author: MINORA, J.,

text:
    Marion v. Lukaitis

      C.P. of Lackawanna County,
    No. 2011 CV 7451

      Suzanne Tighe, for plaintiffs.

      Neil T. O ’Donnell, for defendant.
    November 12, 2013 —
   MINORA, J.,

Before the court is defendant’s Motion to Appeal from Special Trial Master (“STM”) Burke’s discovery order dated December 31, 2012, pursuant to Lackawanna County R.C.P. 4000.1. The nature of the December 31,2012 STM order dealt with the need to further answer plaintiffs’ first set of interrogatories and also for defendant to file further responses to plaintiffs’ motion for production of documents. The appeal of the defendant is denied.

FACTUAL AND PROCEDURAL HISTORY

This case stems from a motor vehicle accident that occurred on July 30,2011 at the intersection of Green Ridge Street and Wyoming Avenue in Scranton, Lackawanna County, Pennsylvania. According to the complaint, plaintiff Amanda Marion and her minor children were in a stopped car when Mary Lukaitis (“defendant Lukaitis”), traveling at a high rate of speed and severely under the influence of alcohol, struck the Marion vehicle allegedly injuring the plaintiffs. Defendant subsequently fled the scene, causing havoc and damages elsewhere as well.

Defendant Lukaitis had no automobile liability insurance at the time of the collision. Defendant’s lack of financial responsibility compelled plaintiffs to make a claim for uninsured motorist benefits to their insurance carrier, Motorists Mutual Insurance Company (“defendant Motorist Mutual”). Receiving no reasonable settlement offer from defendant Motorists Mutual, plaintiffs were compelled to file their complaint on December 6,2011, and alleged counts of negligence against defendant Lukaitis, and breach of contract against defendant Motorists Mutual.

Subsequent to the filing of the complaint, plaintiff filed a motion to compel further discovery responses, claiming both insufficient interrogatory responses on the part of defendant Motorist Mutual Insurance pursuant to Pa. R.C.P. 4005, as well as, defendant’s insufficient response to request for production of documents. Plaintiff’s motion to compel was granted by order of Special Trial Master Burke on December 31, 2012. Defendant thereafter filed its current de novo appeal on January 11, 2013.

In its de novo appeal, defendant argues that plaintiff is not entitled to the relief sought in the motion to compel due to the information requested not being relevant to the subject matter involved in the action pursuant to Pa. R.C.P. 4011. Specifically, defendant argues that those discovery requests seeking disclosure of information relating to the defendant’s evaluation and investigation of the claim for UM benefits, the terms of the policy under which claim was made and the claim handling after suit was filed are not relevant. Further, defendant claims that certain discovery requests are barred by the attorney client privilege, the work product protection, or Pa. R.C.P. 4003.3. Specifically, plaintiffs are requesting information such as that regarding the records custodian for the application in effect at the time of the accident, information regarding whether the policy, as originally issued, included a mandatory arbitration provision and premiums paid, and information regarding whether or not the defendant maintains that plaintiff was at fault for the accident and/or otherwise barred from recovery. Finally, regarding plaintiff’s requests for production, defendant avers that it has produced all relevant and discoverable log notes in this matter, with appropriate redactions prior to the time the suit was filed. Defendant argues that requiring it to produce the post suit log notes in this claim for UM benefits would violate the attorney-client privilege, the work product protection, or Pa. R.C.P. 4003.3.

In their answer to the de novo appeal, plaintiffs assert that relevancy is not a basis for privilege, and that the physical damage to the vehicles is a factor considered by the defendant in evaluating this UM claim and is, therefore, reasonably calculated to lead to the discovery of admissible evidence. Further, plaintiffs argue that post-suit is not a privilege, and that plaintiffs are not seeking attorney-client or work product privileged portions of the post-suit log notes.

DISCUSSION

Lackawanna County R.C.P. 4000.1 provides for a de novo appeal from an order of the discovery master upon motion of a party and payment of appeal cost.

Typically, the Pennsylvania Rules of Civil Procedure permit discovery that is broad and liberal. Rule 4003.1 of the Rules of Civil Procedure provides, “(a) party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending claim.” The comment to Pa.R.C.P. 4003.1(a) provides that:

“(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”

Here, the plaintiff is requesting information regarding the terms and issuance of the insurance contract, the defendant’s investigation and handling of the claim, and production of defendant’s records, such as log notes. We first address plaintiff’s request for information regarding the insurance policy itself. Rule 4003.2 holds that “Aparty may obtain discovery of the existence and terms of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part of all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.” Pa. R. C.P. 4003.2. In Weiner v. Charny, 23 Pa. D. & C.3d 367 (Allegheny County 1982), the court noted that the literal language of the rule “a party may obtain discovery of the existence and terms of any insurance agreement” should allow for production of the policy itself, and went on to state that such interpretation furthers the purpose of the rule as outlined in Szarmack v. Welch, 318 A.2d 707 (Pa. 1974).

