author: DOZOR, J.,

text:
    J.J. v. M.C.

      Michael Hanamirian, for appellee.

      Patrick Daley and Kristen Daniels Rushing, for appellant mother.

      Craig Huffman, for appellant-intervener husband.
    February 25, 2014
   DOZOR, J.,

AMENDED OPINION

This appeal is considered as a direct appeal from this court’s January 27, 2014 “order granting petitioner’s request for paternity and genetic testing and denying preliminary objections.” The nature and history of the case is as follows:

On December 6, 2012, Appellee, J.J., filed a complaint to establish paternity and genetic testing of minor child born on September 8, 2012. The complaint to establish paternity and genetic testing was scheduled before a master for a January 2, 2013 Hearing. On December 19, 2012, appellant Mother M.C. filed an answer to the complaint to establish paternity and genetic testing. The January 2, 2013 hearing before the master was continued to January 22,2013. On January 22,2013, appellant mother’s counsel requested that this case be relisted before a judge pursuant to Pa.R.C.P. 1915.4-l(b)(l), due to the complex issues of paternity in this case.

On February 26,2013, the undersigned court scheduled this case for a pre-trial conference on May 2, 2013. In preparation for the pre-trial conference this court requested that the parties submit concise conference statements. On April 24, 2013 appellant mother filed a petition to strike paragraph 21 and Exhibit “E” of plaintiff’s concise conference statement. On April 25, 2013, petitioner filed a response to defendant mother’s petition to strike paragraph 21 and Exhibit “E” of plaintiff’s concise conference statement.

This court held a pre-trial conference on this case on May 22, 2013. Thereafter, this court scheduled this case for a trial date on October 7, 2013.

On October 3, 2013, appellant mother’s husband (D.T.) filed a petition to intervene and to change the case caption. On October 3, 2013, appellant mother and appellant intervener husband, D.T. (appellant mother’s husband), filed preliminary objections seeking dismissal of petitioner’s complaint on the basis that the child was born into an intact marriage and thus the presumption of paternity bars petitioner’s complaint.

On October 7,2013, this court issued an order granting appellant mother’s motion to strike paragraph 21 and Exhibit “E” of plaintiff’s concise conference statement. This court granted the petition to strike paragraph 21 and Exhibit E, in an abundance of caution and to preserve the record. The effect of this court’s ruling removed from the records any reference of the results of the paternity test that was taken in June of 2012 between appellant mother, appellee and the then unborn minor child.

Additionally, on October 7, 2013, this court issued an order granting appellant intervener husband (D.T.’s) petition to intervene and change the case caption.

This court held a hearing in this matter on October 7th and 8th, 2013 and after the trial, this court took the matter under advisement. All of appellants’ arguments were based on their claim that proper application of the presumption of paternity bars appellee from asserting any parental claim to the minor child.

After receiving memoranda of law from all parties involved, this court issued an order on January 27, 2014, denying appellants’ preliminary objections and granting appellee’s request for genetic testing. The effect of the January 27,2014 order was that the preliminary objection which sought dismissal of appellee’s complaint to establish paternity and genetic testing on the basis that the child was born into an intact marriage and thus the presumption of paternity barred appellee’s complaint was denied and appellant mother, appellee and minor child were ordered to report to the Domestic Relations Office (DRO) within ten (10) days of the date this order to undergo genetic testing.

On January 29, 2014, appellant mother filed an “emergency motion to stay enforcement of January 27, 2014 order granting petitioner’s request for paternity and genetic testing and denying preliminary objections.” Appellant mother also filed a timely “notice of appeal” and her “concise statement of matters complained of on appeal.”

On January 30, 2014, this court issued an order granting appellant mother’s emergency motion to stay enforcement of January 27, 2014 order which granted petitioner’s request for paternity and genetic testing and denying preliminary objections until a decision is made by the Superior Court on appellants’ appeal of said order.

On January 31,2014, appellant intervener husband filed a timely “notice of appeal” and his “concise statement of matters complained of on appeal.”

This court notes that no request was made by this court of either appellant pursuant to Pennsylvania Rules of Appellate Procedure 1925(a) for a concise statement of matters complained of on appeal as both parties filed their concise statements contemporaneously with their notice of appeals. On February 11, 2014, this court received a letter from the Superior Court informing this court that the appeals in this case have been designated as a “children’s fast track appeal.”

Both appellants’ concise statements of matters raised on appeal raise similar, if not identical, issues of error on the part of this court in issuing the January 27,2014 order. The issues, which have been consolidated, are as follows:

1. This court erred and committed an abuse of discretion when determining that appellee failed to overcome the application of the presumption of paternity by not establishing that appellant intervener husband was “incapable of fathering a child or did not have access to wife” and determining that appellant mother and appellant intervener husband did not have an intact marriage.
2. This court erred and committed an abuse of discretion when this court admitted evidence of appellee’s related to the period of time prior to the date of minor child’s birth.
3. This court erred and committed an abuse of discretion when determining that appellant intervener husband could not have known of appellant mother’s conduct.
4. This court erred as a matter of law in confusing the presumption of paternity with paternity by estoppel doctrine.

FACTS:

There was no dispute during the trial that appellant mother and appellant intervener husband were married on June 21, 2007 and there was no dispute that on the date of the minor child’s birth, September 8, 2012, appellant mother and appellant intervener husband remained legally married. This court also notes that appellant intervener husband’s name is listed as the father of minor child on the birth certificate. N.T., 10/07/2013, Vol. 1, pgs. 202 and Exhibit D-l. Additionally, it is not in dispute that prior to becoming pregnant with minor child, appellant mother engaged in an extended extra-marital affair with appellee.

Appellant mother is employed as a registered nurse at Jefferson University Hospital, Methodist Division who began communicating with appellee when appellee contacted her via Facebook. The online communication between appellee and appellant mother began in June of 2011 and quickly became a physical affair. The testimony of both appellee and appellant mother was uncontroverted regarding the beginning of their affair and the extremely short time period between the initial Facebook communication and their in person meeting. Appellant mother met appellee and his friend at a bar in Philadelphia sometime during the end of June or the beginning of July 2011.

At the time that they met appellee was informed by appellant mother that she was legally separated from her husband, appellant intervener husband, and that they were only residing together for financial reasons. Appellant mother candidly and credibly testified that at this point in her relationship with appellant intervener husband there was a “rough patch” in her marriage.

After their initial meeting at the bar in Philadelphia, appellee and appellant mother continued to communicate electronically and continued to see each other in person. Appellee and appellant mother met again in person at a Floliday Inn Hotel in Philadelphia on July 4, 2011. Appellant mother asked appellee to get a hotel room where they both spent the night and engaged in sexual relations. Thereafter, appellant mother went to work on July 5,2011 and she purchased a hotel room for her and appellee that night, July 5, 2011, at the same Holiday Inn Hotel where they again engaged in sexual relations.

Following their two day/nights at the Holiday Inn in Philadelphia over the July 4th holiday, appellant mother went to Wildwood, New Jersey to meet up with appellee. During the time that appellant mother and appellee were in Wildwood, New Jersey, appellee’s family was also staying in Wildwood, New Jersey. Appellee and appellant mother stayed in a hotel room together in Wildwood, New Jersey for two nights, where they again engaged in sexual relations, met appellee’s family and friends, and attended a dance competition. During this vacation in Wildwood, New Jersey with appellee, appellant mother represented herself as single while she socialized with appellee and his friends and family. While appellant mother was in Wildwood, New Jersey with appellee, appellant mother told appellant intervener husband that she was staying with friends. At that time, appellant intervener husband did not question the veracity of appellant’s mothers whereabouts.

Following the vacation in Wildwood, New Jersey and throughout the entire summer of 2011, appellant mother began visiting appellee at his mother’s house. When appellant mother would visit appellee, she would stay overnight at appellee’s mother’s house. N.T., 10/08/2013, Vol. 2, p. 219. During the summer months of 2011, appellant mother continued to hold herself out as single and represented herself to the public, appellee and his family and friends that she was a single woman who was dating appellee.

Appellant mother would visit appellee multiple times during the week between July of 2011 and September of 2011 and while doing so consistently deceived and lied to appellant intervener husband about her whereabouts.

This court determined, based upon the credible testimony presented at trial, that appellant mother ate meals with appellee, would spend the day/night with appellee and would get ready for work at appellee’s mother’s house before appellant mother would then commute directly to work in Philadelphia. This court notes that appellant mother testified that on occasions she would in fact commute directly to work in Philadelphia; however, appellant mother also testified that sometimes she would not commute directly to work but would rather stop at her residence in Boothwyn and see appellant intervener husband.

