author: MILLER, J,

text:
    Leeward Construction Inc. v. SCP 2007-C27-093 LLC

      Lee C. Krause, for plaintiff.

      Susan P. Peipher, for defendant.
    September 29, 2008
   MILLER, J,

This action stems from a mechanic’s lien filed against defendant SCP 2007-C27-093 LLP’s (SCP) property by plaintiff Leeward Construction Inc. for payment for labor and materials provided by Leeward as a subcontractor in connection with the erection and construction of a CVS Pharmacy located in Middle Smithfield Township, Monroe County. The amount of the lien is $499,355.20 plus attorney’s fees, costs, interest and expenses. Defendant has filed preliminary objections.

On December 15, 2007, plaintiff Leeward completed the work. OnMarch3, 2008, pursuant to 49 P.S. §1501, plaintiff sent via certified mail to defendant a notice of intention to file a mechanic’s lien claim against the property. However, due to alleged insufficiencies, plaintiff sent an amended notice on April 22, 2008, in a second attempt to meet the requirements of 49 P.S. §1501. The mechanic’s lien itself was filed on May 8, 2008, which was 66 days after the notice of March 3 but only 16 days after the notice of April 22.

Defendant then filed its preliminary objections requesting dismissal of the mechanic’s lien claim and complaint with prejudice, on the grounds that plaintiff failed to comply with 49 P.S. §§1501 and 1503, and that it was identical to a lien claim filed concurrently against the defendant by a different plaintiff, E.R. Linde Construction Co. at no. 4301 Civil 2008. Plaintiff, in its brief in opposition to defendant’s preliminary objections, argues that their claim is valid and the court should deny defendant’s preliminary objections on the grounds that its March 3, 2008 notice satisfied timing requirements of section 1501(b.l) of the statute, that its April 22, 2008 notice satisfied content requirements of section 1501(c) of the statute, and that allegations that plaintiff did not comply with section 1503 form a conclusion of law that should not amount to a basis for dismissal.

We first examine whether the plaintiff properly complied with the content elements of the statute in its notice of March 3, 2008.

49 P.S. §1501(c) lists the following items which must be included: (1) the name of the party claimant; (2) the name of the person with whom he contracted; (3) the amount claimed to be due; (4) the general nature and character of the labor or materials furnished; (5) the date of completion of the work for which his claim is made, and; (6) a brief description sufficient to identify the property claimed to be subject to the lien.

Without question, plaintiff adequately accounted for (1) the name of the party claimant, (3) the amount claimed to be due, and (6) the brief description sufficient to identify the property. Plaintiff’s name (Leeward Construction Inc.) is clearly listed in the heading of the notice. Plaintiff also states, “The amount still due and payable by you is $499,355.20 plus attorney’s fees, costs, interest and expenses.” Also, plaintiff sufficiently describes the property by stating, “your property at Middle Smithfield Township, Monroe County, Pennsylvania, Monroe County Record Book 2327, at page 1988.” However, the other three elements are not so easily resolved. Defendant contends in its preliminary objections that all three are not sufficiently stated by plaintiff.

In order to ascertain whether plaintiff’s efforts were sufficient to constitute notice, we must now examine the standards and precedents from case law to comprehend how the court should classify the elements of the March 3 document. Both plaintiff and defendant direct the court to language that is favorable to their argument. They therefore set in opposition two competing doctrines of mechanic’s lien law: the doctrines of substantial compliance and strict construction.

The interrelation between these two competing doctrines is perhaps best explained in the case Denlinger Inc. v.Agresta, 714 A.2d 1048 (Pa. Super. 1998). “The Mechanics’ Lien Law is a creature of statute in derogation of the common law----” Id. at 1052 (citing Delmont Mechanical Services Inc. v. Kenver Corporation, 450 Pa. Super. 666, 677 A.2d 1241 (1996); see also, King’s Oak Liquidators v. Bala Cynwyd Hotel Associates, 405 Pa. Super. 250, 592 A.2d 102 (1991)); Castle Pre-Cast Superior Walls of Delaware Inc. v. Strauss-Hammer, 416 Pa. Super. 53, 610 A.2d 503 (1992); Flick Construction Inc. v. Dyke, 401 Pa. Super. 168, 584 A.2d 1033 (1991)). Therefore, any questions of interpretation should be resolved in favor of a strict, narrow construction. Delmont, supra. To effectuate a valid lien claim, the contractor/subcontractor must be in strict compliance with the notice requirements of the Mechanics’ Lien Law. Castle, supra.

However, Denlinger also says that when the sustaining of preliminary objections will result in a denial of claim or a dismissal of suit, preliminary objections in a mechanics’ lien proceeding should be sustained only in cases which are clear and free from doubt. Id. at 1052 (citing Chambers v. Todd Steel Pickling Inc., 323 Pa. Super. 119, 470 A.2d 159 (1983)). It also recognized that while the notice and other requirements under the Mechanics’ Lien Law are to be strictly construed, we must also apply the doctrine of substantial compliance to temper such strict construction. Id. at 1052-53 (citing Tesauro v. Baird, 232 Pa. Super. 185, 335 A.2d 792 (1975)).

“[A] 11 the cases agree that a substantial compliance is sufficient, and this is shown to exist wherever enough appears, on the face of the statement, to point the way to successful inquiry. Adherence to the terms of the statute is indispensable, but the rule must not be pushed into such niceties as to serve but to perplex and embarrass a remedy intended to be simple and summary, without, in fact, adding anything to the security of the parties having an interest in the building sought to be encumbered. Certainty to a common intent has, therefore, always been held to suffice.” Tesauro at 189, 335 A.2d at 793-94. (emphasis added)

In the Denlinger case, the claimant identified itself, mistakenly, as both the contractor and the subcontractor in the lien claim, giving rise to the defendant’s principal objection in that case. The Superior Court found that the doctrine of substantial compliance ruled, and that the document sufficiently satisfied the requirements of the statute; i.e., enough appeared in the claimant’s mechanic’s lien claim to point the way to successful inquiry. Furthermore, plaintiff Leeward has pointed to Giansante v. Pascuzzo, 34 D.&C.2d 554, aff’d per curiam, 205 Pa. Super. 28, 206 A.2d 340 (1965), wherein the court reinforced the notion that substantial compliance was satisfactory, by saying, “The object of such information is to give the owner the necessary knowledge to enable him to determine the correctness of the claim and where the information contained in the lien is sufficient on inquiry to give him such knowledge, it is all that the law requires.” Id. Clearly, the case law establishes that while mechanic’s liens and mechanic’s lien notices must be strictly constructed, the demands should not be unreasonable and should be designed to ensure that the defendants have reasonably been provided with all the information that they are entitled to.

Turning back to the instant case, defendant first contends that the March 3 notice fails to satisfy section 1501 (c)(2), which requires “the name of the parties contracted with.” Plaintiff, in the notice, included the phrase, “under a contractual agreement with you.” Plaintiff addressed the notice to two SCP addresses and also copied the letter to “William R. Goodwin/Middlecreek Quarry.” Plaintiff contends that this gives defendant sufficient notice of all interested contracting parties enough to make an inquiry into the correctness of the demand, and that this satisfies section 1501(c)(2). We agree. Defendant has not offered any evidence, or even alleged in its brief, that plaintiff’s assertions of a contract are untrue; they have merely objected to the sufficiency of the form of notice. This is unpersuasive when analyzed in the context of substantial compliance.

Defendant next contends that the March 3 notice fails to satisfy section 1501(c)(4), which requires, “the general nature and character of the labor or materials furnished.” Plaintiff’s notice states that Leeward “has furnished labor and/or repairs in connection with the erection, construction, alteration or repair of an improvement to your property.” Later, plaintiff also states “The labor and/or material furnished by the contractor consisted of construction work on your home.” The Giansante case, supra, established that lump sum disclosures of the general nature and character of labor and materials furnished can be sufficient to give the owner proper notice. Citing Currie v. Koehler, 90 Pa. Super. 197, it stated, “there is no statutory requirement calling for a statement of the price of each article. The object of such information is to give the owner the necessary knowledge to enable him to determine the correctness of the claim.” Defendant asserts “Plaintiff still has not identified . . . the nature and character of the labor and materials furnished,” but cite no cases demonstrating that such a description as the plaintiff provided is insufficient as a matter of law. Therefore, plaintiff has also satisfied section 1501(c)(4) enough to survive preliminary objections.

Defendant also contends that the March 3 notice does not meet section 1501(c)(5) in that it fails to state the date of completion of the work for which the claim is made. Here they are correct. The March 3 notice makes no mention of that element at all. Plaintiff makes a de facto admission of this by contending in their brief that their amended notice of April 22 contains the date of completion and that this amendment satisfies all of the elements of section 1501(c). The failure to include an entire element required by statute, as is the case here, does not constitute substantial compliance. We therefore find that the March 3 notice is insufficient under 49 P.S. §1501 and turn our attention to the issue of amendment.

