source: Caselaw Access Project

author: KELLER, J.,

license: Public Domain

text:
    In re N.J.B.

      Jennifer Grimes, for BCCYS.

      Wendie Ziegler, guardian ad litem.

      John Grenko, for mother.

      January 11, 2011
   KELLER, J.,

This appeal stems from the involuntary termination of the parental rights of R.W. (hereinafter, “mother”), to the above referenced child. Involuntary termination hearings were held on November 1, 2010 and November 10, 2010. At that hearing, mother was represented by Gary Fronheiser, Esquire. At the conclusion of the hearing this court took all of the evidence and testimony under advisement and deferred decision on the petition to terminate parental rights. After much consideration this court found that the facts alleged in Children and Youth Services’ petition were established by clear and convincing evidence and therefore forever terminated mother’s rights to the child N.B. by order of court dated November 15,2010. Mother timely filed a notice of appeal to said order on December 10,2010. Further, it should be noted that father’s parental rights were also terminated by order of November 15, 2010; he has not filed an appeal. Mother alleges the following acts of error:

1. The honorable court erred by terminating appellant’s parental rights.
2. Petitioners have not established by clear and convincing evidence that appellant’s parental rights should be terminated under 23 Pa.C.S.A. Section 2511 (a)(1), (2), (5), or (8).
3. The evidence presented by petitioners was insufficient to support the honorable court’s decision to terminate appellant’s parental rights.
4. The lower court erred by not allowing appellant to have expanded visits and expand her relationship with her child, specifically by changing the primary goal of the case from return to parent or guardian to adoption by court order dated March 3,2010, and Berks County Children and Youth Services (BCCYS) thereby did not increase visits, and BCCYS subsequently filed a petition on April 21, 2010 to terminate appellant’s parental rights.
5. The lower court erred by continuing from August 18, 2010 to the termination hearing on November 1,2010, a hearing on appellant’s challenge to recommendation of hearing master and request for court re-hearing to change case goal and increase visitation which was filed on June 22, 2010.
6. The lower court erred by not ruling as per the court order dated August 18, 2010 on Appellant’s challenge to Recommendation of Hearing Master and Request For court Re-Hearing To Change Case Goal and Increase Visitation following the hearing on November 1,2010.

DISCUSSION

Terminating the parental rights of the natural parent to his or her child carries with it a constitutional significance because of the importance of the right involved. T.J.B. v. E.C., 652 A.2d 936, 943 (Pa. Super. 1995) (citing In re J.W., 578 A.2d 952, 957 (1990). Consequently, clear and convincing evidence is necessary to prove the statutory grounds necessary to terminate parental rights. Id. The Superior Court apply set forth the standard of review in In re T.D., 949 A.2d 910, 914-15 (Pa. Super. 2008) as follows:

Our standard of review regarding orders terminating parental rights is as follows:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this court must accord the hearing judge’s decision the same deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence. In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). Tn termination cases, the burden is upon CYS to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

We have previously stated:

The standard of clear and convincing evidence is defined as testimony that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination. Id.

Requests to have a natural parent’s parental rights terminated are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as follows:

Grounds for involuntary termination
(a) General rule.-The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
(b) Other considerations.-The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition. 23 Pa.C.S. §2511.

The court applies a two-part test for termination of parental rights. In In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007), The Superior Court has stated:

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511 (b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

We will begin by applying the two-prong test to the case at bar. First we note that the child has been removed from the care of mother since January 2009. On January 2, 2009 mother gave birth to N.J.B. Due to her mental health and drug and alcohol abuse, as well as the fact that mother had her parental rights involuntarily terminated on three children in March 2008, mother signed a 30-day voluntary placement agreement. Mother has failed to remedy the conditions which led to the placement of the child and continued services will not remedy those conditions. Despite the best efforts of both the agency and mother, mother simply cannot provide a stable and healthy environment for the child. She suffers from substance abuse addictions, has difficulty maintaining housing, subsists off of welfare case benefits and food stamps, and has ongoing domestic violence issues. The testimony from the involuntary termination hearings lends credence to this court’s decision that mother has not remedied the situation which necessitated the placement of child; therefore, we believe that the first prong of the test has been satisfied and we will now move on to the second prong which asks this court to consider the developmental, physical and emotional needs and welfare of the children pursuant to 23 Pa.C.S. §2511.

After reviewing the testimony, and considering the exhibits this court has no doubt that termination of parental rights will serve the best interests of the child. To date, mother has not remedied the situation which necessitated the involvement of Children and Youth Services. Caseworker Amy Schermerhom testified to the following:

Ms. Schermerhom: Well, I think it’s important as we just discussed the history surrounding this family. The case currently has been open with the Agency since July of 2003 for issues surrounding parenting, inappropriate parenting skills and overall supervision of the kids, physical, emotional abuse of the children by mother, parental substance abuse, mental health issues, lack of stable housing and income. So you know we have been involved continuously through that time, however, the Agency has actually been involved with the family and has known the family since 1997.
Mother has eight (8) children total and I do believe all of the children that she’s had were in care throughout the time they were children. She has children now who are adults, they aged out of the system.
Her parental rights were terminated in court by the Honorable Elizabeth Ehrlich in March of 2008;
***
Yes, in June of 2008, mother had noticed that she was pregnant and, by her own admission, pretty much denied at that time that she was pregnant.
In the begimiing of August of 2008, she moved into a women’s drug and alcohol facility in Lancaster County. She resided there until November of 2008 where she left against the advice of the program director.
She eventually made her way back to the Reading area and lived in Berks County Women in Crisis housing and she gave birth on January 2,2009, and at that point she signed a thirty day voluntary placement agreement for [child] because of having her parental rights involuntary (sic) terminated on three of her other kids in March of 2008 and because of the issues that the Agency still had with her drug and alcohol mental health issues. (Notes of Testimony (N.T.), 11/1/10, at 50-1).

Mother continues to need support and is unable to care for the child alone. Her housing is partially paid for by Service Access and Management (S.A.M.), her income remains food stamps and cash assistance, she is still in need of domestic violence treatment, drug and alcohol treatment, although mother has tested negative for all substances since her child has been born, and still needs mental health treatment. We do note that mother has complied in services, but is just unable to care for the child despite her very best efforts. Moreover, in regards to mother’s bond with the child, Dr. Mildred Gordon testified to the following:

Dr. Gordon: The first question that was asked was what bond, if any, exists between the biological mother, [R.W.], and [child] and 1 responded by stating that this was a rather complex situation, [child] is a child who is very hypersensitive and he was very distraught and uncomfortable and could not really be consoled. His attachment, his attachment issues are really affected by the type of child he is and I summarized his issues because I think in this particular case, they are somewhat different than many of the other cases we have done. This child’s temperamental style and this child himself is a major factor. He’s extremely reluctant and extremely anxious.
In addition, the tensions that I observed between the biological mother and foster mother probably play a major role in the reaction of the child. So, you have several important factors that play a role, the child himself — I do not know and I don’t think anyone knows exactly what all the factors are in [child’s] life — while he was in útero, mother was using and so the impact of her drug use on him is probably an issue that we may never know...I was also asked the question about severing the bonds between [child] and [mother] and I think the answer is that the bond is not there, his basic attachment is clearly to his foster family...One might say, well, if you gave him to [mother] it would get better. I don’t believe that’s the case, I think this child, as I said, is at risk and needs to really stay where he is for his needs, not because of her, but because of the way he is...I said there needs to be acknowledgement and recognition of where [child] is emotionally and developmentally. That’s the critical issue. One could argue back and forth concerning [mother’s] credibility, her level of functioning and sobriety, but at this point, it’s almost not the major issue. The critical factor is that this is a sensitive little boy whose bond, attachment and link to a healthy future are tied to the family he’s with. He’s been with them since day one, his temperament is really critical.
Again, if I had a camera, his ability to — his ability to independently function was based on his security, so that when he was in with his foster parents, he could interact, he could move away, he could interact with me. He couldn’t do that otherwise. (N.T., 11/1/10 at 9-16).

It is clear that mother loves this child, as well as her other seven (7) children, however she is simply not able to care for him. This court has no question that returning the child to mother’s care, and not terminating her parental rights, would be detrimental to the child, his health, and his well-being.

Mother has been involved with Children and Youth Services since 1997 for her other children and most recently from 2006 to 2008 when she had her parental rights terminated to three (3) of her children, and thereafter with the child at issue in this case. To date, mother has been unable to provide proper parental care for the child.