During the months of July of 2011 and May of 2012, appellant mother held herself out to appellee’s friends and family as appellee’s girlfriend. Between July of 2011 and late winter/early spring of 2012, appellant mother continually told appellee and appellee’s friends and family that she was separated from appellant intervener husband. During this same time period, appellant mother introduced appellee to her family, friends and coworkers and attended parties together thrown by both appellee and appellee’s mother and appellant mother’s friends and coworkers. During the entire time appellee and appellant mother were together, appellant mother allowed appellee’s niece and nephew to call her aunt.

Just prior to leaving for a vacation on Labor Day weekend of 2011, appellant mother informed appellee that she was pregnant. This court notes that appellant mother never informed appellant intervener husband about this pregnancy. This conversation occurred during an overnight stay at a hotel in Bethlehem, in a room that appellant mother purchased. Appellant mother made no mention to appellee about there being a possibility that the child was not his. From September of 2011 through May of 2012, appellee’s friends and family were told by appellee that appellant mother was expecting appellee’s child. Appellant mother testified that she did not personally tell appellee’s friends and family that she was expecting appellee’s child; however, she also did not stop appellee from telling his friends and family he was the father of appellant mother’s unborn child nor did she correct them when they discussed appellee as the father of the unborn child.

Following the announcement of her pregnancy, appellant mother looked for and leased an apartment with appellee in September 2011. Appellant mother testified that in October of 2011 she unfortunately had a miscarriage; however, appellant mother testified that she did not inform appellee about this miscarriage. Appellant intervener husband also testified that he was not informed that appellant mother had a miscarriage until well after the litigation began in this case.

Following the miscarriage, appellant mother continued to demonstrate to the public that she was in a committed relationship with appellee. Appellant mother attended a birthday party for appellee’s nephew at the end of October of 2011. Appellee and appellant mother attended a Halloween party in coordinating costumes. This court notes that this Halloween party was a “couple’s party” thrown by appellant mother’s coworker.

After Halloween, appellant mother and appellee moved into the jointly leased apartment located at 220 East Broad Street in Quakertown, Pennsylvania and both appellant mother and appellee signed the one-year lease as tenants. Appellant mother personally advanced and paid rent for the jointly leased apartment. The apartment was furnished and in this apartment appellant mother kept clothes for work and personal use as well as personal hygiene products. Appellant mother spent three to four days or nights per week, with and without appellee, at the apartment appellant mother shared with appellee. Appellant mother celebrated Thanksgiving of 2011 with appellee and his family.

This court heard candid testimony from the parties that appellant mother and appellee were sexually active between October of 2011 and December of 2011 and this court heard candid testimony that appellant mother and appellant intervener husband were sexually active between October of 2011 and December of 2011. Minor child in question was conceived in the early days of December of 2011.

In preparation for the Christmas holiday, appellant mother went with appellee to purchase a Christmas tree for the Quakertown apartment and they put the tree up together and both participated in decorating the tree. Appellant mother spent Christmas Eve of 2011 with appellee in their jointly leased apartment. Appellant mother and appellee visited appellee’s family on Christmas day. Appellant mother was included in photographs taken of appellee’s family in front of the Christmas tree during the holiday.

A mug with a sonogram photograph and the name Chloe Marie, the baby name discussed by appellant mother and appellee, was given to appellee’s sister and mother on Christmas of 2011 as a gift. Appellee credibly testified that appellant mother provided appellee with the picture of the sonogram used for the mug. Both appellant mother and appellee agreed that appellee did not attend an ultrasound that resulted in that sonogram picture. Appellee alleged that appellant mother sent him the ultrasound via email; however, appellant mother disputes that contention. Appellant mother did provide testimony that appellee took the picture of the ultrasound from her. Appellee credibly testified, and this court is not making and does not need to make a determination as to whether or not this photo mug’s ultrasound was either the baby that appellant mother miscarried or the baby that was carried to term.

During the early months of 2012, appellant mother’s sister, who had been terminally ill, passed away. Appellee, appellee’s mother, and sister planned to attend the funeral of appellant’s mother’s sister up until minutes before they were scheduled to leave at the last minute appellant mother informed appellee and appellee’s family that she was not attending the funeral due to a conflict between appellant mother and her mother.

Appellant mother attended a wedding, of appellee’s friends, with appellee in March 2012. Also, in March of 2012, appellant mother informed appellee that her divorce with appellant intervener husband was finalized and that she was awarded the house in the distribution of their property. Appellant mother and appellee made arrangements to end their one year lease early and to move into appellant mother’s Boothwyn residence.

In anticipation of the baby due to appellant mother and appellee, appellee’s family planned and held a baby shower for the couple. In anticipation of the baby’s arrival and the shower, appellant mother and appellee travelled together to Babies R Us and created a baby registry. The baby shower given by appellee’s family was held in March of 2012. Appellant mother attended the baby shower, accepted the gifts and best wishes from appellee’s family and friends. Appellant intervener husband testified that he did not notice if the baby items had come into his Boothwyn residence as his family and friends as well as appellant mother’s co-workers had also given her a baby shower.

In April of 2012, appellant mother, appellee, appellee’s family and the family’s dance studio students, took a bus trip to New York City to see a play. Also in April of 2012, appellee visited appellant mother and appellant intervener husband’s home in Boothwyn with appellant mother. Appellee alleged that he and appellant mother spent the night at the Boothwyn home and had sexual relations in that home. Appellee also alleged that on a second occasion they attempted to visit the residence; however, upon seeing a vehicle in the driveway, which appellant mother alleged was a cousin’s vehicle, they did not go into the Boothwyn house but rather went to Philadelphia and rented a hotel room for the night.

The testimony was clear that it was the intention of appellant mother and appellee to move into the Boothwyn residence following the Mother’s Day holiday of 2012. In anticipation of this move, appellant mother and appellee packed up the belongings in the Quakertown apartment and agreed with the landlord to an early termination of their lease. Appellee and appellant mother’s move was to occur the Monday following Mother’s Day of 2012 and as such all of appellant mother and appellee’s belongings that were in the Quakertown apartment were packed in their respective vehicles.

In May of 2012, appellant mother celebrated Mother’s Day 2012 with appellee’s mother and appellee’s family. The testimony was clear that appellant intervener husband did not spend this holiday with appellant mother nor did appellant mother spend this holiday with anyone in her family. Appellant mother attended a party at appellee’s parents’ home on Mother’s Day. Following the party, appellee mother and appellee took appellee’s mother out to dinner. Appellee testified that after returning to his mother’s house on Mother’s Day, appellant mother left that residence at approximately 4:30 AM to go to the Boothwyn house early. Appellant mother confirmed that after spending the day with appellee’s family, taking appellee’s mother out for dinner on Mother’s Day, going to the casino and going to sleep in appellee’s bed in appellee’s mother’s house, appellant mother left appellee’s mother’s home and went alone, to the house in Boothwyn.

When appellee telephoned appellant mother to inquire about the logistics of the move into the Boothwyn house that day, appellant mother informed appellee that things between them had progressed too quickly and she needed time. Only after appellant mother claimed to need more time and because it was appellant mother, who had pushed for the move to the Boothwyn house and was now delaying their joint move to appellant mother’s Boothwyn house, did appellee question her motives and required answers as to why she now chose not to live with appellee.

After Mother’s Day in May of 2012, appellee called appellant intervener husband at the place of his work and asked about the status of his relationship with appellant mother. Appellant intervener husband informed appellee that he was still married to appellant mother and that they were expecting a child in September of 2012. Appellant intervener husband testified that he was unaware of appellant mother’s extra martial affair until May of 2012, when he received appellee’s telephone called which revealed the affair.

At all times that appellant and appellee were a couple, appellant mother had advised and represented to the public, appellee, and his family, by actions and words, that she was either single or separated from appellant intervener husband and in the process of a divorce from appellant intervener husband.

In June of 2012, appellee’s mother and a friend arrived at the Boothwyn house and there was a brief interaction with appellee’s mother and appellant intervener husband before appellant mother arrived at the house. Appellee’s mother confronted appellant intervener husband about appellant mother’s relationship with appellee and the unborn minor child while standing in the driveway of appellant mother and appellant intervener husband’s Boothwyn house. Following this interaction, appellant mother again met with appellee in a hotel in Quakertown. Appellee testified that appellant mother initially informed him she would be bringing a copy of her divorce papers; however, when he arrived appellant mother did not have the divorce papers. It was at this meeting that appellee first learned about appellant mother’s miscarriage and subsequent pregnancy.