49 P.S. §1501(b.1) states, “No claim by a subcontractor, whether for erection or construction or for alterations or repairs, shall be valid unless, at least 30 days before the same is filed, he shall have given to the owner a formal written notice of his intention to file a claim----” While plaintiff’s notice of March 3 was timely under this statute, it failed on its contents. Hence plaintiff relies on its amended notice of April 22, which added a date of completion of work to the previous document and thus satisfied section 1501(c). However, defendant correctly states in its preliminary objections that the amended notice does not comply with the statute for timing because the lien itself was filed on May 8, only 16 days after April 22, but 30 days were required. Plaintiff seems to assert that it should be allowed to borrow the date of its earlier notice to apply to its later amended notice. We disagree.

Plaintiff states that a lien may be amended as to an error that is not misleading, and directs the court to the case of Kihm-Bowen Machine Co. v. Midwest Steel & Supply Co., 3 D.&C. 755 (Pa.Com.Pl. 1923), wherein the court found that a crossed-out “stenographic” error was amendable. Two key discrepancies distinguish the instant case from Kihm-Bowen, however. First, the “amendment” that took place in Kihm-Bowen consisted of a word that had been crossed out and re-written. This is not the same as omission of an entire element required by statute through an oversight. Second, in Kihm-Bowen, the correction was made on the same document that served as the original notice. Here, the plaintiff’s amendment was not served until 40 days later, and its timing at that point violated the statute. We further find persuasive Associated Lumber and Manufacturing Company v. Mastroianni, 173 Pa. Super. 310, 98 A.2d 52 (1953), which held “There is no authority for amendment of the served notice of intention to file a lien... [t]he subcontractor must give the owner a complete notice within the time specified by the Act, and requirements omitted by mistake cannot be added thereafter.” As such, we find that plaintiff’s notice to owners was not sufficient under 49P.S. §1501.

Defendant also argues in its brief that plaintiff did not fulfill 49 P.S. §1503, which requires that the mechanic’s lien claim itself, as opposed to the notice, include specific information.

Defendant claims that plaintiff’s lien fails to identify the date of completion of the claimant’s work; the name of the person with whom [the subcontractor] contracted; and a description of the improvement and of the property claimed to be subj ect to the lien as may be reasonably necessary to identify them. Plaintiff’s response to defendant’s objections that plaintiff has violated 49 P.S. § 1503 is that it is a conclusion of law and is not an admission. We find this argument without merit. The lien on its face makes no attempt to satisfy 49 P.S. §1503(3), (4), or (8). Therefore, it is defective.

Defendant finally claims that its preliminary objections should be sustained because this action is identical to a lien claim filed by a different plaintiff, E.R. Linde Construction Corporation, at Monroe County docket no. 4301 Civil 2008. Defendant claims it is impossible that both Leeward and Linde could be owed the same amount for the same contract. Elowever, plaintiff has admitted that only one contract was formed and only one claim of $499,355.30 exists. As such, we decline to acknowledge this reasoning as a cause to sustain the preliminary objections.

Conversely, the defects in the lien and in the notice discussed above are fatal to plaintiff’s mechanic’s lien. However, this does not leave plaintiff without a remedy. “A mechanic’s lien is an extraordinary remedy, which should only be afforded to subcontractors who judiciously adhere to the requirements of the Mechanic’s Lien Law, as an aggrieved subcontractor also has an action sounding in breach of contract.” Philadelphia Construction Services LLC v. Domb, 903 A.2d 1262 (Pa. Super. 2006). Plaintiff therefore has alternatives that would not rest upon a violation of the mechanic’s lien statute.

Accordingly, we enter the following order.

ORDER

And now, September 29,2008, upon consideration of the preliminary objections of Speedwell Construction Inc. to plaintiff’s mechanic’s lien claim and complaint, it is ordered that the preliminary objections are sustained.


source: Caselaw Access Project

author: HERMAN, J,

license: Public Domain

text:
    Urbanek v. Nolan

      Timothy Wilmot, for plaintiff.

      Ian M. Brink, for defendant.
    October 1, 2008
   HERMAN, J,

INTRODUCTION

The defendant appeals this court’s order of August 6, 2008 finding him in contempt for violating an order issued under the Protection From Abuse Act, 23 Pa.C.S. §6101 et seq. He filed a concise statement of matters complained of on appeal and the necessary transcripts are in the record. His appeal issue is: Whether the trial court’s decision finding defendant in contempt for violation of the protection from abuse order dated April 9, 2008 constituted an abuse of discretion because the trial court’s decision was against the great weight of the evidence?

FACTUAL HISTORY

On March 17,2008, the plaintiff Ashley Urbanek filed a petition for protection from abuse against the defendant, a current or former sexual or intimate partner. The plaintiff lived at 13348 Waterloo Road and the defendant lived only a short distance away at 12011 Buchanan Trail East, Waynesboro, Pennsylvania. The plaintiff alleged the defendant had committed certain violent and/or threatening acts against her during the preceding two months. The court entered a temporary order on March 17 prohibiting him from having any contact with her, directing the sheriff to seize his weapons and ammunition and setting a hearing for March 26. The hearing was then continued until Aprill 9, 2008 upon plaintiff’s motion because the defendant had not yet been served.

The parties appeared before the court on April 9 and consented in writing to a final protective order which the court endorsed. Consistent with the plaintiff’s desires at that time, the order did not prohibit the defendant from all contact with the plaintiff but it did direct him not to abuse, stalk, harass, threaten or attempt to use physical force against her. The order was to be effective until April 1, 2011. The plaintiff was represented by counsel from Women in Need Victim Services and the defendant appeared pro se.

Washington Township Police Officer Richard Robinson Jr. filed charges of indirect criminal contempt on July 14,2008 alleging the defendant violated the April 9 order. In particular the defendant was charged with harassing and threatening Ashley with physical violence by telling her that if she did not withdraw the protection from abuse action and testify falsely on his behalf at a separate criminal hearing where he was charged with assaulting one Justin Reese, the defendant would kill her mother, stepfather and brother. He also allegedly told her that if he was sent to jail for assaulting Reese, he would kill her and Reese. The defendant appeared in court on July 23, 2008 with his court-appointed counsel and requested a continuance in order to arrange for witnesses to testify and the court granted the continuance.

According to her credible testimony at the July 28 contempt hearing, Ashley lives at 13348 Waterloo Road with her mother, stepfather and brother. The defendant lives approximately one block away. The defendant telephoned her repeatedly during the evening hours of July 13. He had her cell phone number because she had given it to his sister Jessica during a time when Ashley lived with the defendant and his family at the Nolan residence. Although Ashley initially refused the defendant’s calls, she finally agreed to meet him in the driveway of her parents’ home. He arrived at 1 a.m. and they stood at the bottom of the driveway and spoke for approximately 15 minutes in the dark during a heavy downpour. Ashley testified the defendant smelled of alcohol.

During their conversation, the defendant told Ashley he would kill her family and make her life a living hell if she did not comply with two demands. One demand was that she petition to have the court discontinue the protective order because he did not want to pay the associated costs. The other was that she testify for him in a separate case where he was charged with assaulting Justin Reese with a knife at Wal-Mart. Ashley testified that she had been with the defendant at Wal-Mart when he held a knife to Reese’s throat, threatened to kill him and then threw the knife at Reese. When police investigated the incident, Ashley initially lied and said the defendant had simply been defending himself against Reese’s interrogation. However, she testified on July 28 that she lied to police at the time because she was afraid they were going to test her for underage drinking and she now intended to tell the truth about the incident even though the defendant wanted her to stick to her original, false version.

When Ashley went back inside the house at approximately 1:15 a.m. on July 14, she hid her soaking clothes in a laundry basket so her parents would not discover she had been standing in the rain talking to the defendant. She wanted to conceal this because she knew her parents would be angry with her for having any contact with the defendant. Ashley’s mother Denise Urbanek credibly testified that she found her daughter’s wet clothes at 6:30 the next morning. After questioning Ashley repeatedly about how the clothes became wet and who she was with the night before, Mrs. Urbanek learned that Ashley and the defendant had spoken during the nighttime downpour and the defendant threatened to make Ashley’s life and the lives of her family members miserable. Ashley also then told her mother that her original statement to police about the Wal-Mart incident was false.

At her mother’s insistence, Ashley reported her conversation with the defendant to Officer Rohinson later that day at a local gun shop, her stepfather’s place of business. Officer Robinson took down Ashley’s statement, reviewed the April 9 protective order, and went with two other officers to the defendant’s residence at 10 p.m. on July 14. The defendant’s sister Jessica was there but the defendant was not and police could not locate him. He turned himself in to the police station several days later. Officer Robinson testified his investigation revealed there was indeed rainfall in the vicinity on the late hours of July 13 into the early morning hours of July 14.