The child is now in a stable and loving home. To allow mother to parent the child is not in his best interests. We note that the trial court, as finder of fact, is the sole deterrminer of credibility of witnesses. In re Adoption of B.G.S., 614 A.2d 1161, 1168 (Pa. Super. 1992). This court has listened to the testimony presented by Children and Youth, as well as the testimony of mother, and has considered all of the exhibits. Again, while we believe that mother loves her child, we cannot allow her to parent him, when she is at times unable to care for herself and other times puts the needs of her self and her relationships with her husband and paramours above the needs of her minor child. While the agency has tried to help mother, she has been unable to show the progression that necessitates the return of the child to her care. Although before filing a petition for termination of parental rights, the Commonwealth is required to make reasonable efforts to promote reunification of parent and child, the Commonwealth does not have an obligation to make such efforts indefinitely. In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003). The Commonwealth has an interest not only in family reunification but also in each child’s right to a stable, safe, and healthy environment, and the two interests must both be considered. Id. A parent’s basic constitutional right to the custody and rearing of his or her child is converted, upon the parent’s failure to fulfill his or her parental duties, to the child’s right to have proper parenting and fulfillment, of his or her potential in a permanent, healthy, safe environment. In Interest of Lilley, 719 A.2d 327 (Pa. Super. 1998). We believe that mother is unable to parent the child and that involuntarily terminating her parental rights is in the child’s best interests. Our courts have repeatedly stated that being a parent is more than a passive state of mind; it requires constant affirmative demonstration of parental devotion. In re Adoption of M.J.H., 501 A.2d 648, 652 (Pa. Super. 1985).

In her fourth issue on appeal, mother argues that this court erred by not allowing expanded visits and by changing the primary goal of the case from return to parent to adoption. We disagree. The testimony presented clearly indicates that what is in the best interests of the child is for the child to be adopted. As Dr. Gordon testified to, increased visits would not have helped the situation. Mother did not present as a viable parent for the child. The child is attached to his foster family and because of his unique personality, stability is particularly important for him. This issue lacks merit.

In mother’s fifth issue she asserts that this court erred by continuing the hearing on mother’s request to increase visitation and change the primary goal back to return to parent. However, the record reflects that the continuance was agreed to by the parties. This court’s order of August 18, 2010 specifically states “all parties agreeing that a continuance is necessary in this matter...” (emphasis added). This issue was waived and lacks merit.

Finally, mother argues that this court erred by not specifically denying the petition to increase visitation and change the primary goal back to return to parent at the termination hearing on November 1, 2010. However, by terminating mother’s parental rights, this request was effectively denied. An additional order was unnecessary. This issue too lacks merit.

Thus, for all of the reasons set forth above, and because we believe that mother’s issues do not contain any merit, and that the needs of the minor child would be best served by the involuntary termination of mother’s parental rights, we respectfully request that mother’s appeal be denied.


author: MINORA, J.,

text:
    Rasieleski v. C.F. Bordo, Inc.

      Michael R. Mey, for plaintiff.

      Jay D. Branderbit, for defendant.

      John J. Brier, for additional defendant.
    December 13, 2010
   MINORA, J.,

I. Introduction

Currently before the court are plaintiff’s preliminary objections to defendant’s joinder complaint against the potential additional defendant, Myron Krinetsky. The preliminary objections are essentially a motion to strike the joinder complaint.

By way of background, plaintiff Frank Rasieleski instituted his case for property damage against defendant, C.F. Bordo, Inc. with a complaint dated June 18, 1999 alleging only breach of contract and breach of implied warranties of merchantability and fitness for purpose relative to the purchase and installation of an exterior coating system to the plaintiff’s residence.

The record reveals that on November 30, 2006, defendant sought to join Myron Krinetsky as an additional defendant by way of motion for leave to j oin. This motion was denied by the court summarily on November 30, 2006. There was no explanation given for the denial (see copy of order dated November 30, 2006 attached as Exhibit “B” to defendant’s supplemental brief in support of reply to plaintiff’s preliminary objections to joinder complaint). It’s unclear as to which of our colleagues signed the order. The signature has been attributed to Judge Geroulo, Mazzoni and Munley but the only relevance is that is was signed by one of our colleagues of equal coordinate jurisdiction and is purported by plaintiff to be the “law of the case” as it pertains to joinder of Myron Krinetsky).

In any event, in further proceedings before the undersigned, this honorable court permitted plaintiff to file an amended complaint, including a new count of negligence. (Emphasis added).

At that time, the undersigned observed that the order of November 30, 2006 might not be controlling at this point on the issue of the joinder of Myron Krinetsky since the theory of the case has now changed with the addition of a negligence count (see transcript of proceedings of February 16, 2010 p. 45 attached as Exhibit “A” to defendant’s supplemental brief in support of reply to plaintiff’s preliminary objections to joinder complaint).

As alluded to, plaintiff filed an amended complaint on March 2, 2010 with the addition of a cause of action for negligence. On March 26, 2010, twenty-four (24) days after plaintiff filed his amended complaint, defendant filed a joinder complaint in what they term as a matter of right for the joinder of additional defendant Myron Krinetsky.

It is defendant’s factual contention that the defendant was hired to replace a previously defective exterior, which caused subsequent rotting to the plywood structure of the home. The original contractor of the home, additional defendant Myron Krinetsky, was re-hired at the same time as the defendant to remove and replace rotten plywood. All work orders allegedly went through Mr. Krinetsky, and additional defendant Krinetsky acted as plaintiff’s agent and had ultimate control of what was replaced on the plaintiff’s home.

In any event, the issue of this contested joinder was heard by the undersigned at oral argument on August 11, 2010. The court entertained both pre- and post-argument briefs and the matter is now ripe for disposition.

II. Issue

Should plaintiff’s preliminary objections to original defendant’s joinder complaint against potential additional defendant Myron Krinetsky be sustained or overruled?

TIT. Discussion

There are a number of reasons why plaintiff’s preliminary objections to original defendant’s joinder complaint should be dismissed.

First, Pa. R.C.P. §2253(a)(l) indicates that a joinder complaint shall be filed “sixty” days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof...(emphasis added).

In the case at hand, the joinder complaint at issue was filed on March 26, 2010 or within twenty-four (24) days of the amended complaint filed by plaintiff. This is well within the sixty- (60) day time frame imposed by Pa. R.C.P. §2253(a)(l).

Moreover, by rule plaintiff has no standing to object to the joinder complaint where the joinder has been accomplished within sixty (60) days of an amended complaint.

Pa. R.C.P. §2253(b) (and its explanatory comments - 2005) indicates that:

(b) any party may object to a motion to join an additional defendant after the period prescribed by subdivision (a) on the ground that the party will be prejudiced by the late joinder. The plaintiff may also object to the late joinder on the ground that the joining party has not shown a reasonable justification for its delay in commencing joinder proceedings.

In the case at hand, it is clear by rule that a timely joinder cannot be attacked ab initio for the substantive reasons. set forth in Pa. R.C.P. §2253(b). (see also 7 Goodrich - Amram 2d §2253.3 (September 2010) for a synopsis of the effect of an amendment of plaintiff’s complaint on the right to permissive joinder within sixty (60) days of said amendment, see also Stauffer v. Sutton, 17 Pa. D.&C. 2d 26 (C.P.1959)).

Finally, plaintiff’s reliance on the “law of the case” or “coordinate jurisdiction” doctrines is misplaced.

As we know, the “law of the case” doctrine instructs that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court. Put another way, the synonymous “coordinate jurisdiction” doctrine also instructs that judges of equal jurisdiction sitting in the same case should not overrule each other’s decisions. See Ario v. Reliance Insurance Co., 602 Pa. 490, 980 A.2d 588 (Pa. 2009); 1 Standard PA Practice 2d §2:262 (October 2010).

As we also know, departure from this rule is allowed where:

1. there has been an intervening change in the controlling law;
2. or a substantial change in the facts or evidence giving rise to the dispute in the matter, or
3. where the prior holding was clearly erroneous and would create a manifest injustice if followed (emphasis added). Ryan v. Berman, 572 Pa. 156, 813 A.2d 792 (Pa. 2002).

In the case at hand, the prior ruling to refuse joinder set forth per order of November 30, 2006 did not involve the factual situation where an amendment not only substantively changed the landscape from a breach of contract theory to a negligence theory, but the amendment itself triggered a new and allowable sixty- (60) day period of joinder sanctioned by Pa. R.C.P. §2253(a)(l).

These were factors not before the court on N ovember 30, 2006 so the “law of the case” or “coordinate jurisdiction” doctrines do not apply.

Ultimately, defendant has complied with the time frame imposed by Pa. R.C.P. 2253(a)(1) for joinder because of the new time line resulting from plaintiff’s own amended complaint.

Therefore, any further consideration of plaintiff’s preliminary objections to defendant’s joinder complaint are rejected. Said preliminary objections will be overruled and dismissed.

An appropriate order follows.

ORDER

And now to wit, December 13, 2010, upon due consideration of plaintiff’s preliminary objections to defendant’s joinder complaint and the able verbal and written arguments of counsel, and in accordance with the foregoing memorandum and order, it is hereby ordered and decreed said preliminary objections are overruled and dismissed.


author: MOSS, /.,

text:
    Knox v. Patterson

      Richard H. Knox, pro se.

      Willie Pollins, for defendant.
    January 11, 2011
   MOSS, /.,

The issue is whether the petition to open/strike judgment of May 24, 2010 should have been granted. For the foregoing reasons, we denied said petition.

Facts and Procedural Plistory

Petitioner Richard FI. Knox (“Knox”) is an octogenarian attorney representing himself, who on January 22, 2009 filed a complaint alleging breach of contract against defendant Bishop Anthonee Patterson (“Patterson”) for alleged non-payment of his legal fees. Knox was retained in 2008 for a matter dealing with the transfer of money from a decedent’s estate. Whether Patterson was retained as a principal or an agent of the church is disputed.