After learning that appellant mother and appellant intervener husband were still legally married, appellee was still assured by appellant mother that the child she was carrying was still appellee’s child. Appellee always, after being advised by appellant mother of her pregnancy, held himself out as the birth father and pursued his parenthood. Additionally, appellant mother represented, by her conduct, her actions, and words to appellee and his family and the public that appellee was the father of her unborn baby.

During the pregnancy, appellee attended at least two obstetrics and gynecology appointments with appellant mother. At the first OB/GYN appointment, appellant filled out and provided Medical History Forms.

On May 30, 2012, after appellee confronted appellant intervener husband about the relationship with appellant mother and the pregnancy, appellant mother, appellee and the yet unborn baby underwent a paternity test. Appellant mother requested the DNA test be conducted, not appellee. Appellant mother found the location, drove appellee and herself to the location and paid for this DNA testing. This court notes that the DNA test was performed and, the results are known to the parties; however, the results were precluded from admission during this court trial.

During the summer of 2012, appellee, appellant mother, and appellee’s sister met at a Starbucks. During this meeting, which was held sometime in the end of July or beginning of August 2012, appellant mother informed appellee that she wanted him to be present during the childbirth of the baby and provided appellee with the name of the hospital where she was scheduled to give birth. In September of 2012, through Facebook messages from appellant mother’s Facebook account, appellee was informed of appellant mother’s labor status up until the time of minor child’s birth.

Sometime after being confronted by appellee and appellee’s mother, appellant intervener husband changed appellant mother’s cellular telephone number because that was the only thing he “had control over.” However, the testimony was clear that throughout the summer of 2012 and up until the time of the birth of minor child, appellant mother and appellee were still communicating. Appellant intervener husband conceded in his testimony that he was and remains unaware if appellant mother and appellee were still communicating via Facebook as he is not a member of that internet site.

The testimony of appellant intervener husband and appellant mother was that appellant mother told appellant intervener husband that she was out with friends/coworkers, with her terminally ill sister or working in order to cover up the extra-marital relationship. Appellant intervener husband testified that he did not question appellant mother as to her whereabouts because she “had some valid alibi as far as being at work, or being with work friends, or having an obligation, or got to her parents.” Appellant intervener husband testified that although appellant mother led a very busy life, having a demanding job, having numerous work and other friends she interacted with, spending time with her terminally ill sister and her family, as well as having an extra-marital affair, he “usually still saw her on holidays.” Appellant intervener husband testified that appellant mother’s job as an ICU nurse meant that she would work nights, weekends and holidays.

This court finds it incredulous that appellant intervener husband was unaware of appellant mother’s duplicity, lies and life with appellee.

Appellant intervener husband testified that he was not made aware of the pregnancy of appellant mother that occurred in September of 2011 and which ended in a miscarriage in October of 2011, until sometime in January of 2013. Appellant intervener husband candidly testified that he learned only a few weeks before this court’s October 7 and 8, 2013 trial that appellee and appellant mother had leased an apartment together in November of 2011 or that appellee’s family had thrown appellant mother a baby shower in March of 2012.

Based upon the information, evidence and testimony provided to this court on October 7 and 8, 2013, this court found that appellant intervener husband’s claim and examples of having an intact marriage were implausible, improbable and not credible.

This court notes that minor child was bom on September 8, 2012. After September 8, 2012, but before appellant mother and minor child were released from the hospital, appellee’s family arrived at the hospital to see appellant mother and minor child. Upon seeing appellee’s family, appellant mother denied appellee’s family access to her, her room or to minor child. Since the birth of minor child, petitioner and petitioner’s family have not seen minor child.

Within a week of the birth of minor child, appellee’s parents arrived at the residence of appellant mother’s mother; it was at this encounter where appellant mother’s mother learned of her affair and the possibility that appellant intervener husband might not be the biological father of minor child.

On or about September 18, 2012, or within ten (10) days of minor child’s birth, a certified letter was sent to appellant mother from appellee’s prior counsel. This certified letter from appellee’s former counsel states that appellee has contacted legal counsel and is seeking a custodial arrangement with minor child between appellant mother and appellee. Thereafter, on December 6, 2012, appellee, filed the underlying a complaint to establish paternity and genetic testing of minor child bom on September 8, 2012. It was clear from the testimony in this case, that in appellee’s words and actions, he openly pursued his parental role before, during, and after minor child was bom.

DISCUSSION:

The issues of both appellant mother and appellant intervener husband are not only similar and nearly identical, but all the issues are interrelated. As such this court will address all the issues interchangeably. Appellants’ allege that this court erred and committed an abuse of discretion: when determining that appellee failed to overcome the application of the presumption of paternity by not establishing that appellant intervener husband was “incapable of fathering a child or did not have access to wife” and determining that appellant mother and appellant intervener husband did not have an intact marriage; by admitting into evidence testimony and evidence of appellee’s related to the period of time prior to the date of minor child’s birth; by determining that appellant intervener husband could not have known of wife’s conduct; and, confusing the presumption of paternity with paternity by estoppel doctrine.

This court’s January 27,2014 order was not intended to deflect or deny the long history of case law confirming the long standing presumption of paternity; to the contrary, this court was guided by the case law instruction that the presumption only applies when the parties have an “intact marriage.” There is overwhelming clear and convincing evidence that appellant mother and appellant intervener husband did not have an intact or functioning marriage. The court finds it curious that the application of the presumption of paternity displaces the customary rule of a custody court to weigh the best interests of the child and a pattern of partial custody and/or visitation that would serve the child’s best interests and that the Commonwealth’s interest to preserve and protect a marriage could trump a child’s opportunity to know, live and appreciate his/her biological father.

In this case, appellant mother held appellee out to the public as the father of the minor child. Appellee had openly pursued his parental role before, during, and after minor child was bom. This court finds that appellant mother and appellant intervener husband did not have an “intact” marriage. Case law has clarified this common law presumption by asserting the presumption of paternity applies only where the underlying public policy to preserve marriages would be advanced by application of the presumption of paternity and thus when there is no intact family or a marriage to preserve and then the presumption of paternity is not applicable. Vargo v. Schwartz, 2007 Pa. Super. 402, 940 A.2d 459, 463(2007); Brinkley v. King, 549 Pa. 241, 250-51, 701 A.2d 176, 181 (1997) (plurality); Barr v. Bartolo, 927 A.2d 635, 643 (Pa. Super. 2007).

In the Commonwealth of Pennsylvania the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was bom are the parents of said child. K.E.M. v. P.C.S., 614 Pa. 508, 38 A.3d 798, 800 (2012) quoting Brinkley v. King, 549 Pa. at 249, 701 A.2d at 180.

This court did not confuse and/or conflate the two separate and distinct legal doctrines. This court is well aware that in the Commonwealth of Pennsylvania, the presumption of paternity is considered to be “one of the strongest presumptions within our law.” See K.E.M. v. P.C.S., 38 A.3d at 800 citing Brinkley, 549 Pa. at 246, 701, A.2d at 179 (quoting John M. v. Paula T., 524 Pa. 306, 322, 571 A.2d 1380, 1388 (1990) (Nix, C.J., concurring)), Strauser v. Stahr, 556 Pa. 83, 89, 726 A.2d 1052, 1055 (1999).

The Pennsylvania Supreme Court has summarized the legal analysis required for the court’s determination of the paternity of a child conceived or born during a marriage:

[F]irst, one considers whether the presumption of paternity applies to [the] particular case. If it does, one then considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies.

Vargo v. Schwartz, 940 A.2d at 462 citing Strauser v. Stahr, 556 Pa. 83, 89, 726 A.2d 1052, 1055 (1999) (quoting Brinkley v. King, 549 Pa. 241, 250, 701 A.2d 176, 180 (1997) (plurality opinion)); N.C. v. M.H., 923 A.2d 499, 502-03 (Pa. Super. 2007) (plurality opinion).

Additionally, this court was well aware that under the presumption of paternity, there must be “clear and convincing evidence that the presumptive father lacked access to the mother or was incapable of procreation.” See K.E.M. v. P.C.S., 38 A.3d at 800-01 citing Brinkley, 549 Pa. at 248, 701 A.2d at 179. The appellate courts have traditionally discussed the public policy rationale for supporting the presumption of paternity is “the concern that intact marriages should not be undermined by disputes over parentage.” K.E.M. v. P.C.S., 614 Pa. 508, 38 A.3d 798, 800-01 citing Brinkley, 549 Pa. at 249, 701 A.2d at 180.

