author: WETTICK, A.J.,

text:
    Savinis v. Goldberg, Persky & White P.C.

      C.P. of Allegheny County,
    no. GD05-027781.

      David L. McClenahan and Paul Berks, for plaintiff.

      John E. Quinn, for defendant.
    July 28, 2006
   WETTICK, A.J.,

This opinion addresses the issue of how this court should respond to a claim that an arbitration award confirmed by this court is ambiguous.

Disputes between Goldberg, Persky & White P.C. and Janis M. Savinis, Anthony J. D’Amico and John R. Kane were submitted to a three-member board of arbitrators. On September 15,2005, the board of arbitrators entered a common-law arbitration award. The award was faxed to the parties by the case manager of the American Arbitration Association on September 19, 2005. Goldberg filed a petition to vacate, modify, or correct the arbitration award on October 18,2005. On February 8,2006,1 dismissed the petition on the ground that it was untimely filed, and I granted the petition of Savinis confirming the arbitration award and directing the prothonotary to enter the award as a judgment.

I.

The arbitration award which I confirmed has not been satisfied because the parties are not in agreement as to their rights and obligations under the award. In a motion for construction of arbitration award, Goldberg has set forth eight areas of disagreement between the parties with respect to the construction of the award.

It is the position of Savinis that this court has no jurisdiction to construe or clarify the award because any such request must be made within 30 days of the entry of the award. After the expiration of the 30-day period, a party is not permitted to complain that the award is unclear and needs to be clarified or construed.

The position of Savinis, that this court can neither construe an arbitration award nor address a claim that the award is ambiguous where the request was not filed within 30 days of the entry of the award, makes no sense. The finish line of an arbitration proceeding is a court order construing, if necessary, and enforcing the arbitration award which the court has confirmed. If, as in this case, the arbitration award has not been satisfied because the parties have different positions as to what payments must be made in order to satisfy the award, the finish line can never be crossed without a judicial interpretation. In keeping with the policy favoring arbitration, courts must be involved whenever an arbitration award has not been satisfied because of a dispute between the parties over the meaning of the award.

Savinis contends that if court intervention is permitted, Goldberg, in the name of “ambiguity,” will be raising issues that it sought to raise in its petition to vacate or modify the arbitration award which was untimely filed. This will not occur because if I conclude that there is only one reasonable interpretation of the award, I will enforce the award in accordance with this interpretation. In other words, my role is not to modify the arbitration award but, instead, to enforce the award in accordance with the intentions of the arbitrators so long as I can ascertain these intentions. For these reasons, I rule that this court has jurisdiction to consider Goldberg’s motion for construction of the arbitration award.

II.

The next issue that the parties have addressed is the role of the court in the event the court finds that provisions of an arbitration award are ambiguous. It is the position of Savinis that, in this situation, the award should be remanded to the arbitrators to clarify whatever the court asks the arbitrators to clarify.

Goldberg disagrees. According to Goldberg, this court has no authority to remand an arbitration award that has been confirmed. There is nothing in the legislation governing common-law arbitration that authorizes a remand to the arbitrators. Furthermore, the common-law doctrine of functus officio bars remand. According to Goldberg, this doctrine provides that once arbitrators have issued a final award, they are without authority to re-examine the award. Goldberg contends that courts must resolve ambiguities by determining which interpretation more likely reflects the intent of the arbitrators. If it is impossible to decide what the arbitrators more likely intended, the award should be stricken because it should never have been confirmed.

There are more than two dozen federal and state appellate court cases that have addressed the issue of what should be done when a court determines that an arbitrators’ award is ambiguous or incomplete. Many of these cases involve awards that were previously confirmed.

I am not aware of any appellate court which has stricken a previously confirmed arbitration award on the ground that the award is ambiguous. Such an approach would defeat the purpose of arbitration — to provide a prompt and inexpensive method of resolving disputes.

A small number of courts have ruled that a court must resolve the ambiguity if the appeal period has expired. See e.g., All Metro Supply Inc. v. Warner, 707 N.W.2d 1 (Minn. Ct. App. 2005). The rationale for this approach is that legislation governing arbitration does not include a provision authorizing a court, after expiration of the appeal period, to remand an aspect of the arbitration award to the arbitrators. These courts also refer to the common-law doctrine of functus officio “(once task finished, arbitrator is without power to re-examine decision),” Menahga Education Asso. v. Menahga Independent School Dist. No. 821, 568 N.W.2d 863, 867 n.3 (Minn. Ct. App. 1997). They also contend that courts — rather than arbitrators — should construe arbitration awards that are ambiguous because the remand process is likely to delay enforcement of the award.

Most courts have ruled that where the arbitration award is ambiguous, it should be remanded to the arbitrators to resolve the ambiguity. These courts offer very convincing reasons for this approach. Since the question is what did the arbitrators mean, the arbitrators should be providing the answer. Having the arbitrators decide what they meant eliminates the appellate review that may occur if the trial court was deciding what the arbitrators intended. Judicial review of a purported ambiguity undermines the authority of the arbitrator and improperly entangles a court in a matter that the parties agreed to resolve through rulings of arbitrators selected by the parties. A party that did not fare well before an arbitrator is less likely to seek to entice a court to find that an award is ambiguous if the result will be a remand to the same arbitrator.

Most courts are not troubled by the absence of legislation specifically authorizing a remand of a previously confirmed award to the arbitrators when the award is ambiguous. The apparent reason is that the legislation governing arbitration does not address the issue and a remand in order that an ambiguous award is construed by the arbitrators, rather than a judge, furthers the goals of this legislation.

Most of the cases that remand ambiguous arbitration awards to the arbitrators mention, but do not apply, the judicially-created doctrine of functus officio. This appears to be a doctrine that originated at a time when judges were hostile to arbitration and distrusted arbitrators’ independence. See All Seasons Services Inc. v. Guildner, 891 A.2d 97, 104 (Conn. App. Ct. 2006). At this time, most courts apply this doctrine, that arbitrators are without authority to re-examine a final award, only to the reexamination of the merits of the award. The doctrine, as developed by the case law, does not apply to other instances including a clarification of an ambiguous award.

The case law does not find to be persuasive the argument that through a remand the arbitrators are likely to reconsider the merits of their prior award. This will not occur if the remand specifically describes what the arbitrators shall clarify and the arbitrators are directed to consider only this aspect of the award.

The case law is summarized in the recent opinion of the United States Court of Appeals, Tenth Circuit, in U.S. Energy Corp. v. Nukem Inc., 400 F.3d 822, 830-31 (10th Cir. 2005), where the court stated:

“Other circuits have held there are circumstances where a district court can remand to the arbitrators for clarification. See Green v. Ameritech Corp., 200 F.3d 967, 977 (6th Cir. 2000) (stating remand proper ‘to clarify an ambiguous award’); Colonial Penn Insurance Co. v. Omaha Indemnity Co., 943 F.2d 327, 334 (3d Cir. 1991) (concluding trial court had authority to remand award to arbitrators for clarification of ambiguous award). ‘[Cjourts have uniformly stated that a remand to the arbitration panel is appropriate in cases where the award is ambiguous.’ Id. ‘Such a remand avoids the court’s misinterpretation of the award and is therefore more likely to give the parties the award for which they bargained.’ Id. ‘In short, for a court to engage in guesswork as to the meaning and application of an ambiguous arbitration award is inconsistent not only with federal policy, but also with the parties’ own agreement to submit their dispute to arbitration.’ M & C Corp. v. Erwin Behr GmbH & Co., 326 F.3d 772, 782 (6th Cir. 2003). When there is more than one reasonable interpretation of an arbitration award, a remand for clarification is appropriate. Mutual Fire, Marine & Inland Ins. Co. v. Norad Reinsurance Co., 868 F.2d 52, 58 (3d Cir. 1989) (stating ‘[a] district court itself should not clarify an ambiguous arbitration award but should remand it to the arbitration panel for clarification’); Bell Aerospace Co. Div. of Textron Inc. v. Local 516, 500 F.2d 921, 923 (2d Cir. 1974) (stating ‘[cjonstruing ambiguous provisions of an arbitration award is the proper province of the arbitrator, not the courts’); American Postal Workers v. U.S. Postal Serv., 254 F. Supp.2d 12, 15 (D.D.C. 2003) (remanding for clarification where the arbitrator’s award was ‘susceptible to more than one interpretation’). Such remands, however, are to be used sparingly in order not to thwart the interest of achieving finality. See Fischer v. CGA Computer Assoc. Inc., 612 F. Supp. 1038, 1041 (S.D.N.Y. 1985) (recognizing remand frustrates the basic purposes of arbitration because it delays execution of the final judgment).” (footnote omitted)

The following cases decided within the past seven years, and the cases upon which these cases rely, reach the same result for generally the same reasons: Tri-State Business Machines Inc. v. Lanier Worldwide Inc., 221 F.3d 1015, 1017 (7th Cir. 2000) (if an award is unclear, it should be sent back to the arbitrator for clarification); Hartford Steam Boiler Inspection and Insurance Co. v. Underwriters of Lloyd’s and Companies Collective, 857 A.2d 893, 901 (Conn. 2004) (although there is no explicit provision in the Arbitration Act for remand, courts have uniformly stated that a remand to the arbitration panel is appropriate in cases where the award is ambiguous); All Seasons Services Inc. v. Guildner, supra, 891 A.2d at 105-106 (a court must remand an award that is ambiguous; an award is ambiguous if it is susceptible to more than one reasonable interpretation); and General Accident Insurance Company of America v. MSL Enterprises Inc., 547 S.E.2d 97, 99-100 (N.C. Ct. App. 2001) (a court need not remand for clarification where the ambiguity can be resolved by the record, however, the court cannot interpret the terms and must remand the matter to the arbitration panel for clarification).