Originally, a j udgment of non pros was entered, pursuant to Pa.R.C.P. 1303(b)(2), when all parties failed to appear for the September 15,2010 arbitration. This judgment was later stricken on February 27, 2010 when Knox filed a motion to vacate judgment after admitting to having made a scheduling error. In that petition Knox claimed this was the first time he made such an error in an arbitration hearing or in a regular trial case. See Knox’s first petition of relief from non-pros, 09/29/09, ¶ 3. Moreover, Knox promised to be more careful and to not make the same error again. Id.

A new arbitration date was set for May 24, 2010. All parties were electronically noticed on March 2,2010. Knox again failed to appear for arbitration. A second judgment of non pros was entered that day. Subsequently, Knox filed a petition to strike/open judgment on June 17, 2010. While this petition was originally granted, a subsequent reconsideration motion and oral argument led the court on September 28, 2010 to deny Knox’s petition. Knox now appeals.

Knox originally argued that he had not received notice of the arbitration. See Knox’s second petition of relief from non-pros, 06/17/10, ¶¶3, 7. However, Patterson denied that Knox lacked notice and attached the electronic filing notifying the parties of the arbitration date. See Patterson answer to second petition of relief from non-pros, 07/07/10, ¶2, Ex. A. Subsequently, Knox argued while he has been practicing law for over fifty (50) years, he is not proficient in electronic communication and not familiar with e-mail. See Knox supplemental petition, nunc pro tunc to open/strike judgment, 07/13/10, ¶¶8-10. He stated when he became aware of the second non pros judgment, he had not checked his e-mail for four (4) months, despite the mandatory e-filing system in Philadelphia, of which he claims to have not been aware. See generally Id. Knox’s wife was his legal secretary for thirty-six (36) years and performed all the electronic work. Id. ¶4. However, during the relevant period, he claims she was absent from work because of a temporary disabling injury. See Id. ¶¶5-6. Therefore, Patterson argues he never received notice of the second arbitration on May 24,2010. Id. ¶9.

Discussion

The petition to open/strike judgment of May 24, 2010 should be denied. “A petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion.” Schultz v. Erie Ins. Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (Pa. 1984) (internal citations omitted). “The court will only exercise this discretion when (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be excused.” Id. (first emphasis added; second emphasis in original). “A lower court’s ruling refusing to open a default judgment will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion.” Id. (citing Balk v. Ford Motor Co., 446 Pa. 137, 139, 285 A.2d 128, 131 (1971)).

This court did not abuse its discretion and did not make a clear error of law. There are at least two strong reasons why this court properly exercised its discretion to deny Knox’s petition. First, Knox’s petition was not timely and fails the first prong of the three part test. A petition to open judgment must be filed within ten days after the judgment is entered on the docket. See Pa. R.C.P. 237.3(b). The second judgment of non-pros was entered and docketed May 24,2010. Electronic notice of this judgment was given June 1, 2010. Knox filed his petition June 17, 2010. This was seventeen days after he received electronic notice and well past the ten-day deadline. Therefore, Knox’s petition was untimely. Under the conjunctive three-pronged test, Knox’s petition failed the first prong.

Second, Knox failed the third prong in providing a valid excuse for his failure to appear. Post-trial relief may be granted if a satisfactory excuse is given. Breza v. Don Farr Moving & Storage Co., 828 A.2d 1131, 1134 (Pa. Super. 2003) (citing Pa. R. C.P. 218). An excuse is satisfactory if it would constitute a valid ground for a continuance. Id. Examples include illness of counsel, a party, or a witness, etc. Id. at 1135 (internal citations omitted). Lack of notice after the paper mailing of an arbitration notice has been deemed an unsatisfactory excuse for post-trial relief. Id.

While Farr can technically be distinguished because it dealt with a mailed, hard-copy, the case is nevertheless analogous. Considering e-filing and electronic noticing is now the mandatory system in Philadelphia County, e-mail notification is analogous to the farr paper mailing. Moreover, Knox does not allege he didn’t receive the court’s email notification. Rather, he asserts lack of notice because he did not know how to retrieve this email.

Digging deeper, Knox’s negligence is even more apparent. First, Knox knew his wife (i.e. secretary) was temporarily disabled and could not check electronic notices. Knox, a very experienced attorney with an active caseload, knowing he was computer illiterate, should have ensured any important communication was discovered during her absence. First, he could have learned Philadelphia’s e-filing notification system. Second, he could have hired a temporary secretary to fill the gap. Knox, however, did nothing. He just let his electronic communications pile up until his wife returned.

What makes Knox’s nonfeasance more egregious is that it was the second time it happened. Moreover, he promised to be “more careful” after his first petition to open was granted February 27, 2010. Knox knew to expect notification of a new arbitration date. Yet he never bothered to inquire after a hard-copy notification did not arrive. At the very least, an individual embarrassed about missing an earlier arbitration date and given a second chance should have followed through on his promise to be “more careful” by taking extra precautions to appear at a second arbitration. A simple telephone call to the court during the almost three month period from March 2, 2010 to May 24, 2010 might have avoided this whole predicament.

Therefore, Knox did not provide a satisfactory excuse for missing the second arbitration date and thus fails the third prong.

Knox may or may not have a meritorious claim for the alleged non-payment of his legal fees. However, we do not have to reach that question because petitioner has failed to satisfy two of the three required prongs.

Conclusion

For the reasons stated above, our order denying the petitioner’s petition to open/strike judgment of May 24, 2010 should not be disturbed.

      . The court implemented the electronic filing system in 2008. It became a mandatory requirement on January 5, 2009 at 9:00 AM, pursuant to Philadelphia Local Rule No. *205.4.


author: JENKINS, J.,

text:
    Commonwealth v. Spencer

      Jay W. Hannon, for Commonwealth.

      Patrick Connors, for defendant.
    January 20, 2011
   JENKINS, J.,

After a non-jury trial, the court found defendant guilty of two counts each of theft of services, commercial bribery and theft by deception. The court sentenced defendant to 15-30 months imprisonment for one count of theft of services and concurrent terms of 9-18 months imprisonment for all other counts of conviction. Defendant’s lone argument in this timely direct appeal is that the evidence was insufficient to support his convictions for commercial bribery. The court rejects this argument and recommends that defendant’s judgment of sentence be affirmed.

Even if defendant prevailed on this issue, he is not entitled to relief. His aggregate sentence will remain the same due to his failure to challenge his four theft convictions.

I. Factual History

Defendant is an employee of Contract Callers Incorporated (“CCI”), an entity PECO hired to shut off electricity of customers for non-payment of electric bills. N.T., 8/10/10 (“Tr. I”), p. 45; Tr. Ill, p. 21. Defendant and a co-employee, Nelson Westcott, were a two-man field team called “Bucket No. 2” which performed service terminations. Tr. II, pp. 6, 9.

On March 4, 2010, CCI gave bucket no. 2 a work order to turn off the electricity of Aston Sign Company (“ASC”) in Middletown Township. Tr. I, pp. 17-18; Tr. II, pp. 11-13; Tr. Ill, pp. 23-24. The field team told ASC’s owner, Joseph Kvech, that they were PECO employees who were turning off ASC’s power, and they showed Kvech bills identifying the amount in arrears as about $329. Tr. I, pp. 19, 21.

Defendant dismantled the electric meter and turned off the power. Tr. I, pp. 23-24. Kvech asked whether he could pay the arrears at that time, and defendant replied that he could not accept a check or credit card. Tr. I, p. 23. Kvech gave defendant $330 in cash and told him he could keep the change. Tr. I, p. 23. Defendant accepted the payment, turned the electricity back on, and left the property with the other CCI employee. Tr. I, p. 24. Later that day, defendant returned a work order to CCI indicating that bucket no. 2 had terminated electric service at ASC. Tr. II, pp. 16-17. Bucket no. 2 did not turn over any cash received at ASC. Tr. II, p. 18.

PECO prohibits field technicians such as defendant from accepting cash payments. Tr. I, pp. 45-46; Tr. II, pp. 17,34,43. Commercial customers can pay field technicians by check; residential customers must pay PECO directly by check or credit card. Tr. I, pp. 45-46; Tr. II, pp. 17, 34, 43.

Kvech asked his daughter, who paid ASC’s bills, about the unpaid bill, and she admitted that she forgot to pay it. Tr. I, p. 25. But when she checked online the next few days, she found that Kvech’s cash payment had not been credited to his account. Tr. I, pp. 25-26. Kvech contacted PECO to report that he had not received credit for his payment, and that the power was on even though the meter was not running. Tr. I, pp. 26-27. According to PECO records, power should not have been on at that time. Tr. I, p. 48. The commonwealth presented expert testimony that somebody had altered the meter with a screwdriver; the alterations were not the result of meter malfunction. Tr. II, pp. 67-68.