In Szarmack, the Court required the defendant to answer interrogatories posed by the plaintiff inquiring about the existence of automobile liability insurance, the name of the carrier, and the limits of liability. The Court reasoned that a plaintiff must have some assurance that there can be a recovery in the event of a favorable verdict to justify the time, effort and expense in the preparation of the case for trial, and also considered such information valuable in evaluating offers of settlement. The Court saw such discovery as furthering the general purpose of the procedural rules, of securing the just, speedy and inexpensive determination of every action. Similarly, in the present case, plaintiff is seeking information regarding whether the policy, as originally issued, included a mandatory arbitration provision and premiums paid. As such, and in agreement with the finding of Special Trial Master Burke, defendant shall be compelled to provide such policy information.

Next we address plaintiff’s requests for information regarding the defendant’s investigation and evaluation of the UM claim. Pa. R.C.P. 4003.3 states that “a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent.” Furthermore, the Explanatory Note to the Rule states that “the work product protection of the Rule distinguished between that afforded the attorney and that afforded the party’s representative.” “The Committee viewed that work product privilege enunciated by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), as stating a special rule applicable to lawyers which need not necessarily be the same as that applied to other representatives, particularly insurance investigators.” The Comments distinguish between the notes and memoranda of an attorney, which are protected, and the same notes or memoranda made by an insurance investigator, which would not be protected. In the present case, the plaintiff is seeking information regarding the records custodian for the insurance application, as well as, information relating to the defendant’s evaluation and investigation of the claim for UM benefits. Such information is discoverable by plaintiffs because it pertains to information stemming from the insurance investigators, not the defendant’s legal counsel, and therefore does not fall under the work product privilege.

Finally, defendant objects to plaintiffs requests for production of certain documents, specifically, post-suit log notes. Defendant claims that it has produced the log notes with appropriate redactions prior to the time suit was filed. However, it refuses to produce post-suit log notes in this claim arguing that doing so would be a violation of attorney-client privilege. Pa. R.C.P. 4003.3 guards against discovery “of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” But in this case, plaintiff has withdrawn its request for productions of documents requesting the defendant’s impressions on the merits of the UM claim, as such discovery would violate Rule 4003.3. Instead, plaintiff is merely seeking information regarding the methods defendant uses in arriving at its valuation, as well as information on which individuals are charged with employing those methods. Rule 4003.1 states that “It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Pa. R.C.P. 4003.1(b). The present case is a breach of contract action, therefore, production requests regarding how defendant evaluates a claim, and thereby fulfills its obligations under the contract in question, are relevant as they are reasonably calculated to lead to the discovery of admissible evidence. Furthermore, as the Superior Court concluded in Hollock v, Erie Ins. Exchange, 842 A.2d 409, 414-416 (Pa. Super. 2004), a determination of bad faith by an automobile insurer can be based on the conduct of the insurer and its employee-witnesses during trial of the bad-faith claim. Therefore, the fact that the log notes are “post-suit” is irrelevant regarding admissibility. Plaintiff’s requests for production comply with the requirements of the Pennsylvania Rules of Civil Procedure, therefore, defendant’s de novo appeal is denied.

An appropriate order follows.

ORDER

And now, this 12th day of November, 2013 following hearings and in consideration of the party’s briefs, defendant, Motorist Mutual Insurance Company’s de novo appeal of Discovery Master Burke’s December 31, 2012 order is denied.

      . In the Explanatory Note to the Rule it is indicated the rule codifies the decision of the Pennsylvania Supreme Court in Szarmack v. Welch, 318 A.2d 707 (Pa. 1974).


source: Caselaw Access Project

author: REIBMAN, J,

license: Public Domain

text:
    O’Brien v. Jaeger

      C.P. of Lehigh County,
    No. 2012-C-2070

      Clifford Haynes and James A. Wells, for plaintiffs.

      Daniel L. Grill, for defendants.
    November 20, 2013—
   REIBMAN, J,

I.