The Pennsylvania appellate court case law is consistent with the case law that I have cited:

In Hall v. Nationwide Mutual Insurance Company, 427 Pa. Super. 449, 453-55, 629 A.2d 954, 956-57 (1993), the court rejected the argument of a party to an arbitration award that the trial court exceeded its scope of authority by confirming an arbitration award that exceeded the limits of the insurance policy. The court stated that the appellant’s failure to challenge the award within 30 days allowed the trial court to confirm the award. In dicta, the court stated: “Appellant did not argue before the trial court, or on appeal, that the arbitrators’ award was ambiguous and in need of clarification. Had appellant contended that the award itself was ambiguous, the court would have had the opportunity to determine whether to accept evidence regarding the arbitrators’ intended award.” Id. at 455 n.4, 629 A.2d at 957 n.4.

In Stack v. Karavan Trailers Inc., 864 A.2d 551 (Pa. Super. 2004), the arbitrator entered a total molded award that would have been entered if 25 percent causal negligence had been attributed to the remaining defendant in the common-law arbitration proceedings. However, the liability findings in the document furnished to the parties showed that the arbitrator’s decision had attributed 50 percent causal negligence to this defendant. Within eight days after the issuance of the initial award, the arbitrator issued a correct and clarified arbitration award based on a finding of 50 percent causal negligence. The defendant filed a petition to vacate the clarified award and for entry of a judgment in accordance with the initial total molded arbitration award. The trial court granted this relief stating that under the functus officio doctrine, the arbitrator could not take any further action once an arbitration award had been issued. The Superior Court reversed. Its opinion relied on Colonial Penn insurance Co. v. Omaha Indemnity Co., 943 F.2d 327, 332 (3d Cir. 1991), which recognized three exceptions to the functus officio doctrine: (1) an arbitrator may correct a mistake which is apparent on the face of the award; (2) where the award does not adjudicate an issue which has been submitted, it remains open for the arbitrator to decide this issue in a subsequent determination; and (3) where the award, although seemingly complete, leaves doubt whether the submission has been fully executed, an ambiguity arises which the arbitrator is entitled to clarify. In Stack, the court found that under the first exception the arbitrator had the authority to issue a clarified award.

III.

In its motion for clarification, Goldberg has identified eight areas which it believes to be areas of disagreement between the parties with respect to construction of the award. In filings with this court, the parties have briefly addressed the eight areas. For most, if not all, of the areas, each party contends that the award resolves the matter in that party’s favor and that the court should enforce the award in accordance with that party’s interpretation. The fallback position appears to be that the award is ambiguous.

Within 20 days, Goldberg shall file a brief that explains and justifies Goldberg’s interpretation of the award with respect to each of the eight areas. If Goldberg claims, even as a fallback position, that the award is ambiguous, the brief shall describe the issues that I need to submit to the arbitrators. Twenty days thereafter, Savinis shall file a responsive brief that meets the same requirements. Goldberg shall have 10 days in which to file a reply brief.

ORDER

On July 28, 2006, it is hereby ordered that the parties shall file briefs according to the timetable set forth in Part III of the opinion accompanying this order of court. Argument will be held on September 28,2006 at 2 p.m. o’clock.

      . Section 7342(b) of the Judicial Code (42 Pa.C.S. §7342(b)), which governs common-law arbitration, provides that on application of a party made more than 30 days after the award is made by the arbitrator, the court shall enter an order confirming the award. Case law citing this provision holds that any challenge to the arbitration award must be made in an appeal to the common pleas court by filing a petition to vacate or modify the arbitration award within 30 days of the date of the award. See the case law that I cited in a memorandum and order of court which I entered in Oklewicz v. Inmedius Inc., GD04028330 (C.P. Allegheny 5/5/2005).

      . Under section 7311 of the Uniform Arbitration Act (42 Pa.C.S. §7311), “the trial court may within its discretion, resubmit an award for clarification while the petition to confirm is pending.” McIntosh v. State Farm Fire and Casualty Co., 425 Pa. Super. 311, 315, 625 A.2d 63, 65 (1993). (emphasis in original) The present case, unlike McIntosh, involves an arbitration award confirmed by the court.

      . Such an argument would not have merit in a case such as the present case, in which a court, in resolving an ambiguous arbitration award, would be required to review the record which consists of 1,341 pages of testimony of a five-day hearing, and large numbers of exhibits.

      . The Federal Arbitration Act has no provision for the remand of ambiguous arbitration awards to the arbitrators who entered the awards. However, federal appellate court case law uniformly provides for a remand.

      . This judicially-created doctrine does not appear to serve any purpose. Judicial decisions as to what may be remanded to an arbitrator should be based on what furthers the purposes of the legislation governing arbitration. Courts establish the boundaries of this doctrine based on the same considerations.


source: Caselaw Access Project

author: KUNSELMAN, R.J.

license: Public Domain

text:
    Cavoulas v. Singh

      C.P. of Beaver County,
    no. 10315 of 2002.

      William S. Schweers Jr., for plaintiff.

      Rebecca J. Maziarz, for defendant.
    April 18, 2006
   KUNSELMAN, R.J.

This matter is before the court on the defendants’ preliminary objections to the plaintiff’s second amended complaint. Therein, the defendants contend that the plaintiff lacks the capacity to sue and that the naming of Sandy Cavoulas as executor of the estate of Helen Mae Cavoulas, deceased, is an attempt to substitute a party plaintiff after the statute of limitations has run. In addition, the defendants seek to have a portion of the damage claim stricken. We will grant the defendants’ first preliminary objection and dismiss the plaintiff’s second amended without leave to amend.

A review of the factual and procedural history is necessary. The plaintiff’s complaint alleges that Helen Mae Cavoulas died March 2, 2000, as a result of the defendants’ professional negligence. Suit was filed on February 20,2002, by filing a praecipe for a writ of summons in trespass. The named plaintiff was Harry M. Cavoulas, executor of the estate of Helen Mae Cavoulas, deceased. The complaint which was filed alleged that Harry M. Cavoulas was the surviving husband of Helen Mae Cavoulas and that he was the “executrix (sic) of the estate.” The defendants filed preliminary objections alleging that the decedent’s will had never been probated and that Harry M. Cavoulas had never been duly appointed as executor of her estate. The defendants’ preliminary objections raised questions of lack of capacity to sue and failure of a pleading to conform to law.

The plaintiff admitted that letters testamentary had not been issued to the named plaintiff but attached a copy of the decedent’s will which appointed him as executor. The plaintiff then argued that the doctrine of relation back applied to ratify the post-appointment commencement of the action, citing Wilkes-Barre General Hospital v. Lesho, 62 Pa. Commw. 222, 435 A.2d 1340 (1981), and Prevish v. Northwest Medical Center, 692 A.2d 192 (Pa. Super. 1997). Under the doctrine of relation back, the court will validate the acts of the personal representative which preceded the date of his official appointment under certain circumstances. Id.

Because Harry M. Cavoulas had not been duly appointed executor of the estate of Helen Mae Cavoulas, even as of the date of oral argument on those preliminary objections, we concluded that there was nothing to relate back from, and on November 15, 2005, dismissed the survival action. However, we further concluded that, since the survival and wrongful death actions were separate and distinct actions and since Pa.R.C.P. 2202(b) permits an action for wrongful death filed after six months of the decedent’s death to be filed by a party other than the personal representative, we refused to dismiss the wrongful death action. Instead, we granted leave to the plaintiff to amend the complaint to name Harry M. Cavoulas as trustee ad litem on behalf of all persons entitled to share in any damages awarded.