Five days after the incident at ASC, CCI gave defendant a work order to shut off electricity at Keith Greiman’s residence in Philadelphia. Tr. II, p. 19. Defendant presented Greiman with a non-payment shutoff notice but added that his power would remain on if he paid a $70 reinstatement fee. Tr. Ill, pp. 4-5. Greiman offered a personal check, but defendant stated that he could only accept cash. Tr. Ill, pp. 4-5. Greiman gave defendant cash. Defendant entered the house and proceeded to the meter in the basement, conduct Greiman found strange since he had already paid defendant the requested cash. Tr. Ill, p. 7.

When defendant left, Greiman called PECO, which informed him that what had transpired was not standard PECO operating procedure, since PECO did not accept on-site payment from residential customers. Tr. Ill, pp. 7-9. Defendant, on the other hand, reported to CCI that he went to Greiman’s residence alone, but that the resident denied him access to the interior meter. Tr. II, pp. 21-22. There was no mention in defendant’s report that he accepted money from Greiman.

TI. Discussion

When the defendant objects to the sufficiency of the evidence, our 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, 318, 744 A.2d 745, 751 (2000). The evidence is sufficient to sustain the conviction 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 the fact-finder.” Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa. Super. 1995). The commonwealth may satisfy its burden of proving every element of the crime beyond a reasonable doubt with 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. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). 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. Id.

Pennsylvania’s commercial bribery statute prescribes:

An employee, agent or fiduciary commits amisdemeanor of the second degree when, without the consent of his employer or principal, he solicits, accepts, or agrees to accept any benefit from another person upon agreement or understanding that such benefit will influence his conduct in relation to the affairs of his employer or principal. 18 Pa.C.S. § 4108(a) (emphasis added).
This language is quite broad. It requires that an employee solicit or accept a benefit from another in order to influence the employee’s conduct in relation to his employer’s affairs. The statute contains no requirement that the affected conduct be in relation to the official duties of an agent or employee, nor does it require a showing that an offender’s conduct was adverse to the interests of the employer. United States v. Parise, 159 F.3d 790, 799 (3rd Cir. 1998).

The leading case on this statute is Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979), which affirmed a city councilman’s conviction for commercial bribery under the predecessor statute to § 4108. The councilman had represented private parties before city agencies to help these companies secure contracts with these agencies. The companies rewarded his efforts accordingly. The Supreme Court conceded that the councilman’s acceptance of money “did not affect the performance of his official duties as a city councilman,” and that “he did not take any action in City Council on behalf of private parties.” Id., 399 A.2d at 400. Nevertheless, it was “irrelevant” to the commercial bribery inquiry whether a particular activity was among an employee’s “official duties.” Id. A bribe need not have any impact on an employee’s official duties to comprise “conduct in relation to the affairs of his employer.” Id. The commercial bribery statute requires an employee’s “undivided loyalty” to his employer, and it is “impossible for an [employee] to retain this loyalty” if he “receives money from third parties in return for acting on their behalf...in his [employer’s] affairs.” Id.

Based on Beilis, the Third Circuit held that § 4108 does not require analysis of whether the employee’s conduct helps or harms the employer. United States v. Parise, 159 F.3d 790, 800 (3d Cir. 1998). Parise cited with approval United States v. Johns, 742 F. Supp. 196, 220 (E.D.Pa. 1990), which found the defendant guilty under § 4108 even though the price and quality of the products obtained from the favored vendor were “more favorable” than any offered by competitors. Id.

Here, without CCI’s and PECO’s consent — indeed, in direct violation of CCI’s and PECO’s regulations — defendant accepted cash payments from ASC and Greiman in return for keeping their power on. Defendant did not give the money to CCI or PECO. In ASC’s case, defendant tampered with the meter to deceive CCI and PECO into believing that the power was off. This evidence shows, in the words of § 4108, that defendant “accepted].. .benefit[s] from other person [s] upon agreement or understanding that such benefit[s] [would] influence his conduct in relation to the affairs of his employer.” Id. And in Beilis'' words, defendant disregarded his duty of loyalty toward CCI and PECO by “receiving] money from third parties in return for acting on their behalf...in his [employer’s] affairs.” Id., 399 A.2d at 400. Finally, while proof of harm to CCI or PECO was not necessary, Id., the evidence clearly demonstrated injury: defendant pocketed money owed to PECO, and two customers continued to receive power after it should been shut off.

The evidence was sufficient to satisfy all elements of commercial bribeiy. The court therefore recommends that defendant’s judgment of sentence be affirmed.

      . “Tr. I”, “Tr. IF’ and “Tr. Ill” will refer to testimony taken on August 10, 2010, August 11,2010, and August 12, 2010, respectively.

      . The commonwealth did not present any expert testimony that defendant fiddled with Greiman’s meter.


author: LASH, J.,

text:
    Sovereign Bank v. Berks County Bd. of Assessment Appeals

      Joseph Patrick O ’Brien, for appellant.

      Edwin L. Stock, for appellee.

      James M. Lillis, for intervenor.
    January 25, 2011
   LASH, J.,

The appellant, Sovereign Bank (hereinafter “Sovereign”), has filed an appeal from the decision entered by the Berks County Board of Assessment Appeals (hereinafter board”) assessing real estate owned by Sovereign at nine hundred eighty-nine thousand dollars ($989,000.00), effective January 1, 2010 for city and county taxes and July 1,2010 for school taxes. A de novo trial reviewing assessments for 2010 and 2011 was held on December 28, 2010. The court enters the following findings of fact:

I. FINDINGS OF FACT

1. The appellant, Sovereign Bank (hereinafter “Sovereign”), is a banking institution maintaining a mailing address at P.O. Box 14115, Reading, Berks County, Pennsylvania 19612-4115.

2. The appellee, Berks County Board of Assessment Appeals (hereinafter “board”), is located at the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.

3. Tntervenor, Wyomissing Area School District (hereinafter “School District”), is a school district with its administrative office located at 630 Evans Avenue, Wyomissing, Berks County, Pennsylvania 19610-2636. School district filed a notice of intervention on December 16, 2009.

4. Sovereign is the legal owner of real estate located at 840 Penn Avenue, Wyomissing Borough, Berks County, Pennsylvania (hereinafter “property”), parcel identification number 96-5307-17-00-2018.

5. The land area of the property is approximately 31,150 square feet, improved with a building used as a bank branch and associated general office use. The building size contains 12,300 square feet, 8,200 square feet above grade and 4,100 square feet below grade. The building was constructed in 1980.

6. The building is located in the Wyomissing Area School District, in an area zoned TC, Township Center Residential/Office District.

7. The subject building is a two-(2) story brick structure. The entire building is occupied by Sovereign Bank. The first floor is the bank branch operations, while the second floor is used by the bank for general office purposes. The basement finished area is used mainly for storage purposes at this time. Heating for the building is gas forced warm air, and the entire structure is centrally air conditioned.

8. The first floor of the building houses the bank’s daily business traffic. There are five (5) teller windows, the drive up window and an ATM room. There are four (4) private offices sectioned by partition walls, conference room and reception/waiting area. This floor is mainly carpeted.

9. The second floor of the building houses the bank’s general office area along with a break/file room area. There are six (6) private offices sectioned by partition walls and cubicle work stations. The floor is mainly carpeted in the office area, with tile in the break/file room.

10. The basement of the building is finished area. There is a break room, several storage areas and a private office.

11. There is also a 1,000 pound elevator located on the west side of the building, servicing the three (3) floors of the building.

12. Sovereign filed an appeal of its assessment on July 30, 2009. The matter proceeded to the board who, after hearing held, issued a notice, dated October 30, 2009, assessing the property at nine hundred eighty-nine thousand dollars ($989,000.00). The assessment figure is based upon a fair market value of one million four hundred sixty thousand eight hundred fifty-six dollars ($1,460,856.00), reduced by common level ratio.

13. On or about November 30, 2009, Sovereign appealed the board’s decision to the common pleas court.

14. The years in question for this appeal are 2010 and 2011. The Berks County common level ratio for tax year 2010 is .677 and for 2011 is .701.

II. DISCUSSION

The issue before this court is the fair market value of the premises. Actual or market value is defined as “the price which a purchaser, willing but not obligated to buy, would pay an owner, willing but not obligated to sell, taking into consideration all issues to which the property is adapted and might in reason be applied.” F & M Schaeffer Brewing Company v. Lehigh County Board of Appeals, 610 A.2d 1, 3, 530 Pa. 451, 457 (1992) (citation omitted).

In support of their respective positions, each party presented testimony by an appraiser expressing an opinion of fair market value. Sovereign’s expert was Paul W. Shoup, Jr., a Pennsylvania certified general real estate appraiser, who valued the fair market value of the property, as of August 1, 2009, to be seven hundred fifty thousand dollars ($750,000.00). The board and school district jointly retained Douglas A. Haring, MAT, SRA, who found the fair market value of the property to be one million four hundred eighty thousand dollars ($1,480,000.00) as of August 15, 2009 and August 15, 2010.