Like in Vargo v. Schwartz, the underlying question in this case was: whether the family was intact and was there a marriage to preserve? Both of these are questions of fact, which fell squarely within the realm of this court as fact-finder to render a determination on. 940 A.2d at 467. This court, as the finder of fact, was entitled to weigh the evidence presented by appellee, appellant mother and appellant intervener husband was also to assess the credibility of each witness and weighing the evidence and assessing the credibility of the witnesses, this court was “free to believe all, part, or none of the evidence.” Vargo v. Schwartz, 940 A.2d at 467 quoting Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006).

An intact family is a family that is a functional family who is living together and interacting in a household on a regular, daily basis. C.W. v. L.V., 2001 PA Super 332, 788 A.2d 1002, 1005 (2001). The normal activities that a functioning family participates in include communicating with one another, making meals, going to bed, getting up in the morning, interacting with the community, and interacting with extended family. Id. In this case appellant mother and appellant intervener husband were not a fully functional family, they did not interact as a household on a daily or even a regular basis.

This court notes, as it did in the January 27, 2014 order, that in 2007, the Pennsylvania Superior Court issued a ruling in E.W. v. T.S., 2007 PA Super 29, 916 A.2d 1197 (2007). In E.W. v. T.S., T.S. and her husband argued the presumption of paternity applied and therefore E.W. should be precluded from having standing to seek custody of minor child. This case is substantially similar to E. W. v. T.S. with one major exception.

Analogous to the case sub judice: T.S. and her husband were married during the birth of the child; her husband was the named father on the birth certificate of the minor child; T.S. and her husband maintained and engaged in a sexual relationship within the period surrounding the date of conception while T.S. was also engaged in a sexual relationship with E.W. within the period surrounding the date of conception; and, T.S. and E.W. conducted their affair openly and only concealed it from husband. See generally, E. W. v. T.S., 916 A.2d 1197.

This court notes that the appellate court in E.W. v. T.S., the court found that, despite mother’s infidelity, because T.S. did not move out of the marital home seeking to establish living quarters with E.W., there was still an intact marriage that existed between T.S. and husband. E. W. v. T.S., 2007 PA Super 29, 916 A.2d 1197, 1204 (2007). That is the fact where the case E.W. v. T.S., is clearly distinguishable from the case sub judice. Here, appellant mother and appellee jointly leased an apartment in Quakertown, Pennsylvania. Both appellant mother and appellee lived in this apartment for multiple nights per week for most of their relationship. During their relationship, from October of 2011 to May of 2012, appellant mother established living quarters with appellee in Quakertown, Pennsylvania and held herself out to the public as a single or separated individual who had entered into a committed and loving relationship with appellee. Appellant mother and appellee had planned to continue to establish living quarters with each other in appellant mother’s Boothwyn residence. The testimony was evident that appellant mother and appellee quit their lease early, moved all their belongings from the Quakertown apartment, and had all their possessions packed and ready in their respective vehicles to be moved the day after Mother’s Day of 2012 to the Boothwyn residence.

This court’s determination of the status of the marriage between appellant mother and appellant intervener husband was not a close call or a difficult determination to render. This court heard from several witnesses testified at the two day trial hearing.

There was no question that their marriage was troubled, appellant mother’s own testimony was that the marriage was in a “rough patch” when the appellant mother and appellee began their relationship. Based upon the evidence presented to this court, the “rough patch” in the marriage continued for well over a year. Appellant mother and appellant intervener husband’s argument is that the court must look at whether the marriage was intact at the time of the minor child’s birth. However, even if this court does look at the specific time frame, negating all the evidence and testimony regarding the lack of an intact marriage prior to the birth of minor child, this court is still left questioning the intactness of the marriage when appellant mother and appellee had been meeting and communicating unbeknownst to appellant intervener husband. This court heard credible testimony and was presented with evidence that up until the time of minor child’s birth, appellee was informed of the progress of appellant mother’s labor and delivery of minor child. Although appellant mother disputes the contention and the evidence presented by appellee, this court was convinced and properly determined that appellee and appellant mother were, at a minimum, in communication with each other in the days and hours leading up to and following the birth of minor child. If appellant mother herself, or someone on her behalf was not in direct communication and contact with appellee; how would appellee know when appellant mother entered the hospital and gave birth to minor child, such that appellee’s family was able to arrive at the hospital when appellant mother and minor child were there, but appellant intervener husband was not? How would appellee’s family know what hospital appellant mother gave birth at or the time and date of that birth if there was not in contact during and following the delivery of minor child? How can the appellants’ marriage be “intact” when there was that communication with appellee at that crucial time?

In such a fact-driven area of the law, where the record is replete with evidence for this court’s finding, with minimal evidence for the contrary position, the appellate courts must not substitute its judgment for that of the fact-finder, who saw the witnesses and heard first-hand their testimony. See Vargo v. Schwartz, 940 A.2d at 467 and E.W. v. T.S., 916 A.2d at 1202. This court’s finding that there was no intact family and no marriage to preserve was wholly supported by all of the evidence presented including both appellants’ testimony. This court notes that appellant intervener husband provided testimony that there was no intact marriage to preserve when he candidly testified that should appellee become involved in the minor child’s life it would have a devastating impact on his marital relationship and the relationship with minor child. See [N.T., October 7, 2013, Volume II, p. 372].

In weighing the evidence and testimony presented to this court during the two day trial, this court rendered a determination that appellant mother, a person who had deceived and continually lied to appellant intervener husband and appellee, as well as two sets of family and friends, her co-workers and probably her doctors, had no credibility. This court determined that appellant mother’s testimony, which was offered to establish that she has or had an intact marriage at any time suggested by the defense had no credibility or any plausibility of truth. This court also determined that appellant intervener husband lacked credibility or any plausibility of truth in his testimony that there was an intact marriage. Therefore, this court determined that the presumption of paternity did not apply as the parties did not have an intact marriage.

Testimony confirmed, by overwhelming clear and convincing evidence that the appellant mother had a separate life, and a committed and lasting relationship with the appellee, as well as his extended family and friends, and did not have an intact marriage with her husband. Appellant mother, through her actions and words, had advised and represented to the public, appellee, and family and friends, that she was expecting appellee’s child. Appellant mother had asserted since conception and through to the birth of minor child that appellee was the father of minor child; asserting appellee’s parenthood to all, with exception of appellant intervener husband, and guests at a baby shower that was hosted by appellant intervener husband’s family.

The veracity and credibility of appellant intervener husband’s testimony offered to exhibit an “intact marriage” is doubtful, not reasonable to believe, incomprehensible and beyond the realm of plausibility. With every appellate case, fact specific, the evidence in this case is overwhelming that the presumption of paternity does not attach due to clear and convincing evidence that appellant mother and appellant intervener husband did not have an intact marriage during the critical period of time examined by this court.

Since this court determined that the presumption of paternity was rebutted and/or inapplicable, this court had to render a determination as to whether the doctrine of paternity by estoppel applied. The doctrine of paternity by estoppel is the premise that regardless of biology and where there is no legal marriage, the person who has cared for the child is the parent. K.E.M. v. P.C.S., 38 A.3d at 800 quoting Brinkley v. King, 549 Pa. at 249, 701 A.2d at 180. This court’s order specifically ruled that the doctrine of paternity by estoppel was not raised as a defense by either appellant mother or appellant intervener husband. This court heard no testimony whatsoever as to any parent bonding with minor child, or even if any person has acted as a parent, or any testimony as to minor child’s best interests.

CONCLUSION:

For all of the foregoing reasons, the trial court’s order of January 27, 2014 should be affirmed.

      . This court notes that this opinion amends the opinion dated February 24, 2014 solely to ensure the anonymity of the parties and to delete a paragraph which was inadvertently added twice to the original opinion.

      . Both appellants requested that the court strike any reference to the results of a previously obtained paternity test.

      . This court notes that there was no evidence presented in court to demonstrate that there was a “legal separation” between the appellant mother and appellant intervener husband.

      . Petitioner’s mother owns and operated several dance studios in Pennsylvania.


source: Caselaw Access Project

author: MCGINLEY, J.,

license: Public Domain

text:
    Yorston v. Karoly

      Robert W. Small, for plaintiffs.

      Charles Laputka, for defendants.
    March 12, 2014
   MCGINLEY, J.,

The matter before us is a motion to compel discovery; the discovery at issue goes to the heart of plaintiffs’ entire cause of action.

The genesis of the matter before us is in a separate case docketed at Lehigh County Court of Common Pleas 2008-C-3013. In that matter, Ronald and Beverly Yorston alleged that Lewis Thompson, Esquire, an employee of Karoly Law Offices, P.C., missed filing a complaint on the Yorstons ’ behalf within the applicable statute of limitations, falsified various praecipes for writ of summons with false docket numbers and a falsified court date/time stamp, and faxed those documents to the Yorstons, representing that suit had been commenced when, in fact, it had not been filed. Plaintiffs’ complaint ¶ 12. The matter was submitted to binding arbitration; and, on May 12,2011, the Yorstons were awarded damages in the amount of $1,065,544 against attorney Thompson and Karoly Law Offices, P.C. An order confirming the arbitration award was filed on October 11,2011, and judgment on the award was entered April 25, 2014, against Karoly Law Offices, P.C.