The plaintiff then filed an amended complaint and 11 days later, a second amended complaint. The plaintiff in both amended complaints is Sandy Cavoulas, executrix of the estate of Helen Mae Cavoulas, deceased. In the first amended complaint, she alleges that she is the surviving daughter of Helen Mae Cavoulas and was appointed executrix of her estate by the Register of Wills of Beaver County on November 9, 2005. (The appointment was actually made on November 14, 2005.) The second amended complaint is identical to the first amended complaint except it alleges that Sandy Cavoulas is the surviving niece of Helen Mae Cavoulas. In fact, Harry M. Cavoulas died on May 6, 2005, almost six months before our order authorizing him to amend to sue as guardian ad litem on behalf of all who were entitled to recover under the Wrongful Death Act. Sandy Cavoulas was also appointed executrix of his estate on November 9, 2005.

In her brief in opposition to the defendants’ preliminary objections, the plaintiff contends that, since she was appointed the executrix of the estate of Helen Mae Cavoulas on November 14, 2005 and executrix of the estate of Harry M. Cavoulas on November 9, 2005, she may now serve as plaintiff pursuant to the Wrongful Death Act based upon the same rationale found in this court’s order of November 15,2005. No authority is cited for this proposition.

Because the decedent died on March 2,2000, the statute of limitations would have expired on March 1,2002. 42 Pa.C.S. §5524(2). When suit was filed on February 20, 2002, by a person who had not qualified as the personal representative of the decedent’s estate, it was as if no suit had been filed. No personal representative of the decedent’s estate had been duly qualified until November 14,2005, three, years and eight and one-half months after the statute of limitations period expired. Therefore, we properly dismissed the survival action because the court cannot validate acts of a personal representative of an estate which preceded his official appointment when there was no appointment of a personal representative.

We had allowed Harry M. Cavoulas to secure an amendment to pursue the wrongful death action as a guardian ad litem because he had filed suit prior to the expiration of the statute of limitations, albeit as the unqualified executor of his wife’s estate. He was the person entitled to any damages to be awarded under the Wrongful Death Act, which created the right of action only for the benefit of the spouse, children or parents of the deceased. 42 Pa.C.S. §8301(b).

Pa.R.C.P. 2202(b) authorized suit to be filed “by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.” (emphasis supplied) Since the Wrongful Death Act created the right of action only for the benefit of the decedent’s spouse, children or parents, suit must be filed by a spouse, child or parent as trustee ad litem. Harry M. Cavoulas was the sole surviving beneficiary of the deceased, Helen Mae Cavoulas, and he also was capable of filing the wrongful death action as trustee ad litem. Had he survived, we would allow him to amend accordingly. Usner v. Duersmith, 346 Pa. 494, 31 A.2d 149 (1943). However, by filing the amended complaint by Sandy Cavoulas, executrix of the estate of Helen Mae Cavoulas, deceased, a new party has been added after the statute of limitations has expired, which is not permitted. Marzella v. King, 256 Pa. Super. 179, 389 A.2d 659 (1978).

An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the second amended complaint is dismissed with prejudice.


author: WECHT, J.,

text:
    Piskurich v. Peitz

      C.P. of Allegheny County,
    no. FD 02-6005-003.

      Scott B. Horowitz, for plaintiff.

      Paul M. Daniels, for defendant.
    April 5, 2006
   WECHT, J.,

Plaintiff Stephen J. Pislcurich (Father) appeals this court’s February 6,2006 order granting defendant Antoinette Peitz (Mother) primary physical custody of the parties’ minor children and allowing Mother to relocate to Deerfield Beach, Florida with the children.

BACKGROUND

The parties never married. They met while both were employed by OK Grocery. (1-25-06 R. at 73.) The parties began dating in or around September 1998. (2-2-06 R. at 7.) They lived together from December 1998 until September 27, 2005. (1-25-06 R. at 6.) During that period, Mother gave birth to the parties’ two children, Stephen (date of birth: June 27,1999) and Samantha (date of birth: November 13, 2000). From May 2001 until September 2005, the parties lived in a home owned by Father. (1-25-06 R. at 6-7.)

Both parties were bom and raised in Allegheny County. Mother’s parents are divorced. Mother’s mother resides in Penn Hills. (1-25-06 R. at 22.) Mother also has aunts and uncles residing in Allegheny County. (1-25-06 R. at 22.) Mother testified that her mother saw the children “once a week, once every two weeks” when Mother and the children were living in Pittsburgh. (1-25-06 R. at 23.) Mother testified that she saw her aunts and uncles on birthdays and holidays. (1-25-06 R. at 22.) Mother’s father, Mark Peitz (Maternal Grandfather), lives in Deerfield Beach, Florida. Mother’s brother also lives in Deerfield Beach, where he works for Maternal Grandfather’s company. (1-25-06 R. at 22.)

Father’s parents live about five houses up the hill from Father’s residence. (2-2-06 R. at 11.) While Mother testified that the paternal grandparents’ contact with the children was limited, Father testified that the paternal grandparents saw the children “just about every day if it was nice out,” and the children were outside. (1-25-06 R. at 23; 2-2-06 R. at 11-12.) Father also has a brother, two sisters, aunts, uncles, and cousins in the Pittsburgh area. (2-2-06 R. at 11.)

At the beginning of the parties’ relationship, Mother was employed in the shipping and receiving department at OK Grocery. (1-25-06 R. at 73.) Following Stephen’s birth in 1999, the parties agreed that Mother would stay home and that Father would work. (1-25-06 R. at 29-30; 2-2-06 R. at 9.) Prior to leaving Pittsburgh in September 2005, Mother had been working part-time for Regis Steedle Candies. (1-25-06 R. at 16-17, 51-52.) From October 2005 through January 2006, Mother worked as an administrative assistant at Maternal Grandfather’s company, Miami Environmental and Construction Services, in Deerfield Beach, Florida. (1-25-06 R. at 17, 50-51.)

Father is in his twenty-fifth year of employment in shipping and receiving at OK Grocery Company. (2-2-06 R. at 5.) Father testified that, for the past five years, he worked the 2 p.m. to 10 p.m. weekday shift. (2-2-06 R. at 5.) Father further testified that his work shift “also entails us going into work early which would be four hours early, two hours early and also staying over any denominations of two, three or four hours.” (2-2-06 R. at 5.)

On September 27, 2005, Mother took the children to Maternal Grandfather’s home in Deerfield Beach, Florida. Mother testified that Father knew that Mother was leaving. (1-25-06 R. at 43,72.) Father testified that, although he noticed that Mother had been removing items from the home, Mother stated that she “didn’t know” if she was going to move out. (2-2-06 R. at 18.) Father testified that the first indication that he had that Mother had taken the children to Florida was when she called him from the airport to let him know that she had parked his car there. (2-2-06 R. at 18.)

On October 12,2005, Father presented a “petition for special relief’ before the undersigned requesting that Mother be directed to return the children to Allegheny County. By order of the same date, this court granted Father’s request. On October 13, 2005, Father filed a “complaint for primary physical custody” of the children.

On October 27,2005, Mother filed an “answer to complaint for primary custody and counterclaim for primary custody.” On the same date, Mother presented a motion for reconsideration of this court’s October 12 order, and also raised new matter concerning her request for relocation. By consent order dated October 27, the parties agreed that Mother would return with the children to Allegheny County as soon as possible and that the parties would share physical custody of the children pending a hearing on Mother’s request to relocate with the children to Florida. The order further provided that Stephen would be re-enrolled in the Shaler Area School District.

At hearing, both parties testified that Father agreed to allow the children to remain in Florida until January 2006 in order to finish the school semester. (1-25-06 R. at 8-9; 2-2-06 R. at 19, 28.) Father had custody of the children in Allegheny County from November 19-20, 2005 and December 23-24,2005. (1-25-06 R. at 10-12; 2-2-06 R. at 19-20.) Mother testified that she and the children returned to Allegheny County on January 18,2006. (1-25-06 R. at 12-13.) At the time of hearing, Stephen had been re-enrolled at Marzolf Elementary School in the Shaler Area School District. (1-25-06 R. at 13.)

This court conducted a one and one-half day custody relocation hearing on January 25 and February 2, 2006. This court heard testimony from both parties and from Maternal Grandfather. Following careful deliberation upon the facts of the case and the applicable law, and upon review of proposed orders submitted by both parties, this court issued its February 6,2006 order granting Mother primary physical custody and allowing her to relocate to Deerfield Beach, Florida with the children.