The court’s function is not to independently value the property, but to determine the value based on competent and credible evidence. Appeal of F. W. Woolworth Company, 235 A.2d 793, 795, 426 Pa. 583, 586 (1967). When there are conflicting experts, the court may accept all, none or part of an expert’s testimony, part of one expert’s testimony and part of another’s. Appeal of Avco Corporation, 515 A.2d 335, 338, 621 (Pa. Super. 1986). In determining actual value, three approaches to valuation are to be used: cost (reproduction over placement, as applicable, less depreciation in all forms of obsolescence), comparable sales, and the income approach. 72 P.S. §5020-402, 5348(d), F & M Schaeffer Brewing Company, 610 A.2d at 3. In considering the weight to be given to various approaches to valuation, a trial court has discretion to determine which of the conflicting methods (cost, comparable sales or capitalized income) is the fairest and most reasonable for a particular property. Pennypack Woods Home Ownership Association v. Board of Revision of Taxes, 639 A.2d 1302, 1303 (Pa.Cmwlth. 1994), allocatur denied, 539 Pa. 669, 652 A.2d 839(1994).

Sovereign’s appraiser relied solely on the comparable sales approach, stating he was unable to obtain sufficient data to project income for this property and finding the cost approach to be impractical. School district’s appraiser applied the sales comparison and income approach, also declining to apply the cost approach.

Due to an issue raised at trial, we will initially address the assessment for 2011. As stated, the within matter is an appeal from the 2010 assessment of the property. During the pendency of the appeal, the 2011 assessment took place. As provided for in § 5350(c) of the general county assessment law, the within appeal also operates as an appeal of the 2011 assessment. This point of law was recognized by all parties at time of trial.

At the commencement of trial, the parties stipulated that the board’s assessment of nine hundred eighty-nine thousand dollars ($989,000.00) could be admitted into evidence. Accordingly, a prima facie case for the validity of the assessment was established. The burden of proof then shifted to Sovereign to provide sufficient evidence to rebut the validity of the assessment. Deitch Company v. Board of Property Assessment, 417 Pa. 213, 209 A.2d 397 (1965); Straw bridge & Clothier v. Board of Assessment Appeal of Delaware County, 492 A.2d 108, 110 (Pa. Cmwlth. 1985).

Sovereign’s appraiser provided an opinion on fair market value for the 2010 tax year, but candidly stated that he could not provide an opinion on value for tax year 2011. In addition, no other evidence on fair market value for tax year 2011 was provided by Sovereign. Sovereign Bank thus failed to meet its burden to challenge the 2011 assessment. Accordingly, we accept the board’s assessment for 2011, set at nine hundred eighty-nine thousand dollars ($989,000.00), representing fair market value of one million four hundred ten thousand eight hundred forty-one dollars and sixty cents ($1,410,814.60) discounted by the common level ratio of .701.

We turn then to the 2010 tax year. Sovereign’s appraiser opined that if the subject property were placed up for sale, it would likely be marketed as a commercial office building, not as a bank, even though the property’s sole function since the building’s construction has been banking. He noted that a typical bank building in 2010 is a single story building of new or newer construction, fitted out specifically for bank purposes. The subject property, however, more closely resembles a professional office building, whose tenants might include, for example, doctors, lawyers, or accountants. Additionally, Sovereign’s appraiser was reluctant to use bank branches as comparables, because of his concern that those transactions do not properly reflect fair market value. He noted that sales of bank branches are often sales/lease back transactions, where the seller’s motive is to obtain an infusion of capital, selling off several bank branches at one time. Accordingly, in choosing his comparables, Sovereign’s appraiser predominately selected sales of properties which he felt were most closely aligned with this perspective, although two (2) of his comparables housed banks.

Sovereign’s appraiser selected nine (9) commercial office buildings, ranging in size from 5,016 square feet to 22,492 square feet, reflecting selling prices ranging from twenty-two dollars and fifty cents ($22.50) per square foot of building area, including the land, to seventy-one dollars and ninety-two cents ($71.92) per square foot. The average selling price of the comparables was fifty-one dollars and sixty-nine cents ($51.69) per square foot building area, and the median was fifty-seven dollars and nineteen cents ($57.19). Deducting the two (2) lower selling prices, the average selling price became fifty-eight dollars and eighty-three cents ($58.83) per square foot, and the median would be sixty dollars and eighteen cents ($60.18) per square foot.

As stated, of the nine (9) comparables, two (2) house banking operations. Comparable no. 1, located in the borough of Shoemakersville, was an older two- (2) stoiy building occupied by Fleetwood Bank. Comparable no. 5, located in the city of reading, is a multi-tenant building, with the non-profit Berks County Center for Independent Living renting most of the area. However, Fulton Bank also maintains operations there.

The remainder of the buildings include multi-tenant office buildings, a law firm, a commercial office building whose main tenant is a school for autistic youth, and a smaller retail building.

Sovereign’s appraiser then performed a qualitative analysis, reviewing the similarities and differences of the comparables to the subject property. From this study, he concluded that the fair market value for the property, including the partially finished basement area, would be sixty dollars ($60.00) per square foot of building area, including the land. Multiplying that figure by his measurement of 12,462 square feet of building area, he reached a value of seven hundred forty-seven thousand seven hundred twenty dollars ($747,720.00), which he rounded to seven hundred fifty thousand dollars ($750,000.00).

School district’s appraiser presented a different opinion on highest and best use, opining that the subject property would be marketed for “continued use as a bank branch with associated general office use.” He noted that the location was optimal for a bank, featuring high visibility and high traffic volume. He also noted that the subject property was one of the most productive branches of Sovereign, a strong indicator that a prospective buyer seeking a property for bank purposes would give much consideration toward the purchase of this property.

School district’s appraiser then searched for two (2) types of comparables, one involving similar banking institutions which could provide him with a fair market value for the first floor, as well as commercial office buildings for the analysis of the second floor. He identified eight (8) comparables, including three (3) bank branches, three (3) medical office buildings, one (1) professional office building, and a commercial office building. He also included one offering for sale, a professional office building located in the Borough of Wyomissing, close to the subject property.

In searching for comparable banking establishments, school district’s appraiser did not avoid sale/lease back transactions, believing that in the Berks County area, under certain circumstances, these transactions could provide an appropriate figure of fair market value. The banks chosen contain roughly the same square footage as the first floor of the subject property, all located in Berks County.

Regarding the commercial establishments, school district’s appraiser sought property comparables in close proximity to the location of the subject property where the market region would be similar.

School district’s appraiser then employed both a qualitative and quantitative analysis. Regarding the bank branch comparables, the average sale price per square foot was four hundred twenty-seven dollars ($427.00). He made a forty percent (40%) downward adjustment due to the superiority of the comparables, resulting in an adjusted sale price per square foot of two hundred fifty-six dollars and twenty cents ($256.20) per square foot. Multiplying this by the first floor square footage of 4,100 square feet, he reached a figure of one million fifty thousand dollars ($1,050,000.00). Regarding the second floor office space, the commercial office square footage of the comparables averaged one hundred twenty dollars ($120.00) per square foot. He also found these comparables to be superior, making a twenty percent (20%) downward adjustment, for an adjusted sale price of ninety-six dollars ($96.00) per square foot. Multiplying this by 4,100 square feet, he reached a figure of three hundred ninety-three thousand six hundred dollars ($393,600.00). Adding one million fifty thousand dollars ($1,050,000.00) to three hundred ninety-three thousand six hundred dollars ($393,600.00), the adjusted sale price came to one million four hundred forty-three thousand six hundred dollars ($1,443,600.00), which he rounded off to one million four hundred fifty thousand ($1,450,000.00), or one hundred seventy-seven dollars ($177.00) per square foot. He did not provide any additional value for the 4,100 square foot basement area, which was unoccupied for several years and primarily used for storage. Accordingly, his opinion based on the sales comparison approach was one million four hundred fifty thousand dollars ($1,450,000.00).

For the income approach, school district’s appraiser again assumed that a prospective buyer would utilize the first floor for banking functions and the second floor for general offices. From his database, compiled over several years, he identified several rentals for both bank branches and general office space. He assumed a triple net rent and one hundred percent (100%) occupancy. He deduced that an appropriate rental would be thirty-seven dollars ($37.00) per square foot for the bank level and eight dollars and fifty cents ($8.50) for the second floor general office. He did not anticipate that the basement area would provide rental income, although there would be some utility to this area serviceable to the tenants. The total potential income at one hundred percent (100%) occupancy would be one hundred eighty-six housand five hundred fifty dollars ($186,550.00). He then deducted estimated expenses, six percent (6%) for vacancy and credit loss, then an additional six percent (6%) for management and leasing. Replacement reserve was estimated at two dollars ($2.00) per square foot of building area for the 8,200 square feet. He estimates the total annual expense to be twenty-six thousand nine hundred twenty-one dollars ($26,921.00), for a net operating income of one hundred forty-eight thousand four hundred thirty-six dollars ($148,436.00).

School district’s appraiser then assumed a capitalization rate of 9.57 percent, based on a survey of mortgage lenders and investors. This results in a fair market value of one million five hundred fifty thousand dollars ($1,550,000.00). However, he made an adjustment because there are currently no tenants in the subject property, the building being owner occupied. Accordingly, the leasing process, estimated to be approximately six (6) months in duration, would result in a loss of income of approximately seventy thousand dollars ($70,000.00). Subtracting this from one million five hundred fifty thousand dollars ($1,550,000.00), he found a net value of one million four hundred eighty thousand dollars ($1,480,000.00).

