligence, involving inadvertence, mistake or error of judgment, will not support an award of punitive damages. Rather, to justify an award of punitive damages, the fact-finder must determine that the defendant acted with a culpable state of mind, i. e., with evil motive or reckless indifference to the rights of others. Since a culpable state of mind is required for an award of punitive damages, evidence of the defendant’s knowledge or intention is highly relevant. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005).

In Hutchinson, supra, our Superior Court ruled that to offer evidence on the “state of mind” of the defendant based on prior accidents, the plaintiff must demonstrate that the prior accidents are “substantially similar.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983-88 (Pa. Super. 2005).

In the case at hand, looking at the evidence in the light most favorable to non-movant plaintiffs, a jury could find that MTD was aware of the substantial incidence of injury to children from back-over accidents; that its NCIR system was being disconnected with some frequency; and that its tractors had nothing to prevent their operation if the NCIR safety feature was not operational, yet despite that knowledge, MTD never changed the design of the NCIR system.

We have carefully considered defendants’ reliance on Hutchinson, realizing part of Hutchinson sets forth the rules for using the “substantial similarity test” to prove defectiveness not state of mind, (emphasis added) (See Hutchinson, 876 A.2d at 983 for instance.)

In the case at hand, plaintiffs are relying heavily on the 200 prior accidents as evidence of MTD’s state of mind in their punitive damages claim. At this point the record is unclear as to the foundation necessary to send this evidence to a jury set forth above. (See footnote 1.)

At this point, in the interest of justice, the court directs the plaintiff to address the issues set forth in Hutchinson by conducting supplemental discovery to determine if the “substantial similarity” test set forth by Hutchinson is evident in this case.

Therefore, we will deny defendant’s motion for summary judgment as to punitive damages at this point without prejudice to its right to revisit this issue via a motion in limine or any other procedural vehicle. We will also allow the plaintiffs 120 days to conduct the discovery necessary to address the Hutchinson issue. If the plaintiffs need more time, they can request same from the court.

F. Defendant’s Assertion That Plaintiffs’ Failure To Answer Defendant’s Request for Admissions 20-23 Conclusively Determines the Issue of Causation in Defendant’s Favor

The following defendant’s request for admissions were not responded to by the plaintiffs:

“(20) that Catherine Minick was negligent in her operation of the subject lawn tractor on May 8, 1991, the date of the subject accident;
“(21) that but for Catherine Minick’s negligent operation of the subject lawn tractor on May 8,1991, the subject accident would not have occurred;
“(22) that Catherine Minick was negligent in her failure to supervise and properly care for minor plaintiff on May 8, 1991, the date of the subject accident; and
“(23) that had Catherine Minick properly supervised and cared for minor plaintiff on May 8,1991, the minor plaintiff would not have been injured.”

Defendants are relying on this plaintiffs’ failure to respond to the above as a basis for summary judgment. This is misguided.

The law is clear that conclusions of law such as the above requests for admissions are not within the permissible scope of requests for admissions which require setting forth matters of fact. Christian v. Pennsylvania Financial Responsibility Assigned Claims Plan, 454 Pa. Super. 512, 686 A.2d 1 (1996), re-argument denied, appeal denied, 548 Pa. 678, 699 A.2d 733 (1997).

More importantly, unanswered conclusion of law type requests for admissions cannot form the basis for summary judgment. Dwight v. Girard Medical Center, 154 Pa. Commw. 326, 623 A.2d 913 (1993).

Therefore, defendant’s request for summary judgment based on its requests for admissions 20-23 is denied.

We will issue a comprehensive order consistent with this memorandum.

ORDER

And now to wit, October 26,2005, after due consideration of defendants’ motion for summary judgment, the able written and verbal arguments of counsel, and the court’s own independent research and in accordance with the foregoing memorandum, it is hereby ordered and decreed that:

(1) Summary judgment is granted as to plaintiffs’ breach of warranty claims and said breach of warranty claims are dismissed with prejudice as per the parties’ concurrence.