Plaintiffs seek recovery for alleged professional negligence in the rendering of surgery to plaintiff Kevin O’Brien’s arm. Among the theories of recovery asserted is a claim that defendant Randy Jaeger, M.D. failed to obtain O’Brien’s informed consent prior to performing the surgical procedure. More particularly, plaintiffs claim that Dr. Jaeger failed to apprise O’Brien both of the alternatives to the contemplated procedure as well as the risks presented by the surgery.

Defendants have moved for summary judgment on the informed-consent claim, contending that an executed form, entitled, “Authorization/Consent for Treatment” eliminates any genuine issue of material fact on the question of whether Dr. Jaeger communicated the necessary information to O’Brien. In response, plaintiffs argue that Dr. Jaeger incorrectly informed O’Brien about the risks of refusing surgery and thus affirmatively misinformed O’Brien about the alternatives. Further, plaintiffs maintain that although nerve injury was mentioned in the consent form, such information appeared in what they characterize as “boilerplate” language applicable to any procedure and was thus not sufficiently tailored to the risks specific to this surgery. Accordingly, they maintain that it remains for the finder of fact to decide the issue. As will be seen directly, plaintiffs have the better of the argument.

II.

Summary judgment is appropriately reserved for those cases in which there exist “no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Sphere Drake Ins. v. Phila. Gas Works, 782 A.2d 510, 512 (Pa. 2001). In applying this test, the court must view the record “in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Washington v. Baxter, 719 A.2d 733, 736 (Pa. 1998). It is only when a case is “free and clear from doubt,” that the moving party will be entitled to judgment as a matter of law. See ibid.

The common-law doctrine of informed consent has been codified at 40 P.S. §1303.504, which provides in pertinent part:

(b) Description of procedure. — Consent is informed if the patient has been given a description of a procedure... and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.
(c) Expert testimony. — Expert testimony is required to determine whether the procedure constituted the type of procedure [for which informed consent is required]...and to identify the risks of that procedure, the alternatives to that procedure and the risks of these alternatives.

(Emphasis added.)

And as our Superior Court has observed in relation to the common law antecedent of the statutory provision: “The goal of the informed consent doctrine ‘is to provide the patient with material information necessary to determine whether to proceed with the given procedure or to remain in the present condition.’ Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 762, 691 A.2d 950, 957 (1997) (en banc)” Bey v. Sacks, 789 A.2d 232, 238 (Pa. Super. 2001).

III.

In this matter, plaintiffs have alleged from the outset that Dr. Jaeger inaccurately advised O’Brien that a decision not to undergo surgery would result in a 30% loss of grip strength and that “such advice was inaccurate and failed to adequately describe the alternative of nonsurgical treatment.” (Amended Compl ¶40.) Plaintiffs have also produced a supplemental report by their expert, Steven R. Graboff, M.D., who opines that if, as O’Brien testified in deposition, Dr. Jaeger did inform his patient that “he would lose 30 % of his grip strength without the performance of biceps surgery [,] then he was given false and misleading information on which to base his decision to go forward with the surgery.” {See Pl. Answer to Mot. Sum J. Ex. C.)

Without passing judgment on either the veracity of O’Brien’s recollection or the medical validity of Dr. Graboff’s assessment, it nonetheless cannot be gainsaid that an issue of material fact remains on the question of whether O’Brien was sufficiently apprised of the risks of forgoing surgery and remaining in his then-present condition. Quite obviously, an affirmative misrepresentation of the alternatives to surgery is at least as, if not more, harmful than a mere failure to inform. It, therefore, appropriately falls to the finder of fact to determine whether inadequate information was conveyed and whether receiving accurate information would have been a substantial factor in O’Brien’s decision to undergo the surgery.

IV.

Also persuasive is plaintiffs’ argument that a genuine issue of fact exists on this record regarding whether the risks of the specific procedure were communicated to O’Brien. The amended complaint avers, among other things, that Dr. Jaeger failed “to adequately advise Mr. O’Brien of the risk that nerves in his right arm could be damaged during the course of the procedure” and that “he could experience permanent functional and sensory deficits.” (Am. Comp. ¶40.) Although defendants rely on the consent form that O’Brien acknowledges having read and signed, plaintiffs’ criticism of that document, as consisting of boilerplate language inadequate to the task of conveying the necessary information to one in O’Brien’ shoes, is not without merit. Perusal of the document demonstrates that it cannot be said as a matter of law, so as to warrant summary judgment, that the form necessarily apprised O’Brien of the risks of the specific procedure as the statutoiy language mandates.