School district’s appraiser then performed a reconciliation, giving greater weight to the income approach due to the quantity of available data for rental rates for both bank branches and office buildings. He then accepted the income approach figure of one million four hundred eighty thousand dollars ($1,480,000.00) as his final value on fair market, as of August 15, 2009.

School district’s appraiser performed a similar analysis for 2011. He searched for additional data accruing since May 15,2010, the date he performed his analysis for 2010, but was unable to find anything of substance. Accordingly, he accepted the 2010 analysis as appropriate for 2011.

The primary issue in this appeal concerns highest andbest use; i.e., whether the subject property could be marketed as a bank, commanding a higher price per square foot than would occur if prospective buyers would only be interested in utilizing the property for office purposes. Highest and best use has been defined as “the reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible, and that results in the highest value.” As such, highest and best use contemplates maximum productivity of the property, as shaped by the competitive forces within the market where the property is located. As stated by the Commonwealth Court in Pittsburgh - Des Moines Steel Company v. Board of Property Assessment Appeals and Review, 519 A.2d 1080, 1082 (Pa. Cmwlth. 1987), “one of the most important factors is the use of the subject property — not only the present use of the property, but all of the uses, including the highest and most profitable use to which the land is adoptable and available. The possible demand for such a use affects the market value” (citations omitted).

Becausethe cost of space for banking functions, whether through sale or rental, is higher than that for general office space, the highest and best use would be for banking, if the property could feasibly be marketed as a bank. Of course, the fact that the current use of the property, and the sole use since the construction of the building, has been for banking functions supports the prognosis that the property could continue to be used as a bank and would be attractive to prospective buyers for that purpose. All of the necessaiy facilities are present. There would be no legal impediments to this continued use. The fact that this branch has been highly productive for Sovereign also supports this conclusion.

The primary reason against marketing the property as a bank relates to its obsolescence. The building is at least thirty (30) years old. A prospective buyer might require modernization of or retrofitting to accommodate 21st Century banking. Additionally, the second floor, as well as the basement, would be unnecessary for banking functions, and would be an unnecessary cost outlay to a prospective buyer.

We note, however, that there could be impediments to utilizing the building for general office space. School district’s appraiser pointed out that his comparable no. 6, the offering for sale of a professional office building in close proximity to the subject property, has had difficulty selling, with the price being reduced from seven hundred ninety-five thousand dollars ($795,000.00) to six hundred ninety-five thousand dollars ($695,000.00). He opined that the primary obstacle to a sale is a zoning requirement requiring a certain number of parking spaces to accommodate the tenants. Apparently, comparable no. 6 did not have sufficient parking spaces if the property is fully occupied. School district’s appraiser raised the concern that the subject property could possibly face the same problem if the property was used for multi-tenant occupancy.

Upon review, this court is satisfied that the property can be marketed as a bank. Given the premium and price per square foot, it is certainly advisable that a broker would make every effort to market the property as a bank. The high visibility and high traffic volume, the setting being in an area where several other professional office buildings, commercial establishments and retail sales are present, and the high level of productivity over the years, support the concept that a bank in that location could continue to thrive, even if owned by a bank other than Sovereign. The bank has been a longstanding, effective presence in the community, and able to continue as such. The test of highest and best use is met. Accordingly, we accept school district’s appraiser’s conclusion that the first floor can be marketed for banking purposes and the second floor for general office purposes.

The next dispute concerns whether a price per square foot should be attributed to the basement area. The appraisers describe the basement in a similar manner, establishing that the basement would be of limited utility, available for storage for perhaps a kitchenette area. School district’s appraiser stated that the presence of the basement would add no value to a prospective buyer and, therefore, based his calculation on the square footage of the upper two (2) levels, totaling 8,200 square feet. On the other hand, Sovereign’s appraiser, considering the building as a whole, multiplied his price per square foot by the square footage for all three (3) floors.

We find that it is highly unlikely that a prospective buyer would be willing to pay the same price per square foot for substandard space as it would for the space it intends to occupy for a bank or other function. It is much more likely that no value would be attributed to the basement, as proposed by school district’s appraiser. Accordingly, we accept school district’s appraiser’s decision to calculate price based on 8,200 square feet.

Further, this court’s rejection of Sovereign’s appraiser’s inclusion of the substandard space affects the review of his qualitative analysis. It is unknown whether the selling prices of Sovereign’s appraiser’s comparables encompassed square footage of substandard space. If we continue to accept his square foot estimate at sixty dollars ($60.00), but calculate by 8,200 square feet, his fair market value would be modified to four hundred ninety-two thousand dollars ($492,000.00), which, based on the other evidence provided, appears to be well below fair market value for a building of this size, quality, and location.

On the other hand, if you accept his overall fair market figure of seven hundred fifty thousand dollars ($750,000.00) for professional office space, and base that figure on 8,200 square feet, the price per square foot would approximate ninety dollars ($90.00). This figure is not far from school district’s appraiser’s net price per square foot for commercial office space of ninety-six dollars ($96.00).

Reviewing school district’s appraiser’s comparables, we find them to be appropriate. However, in addition to the forty percent (40%) downward adjustment employed to account for the superiority of the comparables, an additional discount appears warranted, based upon school district’s appraiser’s assumption that the property would be marketed as a bank building. If a prospective buyer’s purpose for purchasing the building would be for a bank branch, the second floor may not be required or wanted. While the space is valuable and would be a potential money maker as rental space, it is questionable whether a buyer would be in the market for such space or willing to pay full value.

Based on these considerations, this court will accept the lower figure of ninety dollars ($90.00) per square foot for the second floor, or three hundred sixty-nine thousand dollars ($369,000.00).

Turning then to the assessment of the square foot value for the first floor, we find that school district’s appraiser’s comparables 7, 8, and 9 are the type of bank buildings described by Sovereign’s appraiser as prototypical. The banks are stand alone buildings with one (1) floor used for the banking services, featuring sufficient parking and drive-in areas, and situated adjacent to a well-travelled roadway. Comparable numbers 8 and 9 are of modern construction. All three (3) comparables are superior to the subject property, warranting a downward adjustment. The adjustment made by school district’s appraiser of forty percent (40%) is substantial. School district’s appraiser deems the downward adjustment sufficient. As there was no countervailing evidence or successful challenge to the analysis, this court accepts the three (3) comparables as appropriate.

Reviewing Sovereign’s appraiser’s comparables, comparable no. 1, the Fleetwood Bank, appears to be, of all the comparables submitted by either appraiser, to be the comparable that most closely resembles the subject property. It is not a prototypical bank of new construction, it is a two- (2) stoiy facility, with the second floor being used for general office functions, similar to the subject property. Comparable no. 1 is inferior, however, to the subject property, being constructed in 1890, and being located in an outlying area of Berks County. Unfortunately, sovereign’s appraiser made no quantitative adjustments so the differential between the comparable and the subject properties cannot be appreciated based upon the evidence. Accordingly, this court cannot properly evaluate the price per square footage for comparable no. 1, in relation to school district’s comparables.

Nevertheless, it is apparent that of the four (4) comparables being considered, Sovereign’s comparable no. 1 would command the lowest price per square foot. Employing a median analysis, Sovereign’s comparable no. 1, with the lowest price per square foot, and school district’s comparable no. 9, with the highest price per square foot, would be stricken. Averaging the price of comparable sale no. 9 and comparable sale no. 8, the average price per square foot would be foul' hundred four dollars ($404.00). Making the forty percent (40%) downward adjustment, the adjusted price per square foot would become two hundred forty-two dollars and twenty-six cents ($242.26). Multiplying this by 4,100 square feet, the price per square foot for the first floor would be nine hundred ninety-three thousand two hundred sixty-two dollars ($993,262.00).

Adding nine hundred ninety-three thousand two hundred sixty-two dollars ($993,262.00) to three hundred sixty-nine thousand dollars ($369,000.00), the fair market value becomes one million three hundred sixty-two thousand two hundred sixty-two dollars ($1,362,262.00), which this court finds appropriate.

Our next consideration is the appropriateness of the income approach. Sovereign’s appraiser declined to employ the income approach based on a lack of data. School district’s appraiser, on the other hand, testified that he had more than sufficient data, based on compilations in his data base, to utilize the income approach. However, the data, for the most part, was not received into evidence. The evidence that was received provided a cursory overview of the information considered by school district’s appraiser. In other respects, the foundation reached upon for the conclusions reached by school district’s appraiser was not provided at all. For example, he stated that he had assumed a capitalization rate of 9.57 percent, based on a survey of mortgage lenders and investors, but did not provide the names of the lenders or investors, the data received from them, or any calculations. While there is nothing in the record to suggest that the conclusions reached by school district’s appraiser are not credible, this court would have appreciated the opportunity to evaluate the conclusions based on a review of the foundation from which the conclusions are built. Accordingly, this court places weight on the comparable sales approach and accepts the figure of one million three hundred sixty-two thousand two hundred sixty-two dollars ($1,362,262.00) as fair market value. Multiplying by the common level ratio of .677, the assessed value for 2010 becomes nine hundred twenty-two thousand two hundred fifty-one dollars and thirty-seven cents ($922,251.37), which this court rounds off to nine hundred twenty-two thousand two hundred fifty dollars ($922,250.00).