(2) Defendant’s motion for summary judgment as to punitive damages is denied at this point subject to the proviso that plaintiffs conduct additional discovery addressing the “substantial similarity” factors set forth in Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978 (Pa. Super. 2005) in order to sustain the “state of mind” evidence necessary to continue their claim for punitive damages.

(3) Said discovery set forth in paragraph (2) above shall be completed within 120 days of the date of this order. The plaintiff may request additional time from the court if necessary.

(4) Defendant will not be prejudiced from revisiting the punitive damages issues via a motion in limine or any other procedural vehicle appropriate at the time.

(5) The remaining portions of defendant’s motion for summary judgment are denied.

(6) The parties are to proceed in a manner consistent with this memorandum and order.

      . “Courts have engaged in several inquires in determining whether the other accidents were sufficiently similar to the accident at issue: Was the same instrumentality involved? Did the accidents occur under the same or similar conditions or circumstances? Did the accidents occur at substantially the same place? ... We stress that the proponent of the evidence bears the burden to establish the similarity between the other accidents and the accident at issue before the evidence is admitted.” Hutchinson v. Penske Truck Leasing Co., 873 A.2d 978, 983 (Pa. Super. 2005). (emphasis in original)


author: GRIM, P.J.,

text:
    Armistead v. Sewell

      Robin Eisenhart Armistead, pro se.

      Joel Merrow, for defendant.

      John J. Grenko, guardian ad litem.
    November 29, 2005
   GRIM, P.J.,

The matter before the court is a custody dispute. The pertinent facts and procedural history are as follows.

The parties were never married. Their daughter, Princess Paige Tiyci Sewell Eisenhart (Paige), was bom on January 21, 1996. On September 24, 1997, they entered into a stipulation and order that granted plaintiff, Robin Eisenhart Armistead, Mother, primary physical custody and defendant, Paul Sewell, Father, partial physical custody.

In 2003 Father filed a petition for modification to obtain more extensive periods of partial physical custody. Mother opposed Father’s petition. Father filed exceptions to the custody master’s recommendation. On December 5,2003, the parties entered into a custody agreement that increased Father’s periods of partial physical custody. The agreement provided for further review.

In March 2004, Father filed a protection from abuse petition on behalf of Paige against Mother’s husband, Harry Armistead. The parties entered into a protection from abuse order by agreement. Harry agreed to not consume alcohol or be under the influence of alcohol when in the child’s presence and to engage in alcohol and anger management counseling.

In June 2004, Mother and Harry filed cross petitions for protection from abuse. Mother alleged that Harry had been drunk and physically abused her and their dog. Mother’s older child, Trey, verified Mother’s statements. Harry asserted that Mother had physically and mentally abused him. The petitions were dismissed. However, Harry entered a guilty plea in the indirect criminal contempt case arising out of the violation of Paige’s protection from abuse order.

In August 2004, Father filed a petition for special relief seeking primary physical custody of Paige. In October 2004, the parties entered into an agreed order granting primary physical custody of the minor child to Father. In November 2004, the court appointed John J. Grenko, Esquire as the guardian ad litem for Paige.

A custody hearing on the underlying petition for modification was held in November 2005. Although Mother was represented by various counsel in the past she elected to proceed pro se in the instant proceeding. The following evidence was submitted at the hearing.

Father lives with his girlfriend, Christa, her son, their daughter, Precious, and his children, Paige, Tiger, and Keyera. Paige’s transition to his household went smoothly. Paige has her own bedroom which she shares with a half sister on alternate weekends.

Paige is in third grade. She presently receives Bs and Cs on her report cards. Before Paige lived with Father she received Ds and Fs. The child is picked up at school daily. Father contacts the child’s teachers regularly.

Pursuant to the present order Mother has custody of Paige on alternate weekends from noon to 6 p.m. on Saturday and Sunday and one evening per week from 6 p.m. to 8 p.m. as the parties agree. Mother, however, does not always exercise her custodial rights. She either does not show up or calls just 15 to 20 minutes before her scheduled custodial period to say that she is not coming.