The defendant’s sister Jessica testified her brother came to live with her and her parents at the beginning of July when he was first released from prison after being incarcerated on March 22 as a result of the Wal-Mart incident. She testified she often has trouble sleeping at night and it was normal for her to be awake during the nighttime hours. She testified the defendant does not have his own key to the house and she recalled no nights when he arrived home wet from the rain after being out late. However, she admitted she had no specific recollection of the night of July 13-July 14. In addition, she admitted the defendant had access to her cell phone during that time frame and there were no land lines to her residence.

The defendant testified that he was home watching movies with Jessica and sleeping on the night of July 13-July 14. He denied having called Ashley Urbanek on July 13 and denied he went to her house that night. He testified that he had to be home every night by 9 p.m. pursuant to the conditions imposed by the County Day Reporting Center. It was his position that he told Ashley when she came to see him at the prison in April that he didn’t want to see her anymore. However, the Commonwealth entered into evidence a photocopy of the front and back of an envelope addressed to Ashley sent by the defendant while he was incarcerated postmarked April 25, 2008. (Commonwealth exhibit no. 1.) Ashley had refused his letter and it was marked refused return to sender. On the back appeared the words I love you, I miss you and the outline of a heart. The defendant testified under cross-examination that it is his habit to write those words on every letter he sends to anyone he knows despite the fact he had supposedly just told Ashley he wanted their relationship to end.

Furthermore, the defendant admitted that despite his earlier testimony that he was home every night by 9 p.m. pursuant to the conditions placed on him by the Day Reporting Center, he was out fishing with his father at 10 p.m. on the night of July 14 when the three police officers went to his house to speak with him. The defendant denied drinking alcohol on the night of July 13-July 14. The evidence showed that he did not report to the Day Reporting Center at all on July 14 for class or a breathalyzer, contrary to requirements that he do so.

The Commonwealth presented evidence of the defendant’s prior record for theft by unlawful taking, a crimen falsi offense in the nature of a second-degree misdemeanor which he committed in Adams County and pled guilty to in September of 2004.

The court continued the July 28 hearing to August 6 to give the Commonwealth a fuller opportunity to respond to the defendant’s alibi evidence. When court reconvened on August 6, the Commonwealth had no further evidence. Counsel for the defendant and for the Commonwealth then argued their positions to the court.

The court found the defendant in contempt for violating the April 9, 2008 order which directed him not to abuse, stalk, harass, threaten or attempt to use physical force that would reasonably be expected to cause bodily injury to plaintiff in any place where [she] might be found. The credible evidence showed that the defendant’s conduct went beyond mere contact (mere contact was intentionally not part of the April 9 order’s prohibitions because the plaintiff as of that date still wanted some contact with the defendant) to encompass explicit threats of violence against Ashley and her family if she refused to ask the court to discontinue the protection from abuse action and refused to stick to her original false statement to police concerning the defendant’s aggressive conduct during the Wal-Mart incident. Although defense counsel argued Ashley was not a credible witness because she has not always told the truth to either her parents or the police in connection with matters involving the defendant, the court found that Ashley’s testimony was indeed believable because it was given against penal interest. Specifically, she admitted that she had initially lied to police about the Wal-Mart incident and this admission exposed her to potential prosecution and penalties for providing false information to police. In this sense, her testimony on July 28 carried enhanced indicia of reliability.

The court sentenced the defendant on August 6 to serve 75 days to six months at the Franklin County Jail, with credit for time served between July 16 and August 6. He was to be released from jail upon completion of the minimum sentence, providing he violated no prison rules. The April 9 protective order was reinstated for three years from August 6 and was modified to bar the defendant from having any direct or indirect contact with Ashley and to stay away from 13348 Waterloo Road in Waynesboro. The defendant was also given until September 5, 2008 to pay fees and costs in the amount of $317.55.

DISCUSSION

The defendant contends that the court’s finding of contempt was an abuse of discretion because it was against the great weight of the evidence. We believe the defendant is in actuality alleging that the evidence was insufficient to support the ruling.

There is a difference between a claim that a verdict was not supported by sufficient evidence and a claim that a verdict was against the weight of the evidence. Evidence is sufficient to support a verdict when it establishes each material element of the crime and its commission by the defendant beyond a reasonable doubt. Where the evidence offered to support the verdict contradicts the physical facts, human experience and the laws of nature, that evidence is insufficient as a matter of law. A defendant who prevails on this claim in the context of a post-trial motion for a judgment of acquittal cannot be retried. When reviewing this claim, the trial court views the evidence in the light most favorable to the verdict winner, giving the prosecution the benefit of all reasonable inferences which can be drawn from the evidence. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000).

By contrast, a defendant who alleges that the verdict is against the weight of the evidence is conceding there is sufficient evidence to support the verdict and therefore the court need not view the evidence in the light most favorable to the verdict winner. A challenge to the weight of the evidence is a request for post-trial relief in the form of a new trial. A defendant is not entitled to a new trial because of a mere conflict in the testimony but instead the trial court in applying its discretion must find that the verdict shocks the court’s conscience because, notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. Id.

We are aware that the Rules of Criminal Procedure govern the Protection From Abuse Act, and the Rules of Criminal Procedure do not apply. This means that because the Act pertains to domestic relations matters, the defendant was not required to file post-trial or post-sentence motions for acquittal and/or a new trial in order to preserve issues for appeal. Kelly v. Mueller, 861 A.2d 984 (Pa. Super. 2004) (reversed on other grounds); section 6101; Pa.R.C.P. 1930.2(a). At any rate, despite his assertion that the finding of contempt was against the great weight of the evidence, we consider it unlikely that the defendant is seeking a new trial/hearing. More likely, his aim is to convince the Superior Court that it should reverse this court’s finding because it was (allegedly) based on insufficient evidence, enter a judgment of acquittal and vacate the sentence. We address the defendant’s appeal statement from this perspective.

The Protection From Abuse Act confers upon courts the power to hold a defendant who violates a protective order in indirect criminal contempt and punish the defendant in accordance with the law. 23 Pa.C.S. §6114(a). The Act was designed to prevent domestic violence, promote the security of the home, and punish persons who violate protective orders outside of the court’s presence. Commonwealth v. Haigh, 874 A.2d 1174 (Pa. Super. 2005).

A finding of criminal contempt must be supported by the following four elements: (1) the court’s order must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed as to the conduct prohibited; (2) the contemnor must have had notice of the specific order; (3) the act constituting the violation must have been volitional; and (4) the contemnor must have acted with wrongful intent. Commonwealth v. Padilla, 885 A.2d 994 (Pa. Super. 2005). The burden of proof in an indirect criminal contempt proceeding is beyond a reasonable doubt. Commonwealth v. Nelson, 456 Pa. Super. 349, 690 A.2d 728 (1997).

An appellate court reviewing a contempt conviction must rely considerably on the trial court’s discretion and should reverse the trial court’s decision only when there has been a plain abuse of discretion. Haigh, supra. Discretion is abused when the course pursued by the court represents not merely an error of judgment, but where the judgment is manifestly unreasonable, the law is not applied, or where the record shows the court acted out of partiality, prejudice, bias or ill will. Widmer, supra. Furthermore, it is well-established that it is the province of the trial court, when it is the trier of fact, to evaluate the credibility of the witnesses and other evidence. Commonwealth v. Adams, 882 A.2d 496 (Pa. Super. 2005).

The credible evidence presented during this contempt proceeding was clearly sufficient beyond a reasonable doubt to support our finding that the defendant, intentionally and with complete volition, engaged in abusive conduct toward Ashley Urbanek by harassing and threatening her with physical violence if she refused to petition the court to vacate the April 9 protective order and if she refused to testify falsely against him during the case where he was accused of assaulting Justin Reese with a knife. His conduct clearly met the definition of abuse between sexual or intimate partners found in section 6102(a)(5) of the Act: The occurrence of one or more of the following acts [kjnowingly engaging in a course of conduct or repeatedly committing acts toward another person without proper authority, under circumstances which place the person in reasonable fear of bodily injury.

Harassment is defined as follows under the Pennsylvania Crimes Code: A person commits the crime of harassment when, with the intent to harass, annoy or alarm another, the person engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose. 18 Pa.C.S. §2709(a)(3); 23 Pa.C.S. §6108(a)(9). Course of conduct is a pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. 18 Pa.C.S. §2709(f); Commonwealth v. Barzyk, 692 A.2d 211 (Pa. Super. 1997).