Specifically, the language upon which defendants rely states in pertinent part as follows:

[_] (please initial) I understand that there is aremote risk of death or serious disability with any procedure. I understand that the following are some other risks that may occur and these risks may be of a temporary or permanent nature: pain, infection, scarring, tissue damage, poor healing, nerve and/or vascular injury, blood loss, blood clotting, swelling, bruising, stiffness, decreased motion and/or strength, failure of repair, no improvement, worsening of symptoms, need for revision or other additional surgery and the following risks associated with anesthesia: heart and/or respiratory failure, stroke, shock and/or medication reaction. The following risks are specific to this procedure:
[blank]

(See Def. MSJ Ex. B.)

The litany of potential complications, ranging from death to medication-reaction, appearing in this paragraph might fairly be characterized, as plaintiffs suggest, as those applicable to “any procedure,” which the first sentence seems to imply, rather than “that procedure” under specific contemplation by the patient. This interpretation is lent further credence by the pregnant omission appearing in the space reserved for risks “specific to this procedure” that appears at the end of the passage. If, as plaintiffs’ expert opines, a patient in these circumstances should be informed of particularized risks including, inter alia” paralysis of the hand, wrist, fingers””and “loss of range of motion of the elbow” (see Pl. Answer to Mot. Sum J. Ex. C), a finder of fact could fairly conclude that this document failed of that purpose. Accordingly, it cannot be said as a matter of law that plaintiffs will be unable to prove the statutory elements at trial that are necessary to sustain a claim premised on a lack of informed consent. The motion for partial summary judgment seeking dismissal of this claim will, therefore, be denied.

ORDER

And now, this 20th day of November, 2013, upon consideration of defendants’ motion for partial summary judgment, filed on September 3, 2013, and Plaintiffs’ response thereto, filed on October 3, 2013, and after argument held on November 20, 2013, and for the reasons set forth in the accompanying opinion,

It is ordered that said motion is denied.


author: LASH, J.,

text:
    525 Lancaster Ave. Apts., LP v. Berks County Board of Assessment Appeals

      C.P. of Berks County,
    No. 12-26517

      Sean E. Summers, for appellant.

      Edwin L. Stock, for appellee Berks County Board of Assessment Appeals.
    November 21, 2013 —
   LASH, J.,

The matter before the court is the motion of the B erics County B oard of Assessment Appeals (hereinafter “Board”) to dismiss the real estate assessment appeal filed by appellant, 525 Lancaster Ave Apts, LP (hereinafter “Taxpayer”). Taxpayer appealed an interim assessment of four million five hundred thirty-six thousand seven hundred dollars ($4,536,700.00). The Board alleges that the within appeal was rendered moot when Taxpayer’s property was reassessed, being accepted into the City of Reading’s abatement program pursuant to the Local Economic Revitalization Tax Assistance Act (LERTA). This court agrees and dismisses Taxpayer’s appeal.

This court enters the following Findings of Fact:

I. FINDINGS OF FACT

1. Appellant, 525 Lancaster Ave Apts, LP, (hereinafter “Taxpayer”), submitted an application to the City of Reading for a tax abatement for a 71 unit apartment building, pursuant to the Local Economic Revitalization Tax Assistance Act (LERTA), 72 P.S. §4722, etseq.

2. By Change Notice dated September 27, 2012, the Board issued an October 2012 notice based on renovations/ remodeling of Taxpayer’s property, setting forth an interim assessment of four million five hundred thirty-six thousand seven hundred dollars ($4,536,700.00).

3. Taxpayer appealed the Interim assessment to the Board which, after hearing held, issued on November 28, 2012 a final notice, upholding the assessed value of four million five hundred thirty-six thousand seven hundred dollars ($4,536,700.00).

4. On December 20, 2012, Taxpayer filed the within appeal to this court from the Board’s decision of November 28, 2012, challenging the new assessment as not being commensurate with the property’s fair market value.

5. Subsequently, by notice dated January 29, 2013, the Board notified Taxpayer that its property was accepted into the City of Reading’s abatement program (LERTA) thereby reducing the property’s assessment from four million five hundred thirty-six thousand seven hundred dollars ($4,536,700.00) to eight hundred seventy thousand dollars ($870,000.00) effective October 1, 2012.

6. Taxpayer did not file an appeal from the reassessment decision of the Board of January 29, 2013.

7. On August 26, 2013, the Board filed the within motion to dismiss the above-captioned appeal on the basis that the appeal is moot due to the reassessment of January 29, 2013.