This court’s order provided that Father would have custody of the children every third weekend, alternating between Allegheny County and Deerfield Beach. The order also provided that Father would have six weeks of summer custody; the entire winter break (although the parties are to alternate the Christmas holiday provided Mother comes to Allegheny County); the entire spring break; and time on Thanksgiving Day provided Father travels to Florida. Further, the order provided that Mother shall afford Father liberal visitation (including overnights) in the event that he travels to Florida at other times at his own cost. The order provided the same rights to Father in the event that Mother travels to Allegheny County with the children at other times not specified in the order. As to the cost of transportation, this court’s order provided that Mother would be responsible for the cost of the every third weekend visits and that the parties would split all of the other transportation costs equally.

On February 17,2006, Father filed a notice of appeal from this court’s February 6 order. By order dated February 21,2006, Father was directed to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his statement, filed on March 3, 2006, Father raises the following issues for review:

“(1) The court abused its discretion and/or committed an error of law by failing to properly apply the ‘factors’ outlined in the Gruber case, 400 Pa. Super. 174, 583 A.2d 434 (1990), in its allowance of Mother to relocate to Deerfield, Florida where evidence was presented that the move would not significantly improve the quality of life of the parent and children, that the move was not motivated simply by the desire to frustrate the visitation rights of the non-custodial parent or impede the development of a meaningful parent-children relationship in the feasibility of substitute visitation arrangements to insure [sic] a continuing relationship between the children and the custodial parent.

“(2) The court abused its discretion and/or committed an error of law in allowing Mother to relocate where she hid the plan to relocate out of state from Father, removed herself from the jurisdiction without seeking original court approval, failed to timely return the children upon initial court order directing her to do so, failed to even examine the possibility of alternate living arrangements and/or such employment possibilities in Allegheny County and was limiting on Father’s time with the children upon her return to jurisdiction [sic].

“(3) Assuming arguendo that the court was correct in its allowance of Mother to relocate, the court further abused its discretion and/or commit [sic] an error of law in providing Father a visitation/partial custody arrangement that greatly reduces Father’s time with the minor children and only provides him with one weekend per month, six weeks during the summer and the spring and winter breaks (the Thanksgiving break can also be partially Father’s if he goes to Florida), when Father had daily contact with the minor children prior to the relocation.”

DISCUSSION

In deciding relocation requests, Pennsylvania trial courts must follow the standards set forth in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). The Gruber court stated that the trial court must consider:

“[1] the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;...

“[2] the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and ...

“[3] the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.” Gruber, 400 Pa. Super, at 184-85, 583 A.2d at 439.

While the trial court must consider the above factors concerning the potential relocation, the child’s best interest remains at the heart of the trial court’s determination. Accordingly, the trial court must consider “all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being” in making its decision in a relocation case. Kirkendall v. Kirkendall, 844 A.2d 1261, 1263-64 (Pa. Super. 2004), quoting Dranko v. Dranko, 824 A.2d 1215, 1219 (Pa. Super. 2003).

The Superior Court also has directed that in cases in which no prior custody determination has been made, a trial court cannot sua sponte assume that one parent is the primary caretaker and then apply the Gruber factors in order to determine whether that parent’s request to relocate should be granted. See generally, Marshall v. Marshall, 814 A.2d 1226, 1230-31 (Pa. Super. 2002); Beers v. Beers, 710 A.2d 1206, 1209 (Pa. Super. 1998). Instead, both parties must be placed on equal footing, and the trial court, in applying the Gruber factors, must “scrutinize both custodial environments without favoring one over the other.” Beers, 710 A.2d at 1209. Accordingly, the only burden carried by either of the parents is to establish what is in the best interest of the child. See Burkholder v. Burkholder, 790 A.2d 1053, 1058-59 (Pa. Super. 2002), citing Hurley v. Hurley, 754 A.2d 1283, 1287 (Pa. Super. 2000).

In the instant case, no custody order was in place before Mother took the children to Florida on September 27,2005. Thus, this court was required to consider both custodial environments equally in making its determination. The evidence established that it is in the best interest of the children to be in the primary custody of Mother.

Both parties testified that they agreed that Mother would stay home with the children. (1-25-06 R. at 29-30; 2-2-06 R. at 9.) Mother testified that she left Father’s residence with the children because it was a “hostile situation.” (1-25-06 R. at 15.) Mother testified that Father “belittled” her in front of the children, calling her “a pig ... a bitch, a cunt” and telling her that she did not know how to take care of the children. (1-25-06 R. at 24-25.) Mother testified that these comments had a particular impact upon Stephen, who began having behavior problems beginning in his second year of pre-school. (1-25-06 R. at 25.) Mother described Stephen’s behavior as follows:

“[Wjhen I would tell him something, he wouldn’t listen. It was like he was — women’s authority he wouldn’t respect. I was getting put down by his father, and he was treating his sister nasty and being — his teachers were having problems with him in school.” (1-25-06 R. at 25.)

Mother also testified that Stephen would say “Daddy said you’re a pig” or “Mommy’s a pig.” In February 2003, Mother began taking Stephen to a psychiatrist at Western Psychiatric Institute. (1-25-06 R. at 37.) Stephen initially saw the psychiatrist bi-weekly, and then monthly. (1-25-06 R. at 37.) Stephen still was attending counseling at the time Mother took the children to Deerfield Beach. (1-25-06 R. at 37.) Mother testified that Father refused to participate in Stephen’s counseling, stating that Stephen didn’t need counseling and Mother “just couldn’t handle him.” (1-25-06 R. at 37.) Mother enrolled Stephen in counseling in Florida “about one week” after she and the children arrived in September 2005. (1-25-06 R. at 65.) Mother testified that, after three visits, Stephen’s behavior was improving, and therefore the counselor allowed Stephen to come in on an “as-needed basis.” (1-25-06 R. at 38.) Stephen also was doing very well in school in Florida. (1-25-06 R. at 39.)

Mother offered copious evidence concerning the custodial environment that she is able to provide in Florida for the children with the assistance of Maternal Grandfather. For example, Mother presented evidence concerning Maternal Grandfather’s home and surrounding area, and the schools the children attended in fall 2005. (1-25-06 R. at 16, 111, 20-21, 61.) Both Mother’s and Maternal Grandfather’s testimony established that Maternal Grandfather is able to provide a positive environment for the children in his home.

In contrast, Father presented little to no evidence of the custodial environment that he would provide. Father verified that the parties had agreed that Father would work and Mother would be the primary caretaker of the children, yet when asked if, while they were living together, Mother spent most of her time caring for the children, Father answered, “We split that pretty much mutually. The only time she spent caring for the children were the times that I wasn’t home.” (2-2-06 R. at 9, 29.) In light of Father’s testimony that his job entails working the 2 p.m. to 10 p.m. shift on weekdays, as well as going in to work two to four hours early and staying two, three, or four hours past his shift, it appeared that there was a lot of time that Father was not home.

As to the time that Father spent with the children, Mother agreed with Father’s testimony that he would sometimes watch the children on weekends while Mother worked at Regis Steedle Candies. (2-2-06 R. at 60.) However, Mother added that there were many weekends when one or both children came with her to work while Father went on a golf outing in the summer or to Steelers games in the fall and winter. (2-2-06 R. at 60.)

Moreover, Father admitted that he did not attend either child’s pre-school graduation ceremony and had attended just one to two medical appointments with the children. (2-2-06 R. at 47, 39.) Yet Father testified that he has 10 sick days and five personal days available per year, plus five weeks of vacation. (2-2-06 R. at 30.) When Father was asked if it was true that he had not participated in Stephen’s counseling, Father replied “I was totally against it. I was not for that and I didn’t participate in it.” (2-2-06 R. at 40.)

Based upon the foregoing evidence, this court concluded that Mother is able to provide the better custodial environment for the children and determined that awarding primary physical custody of the children to Mother is in the children’s best interests.

As to Father’s first issue raised on appeal, this court properly applied the Gruber factors. In doing so, this court determined that the potential advantages of the move to Deerfield Beach outweigh the potential disadvantages. The Gruber court suggested the following approach to the trial court’s analysis under the first prong of the Gruber test:

“In considering the prospective advantages to the move, a court shall not limit itself solely to enhanced economic opportunities for the custodial parent but must also assess other possible benefits of the relocation. For instance, relocation may be' motivated by a desire to return to a network of family or friends, or to pursue educational opportunities, or to seek an improved physical environment in which to live and raise children.” Gruber, 400 Pa. Super, at 184, 583 A.2d at 439.