The credible evidence showed beyond a reasonable doubt that the defendant, despite testimony he presented in the nature of an alibi defense, engaged in an abusive, harassing course of conduct toward Ashley Urbanek on the night of July 13-July 14 by calling her numerous times that evening from his home only a short distance away, by demanding to meet with her alone, immediately and past midnight, by directly threatening her face to face that he would kill her and her family if she did not petition the court to discontinue the PFA, and by threatening to kill her and Justin Reese if she refused to stick to her original false version of the Wal-Mart incident, a version which favored the defendant. Ashley’s testimony at the hearing was consistent with the statements she made to her mother early the next morning and to Officer Robinson later that day as to the defendant’s presence and conduct during the night. Denise Urbanek credibly testified that her daughter’s clothing was still wet at 6:30 a.m. on July 14 and, according to Officer Robinson, rain had indeed fallen in the area during the night in question. We also found the defendant did have phone access to Ashley that night insofar as he knew her phone number through his sister Jessica and he had access to Jessica’s cell phone, which was the only phone in his home at that time. The defendant engaged in a course of conduct against Ashley, not only by repeatedly calling her that night, but by making more than one demand upon her and by making repeated threats of physical violence, and even death, against her, her family and Reese.

The court did not find the defendant’s alibi evidence believable on several points. First, he maintained he was home by 9 p.m. on July 13 and did not go out again because this was required of him by the Day Reporting Center, not only on that night but on all nights. However, his sister Jessica could not specifically recall the night of July 13-July 14, and therefore any alibi evidence she purported to offer regarding her brother’s whereabouts on that night was tenuous at best. Second, Ashley testified the defendant appeared to be under the influence of alcohol during their conversation in the driveway, in part because he smelled of alcohol, and we considered it more than a mere coincidence that the defendant then failed to report to the Day Reporting Center the next morning where he might have been subject to a breathalyzer test which would reveal, not only his violation of the center’s rules, but which would also support Ashley’s testimony that he had come to her home the previous night. Third, according to Officer Robinson, the defendant was not at home at 10 p.m. on July 14 and the defendant himself admitted at the hearing to being out fishing with his father at the time, despite the 9 p.m. curfew. This evidence showed that, contrary to the defendant’s initial testimony and the testimony of his sister, the defendant did not adhere strictly to his curfew at all times. Finally, in weighing the credibility of the witnesses with regard to alibi, we took into account the defendant’s 2004 conviction based on a guilty plea to the crimen falsi offense of theft by unlawful taking.

The credible evidence established beyond a reasonable doubt the elements of contempt. The April 9, 2008 protective order clearly indicated to the defendant the type of conduct he was not to engage in. The defendant, by appearing in court on April 9 and consenting in writing to the specific terms of that order, had notice of the order and its restrictions. His actions on the night of July 13-July 14 were the product of his own volition insofar as he was able to acquire access to his sister’s phone, made the repeated calls to Ashley, arrived at her home under his own power, and made two specific demands upon her which related directly to matters of known disagreement between them. Finally, he acted with wrongful intentions, specifically, to frighten her into seeking the dismissal of the protective order and to intimidate her into giving false testimony in the Reese assault case, and his threats of violence, and even death, against her, her family, and/or Reese were clearly aimed at compelling her compliance. Padilla, supra.

The defendant has failed to demonstrate exactly how the court abused its discretion in reaching its decision and has failed to show why our ruling is insufficient as a matter of law because it allegedly contradicts the physical facts, human experience and the laws of nature. Furthermore the defendant waived his right to pursue his claim that our decision was against the great weight of the evidence. We submit that we committed no errors in any aspect of this proceeding and respectfully request the appellate court to affirm the orders of August 6,2008.

ORDER

Now October 1,2008, pursuant to Pennsylvania Rule of Appellate Procedure 1931(c), it is hereby ordered that the prothonotary of Franklin County shall promptly transmit to the prothonotary of the Superior Court the record in this matter, along with the attached opinion sur Pa.R.A.P. 1925(a).

Pursuant to Pa.R.C.P. 236, the prothonotary shall give written notice of the entry of this order, including a copy of this order, to each party’s attorney of record and to each party, and shall note in the docket the giving of such notice and the time and manner thereof.

      . The plaintiff and defendant are both over the age of majority, plaintiff’s date of birth being September 30,1987 and the defendant’s being November 5, 1983.


author: TERESHKO, J,

text:
    PennDOT v. Bacon

      Marc Werlinsky, for Commonwealth.

      David H. Lipow, for defendant.
    August 5, 2008
   TERESHKO, J,

Appellant Penn-DOT appeals from the orders dated March 28, 2008, wherein this court granted Richard Bacon Jr.’s (Father appellee) motion for supersedeas and motion for appeal nunc pro tunc.

By way of background, this matter arises as a result of a January 6, 1990 traffic citation for violation of 75 Pa.C.S. §3746 of the Motor Vehicle Code for leaving the scene of an accident. (Father appellee’s petition to appeal suspension of operating privileges nunc pro tunc, ¶6.) The citation number is: Z0006362. It is noteworthy to mention that appellee’s son, Richard Bacon III (Son) was the individual that committed this violation and not Father appellee. (Affidavit of Son, exhibit B, Father appellee’s petition to appeal suspension of operating privileges nunc pro tunc.) Son was found guilty of the citation on April 20, 1994. (Father appellee’s petition to appeal suspension of operating privileges nunc pro tunc, exhibit D.) The traffic citation was appealed but the filing party failed to appear and the appeal was dismissed. (Father appellee’s petition to appeal suspension of operating privileges nunc pro tunc, ¶1.) Father appellee verifies that he did not appeal the traffic citation because he did not know of the citation until receiving a notice of suspension from PennDOT dated May 9,2007. (Father appellee’s petition to appeal suspension of operating privileges nunc pro tunc, exhibit A.)

Due to PennDOT’s error caused by Father appellee and Son having almost identical names, PennDOT attempted to penalize Father appellee, instead of Son, by notifying Father appellee on May 9,2007 that PennDOT was going to suspend his operating privileges for failure to pay the fines and costs of the citation. (Father appellee’s petition to appeal suspension of operating privileges nunc pro tunc, exhibit A.) The suspension was to go into effect May 30, 2007. (Id.)

On May 22, 2007, Father appellee filed his initial statutory appeal and motion for supersedeas from the administrative finding of PennDOT dated May 9, 2007 (May term 2007 no. 2157, hereinafter May 2007 appeal.) (See docket.) In his appeal, Father appellee states that he was not involved in the accident of January 6, 1990 and he did not receive a citation for leaving the scene of an accident, rather the operator was his son who received the citation. (Motion for supersedeas, ¶¶1-4.) Because Father appellee filed his notice of appeal, the suspension of his driving privileges were stayed until the appeal was heard.

On October 5,2007, Father appellee requested to have this court withdraw his appeal and impose a later effective date of his suspension, which would allow Father appellee sufficient time to enter into a payment plan with Philadelphia Traffic Court to pay the citation and avoid suspension of his driving privileges. (Nunc pro tunc appeal, ¶4 infra.) Pursuant to Father appellee’s request, this court entered an order on October 5, 2007 withdrawing his appeal and imposing a suspension date effective March 5, 2008. (See order, exhibit A.)

On February 28,2008, Father appellee instituted a new statutory appeal by filing a nunc pro tunc motion for appeal of suspension of license, along with a motion for supersedeas. (February term 2008 no. 3889.) (See docket.) PennDOT responded to both motions. Id. By orders dated March 28, 2008 this court granted Father appellee’s motion for supersedeas and motion for appeal nunc pro tunc. This court ordered, in granting Father appellee’s nunc pro tunc motion to appeal, specifically stated that “a hearing on said appeal shall be listed within 30 days.” However, PennDOT appealed these orders stating “The above order has been reduced to judgment as evidenced by the attached docket entry.” (PennDOT notice of appeal, April 4, 2008.) PennDOT also filed a 1925(b) statement alleging errors in granting the supersedeas and motion for appeal nunc pro tunc. (PennDOT 1925(b) statement of matters.) PennDOT’s appeal resulted in the case being marked “deferred” on the docket and prevented this court from conducting a hearing to decide whether Father appellee’s license should be suspended for the underlying violation.

According to this court, PennDOT’s appeal is interlocutory because it did not appeal a final order, the appeal does not fall within any exceptions where an interlocutory order may be taken as of right and this court has not granted PennDOT permission to appeal the interlocutory order.

Pa.R.A.P. 341 defines final orders as:

“(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
“(b) Definition of final order. A final order is any order that:
“(1) disposes of all claims and of all parties; or
“(2) is expressly defined as a final order by statute; or
“(3) is entered as a final order pursuant to subdivision (c) of this rule.
“(c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more, but fewer than all of the claims and parties, only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order....”

Pa.R.A.P. 311 lists exceptions to Pa.R.A.P. 341, where an appeal may be taken as of right without reference to Pa.R.A.P. 341. This court’s granting supersedeas and nunc pro tunc relief to appellee from notice of suspension of his operating privileges does not fall within any of the exceptions listed under Rule 311, which would allow PennDOT to be heard on these interlocutory issues.