John P. Karoly, Jr. was the sole shareholder of Karoly Law Offices, P.C. Plaintiffs’ complaint ¶ 29; answer ¶ 19. John P. Karoly, Jr. was convicted of federal offenses unrelated to this matter and was stripped of his license to practice law on or about July 8,2010. Plaintiffs’ complaint ¶¶ 17, 18. He remains committed to Devens Federal Medical Center in Massachusetts. Karoly Law Offices, P.C. was compelled to terminate its practice of law due to John P. Karoly, Jr.’s disbarment. Answer and new matter of defendants Karoly Law Firm, LLC, Joshua Karoly and John P. Karoly, III, to the complaint of plaintiffs ¶ 31; plaintiff’s [sic] answers and objections to defendants’ first requests for admission, filed November 1, 2013.

Two employees of Karoly Law Offices, P.C. incorporated a law practice known as Karoly Law Firm, LLC. The employees, John P. Karoly, III, and Joshua E. Karoly, are the sons of John P. Karoly, Jr. Plaintiffs’ complaint ¶ 16. Karoly Law Firm, LLC was registered with the Pennsylvania Department of State on February 12, 2010. Answer and new matter of defendants Karoly Law Firm, LLC, Joshua Karoly and John P. Karoly, III, to the complaint of plaintiffs ¶ 6.

Plaintiffs have instituted the within action to enforce collection of the arbitration award against Karoly Law Offices, PC., the two Karoly sons, and Karoly Law Firm, LLC, on the theories that assets were fraudulently transferred from the P.C. to the LLC in order to defeat the payment of the judgment in favor of the Yorstons; and that Karoly Law Firm, LLC, is a successor corporation to Karoly Law Offices, P.C. and is, therefore, liable for its obligations.

Plaintiffs filed a motion to compel discovery against defendant Karoly Law Offices, P.C. Specifically, the plaintiffs are requesting financial and accounting information related to cases and other client matters transferred from Karoly Law Offices, P.C. to Karoly Law Firm, LLC. Plaintiffs request the case name and basic case information, including: the type of case, status of the case, and fees related to the case. The information is sought in order to determine which cases, as alleged assets of the P.C., if any, were transferred from the P.C. to the LLC. Defendant Karoly Law Offices, P.C. objects to the discovery requests based on relevancy. Plaintiffs filed the instant motion to compel in order to receive the case information.

While the scope of discovery is broad, permitting discovery of matters: “relevant to the subject matter... or reasonably calculated to lead to the discovery of admissible evidence,” Pa.R.C.P. 4003.1, we need to determine whether the requested discovery is relevant in the causes of action alleged.

The first inquiry is what client matters, if any, being handled by a law firm are assets subject to recovery in a fraudulent transfer action. The Uniform Fraudulent Transfer Act (UFTA) defines a transfer as “every mode... of disposing of or parting with an asset or interest in an asset.” Asset is defined as “property of a debtor.” 12 Pa.C.S.A. §5101.

The question before us then is whether client matters being handled by the P.C. were the property of Karoly Law Offices, P.C. It is only if that question is answered affirmatively that it then becomes relevant whether these client matters were transferred to Karoly Law Firm, LLC. Property is defined by the UFTA as “anything that may be the subject of ownership.” 12 Pa.C.S.A. § 5101.

The arguments of the respective parties in this matter are not particularly helpful to our analysis. Plaintiffs focus on the issue of confidentiality of client names. While not an unimportant issue, it is secondary to the issue of property rights in client matters. Defendants basically assert our prior, unanalyzed ruling striking “cases” from the complaint at the preliminary objection stage.

Neither party has provided us with case law guidance on point, nor have we been able to find any case law which analyzes whether “cases” are property as defined in the UFTA.

Because it is unquestionable that a litigant has the absolute right to counsel of his own choosing, a matter which is the subject of time billing cannot be a “case” having value. What remains is the matter of contingent fee litigation, in which the initiating lawyer may arguably have some interest in the value of the recovery from such cases.

In addressing this question in the context of the divorce code, 23 Pa.C.S.A. §§ 3101-3904, and as it pertains to equitable distribution in divorce proceedings, the Superior Court in Beasley v. Beasley, 359 Pa. Super. 20, 518 A.2d 545 (1986), provided the following reasoning in concluding that work performed on uncompleted contingency cases had no value:

When a sole proprietor terminates his activity, the lights go out, the value of the sole proprietorship is extinguished and is non-transferable; the clients in the law firm cannot be sold, they can only be transferred and they have the absolute right to select their own future representation; nothing remains in residue which could be determined of value aside from tangible physical property, or work performed on partially completed cases, which may entitle the lawyer or his heirs to a quantum meruit payment.

The court in Beasley held that it was too risky to anticipate and estimate a return on contingency fees; thus the cases held no value for purposes of equitable distribution. Id. at 554.

To the extent that clients of the P.C. had pending litigation, either filed or contemplated, which was the subject of contingent fee agreements, that litigation is not “anything that may be the subject of ownership” which is the definition of property as defined by the UFTA at 12 Pa.C.S.A. § 5101. That litigation is irrelevant, as it is unlikely to lead to admissible and relevant material under a UFTA theory; and it is, therefore, undiscoverable.

The second area of consideration is whether contingent fee actions which were initiated in the P.C. and were transferred to the LLC might be relevant in a cause of action based on the theory of successor liability.

We are obliged to assume at this stage in the proceedings that the theory of successor liability is a viable theory of recovery. Because the theory of successor liability is a creature of common law, there is no statute which provides a definition of “asset;” nor are there any cases which assist us in interpreting the meaning of the word “asset.”

Successor liability is not a cause of action, so much as it is an exception to the general rule.

The general rule is that when one company sells or transfers all of its assets to a successor company, the successor does not acquire the liabilities of the transferor corporation merely because of its succession to the transferor’s assets. Husak v. Berkel Incorporated, 234 Pa. Super. 452, 341 A.2d 174 (1975). See also Knapp v. North American Rockwell Corp., 506 F.2d 361 (3d Cir. 1974) cert. denied, North American Rockwell Corp. v. Knapp, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975). However, there are several exceptions to this general rule:
In order to find that this general rule is not applicable and that the transferee does acquire such liability, one of the following must be shown: (1) the purchaser expressly or impliedly agrees to assume such obligation; (2) the transaction amounts to a consolidation or merger; (3) the purchasing corporation is merely a continuation of the selling corporation; or (4) the transaction is fraudulently entered into to escape liability. See Granthum v. Textile Machine Works, 230 Pa. Super. 199, 326 A.2d 449 (1974). Afifth circumstance, sometimes included as an exception to the general rule, is where the transfer was without adequate consideration and provisions were not made for creditors of the transferor. See Lopata v. Bemis Co., Inc., 383 F.Supp. 342 (E.D.Pa.1974); McKee v. Harris-Seybold Co., Division of Harris-Intertype Corp., 109 N.J.Super. 555, 264 A.2d 98 (1970); 19 Am.Jur.2d Corporations § 1546 (1965); 15 W. Fletcher, Cyclopedia of Corporations § 7122 (Perm, ed. 1973). Husak v. Berkel Incorporated, supra at 456-57, 341 A.2d at 176-77.

Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 18-19, 434 A.2d 106, 107 (Pa. Super. 1981).

Because there is no definition of assets in this common law theory of recovery, it is necessary to explore more fully whether unresolved contingent fee cases could represent assets in the context of successor liability.

It is helpful to look at the decision of the Superior Court in interpreting the Uniform Partnership Act 15 Pa.C.S.A. §§ 8301-8352. In Huber v. Etkin, 58 A.3d 772 (Pa. Super. 2012), an en banc panel considered whether contingency fees from cases that were initiated during the partnership, but realized following the dissolution of the partnership, constituted property of the partnership subject to division between the partners or whether the fees constituted property of the individual attorney chosen by the client following dissolution. The court held that contingency fees realized post-dissolution are assets of the partnership.

The Superior Court distinguished this holding from Beasley because the equitable distribution required the valuation of the contingency fees as of a particular date (the date of separation or trial) at which point the contingency fees in question are as yet unresolved. Id. at 779. In a partnership dissolution, contingency fees not realized at the time of dissolution, but realized during the winding-up period, are partnership assets subject to division between the partners because the partners continue to owe a fiduciary duty to each other during the winding-up period. Id. at 780.