II. DISCUSSION

Taxpayer argues that its appeal should survive because the assessment from which the appeal was taken, the October 2012 assessment of four million five hundred thirty-six thousand seven hundred dollars ($4,536,700.00), continues to impact on the taxation of the property as the eight hundred seventy thousand dollars ($870,000.00) abatement value was derived from the four million five hundred thirty-six thousand seven hundred dollars ($4,536,700.00) assessed value. As such, the abatement value is not a reassessment but is a modification of the existing assessment after adjustment for abatement.

In enacting LERTA, the General Assembly provided assistance to prospective developers of deteriorated areas of economically depressed communities by authorizing local tax authorities to exempt qualifying properties with cost of improvement and new construction from full property tax assessment.

Section 4727 of LERTA provides the procedure for obtaining exemption. That Section states, in pertinent part:

...The assessment agency shall, after completion of the new construction or improvement, assess separately the new construction or improvement and calculate the amounts of the assessment eligible for tax exemption in accordance with the limits established by the local taxing authorities and notify the taxpayer and the local taxing authorities of the reassessment and amounts of the assessment eligible for exemption. Appeals from the reassessment and the amounts eligible for the exemption may be taken by the taxpayer or the local taxing authorities as provided by law. [Emphasis supplied.]

As is clear from Section 4727, the abatement action calls for a separate assessment and is considered a reassessment. As the Board urges, the October 2012 interim assessment was superseded by the January 29, 2013 reassessment. Taxpayer’s property is no longer being taxed in accordance with the 2012 interim assessment. The within appeal, therefore, no longer has any practical significance. As stated in the case of Erie Homes For Children And Adults, Inc. v. Department Of Public Welfare, 833 A.2d 1201, 1203 (Pa. Cmwlth. 2003), an appeal shall be dismissed as moot unless an “actual case or controversy exists at all stages.... An issue can become moot during the pendency of an appeal [from adjudication by administrative agency] due to an intervening change in the facts of the case or due to a change in the applicable law.” (Citation omitted).

Taxpayer’s proper recourse would have been to file an appeal from the reassessment of January 29, 2003. The reassessment constitutes an adjudication and, as such, taxpayer had the right to appeal to common pleas court. Section 4727 of LERTA provides specific authority for such an appeal.

This court enters the following order:

ORDER

And now, this 21st day of November 2013, upon consideration of the motion of appellee, Berks County Board of Assessment Appeals, to dismiss the appeal of 525 Lancaster Ave Apts, LP, and upon review of the record and briefs filed by the parties, the motion is granted. The above-captioned appeal is dismissed.

      . 72 P.S. §§4722-4727 (hereinafter “LERTA”).

      .2 Pa.C.S.A. §752.


author: LOVECCHIO, J.,

text:
    J.C. v. T.K.

      C.P. of Lycoming County,
    Nos. 08-20,853 and 08-20,855

      Terra Koernig, for plaintiff.

      Melissa Clark, for defendant.
    December 2, 2013 —
   LOVECCHIO, J.,

The parties are the natural parents of M.C. and R.C. By agreement of the parties, memorialized in a custody order dated October 10, 2008, the parties enjoy shared legal and physical custody of their children.

On or about June 20, 2013, Mother filed a Notice of Relocation seeking to relocate with the children to Turbotville, Northumberland County. Father filed an objection to the notice and requested a hearing. Hearings were subsequently held before the Court on July 31,2013, September 26, 2013, and September 30, 2013.

Subsequent to the first hearing, mother and her husband relocated to Turbotville. Pending this decision on the relocation request, the parties have followed the custody order previously in place.

The parties agree that the children should not continue to travel from their different residences to their respective schools. The parties submit that the court should decide the primary residence of the children, being with the father where he resides now or with the mother in Turbotville where she relocated. The parties agree that the choice of that residence will control as to whether the children will reside primarily with that parent.

Given the fact that the mother has already relocated, it is somewhat confusing with respect to applying a relocation analysis to these proceedings. Indeed, it appears that the court should apply a best interest analysis in deciding which parent should receive primary custody of the children during the school year. Yet, in the party’s respective briefs, each have analyzed the respective issues by referencing the statutory relocation factors.

Relocation is now governed by 23 Pa. C.S.A. §5337. Relocation is defined as a change in the residence of the child which significantly impairs the ability of the nonrelocating party to exercise custodial rights. 23 Pa. C.S.A. §5322 (a).

Upon further consideration, the court will adopt the analysis proposed by the parties in determining the issue. Mother has relocated and the children reside with her a substantial portion of the time. Because Turbotville is approximately a 30-minute drive from where the children reside with their father, the court concludes that the prospective change in residence of the children would significantly impair the ability of the father to exercise custodial rights.