The orders of March 28, 2008 only allow Father appellee an opportunity to have a hearing on the merits to determine whether his operating privileges should be suspended. If appellee fails in his appeal he will be subject to suspension of his operating privileges, which will moot the need for a PennDOT appeal on these interlocutory issues.

Therefore, this court respectfully requests that the Commonwealth Court quash the appeal in the above-captioned matter and remand to the trial court to allow for a hearing on the merits.


author: HODGSON, P.J.,

text:
    Commonwealth v. Dabney

      Christopher M. Maloney, assistant district attorney, for Commonwealth.

      William I. English Jr. and Timothy Peterwile, for defendant.
    October 28, 2008
   HODGSON, P.J.,

Appellant, McKay Dwayne Dabney, appeals to the Superior Court of Pennsylvania from the judgment of sentence entered on August 25, 2008.

FACTS AND PROCEDURAL HISTORY

The instant case arises from a series of events that occurred on May 28, 2007. On that date, at approximately 4:02 a.m., a call was received by the Cheltenham Township Police Department reporting a rape. Upon arriving at the scene, police officers found a 26-year-old female lying on the floor of a neighboring residence. The female victim stated that she had been raped by a man whom she knew as “Ears,” at an apartment located at 7876 Spring Avenue. While outside securing the scene, Office Brian Hopkins and Officer John Barr of the Cheltenham Township Police Department, observed the appellant, McKay Dwayne Dabney, exit an apartment building located at 7876 Spring Avenue and walk in their direction.

Upon approaching the officers, appellant stated that he was looking for his female friend who had been sleeping at his apartment. He was alarmed because not only was the young woman missing, but there was also fresh blood on his sheets. The name of appellant’s missing friend closely matched the name of the victim, who ultimately identified appellant as the man who raped her. Appellant was arrested on the scene and taken to the Cheltenham Township Police Department. While in transit to the station, appellant admitted to having sex with the victim. He further disclosed to the officers that the blood on his sheets belonged to the victim who was a virgin.

Appellant remained in a cell at the Cheltenham Township Police Station until 11:30 a.m. at which time he was brought out and asked to sign a Constitutional Rights Form, which he did. Thereafter, he gave a five-page statement which also included a written version of his Miranda rights. After a thorough investigation, appellant was ultimately charged with rape, aggravated indecent assault—lack of consent and aggravated indecent assault—forcible compulsion.

On October 22, 2007, appellant brought a motion to suppress his statement. On November 2,2007, this court denied appellant’s motion, finding that his statement had been knowingly, intelligently and voluntarily made, as it was neither a product of coercion nor inducement. Furthermore, this court found that the statement was not the product of an illegal delay between arrest and arraignment since the police were in the process of appropriate investigative procedures prior to the taking of the statement, the performance of which did not cause any undue delay. See Commonwealth v. Perez, 577 Pa. 360, 845 A.2d 779 (2004).

A four-day jury trial commenced on February 26,2008. On February 29,2008, the jury returned a guilty verdict on the charge of aggravated indecent assault—lack of consent. Thereafter, on March 26, 2008, appellant filed a motion for extraordinary relief in the form of a new trial, which this court subsequently denied on March 28, 2008. Sentencing commenced on August 25, 2008, at which point, appellant was sentenced to undergo a term of imprisonment of 10 to 23 months. On September 12, 2008, appellant appealed to the Pennsylvania Superior Court from the judgment of sentence and filed a concise statement of matters complained of with this court on September 24,2008 in accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

LEGAL DISCUSSION

Appellant raises four issues on appeal. First, appellant contends that his statement should have been suppressed because it was not knowingly, intelligently and voluntarily given. Second, appellant argues that Assistant District Attorney Christopher Maloney was guilty of prosecutorial misconduct. Specifically, appellant avers that Maloney, on cross-examination, improperly referred to appellant as having raped the alleged victim when no rape had been established. It is appellant’s contention that this characterization unduly prejudiced the jury and entitles him to a new trial. Additionally, appellant argues that the jury’s guilty verdict was against the weight of the evidence. Finally, appellant asserts that this court misinterpreted the rape shield statute, 18 Pa.C.S. §3104, when it denied his motion to introduce evidence of prior sexual encounters between himself and the alleged victim.

Regarding appellant’s first argument, it is an elemental principle of Pennsylvania constitutional law that a criminal defendant is deprived of due process if his conviction is founded, in whole or in part, upon a confession that is involuntarily given. Thus, evidentiary use of a confession by one accused of the commission of a crime is constitutionally prohibited unless the Commonwealth is able to prove that the statement was knowing, intelligent and voluntary. Commonwealth v. Jones, 758 A.2d 228 (Pa. Super. 2000).

In the case before this court, appellant argues that his statement was not knowingly, intelligently and voluntarily given. He claims that he was exhausted at the time the statement was provided to police, as he had been awake for at least 24 hours prior. Furthermore, he had been confined, incarcerated and isolated for a significant period of time prior to the administration of questioning. Lastly, appellant argues that the statement misled the jury as it did not accurately reflect the questions posed and the answers provided. The totality of these facts, leads appellant to conclude that his statement should have been suppressed.

In Commonwealth v. Ellis, 700 A.2d 948 (Pa. Super. 1997), the Pennsylvania Superior Court held that before an individual may be subjected to custodial interrogation, he or she must make a knowing and intelligent waiver of his or her privilege against self-incrimination and the right to counsel. This waiver must follow an administration of adequate warnings as to those rights. Id. To determine whether a waiver of the privilege against self-incrimination or the right to counsel was knowing and intelligent, the court focuses upon the defendant’s cognitive processes and whether the defendant was aware of the nature of his choice to relinquish his Miranda rights. Id. Additionally, in determining whether a waiver is voluntary, the court must ascertain whether it was the result of an intentional choice that was not subjected to undue governmental pressure. Id.

The interview in question was conducted at the Cheltenham Township Police Department in the detective suite. When Detective Shaffer first made contact with appellant at approximately 11:30 a.m., appellant was lucid and cooperative. He informed Detective Shaffer that he had graduated from high school and was able to read, write and understand the English language. Appellant was advised of his constitutional rights both orally and in writing. Further, he signed a Constitutional Rights Form acknowledging that he understood his rights and wished to relinquish them. Before beginning the interview, Detective Shaffer read appellant his rights again. Appellant concededly admits that he understood his rights at the time he made the statement to the police.2 The interview lasted approximately two hours, concluding at 1:30 p.m. There were no threats made or coercion exerted by either Detective Shaffer or Detective Hall during the course of the interview. Furthermore, appellant was given an opportunity to review the statement and made no corrections. He signed the last page of the five-page statement acknowledging that he had carefully reviewed it and that the information contained therein was accurate. If the statement contained any inaccuracies or ambiguities, appellant should have made the necessary corrections at that time; however, he failed to do so. Furthermore, even though appellant maintains that he did not sign the statement until 12 hours after it was given, there is no evidentiary support for this contention.

Although seven hours had elapsed between appellant’s arrest and the initiation of his interview, nothing in the record indicates that this delay was “aimed at overcoming appellant’s will, or that he was subjected to coercive tactics.” Commonwealth v. Perez, 577 Pa. 360, 376, 845 A.2d 779, 789 (2004). The Pennsylvania Supreme Court held in Perez that:

“[A] voluntary statement^ by an accused given more than six hours after arrest when the accused has not been arraigned, are no longer inadmissible per se. Rather, in determining the admissibility of all statements, regardless of the time of their making, courts must consider the totality of the circumstances surrounding the confession.” Id. at 373, 845 A.2d at 787. (footnote omitted)

Although interviewing in this case commenced before appellant was formally arraigned, the totality of the circumstances surrounding the interview suggests that appellant understood the constitutional rights that were given to him, and knowingly, intelligently and voluntarily chose to give a subsequent statement. Furthermore, the delay between arrest and arraignment resulted from appropriate investigative procedures that were necessary for police to adequately prepare for appellant’s interview. At the suppression hearing, Sergeant Shaffer explained that the seven-hour delay was attributable to “reading statements from the officers, speaking to the officers and speaking to witnesses.” (N/T, suppression hearing, 10/22/07 at 8.) As there is nothing in the record to indicate that appellant’s statement was in any way induced, coerced or the product of any undue delay, the statement was voluntarily made and properly admitted.

Regarding appellant’s second argument, Assistant District Attorney Christopher Maloney was not guilty of prosecutorial misconduct. The grounds for prosecutorial misconduct are well established. Any acerbic, unprofessional or otherwise improper remarks by the Commonwealth are not necessarily grounds for a new trial. A claim of prosecutorial misconduct will constitute grounds for relief, however, when the unavoidable effect of the contested comment was to “prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict.” Commonwealth v. Ragan, 538 Pa. 2, 24, 645 A.2d 811, 822 (1994), citing Commonwealth v. Chester, 526 Pa. 578, 599, 587 A.2d 1367, 1377 (1991).