We enter the following order:

ORDER

And now, January, 25 2011, upon consideration of the within appeal and after a de novo trial held, it is ordered that the actual market value of the property owned by appellant, Sovereign Bank, and situated in the Wyomissing School District, with an address of 840 Penn Avenue, Wyomissing Borough, Berks County, Pennsylvania 19610, parcel identification number 96-5307-17-00-2018, is set at one million three hundred sixty-two thousand two hundred sixty-two dollars ($1,362,262.00) for calendar year 2010. Applying the common level ratio of .677, the assessed value for tax year beginning January 1, 2010 for county and township taxes and beginning July 1, 2010 for school district taxes is nine hundred twenty-two thousand two hundred fifty dollars ($922,250.00). For calendar year 2011, this court finds fair market value to be one million four hundred ten thousand eight hundred fourteen dollars and sixty cents ($1,410,814.60). After applying common level ratio of .701, the assessment for tax year beginning January 1, 2011 for county and township taxes and beginning July 1,2011 for school district taxes is nine hundred eighty-nine thousand dollars ($989,000.00).

      . 9(c) of the act of June 26, 1931, P.L. 1379, as amended, 72 P.S. § 5350(c).

      . School district’s appraiser had a different measurement of square footage, identifying total square footage of 12,300, being 8,200 square feet for the first and second floors and 4,100 square feet for the basement area. This court accepts school district’s appraiser’s figures, being the lower figure.

      . The appraisal of real dstate, eleventh edition, Appraisal Institute, p. 297.

      . Id. at p. 298.

      . Seven hundred fifty thousand dollars ($750,000.00) divided by 8,200 square feet equals ninety-one dollars and forty-six cents ($91.46). However, the figure ofsevenhundredfifty thousand dollars ($750,000.00) was rounded from seven hundred forty-seven thousand seven hundred twenty dollars ($747,720.00). Further, the square footage measurement employed by Sovereign’s appraiser was 12,462 feet. As we are basing our calculations on school district’s appraiser’s square footage estimate of 4,100 square feet per floor, the ninety dollar ($90.00) per square foot estimate is a better estimate than ninety-one dollars and forty-six cents ($91.46).


author: HODGE, J.,

text:
    Commonwealth v. Brophy

      Kate Fee-Baird, assistant district attorney, for Commonwealth.

      Michael A. Frisk Jr., for defendant.
    January 10, 2011
   HODGE, J.,

In the instant matter, the defendant, Craig H. Brophy, has filed an omnibus motion for pretrial relief in the form of a motion to suppress evidence. The defendant is charged with one count of firearms not to be carried without a license (18 Pa.C.S. §6106). The defendant contends that he was illegally detained, and as a result of the illegal detention, the commonwealth obtained evidence (in the form of a handgun located on his person) being used against the defendant in the prosecution of the above-stated charge.

A brief summary of the facts indicates that on December 4, 2009 state parole officer Brian Babusci was at the residence of Samuel Bartberger of 2638 Old Plank Road, New Castle, Pennsylvania. Parole Officer Babusci responded to this residence after being informed of a possible parole violation regarding Samuel Bartberger, Jr. for the unauthorized use of a motor vehicle. Samuel Bartberger was on parole during this period of time, and under the supervision of officer Babusci. Before the issue regarding the parole violation could be folly resolved, the defendant, Craig H. Brophy, arrived at the residence driving the motor vehicle alleged to have been taken without the owner’s permission.

Parole Officer Babusci identified himself to the defendant, and informed the defendant that he may want to “stick around” because the Neshannock Township Police were probably going to want to question him regarding his use of the motor vehicle. A verbal argument quickly ensued between the defendant and Parole Officer Babusci, which led to Parole Officer Babusci requesting backup assistance from the Neshannock Township Police Department. Upon arrival, it was apparent to Officer Gramsky and Officer DeCarbo that Parole Officer Babusci was involved in a verbal altercation with the defendant. As Officer Gramsky and Officer DeCarbo began approaching the defendant, the defendant turned to leave the area, at which time one of the officers instructed the defendant that he was not yet free to leave.

Officer Gramsky then informed the defendant that he was going to pat him (the defendant) down for safety and inquired as to whether there were any weapons on his (the defendant’s) person. The defendant responded affirmatively, and told the police that a 9mm handgun was located in his front coat pocket. Officer Gramsky removed the handgun from the defendant’s person. The handgun had a loaded clip containing eight shells. The handgun and clip were seized and placed into evidence. The handgun was registered to the defendant; however, he did not have a permit to cany a concealed weapon. On December 9, 2009 the defendant was charged with one count of firearms not to be carried without a license.

In his motion to suppress evidence, the defendant requests this court to suppress all evidence seized from his person and argues that Parole Officer Babusci detained him without the authority to do so. However the evidence presented at the hearing on defendant’s suppression motion leads this court to conclude otheiwise. Prior to the officers from the Neshannock Township Police Department arriving, Parole Officer Babusci properly identified himself to the defendant, as he told the defendant, “I advise you to stick around because the Neshamiock Township Police are going to want to talk with you.” The defendant replied to Parole Officer Babusci’s comment that “he (Parole Officer Babusci) had no authority over him (the defendant).” It is clear from the defendant’s own comments that he knew Parole Officer Babusci could not legally force him to stay at the residence on Old Plank Road, yet the defendant, on his own free will chose to stay and initiate a verbal altercation with Parole Officer Babusci. The court finds that at this point, the defendant had not been illegally detained.

The next stage of this incident involved an interaction between the defendant and Officer Gramsky and Officer DeCarbo. Fourth amendment jurisprudence has led to three categories of interactions between police officers and private citizens. The Pennsylvania Supreme Court has identified these categories as follows: 1) amere encounter, which need not be supported by any level of suspicion; 2) an investigative detention, which must be supported by reasonable suspicion, as it subjects an individual to a stop and brief detentions, but does not function as the equivalent of an arrest; and 3) a custodial detention, which requires probable cause. Commonwealth v. Pakacki, 587 Pa. 511, 518, 901 A.2d 983, 987 (Pa. 2006)(citing Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043 (Pa. 1995).

Interactions that result in a seizure taking place are classified as an investigative detention or a custodial detention. Commonwealth v. Strickler, 563 Pa. 47, 75, 757 A.2d 884, 899 (Pa. 2000). The main difference between the two interactions is that an investigatory detention merely subjects a citizen to stop and undergo a brief period of detention, when such a detention is supported by a reasonable suspicion that criminal activity is afoot. A custodial detention, however, is the functional equivalent of an arrest, and therefore, requires Miranda warnings. Id.; Pakacki, 901 A.2d at 987.

In the case sub judice, the detention to which the defendant was subjected was a custodial detention, which was reasonable in nature as it was supported by probable cause. Commonwealth v. Ellis, 541 Pa. 285, 292-93, 662 A.2d 1043, 1047 (Pa. 1993). Officer Gramsky and Officer DeCarbo responded to Parole Officer Babusci’s request for assistance and arrived at the residence believing that the issue regarding Samuel Bartberger, Jr. and possible unauthorized use of a motor vehicle was not yet resolved. Upon arrival, Officer Gramsky observed the defendant and Parole Officer Babusci engaged in a verbal confrontation. When Officer Gramsky began to approach the defendant, he turned and began to flee from the area. This caused Officer Gramsky to tell the defendant to stop and he was not yet free to leave. Accordingly, their reaction that the situation required further investigation was reasonable when you consider this factor along with their personal observations of the altercation between Parole Officer Babusci and the defendant.

Given the defendant’s apparent agitated state and disruptive behavior, Officer Gramsky conducted a pat-down for his safety as well as the safety of other individuals presentattheresidence.ifanofficerobserves conductwhich causes him to believe that the individual may be armed and dangerous, he may pat down the detainee’s outer garments for weapons, but such a search cannot be initiated without such belief. Commonwealth v. E.M., 558 Pa. 16, 25, 735 A.2d 654, 659 (Pa. 1990). Officer Gramsky additionally informed the defendant as to why he was conducting a pat-down and based the necessity of conducting the pat-down based on the defendant’s own conduct and personal behavior. This interaction clearly constitutes a custodial detention, and is the very type of detention previously justified by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The court’s decision in Terry resulted in such a detention becoming commonly known as a Terry stop. During a Terry stop, an officer possesses a reasonable suspicion that criminal activity is afoot, and is thereby justified in briefly detaining a suspect so that he may further inquire as to the situation. Commonwealth v. E.M., 558 Pa. 16, 25, 735 A.2d 654, 659 (Pa. 1990).

ORDER OF COURT

And now, January 10, 2011, this case being before the court on January 3, 2011 for a hearing on defendant’s motion to suppress evidence, with assistant district attorney Kate Fee-Baird, Esquire, appearing and representing the commonwealth, and Michael A. Frisk, Jr., Esquire, appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

1. The defendant’s motion to suppress evidence is denied pursuant to the attached opinion.

2. This case shall be placed on the February 2011 criminal trial list.

3. The clerk of courts shall properly service notice of this order and attached opinion upon counsel of record.


author: ZULICK, J.,

text:
    Corliss v. Corliss

      Kimberly Fedrigon, for plaintiff.