Determining the best interests of the children is not a task that this court takes lightly. In cases like the case at hand, the decision is made more difficult by virtue of the fact that the children are flourishing under the present set of circumstances. It is readily apparent to the court that both parents deeply love and care for their children and that their welfare is important to them.

Mother credibly testified that the farm property in Turbotville while obviously being a transition for the kids and while not being “entirely familiar with the whole entire community yet”, would permit her to be actively involved in the PTO and more involved with the school perhaps as a grade parent. She testified as well that it won’t be long before the children are in high school and that Williamsport, with police officers at the high school, seems more like a prison than a school. She is of the belief that the safety of any school is important and that when she compares the two schools, there is more “stability, safety [and] more likeminded kids” in Turbotville. In looking at the “bigger picture in the future” she hopes to have her children involved in the family business. Mother argues that it is worth relocating the children at this point. Moreover, mother is willing to continue the children in their activities in the Williamsport area including but not limited to daughter’s participation in the Uptown Music Collective.

Mother’s main reasons for moving are to expand the farm business to eventually get her children involved and for a better school district. Mother’s husband, JR, is a police officer for the city of Williamsport. He testified quite emphatically that because of the diversity of individuals in the Williamsport Area School District, it has “a lot of issues.” He testified that there are certainly greater “bad influences” and that safety is a huge concern for parents. Williamsport has one school resource officer and apparently needs two more. He testified based on information he received from other officers, that on a daily basis there are assaults, weapons on school property, rapes and related problems. He testified that the Williamsport schools are so “out of control” that if the people knew what really occurred, there would be a “mass exodus.” He testified that he really had “nothing good to say about the Williamsport School District” and that the odds of getting into trouble were much higher at Williamsport than at Warrior Run.

Mother is proposing relocation and, accordingly, has the burden of establishing that the relocation will serve the best interests of her children as shown under the statutory factors set forth in 23 Pa. C.S.A. §5337 (h). The court will address each of the required factors seriatim.

The first factor involves the nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the children’s lives.

Although the respective briefs of the parties persuasively argue on behalf of the party who submitted such, it appears to the court that for the most part the children’s relationship with each of their parents is strong and normal. Indeed, the children appear very well adjusted, intelligent and happy.

What does concern the court is mixed messages they may be receiving from mother. Mother throughout the proceedings appeared very principled and fixed in her opinions regarding how children should be raised, what is expected of children, what is best for children and the type of environment in which children should be raised. Both mother and her husband severely criticized environments in which there are a diversity of cultures apparently opening the door to immoral and/or improper behaviors such as sexual promiscuity and drug usage. It is clear that mother expresses her opinions to her children. M.C. testified that she believes her mother smokes “drugs.” M.C. testified as to finding “marijuana” in her mother’s bedroom and seeing her mother smoke it at least once. M.C. testified that she knows it is marijuana from what she learned at school. Yet, and to the court’s great dissatisfaction, mother did not offer any testimony to rebut that of her daughter. Mother even refused to take a drug test. At the very minimum, M.C. believes her mother is doing something wrong. M.C. is confused and concerned. Mother’s refusal to address her daughter’s concerns only exacerbates the confusion.

As well, it appears that mother may be further confusing her children by appearing to them to place her personal desires over those of her children. For example, while mother wants to be involved in her children’s lives, she limits their activities in order not to overburden her schedule or resources. As well, mother’s insistence on the children abiding by her rules without question or explanation begs logic. The children are clearly receiving mixed and confusing messages.

The court must next consider the age, developmental stage, needs of the children and the likely impact the relocation would have on the children’s physical, educational and emotional development.

The children are currently thriving in their environment. They are doing well in school, partaking in extracurricular activities and have developed close relationships with friends and family. They enjoy their home life and are starting to develop talents which may certainly open doors for them in the future with respect to continuing education, accolades and perhaps even careers. Much of the evidence mother offered related to the desirability of having the children attend the Warrior Run School District instead of the Williamsport Area School District. Mother’s major concerns centered on the diversity in the Williamsport Area School District, her perception that it is unsafe and her opinion that her children will be exposed to drugs and violence.