In the case before this court, the allegedly improper question was posed by the Commonwealth during appellant’s cross-examination. Specifically, the prosecutor asked appellant: “Because at that point, based on the fact that you had just raped her, you suspected that she may be stooped down upset and sheltering herself because she was depressed, correct?” (N/T, trial by jury, 3/28/2008 at 76.) Appellant argues that this comment constituted prosecutorial misconduct and unduly prejudiced the jury. In Commonwealth v. Dozier, 294 Pa. Super. 249, 439 A.2d 1185 (1982), the Pennsylvania Superior Court re-j ected the defendant’s argument that the prosecutor’s use of the word “rapist” during closing argument was improper. More particularly, the court found that since the defendant was being tried for rape, the prosecutor’s use of the word “rapist” was not error, nor was it improper, given the nature of defense counsel’s previous attack on the victim’s truthfulness. Id.

Similarly, Commonwealth’s characterization of appellant as having “raped her” was not improper given that this was the exact crime appellant was on trial for and given the nature of appellant’s repeated attacks on the victim’s credibility. A prosecutor is permitted after all, to vigorously argue his case so long as his comments are supported by evidence and contain inferences which are reasonably derived from that evidence. Commonwealth v. Hardcastle, 519 Pa. 236, 254, 546 A.2d 1101, 1109 (1988). Additionally, as the comment was made on cross-examination, as opposed to being made during closing argument, appellant had the opportunity to directly refute the statement, which he did by responding, “First of all I never raped her. And I feel as some kind of way that you are saying that I raped her. I never raped her, okay?” (N/T, trial by jury, 3/28/2008 at 76.) The jury was not prejudiced by the comments as evidenced by its return of a not-guilty verdict on the charge of rape. Finally, any complaints appellant had regarding such characterizations should have been raised at trial in the form of defense objection, however, no objections were made by defense counsel. As the Pennsylvania Supreme Court has often said, “A party may not remain silent and take chances on a verdict and afterwards complain of matters which, if erroneous, the court would have corrected.” Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974) citing Commonwealth v. Marlin, 452 Pa. 380, 382, 305 A.2d 14, 16 (1973).

Addressing appellant’s third argument, the jury’s verdict, finding appellant guilty of aggravated indecent assault—lack of consent, was not against the weight of the evidence. Aggravated indecent assault is defined in 18 Pa.C.S. §3125, which reads as follows:

“(a) Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person who engages in the penetration, however slight of the genitals or anus of a complainant with apart of the person’s body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
“(1) the person does so without the complainant’s consent;
“(2) the person does so by forcible compulsion;
“(3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
“(4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring;
“(5) the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing without the knowledge of the complainant drugs, intoxicants or other means for the purpose of preventing resistance;
“(6) the complainant suffers from a mental disability which renders him or her incapable of consent;
“(7) the complainant is less than 13 years of age; or the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.”

Appellant argues that the jury’s verdict, finding him guilty of aggravated indecent assault—no consent, was against the weight of the evidence for the following reasons: there was no evidence that the alleged victim was intoxicated; there was no evidence that the alleged victim was mentally impaired; and there was no evidence that the alleged victim was under the age of 16 years at the time of the alleged assault. Appellant contends that the verdict’s lack of evidentiary support entitles him to a new trial.

In Commonwealth v. Filer, 846 A.2d 139, 140 (Pa. Super. 2004), the Pennsylvania Superior Court articulated the standard applied in reviewing the sufficiency of the evidence. The court stated the following: “The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt.” In the case before this court, there was enough evidence admitted at trial to enable the jury to find every element of the crime beyond a reasonable doubt.

Appellant’s summation of the elemental principles of section 3125, enumerated above, is too narrow. Although the statute extends criminal liability to situations where there is evidence of intoxication, mental impairment or infancy, the statute is broader than these three instances. Accordingly, the jury was properly instructed of the following:

“In order to find the defendant guilty of that offense, (aggravated indecent assault—no consent), you must find the following elements have been proven beyond a reasonable doubt: First, that the defendant penetrated however slightly the genitals of Shakia Williamson with one of his body parts; second, that the defendant did not do so for a good-faith medical, hygienic, or law enforcement-procedure purpose; third, that the defendant penetrated the other person’s genitals without her consent; and fourth, that the defendant acted knowingly or at least recklessly regarding the other person’s non-consent.” (N/T, trial by jury, 2/29/2008 at 309.)

Here, there was evidence to prove beyond a reasonable doubt, that appellant penetrated the victim’s genitals without her consent. On direct examination, the victim, Ms. Williamson testified to this fact, an account which was circumstantially corroborated by numerous Commonwealth witnesses. Furthermore, there was evidence to prove that appellant acted knowingly or at least recklessly regarding the victim’s non-consent. Specifically, Ms. Williamson testified that she repeatedly pleaded with appellant to “Please don’t do this. Please stop.” (N/T, trial by jury, 2/27/2008 at 79.) As such, there was sufficient evidence to support appellant’s conviction for aggravated indecent assault—no consent.

Finally, appellant argues that this court committed reversible error when it denied his motion to pierce the rape shield. Specifically, appellant asserts that he should have been permitted to introduce into evidence the prior sexual history between himself and the alleged victim. Pursuant to Pennsylvania’s Rape ShieldLaw, 18 Pa.C.S. §3104, evidence of past sexual conduct, if relevant to show bias against the defendant or to attack the credibility of the victim, is admissible as long as it would not inflame the minds of the jurors to the point that its probative value is outweighed by the danger of unfair prejudice. The purpose of Pennsylvania’s Rape Shield Law is to prevent a sexual assault trial from denigrating into an attack upon the victim’s reputation for chastity. Commonwealth v. Killen, 545 Pa. 127, 680 A.2d 851 (1996).

In the case before this court, appellant contends that he should have been able to introduce testimony that he and the victim had a history of engaging in consensual oral sex with one another. Furthermore, appellant avers that he should have been permitted to submit a report by Detective Ronald Cupo of the Cheltenham Township Police Department, wherein the victim admitted to having oral sex with appellant on one prior occasion. Appellant failed, however, to supply the Commonwealth with proper notice of such allegations as required by section 3103(b), which requires a defendant to file a written motion and offer of proof at the time of trial. In the instant case, by the time appellant raised this issue, the trial had already commenced, opening arguments had concluded and the Commonwealth was in the middle of presenting its case. It was only at the start of the second day of trial that appellant formally raised this motion. Even at that time, no request in writing was presented. Although a written motion was eventually filed, it came too late.

Furthermore, proffers of evidence relating to past sexual conduct of the alleged victim under the Rape Shield Law cannot be vague, conjectural or speculative. Commonwealth v. Fink, 791 A.2d 1235 (Pa. Super. 2002). The Commonwealth was right in its contention that appellant should not have been permitted to testify to “alleged events that happened in the past that have no indicia of reliability that can’t be corroborated or confirmed.” (N/T, trial by jury, 2/27/2008 at 6.)

CONCLUSION

Upon consideration of the foregoing discussion, the undersigned respectfully submits that the defendant’s conviction and sentence should be affirmed.

      . Although appellant presently contends that his statement was involuntary, on cross-examination he admitted that he received and understood the rights that he was relinquishing. The pertinent testimony is as follows:

        “Q: You were informed of your rights prior to giving that statement, correct?
      “A: When I gave my statement, I was informed of my Miranda rights, yes, but I wanted to tell the truth. I wanted to tell my side of the story, no questions about it.
      “Q: I’m just bringing up the fact that you were properly informed of your rights. You voluntarily chose to waive those rights and gave a statement, right?
      “A: Yes I did.” (N/T, trial by jury, 2/28/2008 at 44.)
      2. See (N/T, suppression hearing, 10/22/2007 at 53).

      . This court offered further elaboration on the mens rea element stating the following: “What do I mean by the requirement of the fourth element, that the defendant acted knowingly or at least recklessly? The defendant acts recklessly with regard to an alleged victim’s non-consent if he consciously disregards a substantial and unjustifiable risk that the victim is not consenting to the penetration. The risk disregarded must be the sort of risk that is grossly unreasonable for the defendant to disregard.” (N/T, trial by jury, 2/29/2008 at 209-210.)

      . The pertinent part of Ms. Williamson’s testimony is as follows:
      “A: At that time, I was still laying there and just asking him to ‘ Stop. Don’t do this.’And he proceeded to get on top of me and force himself on me.
      “Q: And, sorry, but you have to be specific when you say he forced himself on you.
      “A: Penetration.
      “Q: Penetration of what area of your body?
      “A: My vagina.
      “Q: By what part of his body?
      “A: His penis.” (N/T, trial by jury, 2/27/2008 at 79.)


author: LASH, J,

text:
    Resh v. Resh

      LisaD. Gentile, for plaintiff.