The Superior Court did not hold that litigation which might generate a contingent fee was an asset, but that the fee itself was an asset which required an accounting in the dissolution of a partnership. If successor liability is established, the ripening of the contingent fee action in a successor corporation may provide an opportunity for a more accurate valuation of a potential quantum meruit claim existing in the P.C. at the time of dissolution.

It is important to reiterate that the- contingent fee actions themselves are not an asset under Pennsylvania law. If indeed there is a transferred asset here, it would be limited to a quantum meruit right to receive compensation for the work already performed on behalf of the client by the P.C. In the ordinary instance, a quantum meruit claim in a contingency fee action cannot be determined prior to the conclusion of the action; thus, the holding in Beasley. What we are holding is that plaintiffs may discover those contingent fee agreements in the litigation existing in Karoly P.C. and transferred to Karoly LLC, subject to specific confidentiality measures set forth in the accompanying order.

What we do not conclude by this discovery order is whether the transfer of an unripened quantum meruit claim is indeed an asset, or indeed recoverable by plaintiff. We do not conclude whether the attorney who initiated the contingent fee case has an obligation to pursue a quantum meruit claim. These issues are for a later time.

ORDER

And now this 12th day of March, 2014, upon consideration of plaintiffs’ motion to compel discovery against defendant Karoly Law Offices, P.C. filed with the clerk of judicial records — civil division on November 5, 2013, plaintiffs ’ argument thereon, defendant Karoly Law Offices, RC.’s response thereto, plaintiffs’ supplemental response filed thereafter, and for the reasons set forth in the attached opinion. It is ordered that plaintiffs’ motion to compel discovery against defendant Karoly Law Offices, P.C. is granted in part and denied in part. Defendant Karoly Law Offices, PC. shall respond to the discovery requests as set forth below within 30 days of the date of this order.

1. Plaintiffs’ motion to compel defendant Karoly Law Offices, PC. to answer “plaintiffs’ third request for production of documents directed to all defendants (concise request for critical documents) is granted in part and denied in part as follows:
a. Request 1 is granted to the extent that it is amended to read:

“1. Produce a list of all contingent fee cases which were transferred from Karoly P.C. to Karoly LLC. For each such case produce the following information:

a) Provide the name of each client or case and provide the caption, the county in which the matter was litigated, and the docket number;
b) Provide a case number for the case;
c) Provide a brief description of the nature of the case;
d) Provide a brief description of the contingent fee agreement in the case;
e) Date case opened;
f) Procedural status of the case (e.g. in suit, on appeal, settled, or still open or active);
g) State the distribution of all fees derived from these cases and include to whom the distributions were made, including: Karoly P.C., Karoly LLC, John Karoly, JP Karoly, Joshua Karoly.
h) Produce all statements of distribution indicating how proceeds were distributed in accordance with subsection “g” above.

NOTE: The plaintiffs and their attorneys and agents agree to keep client names confidential. All client names will be redacted and a number substituted for each such client. Plaintiffs will provide the defendants with an index of the codes which they use in lieu of names (eg. 101 = John Smith, 102 = Jane Doe, etc).”

b. Request 2 is denied.
c. Request 3 is granted to the extent that it is amended to read:

“3. Produce a list of all contingent fee cases which have been transferred from Karoly P.C. to Karoly LLC which are still open and active.

NOTE: The plaintiffs and their attorneys and agents agree to keep client names confidential. All client names will be redacted and a number substituted for each such client. Plaintiffs will provide the defendants with an index of the codes which they use in lieu of names (eg. 101 = John Smith, 102 = Jane Doe, etc).”

d. Request 4 is denied.
e. Request 5-8 are denied.
f. Request 9 is denied because it has been answered.
g. Request 10 is denied because it is not directed to defendant Karoly Law Offices, P.C.
h. Request 11 is denied because it has been answered.
i. Request 12 is denied because it is not directed to defendant Karoly Law Offices, P.C.
j. Request 13 is granted.
k. Request 14 is denied because it is not directed to defendant Karoly Law Offices, P.C.
l. Request 15 is denied because it has been answered.
m. Request 16 is denied.
n. Requests 17-18 are denied.

2. Plaintiffs’ motion to compel defendant Karoly Law Offices, P.C. to answer “plaintiffs’ second set of interrogatories to all defendants” is granted in part and denied in part as follows:

a. Request 1 is denied because it has been answered.
b. Request 2 is granted to the extent that it is amended to read:

“2. If answered yes to question 1, state or produce the following:

a) Provide a list of each contingent fee case (including case number) which was handled by Karoly P.C. on the date of the sale or the day prior to the sale (Hereinafter referred to as the sale date).
b) Provide a list of each contingent fee case which was transferred by Karoly P.C. to Karoly LLC on the sale date.”
c. Requests 3-6 are denied because they are not directed to defendant Karoly Law Offices, P.C.
d. Requests 7-9 are denied.
e. Request 10 is granted to the extent that it is amended to read:

“10. Was written notice given to all the contingent fee clients who were transferred from Karoly P.C. to Karoly LLC pursuant to Pa.R.P.C. 1.17.?”

f. Request 11 is granted to the extent that it is amended to read:

“11. If so, produce all such correspondence, emails, or other documents notifying each such contingent fee client of the sale and his rights and responsibilities.”

g. Request 12 is granted to the extent that it is amended to read:

“12. With respect to all contingent fee cases which were transferred from Karoly P.C. to Karoly LLC, state, identify, or produce all contingent fee agreements between the client and Karoly P.C.”

h. Request 13 is granted to the extent that it is amended to read:

“13. Account for all fees in these contingent fee cases and how they were distributed to Karoly P.C.”

i. Request 14 is granted to the extent that it is amended to read:

“14. Account for all fees or money received by Karoly P.C. from Karoly LLC or by JP Karoly or Joshua Karoly or John Karoly.

a. For each such payment produce a cancelled check or other evidence of payment to the payee in question.”
j. Requests 15-17 are denied.
k. Request 18 is granted to the extent that the interrogatories have been approved by the court.
l. Request 19 is denied because it has been answered.
m. Request 20 is denied because it is not directed to defendant Karoly Law Offices, P.C.
n. Request 21 is denied.

3. Plaintiffs’ request for an appointment of a discovery master in this matter is denied.

      . The word “cases” is a word without any legal certainty, which is the reason it was stricken from the complaint. Presumably it means a matter which has proceeded to litigation or is being contemplated for litigation.

      . Defendant Karoly Law Offices, P.C. did not file a response to plaintiffs’ motion and was not permitted to argue. By order dated December 13, 2013, defendant Karoly Law Offices, P.C. was permitted to file a response and plaintiffs were permitted time to file a supplemental response.


author: HIGGINS, J.,

text:
    Advanced Earth Packaging v. MRI Flexible Packaging

      William Watkins, for plaintiffs.

      Charles A. Ercole, for defendant.
    March 25, 2014
   HIGGINS, J.,

This case comes before the court on preliminary objections brought by defendant, MRI Flexible Packaging (hereinafter “MRI) to the plaintiffs’ Advanced Earth Packaging’s (hereinafter “AEP”) and Michael Keklak’s (collectively “plaintiffs”) amended complaint filed on August 30, 2013 in case number 3705 CV 2013. The facts of this case revolve around a contract for sales services entered into between the parties on July 1, 2009 according to which Plaintiffs agreed to provide sales services to the defendant in exchange for sale commissions.

Plaintiffs commenced a civil action by a praecipe for a writ of summons filed on May 3, 2013. On July 11, 2013, plaintiffs filed their complaint, asserting the following claims: (1) breach of contract; (2) unjust enrichment, and; (3) tortious interference with business relationships.

On August 2, 2013, MRI filed its preliminary objections. On August 30, 2013 plaintiffs filed their amended complaint, asserting the same three causes of action. By order of this court dated September 5, 2013, MIR’s preliminary objections were denied as moot in light of plaintiffs’ amended complaint.

On September 13, 2013, MRI filed its preliminary objections to plaintiffs’ amended complaint claiming that: (1) AEP lacks capacity to sue; (2) AEP’s breach of contract claim is legally insufficient; (3) Plaintiffs’ unjust enrichment claim is legally insufficient; (4) Plaintiffs’ tortious interference with business relationships claim is barred by the gist of the action doctrine; (5) Plaintiffs’ tortious interference with business relationships claim is legally insufficient, and; (6) Monroe County is an improper venue. Also on September 13, 2013, MRI filed its memorandum of law in support of its preliminary objections to plaintiffs’ amended complaint. On December 2, 2013, plaintiffs filed their brief contra defendant’s preliminary objections.