Several times Mother brought the child back early. In September 2005, Mother wanted to return Paige early because she claimed she could not handle her but Father was unavailable. Instead, Mother dropped the child off at the residence of the maternal grandfather without notice to anyone. She referred to the child by using an obscene epithet.

Father testified that he does not have any major problems with Paige’s behavior. When Paige had resided with Mother she had taken medications to control her behavior. Father stopped the medications. Mother wants the child to be put back on the medications because she cannot handle her during her custodial periods. Mother has recently refused to take the child and wants Paige just on Sunday afternoons.

A partial evaluation was performed on Paige that suggests that she might have ADHD. The guardian ad litem recommends that the evaluation be completed and that the parties follow the recommendations.

Father’s children are allowed to use the telephone from 9 a.m. until 7 p.m. Father has never interfered with Paige’s telephone contact with Mother. However, Paige does not have Mother’s telephone number.

The child is veiy distraught about the custody proceeding. Father testified that he does not discuss the case with Paige and he tells her that Mother loves her. Mother discusses the case with the child and calls Father obscene names. Father stated that Mother had told the child that she will move to Maine and will not see her again.

Paige has been receiving counseling. She has improved since she has been in therapy. Father is willing to have her continue in therapy.

Father wants to retain primary physical custody because he is worried about Harry’s alcoholism and abuse. He is also concerned about the yelling and verbal abuse that occurs in Mother’s household.

Father’s testimony is uncontroverted because Mother refused to testify. She did indicate that the custody proceedings broke up her marriage to Harry. However, in later communications to Paige she refers to Harry as “Dad” and writes that he misses her. The court also notes that a communication was sent to the court and Father’s counsel from Mother that included Harry in the return address and was signed by Mother as “Mrs. Armistead.”

Grandfather testified that he enjoys a close relationship with Paige. He sees the child more since she has been living with Father. Grandfather does not get along with Hariy because he is disturbed about the way Harry treats Mother and his grandchildren. He believes that the children are afraid of Harry. He thinks that Harry is capable of physically harming the children.

Grandfather is a foster parent. He does not believe that Mother knows how to discipline her children. He saw Mother pull Paige’s hair and slap her. On the day that Mother deposited Paige with Grandfather without notice, the child had been screaming and crying and had grabbed him by the legs.

Mother disowned her parents and siblings. She does not have relationships with them at the present. When Grandfather finished testifying she uttered angry words at him.

Paige has mixed feelings about living with Father. Sometimes she fights with her siblings. She does not like when Father uses corporal punishment.

Paige also gets in fights with Trey. Hany was mean at times. He yelled and threw things a lot. She was sad when she got in trouble and wanted to live with Father. Sometimes Mother and Hany were fun.

Paige wants to live with Mother and see Father on alternate days or more often if she would want to do so.

The guardian ad litem believes that Father presents a more stable environment for the child. He believes that the relationship between Paige and Mother is seriously strained. He wants counseling to occur between Mother and the child to improve their relationship. He wants the parties to participate in co-parenting counseling.

The court’s paramount concern in a child custody dispute is the best interests of the child, and it is required to modify orders when the child’s best interests require that they be modified. Skomo v. Skomo, 844 A.2d 1256, 1258 (Pa. Super. 2004). In determining the proper custody of a child, conditions must be evaluated as they exist at the time of the hearing. Bresnock v. Bresnock, 346 Pa. Super. 563, 572, 500 A.2d 91, 96 (1985).

The court agrees with the guardian ad litem that at this time Father’s household offers a more stable environment than Mother’s residence. The court is unclear about Mother’s environment. In court she indicated that due to this proceeding her marriage to Harry is over. Harry did not attend the hearing. However, Mother refers to Harry in her letters to Paige and the court. Thus, it appears that Harry and Mother have reconciled yet again.

Harry presents concerns to the court. He has anger and emotional issues. Since Harry did not testify, the court had no opportunity to observe him and to determine his opinion about Paige living with or visiting Mother. Therefore, the court will not make an order that includes Harry.