In the instant case, Mother provided evidence establishing that Maternal Grandfather provides emotional and financial support to Mother and the children, that Mother will be able to finish her education with this support, and that Maternal Grandfather’s home in Deerfield Beach is an excellent area for children in terms of education and activities. It is also significant that Maternal Grandfather supports Father’s relationship with the children. Maternal Grandfather testified that he would never try to stop Father from seeing the children. (1-25-06 R. at 104-105.) Father and Maternal Grandfather agreed that they have a cordial relationship. (2-2-06 R. at 28-29.)

As to the improved financial picture for Mother in Florida, Mother testified that, with her $500 per week salary working as an administrative assistant for Maternal Grandfather, she is able to save money. (1-25-06 R. at 90,63.) Maternal Grandfather testified that this job is still open to Mother and that her job performance is “way better” than the person who held the job before her. (1-25-06 R. at 108.) The evidence established that Maternal Grandfather not only has provided financial support and childcare, but that he has been a positive role model for the children. (1-25-06 R. at 39-40,88-89.) Also, both Mother and Maternal Grandfather testified that Maternal Grandfather would assist Mother in returning to college to finish her Bachelor’s Degree. (1-25-06 R. at 62-63,108.)

Finally, the evidence established that the Florida schools offer excellent educational opportunities for the children and that the children are able to participate in the same activities that they participated in while living in Allegheny County. For example, Mother testified that Stephen was getting “technology electives” in first grade at Quiet Waters Elementary in Deerfield Beach and that these electives were not offered at Shaler Area. (1-25-06 R. at 20.) Mother also testified that Samantha was learning material in her pre-kindergarten program at La Petite Academy in Deerfield Beach that Stephen had been learning in kindergarten at Shaler Area. (1-25-06 R. at 21.) Mother testified that Stephen was performing better in school in Florida than he had in Allegheny County. (1-25-06 R. at 54.) Mother also testified that Stephen and Samantha’s activities in Allegheny County (baseball and dance, respectively) were available in Deerfield Beach. (1-25-06 R. at 76-77.)

As to the second part of Father’s first issue raised on appeal, this court agrees that evidence was presented that the move was not motivated simply by Mother’s desire to frustrate Father’s visitation rights or to impede the development of the relationship between Father and the children. This court determined that both parties appeared to be motivated by the best interest of the children. Mother did not appear to be motivated by a desire to frustrate Father’s visitation rights. To the contrary, Mother and Maternal Grandfather offered to fly the children up to Allegheny County to see Father once per month. (1-25-06 R. at 42, 105.) Further, Mother offered to split the children’s winter and spring breaks, as well as the summer. (1-25-06 R. at 43.)

With regard to Father’s second issue raised on appeal, this court found in its order that Mother had engaged in self-help in taking the children to Florida without first seeking Father’s permission or leave of court. This court expressly disapproved Mother’s unilateral action, and ordered Mother to return the children pending hearing. Flowever, after conducting that evidentiary hearing, this court determined that Mother’s request for relocation should be granted. As to Father’s allegation that Mother “failed to timely return the children upon initial court order directing her to do so,” both parties testified that Father agreed to allow the children to remain in Florida until January 2006 to finish the school semester. (1-25-06 R. at 8-9; 2-2-06 R. at 19,28.) With regard to Father’s allegation that Mother “failed to even examine the possibility of alternate living arrangements and/or such employment possibilities in Allegheny County,” Mother provided the following explanation concerning her move to Florida:

“I had no money at the time, and my father had — was able to help me out and give me a job, so I would be able to support my children and ultimately get on my feet again.” (1-25-06 R. at 15.)

There was no evidence presented that Mother could obtain a job in Allegheny County comparable to her salaried job in Deerfield Beach with flexible hours to allow Mother to be available for her children before and after school.

As to Father’s final allegation in his second issue that Mother “was limiting on Father’s time with the children upon her return to jurisdiction” [sic], the evidence did not support this allegation. Mother testified that she returned with the children to Allegheny County on January 18, 2006. (1-25-06 R. at 13.) Father testified that, since the children’s return to Allegheny County, he had custody of the children every Saturday from 11 a.m. to Sunday at 8 p.m. (2-2-06 R. at 22-23.) When Father was asked on cross-examination why he did not have the children overnight on Sunday so that he could feed them breakfast before school on Monday morning, Father replied that, “Mrs. [sic] Peitz requested that she have them back at 9 on Sunday.” (2-2-06 R. at 45-46.) Yet, Father did not testify that he had requested additional time with the children and that Mother had denied his request.

As to Father’s third issue raised on appeal, the Gruber court offered the following instruction concerning the availability of realistic, substitute visitation arrangements:

“We recognize that, in many cases, former weekly visitation may have to give way to an altered schedule which allows for less frequent but more extended contact between parent and child. However, the necessity of shifting visitation arrangements to account for geographical distances will not defeat a move which has been shown to offer real advantages to the custodial parent and the children.” Gruber, 400 Pa. Super, at 185-86, 583 A.2d at 439.

Accordingly, even if Father had daily contact with the children, the fact that his schedule with the children necessarily must change with the relocation does not alone defeat the relocation. See Billhime v. Billhime, 869 A.2d 1031 (Pa. Super. 2005). Moreover, while both parties testified that Father had daily contact with the children before they traveled to Florida in September 2005, the evidence suggested that the contact was somewhat limited. Mother maintained that the time Father spent with the children on weekdays was limited to half an hour or so before school because the children were in bed by the time Father arrived home from work. (1-25-06 R. at 57; 2-2-06 R. at 58-59.) Father admitted that he was missing the children’s activities because he was at work. (2-2-06 R. at 38.)

Instantly, the custody schedule that this court devised for Father provides him with “less frequent but more extended contact.” See Gruber, 400 Pa. Super, at 185, 583 A.2d at 439. The schedule provides that Father will have weekends with the children once every three weeks. Father also was granted the entirety of the winter break (provided that Mother does not travel to Allegheny County to share the Christmas holiday); the entirety of spring break; and half of the summer. Father was granted some time on the Thanksgiving holiday provided he travels to Deerfield Beach. This court directed Mother to afford Father “liberal and reasonable visitation (including overnights)” at all other times that Father elects to travel to Florida at his own expense, provided that Father gives Mother reasonable notice. (2-6-06 order, ¶ D. 1.) Mother also was directed to afford the same rights to Father at all times she visits Allegheny County with the children. (2-6-06 order, ¶ D.2.) It cannot be gainsaid that this created a custody regime that affords the children substantial, ongoing time with their Father.

For the foregoing reasons, this court’s February 6,2006 order should be affirmed.

      . Father testified that he could bid in the near future on the 6 a.m. to 2 p.m. shift. (2-2-06 R. at 6.) Father testified that he would not have been able to bid on this schedule successfully last year, but could bid successfully on it this year because 40 employees ahead of him in seniority had retired. (2-2-06 R. at 39.)


author: HODGE, J.,

text:
    In re Majors

      C.P. of Lawrence County,
    no. 98 of 2005, O.C.

      Charles S. CasickJr., for petitioner.

      Angelo Papa, for Hudson.
    February 10, 2006
   HODGE, J.,

The parties were before the court February 8, 2006, pursuant to a motion to compel and to impose sanctions, filed by Challenges: Options in Aging, against Ms. Terry Hudson, adult daughter of John K. Majors and former agent of John K. Majors, pursuant to a power of attorney dated June 13,2005.

The evidence presented at the hearing established that on June 13,2005, John K. Majors signed a general power of attorney, whereby he appointed his daughter, Terry Hudson, as his agent. See petitioner’s exhibit no. 3. The general power of attorney was in a form mandated by chapter 56 of the Decedents, Estates and Fiduciaries Code. Attached to the power of attorney was the acknowledgment of the agent, Terry Hudson, signed June 13, 2005, which contained the following statements:

“(1)1 will exercise the powers for the benefit of the principal.

“(2) I will keep the assets of the principal separate from my assets.

“(3) I shall exercise reasonable caution and prudence.

“(4) I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal.”

On September 16, 2005, this court entered a preliminary emergency decree appointing Challenges: Options in Aging, protective case worker, Sally Smith, as interim plenary guardian of the person and estate of John K. Majors. An Emergency Review Conference was held on September 22, 2005, at which time the Honorable Michael J. Wherry, Judge, continued the emergency decree in full force and effect.