      Justin Corliss, pro se.
    December 23, 2010
   ZULICK, J.,

FINDINGS OF FACT

1. Catherine Corliss married Frank Guskiewicz on September 10, 1983.

2. They had two sons, Christopher Guskiewicz, born October 9, 1989, and Justin Guskiewicz, bom August 24, 1990.

3. Catherine and Frank Guskiewicz separated in 1994 and were divorced on March 23, 1999.

4. Catherine and the two boys moved from the Guskiewicz residence.

5. Catherine and Frank Guskiewicz were not on good terms following the separation.

6. Catherine and Frank Guskiewicz did not have intimate relations after they separated in 1994.

7. Catherine asked Frank Guskiewicz for a divorce because she could not afford one but he did not proceed to obtain a divorce.

8. Frank Guskiewicz has resided by himself at his residence on Learn Road, Scotrun, Pennsylvania since 1996.

9. Catherine met Justin Corliss in November of 1997. They began to live together in May of 1998.

10. Chaylene was conceived while Justin Corliss and Catherine were living together.

11. Justin Corliss was incarcerated in July of 1998 and remained in prison until his release in July of 2008.

12. Chaylene Jasmine Corliss was born on February 16, 1999.

13. From the time that Chaylene was two to three months old, Catherine brought Chaylene to visit Justin Corliss while he was incarcerated in Monroe County and later while he was incarcerated in state prison in Frackville, Pennsylvania.

14. After he was moved from Frackville, she did not bring Chaylene to visit Mr. Corliss because she did not like her daughter visiting a prison.

15. Justin Corliss continued to write to Chaylene and to call Catherine two times per week from jail to speak with Chaylene.

16. When Justin Corliss was released from prison in July 2008, Catherine and Chaylene met him in Bartonsville, Pennsylvania andhemoved in with Catherine, her two sons and Chaylene.

17. Justin Corliss has always referred to Chaylene as his daughter until this petition was filed.

18. Justin Corliss commenced an action for custody of Chaylene on August 2, 2010 and referred to her as his child in the custody petition.

19. Justin Corliss has claimed Chaylene as his dependent on his tax returns for the past two years.

20. When Catherine commenced a divorce action against Frank Guskiewicz in October of 1998, he did not want to consent to the divorce.

21. Catherine told him that she was pregnant with Justin Corliss’ child and at that point Guskiewicz consented to the divorce. The divorce was granted on March 23, 1999.

22. Frank Guskiewicz has provided financial support to Catherine from the time of the parties’ separation to present for the support of his two sons.

23. Frank Guskiewicz has visited with his sons and Chaylene on a regular basis and has given Chaylene gifts along with gifts to his sons at Christmas time through the years.

DISCUSSION

Catherine Corliss seeks to establish Justin Corliss’ paternity of her daughter, Chaylene, in order to pursue child support from him. Mr. Corliss has petitioned the court to vacate an order directing the parties to participate in genetic testing, raising defenses of presumption of paternity and paternity by estoppel. He argues that Frank Guskiewicz is estopped from denying paternity because Chaylene was born during the Frank Guskiewicz-Catherine Corliss marriage and Mr. Guskiewicz supported Chaylene after the divorce.

Pennsylvania law requires a two-part test to be satisfied before a trial court may admit DNA test results as evidence of paternity. The first part is to determine whether the presumption of paternity applies. The second part is to decide whether paternity by estoppel can be invoked. See J.C. v. J.S., 826 A.2d 1, 3 (Pa. Super. 2003); Amrhein v. Cozad, 714 A.2d 409, 411 (Pa. Super. 1998). Both the presumption of paternity and paternity by estoppel must be determined inapplicable before the court may consider DNA testing of Mr. Corliss.

Presumptive Paternity

The law of presumptive paternity establishes the generalprinciple that a child conceived or born during a marriage is presumed to be a child of the marriage. Amrhein at 412 (citing John M. v. Paula T., 524 Pa. 306, 321, 571 A.2d 1380, 1388 (Pa. 1990)). “This presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access to the mother or the presumptive father was physically incapable of procreation at the time of conception.” Id.

Here, the presumption of paternity does not apply to Mr. Guskiewicz Mr. Guskiewicz was married to Ms. Corliss from September 10, 1983 until their divorce on March 23,1999. They separated permanently in 1994 and have not had sexual relations since that time. Chaylene Corliss was born February 16, 1999 and was conceived while Ms. Corliss was living with Mr. Corliss. Although Mr. Guskiewicz and Ms. Corliss were married at the time of Chaylene’s conception and birth, they were separated and their testimony established by clear and convincing evidence that they had not had sexual relations in years. Since the parties were separated and Ms. Corliss had filed for divorce by the time of Chaylene’s birth, “[t]he rebuttable presumption of paternity is not applicable since mother and [then-husband] no longer had an intact marriage to be preserved.” Wieland v. Wieland, 948 A.2d 863, 868 (Pa. Super. 2008) (citing J.C., 826 A.2d at 5-6 (Pa. Super. 2003)); Brinkley v. King, 549 Pa. 241, 250-51, 701 A.2d 176, 181 n. 8 (Pa. 1997) (“Our view, as expressed today, would be that when the parties separated, the presumption of paternity was inapplicable....”); see also Martin v. Martin, 710 A.2d 61, 65 (Pa. Super. 1998) (citation omitted) (holding the policies of preserving intact marriages and families not implicated where parties had permanently separated, but not divorced, before birth of child). In addition, Mr. Corliss conceded at the hearing that the marriage between Mr. Guskiewicz and Ms. Corliss was not intact at the time of Chaylene’s birth. Accordingly, I find that the law of presumptive paternity does not apply to Mr. Guskiewicz.

Paternity by Estoppel

Mr. Corliss also asserts the paternity of Mr. Guskiewicz by estoppel. He contends that Mr. Guskiewicz has financially supported Ms. Corliss, and therefore indirectly supported Chaylene as well. He argues that the regular visits Mr. Guskiewicz paid to Ms. Corliss, his sons, and Chaylene during the Corliss’ marriage evidence paternal behavior by Mr. Guskiewicz toward Chaylene. He also asserts that Mr. Guskiewicz has claimed Chaylene on past tax returns, but he has not offered any supporting documentation into evidence.

Paternity by estoppel is the legal doctrine that “because of a person’s conduct...that person, regardless of his true biological status, will not be permitted to deny parentage . . . .” It is a “principle which applies to prevent a party from assuming a position or asserting a right to another’s disadvantage inconsistent with a position previously taken.” Com. ex rel. Gonzalez v. Andreas, 369 A.2d 416, 418 (Pa. Super. 1976) (citation omitted). Under principles of equity, parental relationships can be established constructively and these relationships and their corresponding duties “merit judicial recognition and enforcement.” Manze v. Manze, 523 A.2d 821, 825 (Pa. Super. 1987). The General Assembly has codified the principle of paternity by estoppel in 23 Pa. C.S.A. § 5102(b), which provides, in pertinent part:

Children; Legitimacy, determination of paternity
(b) For purposes of prescribed benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child to be his and provides support for the child which shall be determined by clear and convincing evidence.

Here, Mr. Corliss has presented insufficient evidence that Mr. Guskiewicz considered Chaylene to be his daughter, provided for her as a father would, and held himself out to be her father. First, Mr. Guskiewicz noted that Chaylene was conceived years after he and Ms. Corliss last had sex, and that on that basis he does not consider her his child and has never held himself out as her father. Secondly, Mr. Guskiewicz’s financial support was given to Ms. Corliss to assist her and their sons. Any benefits Chaylene incurred as a result of his financial support to Ms. Corliss were incidental. Thirdly, Mr. Guskiewicz’s regular visits and gifts to the Corliss residence were based primarily on Mr. Guskiewicz’s desire to relate to his sons and maintain his friendship with Ms. Corliss. In sum, Mr. Guskiewicz’s interactions with Chaylene were not like those of a father with a daughter; he has never supported her directly nor held himself out to be her father. Mr. Corliss has therefore not established by clear and convincing evidence a basis for Mr. Guskiewicz to be stopped from denying paternity of Chaylene. Mr. Corliss’ petition to vacate the order for genetic testing will be denied.

Mr. Corliss’ motion to hold Catherine Corliss and Frank Guskiewicz in contempt, filed after the hearing, will also be denied. He contends in the motion that Catherine Corliss and Frank Guskiewicz committed perjury during the hearing. If he has evidence of perjury, he may pursue that avenue with the police. However, the unsubstantiated allegation that Ms. Corliss and Mr. Guskiewicz may have conspired to commit perjury does not warrant further action by this court.

ORDER

And now, December 23, 2010, upon consideration of the petition to vacate an order for genetic testing, filed by Justin Corliss, and following a hearing on the motion, it is ordered that:

1. The petition is denied.

2. The parties arc directed to appear for genetic testing in accordance with their stipulation of August 31,2010.

3. Defendant Justin Corliss’ motion for a finding of contempt is also denied.

      . Based on a review of the record, it appears that the court did not issue an order directing the parties to participate in genetic testing. Instead, the parties agreed to genetic testing by stipulation, dated August 31,2010.