The particular weight to be given a child’s preference as to custody is to be determined by the trial judge who sees and hears the child, depending to a great extent upon the age, maturity and intelligence of the child. Mahoney v. Mahoney, 354 Pa. Super. 585, 591, 512 A.2d 694, 698 (1986).

The court does not find that Paige’s preference is controlling in the case sub judice. Paige is young and immature. She is clearly conflicted. She misses the parent with whom she does not live. Although she expressed a preference to live with Mother, she wants to see Father on alternate days; in essence, she would like a shared custody arrangement. Indubitably, Paige is uncomfortable around Harry. She did not communicate any desire to see Harry.

The court finds that it would be in Paige’s best interest to finish the evaluation that was partially undertaken on her. The evaluation will resolve the issue of whether the child needs medication to modify her behavior. The court is disturbed that Mother and Father are at opposite sides on this issue. It is also troubled that Mother does not attempt to see Paige on a regular basis as long as the child is not medicated.

The court is unable to find that Mother is a viable option for primary custody. Her relationship issues are overwhelming. Her marriage to Harry is turbulent and she has “divorced” her parents and siblings. Mother’s relationship with Paige is far from ideal. She forfeits her custodial periods because she cannot deal with Paige unless she is medicated. The court notes that although the usage of medication for behavior modification may ultimately be in the child’s best interests, the child has been functioning in school and in Father’s household without it.

In accordance with the foregoing opinion, the court enters the following order.

ORDER

And now, November 29, 2005, it is hereby ordered and decreed as follows:

(1) The parties shall share legal custody of the minor child, Paige, date of birth, January 21, 1996.

(2) Defendant, Paul Sewell, Father, shall have primary physical custody of the child.

(3) Plaintiff, Robin Eisenhart Armistead, Mother, shall have periods of partial physical custody as follows:

(a) Alternating weekends from noon to 6 p.m. on Saturday and noon to 6 p.m. on Sunday.

(b) One evening per week from 6 p.m. to 8 p.m. as the parties may agree. Failing agreement, this visitation shall occur on Wednesdays.

(c) At such other times as the parties may mutually agree.

(4) Mother shall initiate counseling with Berkshire Psychiatric & Behavioral Health Services to learn better parenting skills and to improve her relationship with Paige. Mother shall certify to the court that she is receiving counseling and provide proof of enrollment. Paige shall participate in the therapy as determined by the therapist. Counseling is to continue until the therapist determines that it is not necessary. Professional reports are to be made available to this court periodically and upon cessation of the counseling. Insurance shall be accessed to pay for the therapy. Any unpaid expenses shall be paid by the parties equally.

(5) Upon certification by the counselor that in his or her professional opinion Mother can cope with the demands of parenting Paige, overnight periods of custody may commence on alternating weekends from Friday at 6 p.m. until Sunday at 6 p.m.

(6) At no time is Harry Armistead permitted to be present during Mother’s periods of partial physical custody.

(7) Mother shall have custody of the child on Mother’s Day from 9 a.m. to 6 p.m. and Father shall have custody of the child on Father’s Day from 9 a.m. to 6 p.m.

(8) Mother shall have the child from 6:30 p.m. Christmas Eve to noon on Christmas Day. Father shall have the child from noon on Christmas Day to noon on December 26.

(9) The parties shall alternate custody of the child on the following holidays: New Year’s Eve andNew Year’s Day, Easter Sunday, Memorial Day, July Fourth, Labor Day, and Thanksgiving. Custody for the holidays shall be from 9 a.m. until 8 p.m.

(10) The parties shall alternate custody of the child on her birthday. If the birthday falls on a school day, custody shall be from 6 p.m. to 8 p.m.; otherwise custody shall be from 9 a.m. until 8 p.m.