Upon consideration of a motion for accounting and a motion to compel compliance, filed October 21, 2005, Terry Hudson was ordered to deliver to Challenges protective case worker, Sally Smith, at the Challenges office, control of all John K. Majors’ retirement, Social Security, rent and other income whether cash or checks, 2005 bank checking and a savings account statements with John K. Majors’ name or which contain his funds, as well as control of all John K. Majors’ assets in Terry Hudson’s possession or control, so Sally Smith can pay John K. Majors’ current bills. It was further ordered that Terry Hudson, by October 28,2005, shall provide a full and complete written verified accounting to Sally Smith, Challenges protective case worker, of all assets and income of John K. Majors in her possession at any time during 2005, whether under the power of attorney or otherwise, and a list all expenditures made by her on John K. Majors’ behalf, with substantiating documentations for each expenditure.

A final guardianship decree was entered on November 8, 2005, adjudicating John K. Majors a totally incapacitated person. In addition, pursuant to said final guardianship decree, Terry Hudson’s agent status under John K. Majors’ power of attorney was revoked, for good cause. Terry Hudson was further ordered to deliver by November 11,2005, to Sally Smith, all John K. Majors’ funds in her possession or control, excluding only those account deposits which she substantiates by pay-stub or other primary document, as her separate income or funds. The final guardianship decree further provided that by November 11,2005, Terry Hudson shall also make a full, complete, accurate and verified agent accounting filed with the Lawrence County Prothonotary, with copies to Attorneys Olimpi and Cusick of all John K. Majors’ receipts and all disbursements for 2005.

Petitioner’s exhibit no. 4, being a letter dated December 29,2005, from Attorney Angelo A. Papa, counsel for Terry Majors, to Attorney Charles S. Cusick Jr., contained what purports to be a detailed accounting of John K. Majors’ bank account. The accounting was not filed in the office of the Clerk of Courts of Lawrence County.

A subsequent motion to compel and to impose sanctions was filed by Challenges: Options in Aging, on January 13, 2006, and pursuant to said order, Terry Hudson was ordered to comply with the court’s order of November 8,2005, and to comply with the first and third paragraphs of the court’s October 21, 2005 order, by filing, no later than January 20, 2006, an accounting, in writing, verified by Terry Hudson, substantiating all by receipts, bills, cancelled checks and other primary documentation. See petitioner’s exhibit no. 2.

Chapter 56 of the Decedents, Estates and Fiduciaries Code, 20 Pa.C.S. §5601, et seq., specifically provides in section 5610 as follows:

“An agent shall file an account of his administration whenever directed to do so by the court and may file an account at any other time. All accounts shall be filed in the office of the clerk in the county where the principal resides.”

In addition, section 5604 of the foregoing statute authorizes the court to make and enforce orders relative to requests for information by a court-appointed guardian or agency acting pursuant to the Older Adults Protective Services Act, 35 PS. §10225.101, et seq. See 20 Pa.C.S. §5604(c) and §5604(d).

The Supreme Court of Pennsylvania has promulgated Orphans’ Court Rules pertaining to the filing of accounts. Rule 6.1 establishes rules for the filing of accounts and the appendix to the Orphans’ Court Rules has attached samples of accounts which may be modified to meet the specific needs of any situation.

In civil contempt proceedings, the complaining party has the burden of proving noncompliance of a court order by a preponderance of the evidence. See Wood v. Geisenhemer-Shaulis, 827 A.2d 1204 (Pa. Super. 2003); Cecil Township v. Klements, 821 A.2d 670 (Pa. Commw. 2003). To be sanctioned for civil contempt, a party must have violated a court order. Specifically, the complaint must prove:

(1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed;

(2) that the act constituting the contemnor’s violation was volitional; and

(3) that the contemnor acted with wrongful intent. See Lachat v. Hinchliffe, 769 A.2d 481 (Pa. Super. 2001).

Generally, in order to hold one in civil contempt, a five-step process must be followed:

(1) the rule to show cause why an attachment should not be issued;

(2) an answer in hearing;

(3) a rule absolute;

(4) a hearing on the contempt citation; and

(5) an adjudication.

Fulfillment of all five factors is not mandated, however, when the contempt proceedings are predicated on the violation of a court order that followed a full heaning. Due process requires no more than notice of the violations that are alleged and an opportunity for explanation and defense. See Diamond v. Diamond, 792 A.2d 597 (Pa. Super. 2002).

From the record, the court finds that Terry Hudson had notice of the prior hearings, having been in attendance thereof and that she, either directly or through her counsel, received copies of the court orders.

Petitioner’s exhibit no. 4, while purporting to be an accounting, clearly fails to comply with the Orphans’ Court Rules relative to accounts and to the statutory requirements to an account as set forth in the Decedents, Estates and Fiduciaries Code. In addition, accounts clearly are to be filed in the office of the Prothonotary/ Clerk of Courts of Lawrence County, and not merely by mailing to opposing counsel.

The court hereby finds Terry Hudson to be in civil contempt, and will enter the attached order so as to provide her with the opportunity to purge herself from the contempt order.

ORDER

And now, February 10,2006, this matter being before the court on February 8,2006, on the motion to compel and to impose sanctions filed by Challenges: Options in

Aging, and, following a hearing held and upon review of the testimony and exhibits offered, the court finds Terry Hudson, former agent of John K. Majors, pursuant to power of attorney dated June 13,2005, in civil contempt, by failing to file the appropriate accounting of the affairs of said John K. Majors with the office of the prothonotary and clerk of courts, as is required pursuant to the orders of this court dated October 21,2005, November 8, 2005 and January 13, 2006.

Terry Hudson may purge herself of this contempt order, by filing with the prothonotary and clerk of courts a full and complete written, verified accounting of all assets, including, but not limited to, retirement funds, Social Security funds, rental income, bank savings and checking accounts, together with a list of all expenditures made by her on John K. Majors’ behalf with substantiating documentation for each expenditure.

The accounting shall be in the form required by the Orphans’ Court Rules.

The accounting shall be filed in the office of the prothonotary/clerk of courts, on or before March 31, 2006.

A hearing is hereby scheduled for April 10, 2006, at 9:30 a.m., 1/2 hour reserved, for the purpose of reviewing the accounting filed by said Terry Hudson, a copy of which shall be transmitted to counsel for Challenges: Options in Aging.

Terry Hudson is hereby advised that should she fail to comply with the provisions of this order, specifically the purge conditions, by filing an appropriate account with the office of the Prothonotary/Clerk of Courts of Lawrence County, that the court may impose penalties, which may include a fine, attorney’s fees, costs, and/or incarceration.

The prothonotary shall properly serve notice upon counsel of record and any party not represented by counsel.


author: MOTTO, P.J.,

text:
    Harlan v. Erie Insurance Group

      C.P. of Lawrence County,
    no. 10388 of 2005, C.A.

      Bill Cohen, for plaintiffs.

      Arthur Leonard, for defendants.
    February 16, 2006
   MOTTO, P.J.,

Before the court for disposition are defendant Erie’s preliminary objections in the nature of a demurrer to Counts II and VII of amended complaint of plaintiffs Harlan for failure to state a cause of action, and a motion to strike any claims for damages for emotional distress.

The issues that are dispositive of the foregoing matter are:

(1) Whether a claim for breach of covenant of good faith and fair dealing is an independent cause of action for breach of a contract.

(2) Whether Pennsylvania recognizes a cause of action for spoliation.

(3) Whether the complaint alleges facts to support a claim for damages for emotional distress on the contract theories pled in plaintiffs’ complaint.

Plaintiffs’ complaint seeks damages from the defendant insurance company because of the conduct of the defendant in addressing plaintiffs’ claim for comprehensive property damage benefits under a policy of motor vehicle insurance issued by defendant to plaintiffs. The complaint identified the following counts and causes of action:

Count I — Breach of contract.

Count II — Breach of the covenant of good faith and fair dealing.

Count III — Bad faith pursuant to 42 Pa.C.S. §8371.

Count IV — Violation of Unfair Trade Practices and Consumer Protection Law.

Count V — Conversion.

Count VI — Intentional misrepresentation.

Count VII — Spoliation.

At all times pertinent to this action, plaintiffs had in full force and effect an automobile policy issued to them by defendant, Erie Insurance Exchange, which policy covered plaintiffs as named insureds.