      Kimberly Resh, pro se.
    October 6, 2008
   LASH, J,

This court held a child custody trial on October 3, 2008. At issue is whether defendant, Kimberly Resh (Mother), should be limited to supervised visits with the minor children. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Donald Resh (Father), is an adult individual who currently resides at 310 Rugby Road, Birdsboro, Berks County, Pennsylvania 19508.

(2) Defendant, Kimberly Resh (Mother), is an adult individual who currently resides at an undisclosed address in Berks County, Pennsylvania.

(3) The parties are the natural parents of two minor children, Mason Resh, bom January 25,2006, and Brennan Resh, born January 25, 2007.

(4) The parties were husband and wife, residing together until February 2007, when Mother was incarcerated. Since that time, the parties have remained separated, and the minor children have resided with Father.

(5) Mother’s incarceration was from February 2007 to March 2008, resulting from convictions on theft charges. There are also current charges against her. The first one is for identity theft, filed on September 17,2008, where it is alleged that she used Father’s Social Security number to obtain credit, without his consent. Secondly, there was a retail theft charge filed on September 23, 2008.

(6) On April 17,2008, after a pretrial conference, this court entered a temporary order, by agreement of the parties, setting forth that Father would have primary custody of the minor children and Mother would have visitation, supervised by Father for four hours every Thursday and four hours every Saturday, the times and places to be agreed upon by the parties.

(7) On August 5,2008, this court modified the temporary order such that Mother’s supervised visitation time would take place for four hours every Tuesday and four hours every Thursday, the times and places to be agreed upon by the parties.

(8) Father currently resides with the minor children, the paternal grandparents, and Father’s brothers, Michael and Jason Resh. When Father is unavailable to watch the minor children due to his work schedule, the paternal grandparents watch the minor children.

(9) Mother has a minor child from another relationship, Tyler Milito, who is 14 years old.

(10) Mother’s address is unknown. Mother appeared at the pretrial conferences and was advised by this court of the date for trial at that time. She failed to appear for trial, and did not contact the court to provide an explanation.

(11) Mother is currently on parole.

II. DISCUSSION

In making disposition on this case, this court considered the testimony of Father, exhibits he supplied, and a review of the record.

Father has been the sole custodian of the minor children since Mother’s incarceration in early February 2007. At that time, Brennan was only about two weeks old. Since Mother’s release in March 2008, she has had sporadic contact with the minor children. Unfortunately, since the new charges have been filed, Mother has had no contact with the minor children, and her whereabouts are unknown. It is likely that her disappearance is related to her avoidance of prosecution on the new charges and/or for a parole violation. Apparently, she is more concerned about maintaining her freedom than being a proper mother to these minor children.

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

Under these circumstances, this court shall award Father sole legal custody and primary physical custody. Father has demonstrated that he has adequately provided for the day-to-day maintenance of the minor children. Due to Mother’s issues and avoidances, Father has been relegated to being the sole caretaker. Fortunately for the minor children, he has embraced these responsibilities. Additionally, the paternal grandparents are available to help out when necessary.

Based on Mother’s checkered history and failure to appear, it is apparent that Mother cannot be trusted with extensive time with the minor children, at this time. Upon questioning by the court, Father stated that he had no problem with the continuation of supervised visitation. This would enable Mother to continue to have contact with the minor children, if she desires. There is no evidence that she has posed any threat to the minor children. Father’s concern is that she is unreliable, that she is likely to be arrested again and be removed from the minor children’s lives, and that she may even be arrested in front of the minor children, which could be traumatic. In fact, when Mother was arrested in February of2007, the arrest occurred in front of the minor children. Father is adamant that he does not want this to occur again, particularly once the minor children are able to comprehend what is going on.

We enter the following order:

ORDER

And now, October 6,2008, after trial held, custody of the parties’ minor children, Mason Resh, born January 25, 2006, and Brennan Resh, born January 25, 2007, shall be as follows:

(1) Plaintiff, Donald Resh, shall have sole legal custody and primary physical custody of the minor children.

(2) Defendant, Kimberly Resh, shall have supervised visits in the presence of Father, at such times as the parties shall agree. In the event the parties are unable to agree, either party may request court intervention through an appropriate petition.

(3) The orders of April 17, 2008 and August 5, 2008 are vacated.

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

APPENDIX TO ORDER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


author: KELLER, J,

text:
    Golowski v. Shaner

      Levi S. Wolf, for plaintiff.

      Henry T. Crocker, for defendant.
    June 26, 2006
   KELLER, J,

The parties are the parents of two daughters, Autumn, who is now emancipated, andBria, age 15. In July 1978, defendant/Father was injured in a car accident and was in a coma for two weeks. He sustained serious brain injuries requiring extensive rehabilitation. However, defendant was able to work in various manufacturing jobs and then later became a self-employed painter. In the spring of 2002, defendant applied for SSD benefits and on June 25,2005, filed a petition to modify the parties’ then existing 2000 support order. A support conference was held on September 11, 2002, and the parties agreed to the entry of an order that directed defendant to pay $500 monthly for the support of his two children. This agreement and new order resulted in a reduction of $100 per month in support payments.

Between the date he filed for SSD in 2002 and when it was awarded in 2005, defendant earned no income of his own, but fulfilled part of his child support obligation by borrowing money from his father and welfare benefits. Defendant testified that his father loaned him about $95,000 during those three years and approximately $6,000-$7,000 (of a total obligation of about $18,000) was used to pay child support. Father also voluntarily paid $100 in cash towards the costs incurred by Mother and her husband for the children’s health insurance. However, there were many months where no support was paid, resulting in defendant’s arrearages accumulating. Petitions for contempt were filed on February 12, 2003 and December 11,2003. On January 21,2004, defendant signed “lump-sum SSD attachment order” authorizing his attorney on the SSD claim to attach all funds otherwise payable to the defendant up to the total amount of arrears owing at the time of any such distribution.

On January 21,2005, Mother petitioned to modify the 2002 order to include the $100 per month for the children’s medical expenses. Again, the parties agreed and a modified order was entered on April 29,2005, increasing defendant’s monthly obligation from $500 to $600. This order, entered by agreement, reflects a monthly net income of $0 for defendant/Father. On April 29, 2005, three years after filing for SSD benefits, the Social Security Administration granted defendant/Father’s claim, with an effective date retroactive to December 2002. Father was awarded a lump-sum payment of approximately $40,100, in contravention of the lump-sum SSD attachment order signed on January 21, 2004. None of this award was used by defendant to satisfy his arrears, which, as of May 2005, totaled $10,017.35. Additionally, both daughters of plaintiff and defendant received lump-sum SSD payments. Bria, the younger daughter, received $8,255 for the period from December 2002 through July 2005, and an award of $392 per month from August 2005 forward. Autumn, who was emancipated on July 11, 2005, received only a retroactive lump sum payment of $7,863.

On June 8, 2005, the Social Security Administration notified defendant that his then forthcoming monthly benefit would be garnished to pay his support order of $600 per month, with an additional $150 garnished each month as an arrears payment of $75 for each child. On July 26,2005, defendant petitioned to modify his support order, stating that since the entry of the order, the circumstances have changed substantially as follows “the children are receiving back support from Social Security, which should cover all my arrears so the court order should be terminated.” Defendant further requested that the court give credit on the present order.

A support hearing on defendant’s petition to modify was held on October 28,2005 and testimony was taken. The master’s report was filed on December 1, 2005. Exceptions were filed by the defendant on December 12, 2005. Support arguments were held before the Honorable Scott D. Keller on April 17, 2006. On April 21, 2006, after argument held and upon consideration of the master’s report, and briefs of counsel, this court denied defendant’s exceptions. A notice of appeal was filed by the defendant on May 12, 2006. Defendant was ordered to file a concise statement of matters complained of on appeal on May 23, 2006, which the defendant did file on June 6, 2006. The defendant raises the following three issues in his concise statement of matters complained of on appeal:

(I) The trial court erred in its findings that defendant’s brain damage and resulting mental disability were not compelling reasons for retroactive modification for remission of support arrearages under 23 Pa.C.S. §4352(e).

(II) The trial court erred in denying defendant credit against support arrearages which accrued during his disability and for moneys which were paid directly to appellee in an amount in excess of his support arrearages.

(III) The trial court erred in its determination that defendant’s several agreed upon support modifications undertaken without counsel during his disability waiting period and his partial payments with moneys borrowed should not prejudice or foreclose his ability to request and/or obtain a retroactive remission of support arrearages.