(11) Both parties shall have the following rights with respect to the child: reasonable telephone calling privileges limited to one call per day except when the child is ill; access to report cards and other relevant information concerning the progress of the child in school; approval of extraordinary medical and/or dental treatment except in the case of an emergency and provided that such approval shall not be unreasonably withheld; and approval of summer camp and schools provided that such approval shall not be unreasonably withheld.

(12) In the event of any serious illness of the child at any time the party then having custody of the child shall immediately communicate with the other party by telephone or any other means, informing the other party of the nature of the illness. During the illness, each party shall have the right to visit with the child as often as he or she desires, consistent with the proper medical care of the child. The word “illness” as used herein shall mean any disability which confínes the child to bed under the direction of a licensed physician for a period in excess of 48 hours.

(13) Neither party shall disparage or denigrate the other parent in the presence of the child nor permit others to do so, and each party will endeavor to encourage the development of the parent-child relationship between the child and each parent.

(14) The minor child shall complete her diagnostic evaluation that was begun by David Nicodemus at HealthSouth Diagnostic Center of Reading. The parties shall follow his recommendations unless a party petitions the court that he or she believes that such recommendation is clearly not in the child’s best interest.

(15) The minor child shall continue in therapy until released by her therapist.

(16) Mother shall immediately provide the minor child with her telephone number.

(17) Neither party shall discuss any provision of this order or any aspect of the custody proceeding with the child.

(18) Appendix A is attached to and made a part of this order.

APPENDIX A

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 child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and

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

(2) In the event of any serious illness of the child at any time, any party then having custody of the child 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 child as he or she desires consistent with the proper medical care of the child.

(3) Neither party shall alienate nor permit or attempt to alienate the child from the other party. While in the presence of the child, 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 child should respect and love.

(4) Both parties shall provide each other with the addresses and telephone numbers of their residences and any time 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 child/ children’s best interests, and act accordingly. It is in a child’s best interests to understand that he or she is trying to desperately cope with the fact of his parent’s 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 should be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the needs and desires of the minor children.

(c) If a party finds him 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.


author: BROWN JR., P.J,

text:
    Hanson Aggregates Pennsylvania Inc. v. College Township Council

      Raymond R Pepe, for appellant.

      Louis T. Glantz, for defendant.
    October 25, 2005
   BROWN JR., P.J,

Presently before the court is a land use appeal filed by appellant Hanson Aggregates Pennsylvania Inc. Hanson currently owns and operates a limestone quarry on a 322-acre site in College Township, Centre County, known as the “Oak Hall Quarry.” Hanson has acquired an option to acquire a 42.2-acre portion of a 70.5-acre tract owned by Richard Tressler and Sue Tressler adjacent to the current southern boundary of the Oak Hall Quarry. Hanson proposes to have changed the designation of the zoning district of the acquired Tressler property from agricultural to rural residential in order to laterally expand the Oak Hall Quarry.

PROCEDURAL BACKGROUND

Hanson submitted a rezoning request to the College Township Council in October 2001, which was amended by Hanson in February 2002 and November 2003. After a decision by the council to postpone any action on the amended rezoning request, Hanson resubmitted the rezoning request on November 26, 2003, in the form of a substantive challenge to the validity of the existing zoning ordinance and requested College Township adopt a curative amendment to its zoning ordinance. The proposed curative amendment incorporates the provisions of Hanson’s October 2001, February 2002 and November 2003 rezoning requests. From January 2004 to June 2004 six public hearings were held in this matter. On September 23, 2004, the council issued its decision rejecting the curative amendment and upholding the validity of the zoning ordinance.

Appellant filed a notice of land use appeal on October 25, 2004. Oral arguments were held on September 30, 2005. Both parties have submitted briefs. Appellant has also filed a reply brief and a reproduced record.

FINDINGS OF FACT

This court adopts the findings of fact of the College Township Council.

Reproduced record, pp. 5a-34a.