Plaintiffs allege that their 1989 Chevrolet Tahoe was stolen on October 1, 2002 and subsequently found burned. Plaintiffs filed a claim for comprehensive property damage benefits under a policy of motor vehicle insurance that was issued by defendant. Plaintiffs allege that defendant was responsible for payment of the comprehensive property damage benefits to them as a result of the incident, but that defendant failed to pay the claim. Plaintiffs also allege that defendant retained custody of said vehicle until the fall of2003, returned it at that time, and failed to return the vehicle with its upper steering assembly, which plaintiffs allege is a necessary component for their investigator to perform a complete and adequate investigation of the cause of the theft of the vehicle.

A preliminary objection in the nature of a demurrer should only be granted in cases that are free from doubt. Britt v. Chestnut Hill College, 429 Pa. Super. 263, 632 A.2d 557 (1993).

“A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deduced therefrom; it tests the legal sufficiency of the challenged complaint and will be sustained only in those cases where the pleader has clearly failed to state a claim for which relief may be granted. If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor of overruling the demurrer.”Rutherfoord v. Presbyterian-University Hospital, 417 Pa. Super. 316, 322, 612 A.2d 500, 502 (1992).

Defendant’s first preliminary objection in the nature of a demurrer contends that plaintiff’s breach of covenant of good faith and fair dealing should be dismissed because a breach of this duty is not a separate cause of action but rather part of the breach of contract claim.

“The duty of good faith has been defined as honesty in fact in the conduct or transaction concerned. Where a duty of good faith arises it arises under the law of contracts, not under the law of torts.” Heritage Surveyors & Engineers Inc. v. National Penn Bank, 801 A.2d 1248, 1253 (Pa. Super. 2002). Further, Pennsylvania “has not recognized a private cause of action, in tort, for alleged breaches of the duty of good faith and fair dealing.” Toy v. Metropolitan Life Insurance Co., 863 A.2d 1, 14 (Pa. Super. 2004), citing Heritage Surveyors v. National Penn Bank, 801 A.2d 1248, 1253 (Pa. Super. 2002).

In the case of Birth Center v. St. Paul Companies Inc., 567 Pa. 386, 787 A.2d 376 (2001) the Supreme Court of Pennsylvania expressly held that a contract right of action for breach of the insurance contract obligation to act in good faith exists in Pennsylvania. “Breach of... [the] obligation [to act in good faith] constitutes a breach of the insurance contract for which an action in assumpsit will lie.” Birth Center v. St. Paul Companies Inc., 567 Pa. at 401, 787 A.2d at 385, quoting Gray v. Nationwide Mutual Insurance Co., 422 Pa. 500, 508, 223 A.2d 8, 12 (1966). In Birth Center, the defendant insurance company refused to make a good faith effort to settle a case against its insured. The case against the insured went to trial and resulted in an excess verdict against the insured. Birth Center found that the defendant insurance company was liable for all compensatory damages for breach of its contractual obligation under the insurance contract to act in good faith in protecting the interests of the insured. Thus, Birth Center expressly held that when an insurer breaches its insurance contract by a bad faith refusal to settle a case, it is appropriate to require it to pay other compensatory damages that it knew or should have known the insured would incur because of the bad faith conduct. Birth Center, 567 Pa. at 407, 787 A.2d at 389. Furthermore, such contract right of action is wholly independent from the statutory bad faith action, 42 Pa.C.S. §8371, as the bad faith statute is not inconsistent with the common law and the statute merely authorizes additional damages beyond the common-law compensatory damages.

Therefore, since Pennsylvania law clearly recognizes the cause of action alleged in Count II of plaintiffs’ complaint, defendant’s preliminary objection thereto in the nature of a demurer must be denied and overruled.

Defendant next contends that Count VII of plaintiffs’ amended complaint should be dismissed because Pennsylvania does not recognize a cause of action for spoliation.

“[N]o appellate court in this Commonwealth has recognized a distinct cause of action for spoliation of evidence either by a party litigant or a third party.” Elias v. Lancaster General Hospital, 710 A.2d 65, 67 (Pa. Super. 1998). (footnote omitted) The circumstance in Elias is distinct from the circumstance present in the case sub judice. The Superior Court in Elias specifically noted that it was not ruling on a situation where the spoliation was committed by an adverse party to the litigation as is present in the case before this court. However, the Superior Court provided insight into such a circumstance where it stated:

“We decline to express a specific view on whether a separate tort is needed where an adverse party to litigation spoils evidence, since the issue is not presently before this court. That being said, we are of the opinion that traditional remedies more than adequately protect the ‘non-spoiling’ party when the ‘spoiling’ party is a party to the underlying action.” Id. at 67. (citations omitted)

Since no appellate court has recognized a separate cause of action for spoliation of evidence by a party litigant, in conjunction with the opinion of the Superior Court that traditional remedies more than adequately protect the “non-spoiling” party when the “spoiling” party is a party to the underlying action, the court determines that defendant’s preliminary objection to Count VII of plaintiffs’ amended complaint must be granted and, consequently, Count VII of plaintiffs’ amended complaint shall be dismissed.

Defendant also presents a motion to strike plaintiffs’ claim for emotional distress, alleging they are not entitled to such damages under the contract theory pled in Count II of the complaint relating to breach of the covenant of good faith and fair dealing.

As previously addressed, the duty of good faith arises under the law of contracts, not under the law of torts. Heritage Surveyors & Engineers Inc., supra. Therefore, plaintiffs may only seek damages that are available to them pursuant to contract theories of recovery.

In Rodgers v. Nationwide Mutual Insurance Company, 344 Pa. Super. 311, 496 A.2d 811 (1985), the court specifically held that an insured may not seek emotional distress damages from its insurer for an alleged breach of contract and stated as follows:

“It is quite clear that under Restatement of Contracts §341 (1932), which has been previously cited by Pennsylvania courts, [citations omitted] [plaintiffs] are not entitled to recover damages for emotional distress. Section 314 states:

“In actions for breach of contract, damages will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm and where it was the wanton or reckless breach of a contract to render a performance of such a character that the defendant had reason to know when the contract was made that the breach would cause mental suffering for reasons other than mere pecuniary loss.” Id. at 318, 496 A.2d at 814-15. (citations omitted)

Applying this standard to the present case, it is apparent that plaintiffs are precluded from recovering emotional distress damages arising from defendant’s alleged breach of contract for bad faith. Plaintiffs do not allege that they suffered bodily harm, nor can it be inferred from the facts alleged that defendant had reason to know that at the time the contract was entered into, a breach of that contract in the manner alleged would cause mental suffering for reasons other than pecuniary loss. The effect of the alleged deceitful conduct of the defendant was to avoid payment of the loss. It does not follow that defendant had reason to know at the time of contracting that wrongful failure to pay a legitimate claim would cause mental suffering for reasons other than pecuniary loss. There is nothing unique about an insurance contract that would suggest that failure to honor one’s obligations thereunder would likely cause emotional distress. No case has been cited to the court where a claim for bad faith breech of an insurance contract has resulted in a claim for emotional distress.

For the reasons set forth, plaintiffs’ claims for emotional distress damages in Count II of the complaint must be stricken.

ORDER

And now, February 16, 2006, after consideration of defendant’s preliminary objections to plaintiffs’ amended complaint, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed as follows:

(1) Defendant’s preliminary objection in the nature of a demurrer to Count II of plaintiffs’ amended complaint is denied and overruled.

(2) Defendant’s preliminary objection in the nature of a demurrer to Count VII of plaintiffs’ amended complaint is granted and Count VII is dismissed.

(3) Defendant’s preliminary objection in the nature of a motion to strike any claims in Count II of plaintiffs’ amended complaint for emotional distress damages is granted and any claims for emotional distress damages in the plaintiffs’ amended complaint are stricken. No ruling is made on any claim for emotional distress damages in any other count as the issue has not been addressed in defendant’s brief.


author: ZULICK, J.,

text:
    Adamski v. Johnson

      C.P. of Monroe County,
    no. 7824 CV 2005.

      Kevin L. Orloski, for plaintiff.

      Shawn R Phillips, for defendant.
    March 2, 2006
   ZULICK, J.,

This case is before the court on defendants’ preliminary objections to plaintiff Kathy Adamski’s complaint, which alleges an invasion of privacy. The complaint presents inter alia the following allegations. Ms. Adamski was an employee of defendant CHS Professional Practice PC in October 2004. Her supervisor was defendant Thomas Johnson. Ms. Adamski provided her employer with written advance notice that she was under the care of a physician and would be receiving surgery due to a medical condition which she did not disclose. After receiving her notice, Johnson asked Adamski for more particular information on the nature of the surgery, which she refused to divulge.