DISCUSSION

In ruling on preliminary objections, we must accept as true all well-pleaded, material and relevant facts, along with all reasonably deducible inferences therefrom. Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999). We need not accept as true, however, “conclusions of law, unwarranted inferences from the facts, argumentative allegations or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. 1998). When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the clearest of cases. King v. Detroit Tool Co., 682 A.2d 313,314 (Pa. Super. 1996). With these standards in mind, we now address defendant’s preliminary objection to plaintiffs’ amended complaint.

We first address MRI’s objection pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(5) that AEP lacks capacity to sue. In their amended complaint, plaintiffs indicate that Michael Keklak is the president and sole shareholder of AEP, a Pennsylvania Limited Liability Company. (See amend, complaint ¶¶ 1, 6). Attached to the plaintiffs’ amended complaint is the contract at issue executed by “Jim Mallon, VP Sales & Marketing — MRI and Michael Keklak, President — AEP” on July 1, 2009. (See amend, complaint “Exhibit A”). The terms of the contract, however, make no reference to AEP. Rather, the contract expressly grants certain rights to and confers certain duties on Michael Keklak. Because the terms of the contract make no reference to AEP, MRI would like us to sustain its objection and find that AEP accordingly lacks capacity to sue under the contract.

“The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties.” Murphy v. Duquesne University of The Holy Ghost, 777 A.2d 418, 429 (Pa. 2001). Accordingly, while AEP is not named in the express terms of the contract, AEP may be properly considered a party if such a reading would give effect to the intent of the contracting parties. Here, we find that such a reading would give effect to the intent of the parties.

The contract, a single paged document which is printed on MRI letter-head, twice acknowledges Michael Keklak’s association with AEP. Looking more broadly at the purpose of the contract, we see that it is a service contract for the sale of MRI’s packaging products. Based on this, it would be an unwarranted inference to conclude that MRI, a company dealing in packaging, intended to contract solely with Michael Keklak as an individual completely unrelated to his role as president of AEP, also a company dealing in packaging. It seems clear to us, then, that MRI intended to contract with Michael Keklak in his capacity as president of AEP for the selling of MRI’s shrink sleeve labels. Accordingly, defendant’s preliminary objection pursuant to Pennsylvania Rule of Civil Procedure 1028(a) (5) is overruled.

We next turn to address MRI’s preliminary objection pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4) that AEP’s breach of contract claim is legally insufficient. “To support a claim for breach of contract, a plaintiff must allege: 1) the existence of a contract, including its essential terms; 2) a breach of duty imposed by the contract; and 3) resultant damage.” Woodward v. ViroPharma, Inc., 2013 WL 1485110 (Pa. Super. Apr. 3, 2013) (citing CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999)). In support of its claim that AEP’s breach of contract claim is legally insufficient, MRI again challenges AEP’s status as a party to the contract and argues that AEP cannot sue enforce the terms of the contract to which it was not a party. (Preliminary objections to amend, complaint ¶ 20). Because we have determined above that it is reasonable to infer that AEP is a party to the contract, this preliminary objection is overruled.

MRI’s third preliminary objection is also made pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4). Specifically, MRI claims that plaintiffs’ unjust enrichment claim is legally insufficient in light of plaintiffs’ breach of contract claim. In support of this objection, MRI cites the long-settled principle that “the quasi-contractual doctrine of unjust enrichment is inapplicable when the relationship between parties is founded on a written agreement or express contract.” Braun v. Wal-Mart Stores, Inc., 24 A.3d 875,896 (Pa. Super. 2011) (quoting Schott v. Westinghouse Elec. Corp., 436 Pa. 279, 290, 259 A.2d 443, 448 (1969)). This argument, however, ignores another long-settled principle, and that is that “[cjauses of action and defenses may be pleaded in the alternative.” Pa.R.C.P. 1020(c). In their amended complaint, plaintiffs explicitly state that they are lodging their unjust enrichment complaint as an alternative theory of relief: “In the alternative to any theory of recovery under a breach of contract claim, plaintiffs believe and therefore aver that plaintiffs ’ services conferred a great financial benefit upon the defendant for which equity requires compensation.” (Amend, complaint ¶17). Because this alternative pleading is allowable, defendant’s preliminary objection to plaintiffs’ unjust enrichment complaint is overruled.

As its fourth preliminary objection, MRI argues that the gist of the action doctrine bars plaintiffs’ tortious interference with a business relationship claim. The gist of the action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” Etoll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002). The doctrine bars tort claims:

(1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.

Id. at 19 (internal quotations and citations omitted). The gist of the action doctrine, then, is generally “concerned with the ‘essential ground,’ foundation, or material part of an entire ‘fonnal complaint’ or lawsuit.” Id. at 15. The doctrine seeks to uphold the conceptual difference between breach of contract claims and tort claims, in that “tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.” Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. 1992).

In the case at bar, plaintiffs’ tortious interference claim is predicated on allegations that MRI “by-passed” plaintiffs and established direct relationships with the customers whom plaintiffs were soliciting for MRI for which plaintiffs were to receive a commission pursuant to the contract entered into between the parties. (Amend. complaint ¶¶ 18-28). Because this cause of action essentially revolves around MRI’s duty to pay plaintiffs a commission for their services in soliciting clients for MRI, this claim duplicates plaintiffs’ breach of contract claim. And because MRI does not deny the existence of an express contract, the gist of the action doctrine bars plaintiffs from raising their tortious interference claim. Gemini Bakery Equip. v. Baktek, 2005 WL 957635 (Pa. Com. Pl. Apr. 11, 2005) (refusing to sustain a preliminary objection based on the gist of the action doctrine to a tortious interference claim where it is not clear whether defendants admit to or deny the existence of an agreement between themselves and plaintiff). Accordingly, MRI’s preliminary objection to plaintiffs’ tortious interference claim is sustained.

MRI’s fifth preliminary objection is made pursuant to Pennsylvania Rule of Civil Procedure 1028(a) (4). Specifically, MRI claims that plaintiffs’ tortious interference claim is legally insufficient. Because we sustained MRI’s objection to plaintiffs’ tortious interference claim predicated on the gist of the action doctrine, this objection is overruled as moot.

Finally, MRI objects to plaintiffs’ choice of venue pursuant to Pennsylvania Rule of Civil Procedure 1028(a) (1). MRI objects to the action in Monroe County and requests the matter be transferred to Bucks County based on plaintiffs failure to demonstrate that venue is proper in Monroe County. Unlike jurisdiction, venue is “the right of a party to have the controversy brought and heard in a particular judicial district.” Schultz v. MMI Products, Inc., 30 A.3d 1224, 1227 (Pa. Super. 2011) (citation omitted). As a procedural matter, venue assumes the existence of jurisdiction. Id. Further, we note that “corporations have a constitutional right to seek a change of venue.” Purcell v. Bryn Mawr Hosp., 525 Pa. 237, 579 A.2d 1282, 1284 (1990) (citing Felts v. Delaware, Lackawanna & W.R.R., 195 Pa. 21, 45 A. 493 (1900)).

Pa. R.C. P. 1006 (a)(1) and (b) provides that:

(a) Except as otherwise provided by subdivisions (a.l), (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which (1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law. (b) Actions against the following defendants..., may be brought in and only in the counties designated by the following rules:... corporations and similar entities, Rule 2179.

Pa. R.C.P. 2179 (a) provides as follows:

(a) Except as otherwise provided by an act of assembly, by Rule 1006(a.l) or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in (1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose;
(4) a county where a transaction or occurrence took place out of which the cause of action arose, or
(5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.

Plaintiffs’ amended complaint avers that plaintiffs’ addresses are in Monroe County. However, plaintiffs’ amended complaint does not plead specific facts which justify venue in Monroe County. The amended complaint does not aver that MRI has a registered office or principal place of business in Monroe County. And neither does the amended complaint suggest that MRI regularly conducts business in Monroe County or aver the county where the cause of action arose. Similarly, there is no averment that the property or part of the property which is the subject matter of the action is located in Monroe County. This issue was raised in MRI’s initial preliminary objections. Because plaintiffs’ amended complaint failed to demonstrate that venue is proper in Monroe County, this preliminary objection is sustained.

According to the above rulings, we enter the following order.

ORDER

And now, this 25th day of March 2014, upon consideration of defendant’s preliminary objections to the amended complaint filed by plaintiffs and the parties’ briefs and arguments, we hereby make the following determinations:

Defendant’s preliminary objections are sustained in part and overruled in part.

1. Defendant’s preliminary objection in the nature of a Demurrer to Count 3 of plaintiffs’ amended complaint is sustained and Count 3 is stricken from the amended complaint.