Mother, however, failed to present first-hand testimony from any representative of the Warrior Run School District. Mother failed to call any teacher, staff member, coach, guidance counselor or administrator. While mother’s husband credibly testified regarding his experiences in Williamsport much, if not most, of his testimony relating to the Williamsport Area School District was secondhand. In fact, the firsthand testimony was presented by father and clearly demonstrated many benefits of the Williamsport Area School District. It is clear to the court that relocating the children to Turbotville would have a negative impact on their educational and emotional development. This is not because of any conclusion that the Warrior Run School District is somehow inferior to the Williamsport Area School District but rather due to the fact that the evidence presented to the court demonstrates that the children are flourishing in their present environment and that the Williamsport Area School District can enhance their development.

The court must next consider the feasibility of preserving the relationship between the nonrelocating party and the children through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

Clearly, if the children were relocated to Turbotville, it would be impossible to preserve their present relationship with father. Indeed, a majority of the children’s time would be spent traveling in motor vehicles to and from different towns for different activities.

The court must next consider the children’s preferences, taking into account their age and maturity.

Both children expressed their preference for living primarily with their father. As well, both children expressed a strong preference to not change school districts. They enjoy their teachers, their activities and their friends. They enjoy some parts of Turbotville but neither child wishes to reside there or to go to school there. Both children, as previously noted, are exceptionally mature for their age, very well spoken and intelligent. The reasons in support of their preferences were sound and credible.

The court must next consider whether there is an established pattern of conduct of either party to promote or thwart the relationship of the children and the other party.

While there was some testimony as to mother making some unilateral decisions for the children, the court cannot conclude that there is any established pattern of conduct by either party to thwart the relationship with the children to the other party. To the contrary, the court commends both mother and father for encouraging and promoting a relationship with not only the other but with the circle of significant others that were brought into the children’s lives through their parent’s relationship with said others.

The court must next consider whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

The mother has excellent reasons for wanting to move to the Turbotville area. The court has no hesitation in concluding that the relocation will enhance the general quality of life for her including providing additional financial and emotional benefits.

While father argues that it is not clear that the move will actually increase the quality of life for the mother, the move will allow the mother to expand her goat care business and have greater freedom in how she uses the land. It will increase the financial growth of the family by creating a family business that the children may someday inherit.

The court must next consider the reasons and motivation of each party for seeking or opposing the relocation.

Mother argues that relocating to Turbotville will provide a stronger atmosphere of personal responsibility for the children, place the children in a school district with more peers with the same interests and background, provide a safer environment than the Williamsport Area Schools and provide the children with a learning atmosphere where police officers do not patrol the hallways and where both children can reach their full potential. While mother’s sentiments are sincere and while the court has no doubt that the mother believes such, she has failed to sustain her burden with respect to proving such. Indeed, the evidence is to the contrary. By staying in Williamsport, the children will remain with their friends as well as peers with the same interests and background. By staying in Williamsport, the children will continue to thrive academically and otherwise. As mother concedes, the children are not currently involved with negative influences nor are they involved in drugs or other self-destructive behaviors.

Ironically, mother argues that by staying in Williamsport the children will be involved with “the higher presence of drugs” thus making “them more susceptible to such influences in the future.” Yet, mother refuses to dispel any inclination that her daughter may have that Mother smokes marijuana. Mother argues that the allegation of drug use “raised by the father” is an attempt to humiliate the mother. Mother nonetheless refused a drug test and despite having the opportunity to rebut such testimony, failed to do so. Moreover, the substance of the alleged drug use was garnered through M.C.’s testimony, not father’s testimony.

Contrary to what mother claims, the court is convinced that the father, as argued in his brief, is not motivated by any desire except, foremost, to ensure his children thrive, are healthy, are not in danger and are well taken care of and second, to continually maintain his relationship with the children.

The court must next consider any present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the children or an abused party.

Both parties concede that this factor is not applicable.

Finally, the court must consider any other factor affecting the best interest of the children.

Both parties in their written submissions to the court are satisfied that the previous factors address the best interests of the children.

The court cannot necessarily agree. Both of the parents have to date provided remarkably well for their children. Both parents despite completely different parenting styles and apparently different morals and principles, have done an excellent job in not improperly influencing their children or improperly alienating their children from the other. Neither party is free from fault and neither party is perfect.

These children have been the beneficiaries of loving and caring parents who have made sacrifices for their children. While the mother has sincere concerns, the court does not believe it is in the best interest of the children for them to relocate to Turobtville and to attend the Warrior Run School District. The danger of removing the children from their present structure and infusing their lives with so much change portends a negative result.

The court will deny the mother’s motion to relocate the children to Turbotville and will enter an order consistent with this opinion.

ORDER

And now, this 2nd day of December 2013, following hearings, argument and the submission of briefs, the court denies mother’s request to relocate with her children to Turbotville.