DISCUSSION

When the court receives no additional evidence, as here, its scope of review is limited to determining whether or not the council committed a manifest abuse of discretion or committed an error of law. Centre Lime and Stone Co. Inc. v. Spring Township Board of Supervisors, 787 A.2d 1105, 1108 (Pa. Commw. 2001) (citing Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983)). Council abuses its discretion when its findings of fact are not supported by substantial evidence. Id. at 555, 462 A.2d at 640.

“Substantial evidence” is relevant evidence which a reasonable mind may accept as adequate to support a conclusion. Id. “Determinations as to the credibility of witnesses and the weight to be given to evidence are matters left solely to the board in the performance of its fact-finding role.” Borough of Youngsville v. Zoning Hearing Board of the Borough of Youngsville, 69 Pa. Commw. 282, 287, 450 A.2d 1086, 1089 (1982).

“[A] zoning hearing board must render an opinion delineating sufficient findings to support its conclusions in order to provide for meaningful review.” Id. at 286, 450 A.2d at 1089. “[Findings of fact are not required if the board’s opinion provides an adequate explanation of its resolution of the factual questions involved,... and if it sets forth the board’s reasoning in such a way as to demonstrate that its decision was reasoned and not arbitrary.” Id. (citation omitted)

The College Township Zoning Ordinance establishes an agricultural district within the township to, in sum, protect and preserve agriculture. See Code of the Township of College, chapter 200, article IV, section 200-17(A)(1) through (7). Under the ordinance, quarrying and mining are not permitted within the agricultural district. See Code of the Township of College, chapter 200, attachment 3. Quarrying and mining are permitted, however, within the rural residential district. See Code of the Township of College, chapter 200, attachment 5. Hanson’s curative amendment requests rezoning of two parcels: (1) the first, a 41.83-acre portion of the Tressler property, from agricultural to rural residential, and (2) the second, a 62.5-acre tract owned by Hanson, from rural residential to open space. Hanson’s curative amendment would also provide for a right of first refusal to College Township to acquire the Oak Hall Quarry site, or portions of the quarry property, for open space or recreational purposes upon completion of mining activities.

In the curative amendment, Hanson alleges the College Township zoning ordinance fails to provide for “reasonable mineral development” within the municipality, as required by section 603(i) of the Pennsylvania Municipalities Planning Code. See 53 P.S. §10603(i). Specifically, Hanson questions the council’s determination that approximately 7.1 percent of the land in College Township (approximately 850 acres of the township’s total acreage of 12,000) is currently zoned for mining and/or quarrying. Hanson contends that, in fact, only 640 acres of undeveloped land within the township have recoverable mineral reserves suitable for asphalt and concrete production and, of this land, six acres are located within a rural residential district (representing 0.94 percent of the available land).

“In challenging the validity of a zoning ordinance, a landowner may present a de jure or a de facto challenge . . . that the ordinance . . . excludes a proposed use.” Centre Lime and Stone Co. Inc., 787 A.2d 1105, 1110-11 (Pa. Commw. 2001). (citation omitted) “In a de jure challenge, the landowner alleges that the ordinance totally excludes a proposed use.” Id. at 1111. In a de facto challenge, however, “the landowner alleges that the ordinance on its face permits the proposed use, but does so under such conditions that the use cannot in fact be accomplished.” Id. Thus, in the case at bar, Hanson is mounting a de facto challenge, because, in fact, mining and/or quarrying is permitted in specified districts of College Township.

To determine whether a zoning ordinance results in a de facto exclusion of surface mining and quarrying, this court must conduct a “fair share” analysis. Centre Lime and Stone Co. Inc., 787 A.2d 1105, 1111 (Pa. Commw. 2001). (citation omitted) This “fair share” analysis involves consideration of the unique facts and circumstances of each individual case. See Waynesborough Corporation v. The Easttown Township Zoning Hearing Board, 23 Pa. Commw. 137, 141, 350 A.2d 895, 897 (1976) (citing National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 523, 215 A.2d 597, 607-608 (1965) (“Every zoning case involves a different set of facts and circumstances in light of which the [validity] of [the] ordinance must be tested.”)). One such factor includes determining whether the ordinance “reflects a balanced and weighted consideration of the many factors that bear upon local and regional needs and development.” Centre Lime and Stone Co. Inc., 787 A.2d 1105, 1111 (Pa. Commw. 2001). (citation omitted) In particular, “[c]ases involving de facto or partially exclusionary zoning turn on the question of whether the provision for a particular use in the ordinance at issue reasonably accommodates the immediate and projected demand for that use.” Fernley v. Board of Supervisors of Schuylkill Township, 509 Pa. 413, 419, 502 A.2d 585, 588 (1985).