2. Defendant’s preliminary objection to venue is sustained, accordingly, this case shall be transferred to Bucks County forthwith. It is hereby ordered that the Monroe County Prothonotary is directed to transfer certified copies of the docket entries, process, pleadings and other papers filed in this action to Bucks County Prothonotary, Doylestown, Pennsylvania.

3. The remainder of defendant’s preliminary objections are overruled.

      . For instance, the contract provides in part:
      MRI grants to Michael Keklak the right to sell its products. Likewise, Michael Keklak accepts the right to sell and agrees to make all sales in accordance with this agreement.
      Michael Keklak’s accounts initiated after the date of this agreement shall be his exclusive accounts.
      Michael Keklak agrees that during the term of this agreement, he shall not sell or offer to sell any shrink sleeve labels other than MRI’s own products.
      It is agreed that Michael Keklak is an independent contractor and that he is not an employee of MRI.
      Amend. Complaint “Exhibit A” ¶¶ 1-4.


author: MASSIAH-JACKSON, /.,

text:
    Morgan v. Scogna

      Francis T. Collerón, for plaintiffs.

      Kevin H. Wright, for defendants Neurological Associates, Ltd. and Joseph Scogna.

      John A. Filoreto and Shaune E. Ferrara, for defendants AriaHealth System, Aria Health andAria Health Physician Services.
    March 5, 2014
   MASSIAH-JACKSON, /.,

I. FACTUAL BACKGROUND and PROCEDURAL HISTORY

On August 15, 2011, Mr. Jason M. Morgan underwent an anterior cervical disectomy with fusion of C6-C7, based on a preoperative diagnosis of herniated cervical disc. This elective procedure was performed by Dr. Joseph E. Scogna and others.

Immediately after surgery, Mr. Morgan “complained of exquisite pain, numbness, burning-like pain and dysesthesias encompassing his entire iliac crest region, groin and even into his femoral region.” Second amended complaint, paragraph 17. Subsequent diagnosis confirmed that significant and permanent nerve and neurologic injuries exist as a result of the negligence of Dr. Scogna and others.

Plaintiff-Morgan and his wife, initiated this medical malpractice litigation. Defendants-Doctor Scogna and Neurosurgical Associates, Ltd. have filed preliminary objections pursuant to Rule 1028(a)(6) asserting they have entered into an agreement to arbitrate all medical negligence claims. All other challenges were filed pursuant to Rule 1028(a)(2), Rule 1028(a)(3) and Rule 1019. For the reasons set forth in this memorandum, all of the preliminary objections are overruled and the parties are directed to move forward to prepare for trial in the courts of Philadelphia County.

II. LEGAL DISCUSSION

A. The Legislature Has Identified Proper Venue for This Cause of Action.

Appellate cases hold that whether a claim is within the scope of an arbitration provision is a question of law. Because arbitration is a matter of contract, the court must review the construction and interpretation to determine whether there is an express agreement between the parties to arbitrate. Under Pennsylvania law, there is a two part test to determine if arbitration may be compelled. First, determine whether the arbitration agreement is valid. Second, determine whether the dispute falls within the scope of the agreement. See generally, Elwyn v. DeLuca, 48 A.3d 457 (Pa. Superior Ct. 2012); Midomo v. Presbyterian Housing Development Co., 739 A.2d 180 (Pa. Superior Ct. 1999).

The Scogna agreement to arbitrate states in part:

“In the eventthatthe care rendered by Dr. Joseph Scogna results in a malpractice legal action: 1. The grievance shall be subject to voluntary binding arbitration by a panel to be selected by the American Arbitration Association. 2. Arbitration shall take place in Bucks County, the site of the primary office of Neurosurgical Associates. 3. If, by agreement of the parties, or by court order, the legal action is remanded to the courts, Item #2 will still pertain.”

Our courts are expected to give full effect to the intent of the general assembly. When the plain language of a statute indicates legislative intent this court will give effect to the statutory interpretation over a private agreement. In this case, 42 Pa. C.S.A. §5101.1(b) and (c) expressly state that the venue requirement for all medical professional liability claims, “including...an arbitration proceeding,” may be brought “only in the county in which the cause of action arose.” The legislature has made it clear that venue in this case is proper only in Philadelphia County whei'e the Aria Health co-defendants are located and where the alleged negligence occurred.

The Pennsylvania Supreme Court noted in 1965, in Central Contracting Co., Youngdahl & Co., 209 A.2d 810, 816 (Pa. 1965), that the modem rule includes a recognition that private parties may not by contract prevent a court from asserting its jurisdiction nor may private parties change the rules of venue.

In this case, defendant-Scogna has not challenged venue. Rather the basis of his preliminary objections is assertion of the validity of the arbitration clause. The court concludes that the arbitration agreement is not valid. The legislative intent prevails and Dr. Scogna may not change the rules of venue in his private contract.

B. Essential Terms of the Scogna Agreement Are Invalid and Unenforceable.

Restatement (Second) of Contracts § 184(1) states:

“(1) If less than all of an agreement is unenforceable under the rule stated in § 178, a court may nevertheless enforce the rest of the agreement in favor of a party who did not engage in serious misconduct if the performance as to which the agreement is unenforceable is not an essential part of the agreed exchange.”

Here, as in Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215 (Pa. Superior Ct. 2010), the arbitration clause requirement that the panel of arbitrators be selected by the American Arbitration Association is an essential term and is not ancillary, evidencing Scogna’s choice to submit to a specific procedure. The AAA is not available. This court will not rewrite Dr. Scogna’s agreement.

In defendant-Scogna’s brief in further support of the preliminary objections it is suggested that the “essential term” of the Scogna agreement was that the dispute be resolved in Bucks County. No preliminary objections were filed challenging venue per Rule 1028(a)(1) or Rule 1006 or Rule 2179. Moreover, as indicated, the general assembly has rejected the defendants’ attempt to forum shop.

C. The Scogna Agreement is Unconscionable.

Under Pennsylvania law, valid arbitration agreements are enforced absent a defense of duress, illegality, fraud and unconscionability. Thibodeau v. Comcast Corporation, 912 A.2d 874, 880 (Pa. Superior Ct. 2006). Following Restatement (Second) of Contracts §208, a court may refuse to enforce an unconscionable provision or contract. An agreement is considered unconscionable when one party has no choice but to accept a provision which unreasonably favors the drafting party. “A contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Bayne v. Smith, 965 A.2d 265, 267 (Pa. Superior Ct. 2009). “[W]here the arbitration clause is contained in an adhesion contract and unfairly favors the drafting party, such clauses are unconscionable and must be deemed unenforceable.” Thibodeau, supra, 912 A.2d at 880. “An adhesion contract is defined as a standard form of contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.” Bayne, supra, 965 A.2d at 267. The existence of an adhesion contract or an unequal bargaining position does not make an agreement per se unconscionable. Bayne, 965 A.2d at 270; Thibodeau, 912 A.2d at 882; Restatement (Second) of Contracts §208, Comment D. Each term must be analyzed to determine whether the provision unreasonably favors drafter. Bayne v. Smith, 965 A.2d at 270.

To the extent that the Scogna agreement attempts to the limit or restrict rights, responsibilities and obligations of any party that are different than the legislation set forth at 40 P.S.C.A. §1303.512 in the Medical Care Availability and Reduction of Error Act, the Scogna materials are not valid. Plaintiff-Morgan has highlighted the Scogna paragraphs relating, inter alia, to expert witnesses, collateral source and period payments. Not only has the statutory and case law clearly provided protections and parameters for all parties in medical negligence litigation, plaintiff-Morgan did not have any choice when these documents were presented for his signature. DefendantScogna has been unable to identify a single provision which he drafted which favors plaintiff-Morgan and which does not unreasonably favor the alleged tortfeasor.

III. CONCLUSION

The burden of proof for preliminary objections rests on the moving party. After careful consideration of all of the issues presented herein, the preliminary objections filed by JosephE. Scogna, M.D. and Neurosurgical Associates, Ltd., challenging specificity and conformity of the pleadings, and, the assertion of a valid agreement to arbitrate are overruled and the defendants must file an answer to the second amended complaint within twenty days.

ORDER

And now, this 5th day of March, 2014, upon consideration of defendants Joseph E. Scogna, M.D. and Neurosurgical Associates, Ltd.’s preliminary objections to plaintiffs’ second amended complaint, and plaintiffs’ response thereto, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that all preliminary objections are overruled. Moving defendants shall file an answer to plaintiffs ’ second amended complaint within twenty (20) days of the docketing of this order. See also, Rule 1006(c)(1).