Johnson persisted in attempting to learn this information about his employee’s impending surgery. He asked Adamski’s fellow workers what surgery she was scheduled to receive, “us(ing) the power of the employment relationship to force, coerce and intimidate” these employees to disclose this information to him. Complaint, paragraph 11. Johnson was successful in learning the particulars of Adamski’s pending surgery by questioning the fellow employees. Finally, Adamski alleged that after learning about her surgery, Johnson told others, whose identities were unknown to Adamski at the time the complaint was filed.

Adamski sued Johnson and her employer on theories of invasion of privacy. She contended that Johnson’s actions were intentional, willful, wanton, malicious and outrageous and sought punitive damages.

Defendants raised preliminary objections to the complaint. They argue that Johnson’s actions as described in the complaint would not be highly offensive to a reasonable person. They seek dismissal of the complaint, contending that Adamski has not stated a claim upon which relief can be granted. In the alternative, they ask that Adamski provide a more specific complaint, describing specific actions of Johnson that would be highly offensive to a reasonable person. Defendants also argue for dismissal because Adamski’s remedies fall exclusively under the Workers’ Compensation Act. This case was briefed by the parties and argued before me on January 3,2006.

When reviewing a grant of a demurrer, all well-pleaded facts averred in the complaint are deemed admitted, and in order for the demurrer to be sustained, the complaint must indicate on its face that the claim cannot be satisfied and the law will not permit recovery. Rosenwald v. Barbieri, 501 Pa. 563, 567, 462 A.2d 644, 646 (1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1279, 79 L.Ed.2d 683 (1984).

Ms. Adamski cites Restatement (Second) of Torts §§652B and 652D in her brief as support for her invasion of privacy claims. These provisions of the Restatement have been cited with approval by our Pennsylvania appellate courts:

“It is well established in Pennsylvania that a violation of the right of privacy is an actionable tort. See Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974); Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959). ‘The gist of privacy is the sense of seclusion, the wish to be obscure and alone, and it is a trespass to abuse these personal sensibilities.’ Bennett v. Norban, 396 Pa. at 99, 151 A.2d at 479. The right of privacy is a qualified right to be let alone; but to be actionable, the alleged invasion of that right must be unlawful or unjustifiable. Lynch v. Johnston, 16 Pa.Commw. 8, 463 A.2d 87 (1983)... Our state courts have cited with approval the Restatement (Second) of Torts §652B-E for support regarding invasion of privacy matters. See e.g., Nagy v. Bell Telephone Company of Pennsylvania, 292 Pa.Super. 24, 436 A.2d 701 (1981); see also, Martin v. Municipal Publications, 510 F. Supp. 255 (E.D. Pa. 1981). We believe that the Restatement most ably defines the elements of invasion of privacy as that tort has developed in Pennsylvania.” Harris v. Easton Publishing Co., 335 Pa. Super. 141, 152-53, 483 A.2d 1377, 1383 (1984).

The first privacy claim Adamski alleges is intrusion upon seclusion. Restatement (Second) of Torts §652B provides as follows:

“Section 652B. Intrusion upon seclusion

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

“The invasion may be (1) by physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs, or (3) some other form of investigation or examination into plaintiff’s private concerns.” Harris v. Easton Publishing Co., 335 Pa. Super. 141, 153, 483 A.2d 1377, 1383 (1984); Restatement (Second) Torts §625B comment b. The Restatement also gives examples of other forms of investigation: “by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit inspection of his personal documents.” Id.

Examining Johnson’s conduct as described in the complaint, there is no question that Johnson acted intentionally by questioning other employees about Adamski’s prospective surgery, which was certainly her private affair. The question remains as to whether this intrusion would be highly offensive to a reasonable person. The Pennsylvania Superior Court has ruled that “the information disclosed by hospital records is not the sort which would ‘cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ ” Chicarella v. Passant, 343 Pa. Super. 330, 339, 494 A.2d 1109, 1114 (1985). (citations omitted) In Chicarella, a company hired to find out information about a party involved in an insurance claim obtained the party’s hospital records. The court further found “[t]he brief descriptions of appellant’s medical treatment cannot be deemed a substantial intrusion.” Id.

Here Johnson did not obtain Adamski’s medical records, but he did ask others in Adamski’s workplace about her need for surgery. The complaint does not specify what Johnson was told, but he was at least made aware of the nature of the surgery.

Liability for an invasion of privacy “will not attach to that act unless the intrusion is substantial and highly offensive to a reasonable person.” Id. (citations omitted) (emphasis in original); see also, Restatement (Second) of Torts §625B comment d. In this case, I find that Adamski “has not pleaded sufficient facts to establish a substantial intrusion of a highly offensive nature.” Chicarella, 343 Pa. Super, at 339, 494 A.2d at 1114 (finding “the information disclosed by the hospital records is not of the sort which would ‘cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ ”) (citations omitted); see also, Nagy v. Bell Telephone Company of Pennsylvania, 292 Pa. Super. 24, 436 A.2d 701 (1981) (act of obtaining from telephone company a list of telephone numbers dialed long distance from subscriber’s phone was not a highly offensive act to which liability would attach). The information Johnson sought was information Adamski had apparently made known to others in her workplace. It is unreasonable to expect that information shared with others in the office will not become known to a wider circle. There is no suggestion in the complaint that the description of Adamski’s pending surgery would cause her mental suffering, shame or humiliation. Therefore, the conduct of Johnson falls short of this standard.

Adamski’s second claim of invasion of privacy is that Johnson told others of her surgery, although she does not know who those others are. Restatement (Second) of Torts §625D provides: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of a legitimate concern to the public. The Restatement notes the requirement that “the matter be communicated to the public at large, not merely to a few persons.” Chicarella v. Passant, 343 Pa. Super, at 340 n.4, 494 A.2d at 1114 n.4; see also, Harris, 335 Pa. Super, at 154, 483 A.2d at 1384. Restatement §652D comment a (“the matter is made public by communicating it to the public at large, or to so many persons that the matter becomes one of public knowledge”). “Thus it is not an invasion of the right of privacy, within the rule stated in this section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons.” Restatement §652D comment a.

Adamski makes a claim that Johnson told others about this surgery, but she is not aware of whom or how many persons he told. She does not allege he told anyone outside of CHS. If Johnson had discussed Adamski’s surgery with others in the workplace, such disclosure is conditionally privileged if the other employees had a common interest. See Daywalt v. Montgomery Hospital, 393 Pa. Super. 118, 573 A.2d 1116 (1990).

Further an action for publicity occurs “[wjhen the intimate details of a person’s life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man.” Restatement §652D comment b. Among these details are “unpleasant or disgraceful or humiliating illnesses.” Restatement §652D comment b. Here the complaint does not provide the reason for Adamski’s surgery. Absent that knowledge, there is nothing in the facts to show that the surgery was the result of an unpleasant, disgraceful or humiliating disease.

“Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community of life of which he is a part.... [ejven a minor and moderate annoyance, as for example through public disclosure of the fact that plaintiff has clumsily fallen downstairs and broken his ankle is not sufficient to give him cause of action under the rule stated in this section.” Restatement §652D comment c.

Adamski told some coworkers of her surgery. This behavior on her part does not indicate that the surgery was an entirely private matter. Adamski’s “revelation of private information to coworkers eliminated [her] expectation of privacy by making what was formerly private a topic of office conversation.” Fletcher v. Price Chopper Foods of Trumann Inc., 220 F.3d 871, 878 (8th Circuit 2000) citing Moffett v. Gene B. Glick Co. Inc., 621 F. Supp. 244,283 (N.D. Ind. 1985) (applying section 652B of the Restatement per Indiana law). In Moffett the court held that “by discussing that relationship in the office environment, Partin cannot now claim some kind of solitude or seclusion for the relationship in that environment. While the relationship is, in the first instance, a private affair of Partin, she in effect waived her claim to privacy by making what was formerly private a topic of office conversation.” Moffett, 621 F. Supp. at 283. Here Adamski’s disclosure to coworkers waived her claim to privacy.

Because of Adamski’s own disclosure to her coworkers and that it has not been shown that Johnson may have disclosed this information to more than a small number of people, I find that the element of publicity is lacking in Ms. Adamski’s claim.

As I have found that there is no justification for the claims of invasion of privacy, there is no justification for a claim of punitive damages. Punitive damages are merely a measure of damages arising out of an initial cause of action. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 101, 555 A.2d 800, 802 (1989). They are not a cause of action in their own right. “To this extent, punitive damages must, by necessity, be related to [an] injury-producing cause of action.” Id.

Accordingly, I enter the order which follows.

ORDER

And now, March 2,2006, it is ordered that defendant’s preliminary objections are sustained and this case is dismissed.