Further, inquiry into the unique facts and circumstances of this case, where the zoning exclusion is partial, the percentage of community land available under the College Township Zoning Ordinance for mining and quarrying becomes relevant. See Centre Lime and Stone Co. Inc., 787 A.2d 1105, 1111 (Pa. Commw. 2001). “This percentage must be considered in light of the total amount of undeveloped land in the community. . . . Where the amount of land zoned for the proposed use is disproportionately small in relation to the total amount of undeveloped land in the community, the ordinance will be held to be exclusionary.” Id. (citation omitted)

The facts, circumstances and arguments surrounding this case are eerily similar to those involved in the recent case of LaRock v. Board of Supervisors of Sugarloaf Township, 866 A.2d 1208 (Pa. Commw. 2005). There, as here, appellants contended that the board’s decision to deny a curative amendment was not supported by substantial evidence. That case also concerned a de facto challenge, whereby appellants argued, under the “fair share” analysis, that the existing land allotted for mining was inadequate. That court concluded, inter alia, that although the parties involved focused on a “fair share” analysis, that case involved the statutory construction of section 603 of the Pennsylvania Municipalities Planning Code. See LaRock v. Board of Supervisors of Sugarloaf Township, 866 A.2d 1208, 1212 (Pa. Commw. 2005).

“[Section 603] taken as a whole, weighs and balances several different interests in requiring zoning ordinances to reflect the policy goals of the community, and subsection (i) sets out the reasonable development of minerals as one such interest. However, the statute requires a balancing of interests to determine whether the zoning ordinance ... is reasonable.

“In determining what is ‘reasonable,’ the board and trial court must consider the various factors delineated in section 603, including, but not limited to, subsection (i). Section 603 acknowledges: the special nature of various sites within the municipality...; the special protection and preservation allowed for natural resources and agricultural land . ..; that zoning ordinances may contain provisions to promote agriculture ...; and, that ordinances adopted shall be consistent with the municipal comprehensive plan . . . Id. at 1213. (citations omitted) (emphasis in original)

Thus, it was error for the trial court to focus only on the bare percentage of land and to not consider or balance the factors set out in section 603. See id.

After a careful examination of the reproduced record, this court is satisfied that the College Township Council adequately considered and balanced the enumerated factors of section 603. In addition, the council also examined other relevant facts and circumstances before issuing its decision, including, but not limited to: (1) College Township’s “fair share” ratio compared with other local townships; (2) Hanson’s and its predecessors’ long history of mining within College Township; (3) the location of local schools, residences and a proposed regional park within close proximity of the Oak Hall Quarry; (4) the inadequacy of exiting roadways; (5) various aesthetic and quality of life issues, and (6) the fact that the rezoning request will not significantly extend the useful life of the existing quarry, but will simply allow Hanson to change the type of material mined. All of the above mentioned factors are relevant evidence which a reasonable mind could accept as adequate to support the council’s conclusions. As such, the council’s findings of fact are supported by substantial evidence, with no error of law.

ORDER

And now, October 25, 2005, upon consideration of appellant Hanson Aggregates Pennsylvania Inc.’s land use appeal, and after presentation of oral arguments and briefs, the decision of the College Township Council is affirmed.

(1) The zoning ordinance in College Township is valid and does provide for the reasonable development of minerals within the township.

(2) The zoning ordinance in College Township is substantially related to the health, safety and general welfare of the community.

(3) Hanson’s proposed curative amendment to the College Township Zoning Ordinance is denied.