Defendant’s first claim in his concise statement of matters complained of on appeal alleges that this court erred in its findings that defendant’s brain damage and resulting mental disability were not compelling reasons for retroactive modification for remission of support arrearages under 23 Pa.C.S. §4352(e). 23 Pa.C.S. §4352(e) states:

“Retroactive modification of arrears. No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor. However, modification may be applied to an earlier time period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason, and if the petitioner, when no longer precluded, promptly filed a petition. In the case of an emancipated child, arrears shall not accrue from and after the date of emancipation of the child for whose support the payment was made.”

The defendant argues that he was unrepresented by counsel, brain damaged and determined to be incapable of gainful employment because of a mental disability, and that these factors qualify as a mental disability or other compelling reasons so as to permit a retroactive modification ofarrears under 23 Pa.C.S. §4352(e). However, in her recommendation, the hearing officer found that none of those things rose to the level of “compelling circumstances” contemplated by the rule. We agreed.

Defendant asserted that during the years between 2002 and 2005, he received no income, was unemployed, had a pending Social Security claim, and had suffered brain damage and a mental disability. However, defendant did not assert in his current petition, nor at the hearing held in front of the support master, how his disability precluded him from filing an earlier petition in 2002, 2003 or 2004 to modify based upon these alleged “compelling circumstances.” Nor were there any allegations of misrepresentation. The record is clear that the defendant, on several occasions, voluntarily increased his support obligation during the three-year period between his application for the SSD benefits and receiving them. This court found that there was not enough compelling reasons presented by the defendant to satisfy his burden of pro ving that he was entitled to retroactive modification of the support order and the accompanying arrears.

The second claim raised in defendant’s concise statement of matters complained of on appeal alleges that this court erred in denying defendant credit against support arrearages which accrued during his disability and for moneys which were paid directly to appellee in an amount in excess of his support arrearages. The defendant is essentially arguing that he should no longer have to pay support for his children because the lump-sum payments made directly to them should satisfy his arrears, and because Bria, who is unemancipated, continues to receive an ongoing payment due to her father’s SSD award. He further asserts that the sum of $8,255 received by the plaintiff for Bria and $7,863 received for Autumn should have extinguished his outstanding support arrearages.

Both the plaintiff and the defendant cite the seminal case of Children and Youth Services of Allegheny County v. Chorgo, 341 Pa. Super. 512, 491 A.2d 1374 (1985), in support of their position. The Chorgo case was one of first impression for the Pennsylvania courts, and after an in-depth review of similar cases from other jurisdictions considering the same questions, the court found: (1) a credit should not be applied to arrearages which accrued before the start of an obligor’s disability or retirement; (2) a credit should be applied to arrearages which accrued between the date of his application and the commencement of benefits if the obligor can show that he was financially unable to make payments during that period; (3) credit should be applied to arrearages which accrue after the receipt of benefits by the obligee and which exist by virtue of those payments not applied to the support obligation; (4) credit should be given on an ongoing monthly basis; and (5) credit should not be given prospectively out of excessive benefits. Id. (emphasis added) Defendant concedes that the credit as set forth in the first category should not be applied to support arrearages accumulating before the start of an obligor’s disability. However, defendant contends that he was unable to make payments during that period of time since he had no income, no employment, received welfare, and borrowed nearly $95,000 from his father in three years to maintain himself. Defendant believes that the Chorgo decision supports his claim that he is entitled to a credit against his child support obligation for Social Security payments made directly to his minor children and that such payments arose out of his entitlement to benefits. However, the hearing officer concluded, “I find that under Chorgo, no credit is owed on arrears accrued between June 7, 2002 and the present date because Father has failed to adduce any evidence that he was unable to make his support payments during those years.” Recommendation of the custody/support master, 12/01/05.

This court agreed with the hearing officer’s interpretation of the law set forth in Chorgo and therefore denied the defendant’s exceptions to the master’s recommendations. We found that the law required the defendant to use his own lump-sum payment from his SSD benefits, and not his children’s, to satisfy his arrearage obligation. The court in Chorgo stated that it was loath to conclude that excess benefits subsequently received can be applied to retroactively erase arrearages accrued after the start of the disability but before the start of the benefits. It relied heavily on the case of McClaskey v. McClaskey, in which the Missouri Court of Appeals, when faced with a question similar to the present case, reasoned:

“Because a child’s need for food, clothing, lodging and other necessary expenses is current—today, this week, this month—and the expectation of a future payment does not meet those needs. To allow the lump-sum payment to be credited against the father’s delinquencies, as he urges us to do, could permit him to deliberately create those delinquencies, thereby depriving his children of support, all in the hope that some accrued benefit would cancel his growing default.” 543 S.W.2d 832, 835 (Mo.Ct.App. 1976).

However, the Chorgo court also recognized that an obligor with a disability legitimately may not be able to satisfy his support obligation through payments. The Chorgo court balanced these competing interests by mandating, “In the interest of securing support payment when due, whenever possible, the obligor should go to court with the excuse of inability to pay at the time of that inability. It may be that the failure to do so would result in a waiver.” 341 Pa. Super, at 523, 491 A.2d at 1380. This case effectively placed the burden on the obligor to inform the court that he or she is unable to make support payments pending receipt of the disability benefits. We found that the defendant, who filed no petitions to modify the support order from the time he applied for the benefits until after they were awarded, failed to explain why he could not satisfy his support obligation. In fact, the record reflects that the defendant did indeed make some payments in the approximate amount of $6,000-8,000 during the time his disability benefits were pending, lowering his arrears from around $18,000 to around $10,000 in May 2005.

It is interesting to note that even the petition to modify filed by the defendant in July 2005 does not seek to modify the order based on his inability to pay. Rather, the petition filed by the defendant seeks to absolve him from his three-year-old obligation because his ex-wife received lump-sum payments for the benefit of the children. However, the law is clear that the defendant could only apply the lump-sum payments made to plaintiff for the children to his arrears if he made a showing to the court, at the time his disability began to prevent him from paying, that he could not fulfill his support obligation. The defendant willingly chose to enter an agreement to pay support for his children, whether or not he had the ability or intent to pay, rather than seek to terminate or suspend his obligation because he was unable to meet his obligations while waiting to receive his benefits.

Furthermore, although the issue was wholly ignored in defendant’s exceptions and brief, this court cannot overlook the fact that the defendant signed an acknowledgement, which later became an order of this court, that authorized his attorney on the SSD claim “to attach all funds otherwise payable to the defendant up to the total amount of arrears owing at the time of any such distribution.” The language of that order unequivocally states that it is the defendant’s SSD funds, and not his children’s, that were to be used to pay off his arrears when the lump-sum benefits finally arrived. Although the defendant may argue that he did not know what he was signing, the fact is that he voluntarily chose to proceed without counsel. Our Supreme Court has adopted the position that “any lay person choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.” Warner v. University of Pennsylvania Health System, 874 A.2d 644, 648 (Pa. Super. 2005). The plain language of the Chorgo case, coupled with the fact that defendant signed an acknowledgement permitting his own lump-sum benefit award to be attached to satisfy his child support arrears, lead this court to conclude that he was not entitled to a credit based upon the lump-sum payments the plaintiff received for the children.

The final claim in defendant/Father’s concise statement alleges that this court erred in its determination that defendant’s several agreed upon support modifications undertaken without counsel during his disability waiting period and his partial payments with moneys borrowed prejudiced or foreclose his ability to request and/or obtain a retroactive remission of support arrearages. Defendant, from 2002 until 2005, never once asserted to this court that he was unable to satisfy his support obligations. Instead, he agreed to pay support after he filed for SSD benefits and claimed a loss of employment and reduced income. Defendant sought to reduce, rather than terminate, his obligation in 2002, and then entered into an agreement to pay $502 per month. He later informally agreed to raise that amount to $602 and subsequently formally agreed to increase it to $602 in April 2005. Again, the defendant cannot argue that his lack of counsel at the time he entered into the voluntary agreements should permit him to obtain retroactive remission of his support arrearages. A pro se litigant is not absolved from complying with procedural rules. Jones v. Rudenstein, 401 Pa. Super. 400, 404, 585 A.2d 520, 522 (1991). Nor is a pro se litigant entitled to any particular advantage because he lacks legal training. O’Neill v. Checkers Motor Corp., 389 Pa. Super. 430, 434, 567 A.2d 680, 682 (1989). The fact that the defendant made payments from whatever source available, whenever available, instead of following the proper procedure of filing a petition to modify, or suspend or terminate, his support payments based on his inability to pay, does not permit him to obtain retroactive remission of the arrears that accumulated during the period where his disability benefits were pending.

For all of the foregoing reasons, this court respectfully requests that the defendant’s appeal be denied and the order denying the defendant’s exceptions to the master’s recommendations be affirmed.

      . The date in the body of the actual order indicates that it was issued on January 21, 2002, however, in light of the fact that defendant had not even applied for SSD benefits on that date, it appears the date on the order was a typographical error and is read as having been issued on January 21,2004, as that is the date next to the defendant’s signature.