The court grants father’s oral motion to modify custody in light of the fact that mother has relocated to Turbotville.

The parties shall share legal custody of the minor children pursuant to the Legal Custody, Obligations of Shared Legal Custody and General Parental Obligations portions of the court’s October 10,2008 order.

The parties shall share physical custody of the children as follows:

A. During the School Year. Mother shall have the children Fridays after school, or 6:00 p.m. if there is no school, until Sunday evening at 7:00 p.m. for three weekends per month. Father shall have the children the balance of custodial time.
B. During the non-school year. The parties shall alternate weeks, week on-week off, with exchanges occurring at 6:00 p.m. on Fridays.
1. Holidays: The holiday schedule outlined in the October 10, 2008 order shall remain in full force and effect.
2. Vacation: The vacation schedule outlined in the October 10, 2008 order shall remain in full force and effect.
3. Transportation: The party about to begin a period of custody shall be responsible for transportation unless otherwise stated in this order or agreed to by the parties.
4. Extensions of times of physical custody: In the event that any period of aparty’s physical custody is scheduled to end during the afternoon or evening on a specific day which would be followed by the same party beginning another time of physical custody on the immediately following day, the ending time of the physical custody shall be extended through an overnight period of time so as to extend into the following day and not interrupt such party’s period of time of physical custody. This provision shall not be applied if doing so would deprive the other party of custody during a time of holiday.
5.Relocation of the children: If aparty wishes to relocate with the minor children, said party must provide notice to every other individual who has custody rights to the children according to the following guidelines. Notice must be sent by certified mail, return receipt requested, and shall be given no later than 60 days before the date of the proposed move or the tenth day after the date that the party has notice of the relocation, if the party did not know and could not have reasonably known of the relocation in sufficient time to comply with the 60 day notice. The notice provided to every other individual who has custody rights to the children must conform to 23 Pa.C.S.A. §5337 and contain the following:
1. The address of the intended new residence.
2. The mailing address for the new residence.
3. Names and ages of all of the individuals who intend to live in the new residence.
4. The home telephone number of the intended new residence, if available.
5. The name of the new school district and school.
6. The date of the proposed relocation.
7. The reasons for the proposed relocation.
8. A proposal for a revised custody schedule.
9. Any other relevant information.

The party must sent with the notice, a blank counter-affidavit conforming to 23 Pa.C.S.A. §5337(d)(1) which can be used to object to the proposed relocation and the modification of a custody order.

The notice must warn the non-relocating party that if the non-relocating party does not fill out and file with the court the counter-affidavit to object to the proposed relocation within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the proposed relocation and forever lose their right to stop the relocation.


author: ZULICK, J.,

text:
    Van Horn v. Maisano

      C.P. of Monore County,
    No. 4484 CV 2013

      Kelly J. Lenahan, for plaintiffs.

      Brent A. Green, for defendants.
    December 3, 2013 —
   ZULICK, J.,

Plaintiffs, John A. Van Horn and Dawn M. Van Horn, filed a complaint against defendant Robert M. Maisano and others on August 21,2013. In their complaint, the Van Homs allege that Mr. Maisano caused a head-on automobile collision that resulted in injuries to the Van Homs. Robert Maisano and Sandra Maisano filed preliminary objections to the complaint and a brief in support thereof. The Van Homs filed a response to the Maisano preliminary objections and a brief in support of their opposition. Both parties presented argument before the court on November 4, 2013.

DISCUSSION

The court must accept as tme all well-plead facts and any reasonable inferences to be drawn therefrom in ruling on preliminary objections, but not the pleader’s conclusions or averments of law. See Savitz v. Weinstein, 149 A.2d 110, 111 (Pa. 1959) (quoting Narehood v. Pearson, 96 A.2d 895, 896 (Pa. 1953)). The court, however, “need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 482 (Pa. Cmwlth. 1995) (citation omitted).

The Maisanos raise two preliminary objections— (1) a demurrer to the Van Homs’ allegations of reckless conduct; and (2) a motion to strike paragraphs 12-18 and paragraph 43(d) of the complaint for failure to conform to the Pennsylvania Rules of Civil Procedure.

I. Reckless Conduct and Punitive Damages

The Maisanos first preliminary objection is in the nature of a demurrer seeking to strike allegations of recklessness and the demand for punitive damages. Pennsylvania Rule of Civil Procedure 1028(a)(4) allows any party to file preliminary objections to any pleading on the grounds of “legal insufficiency of a pleading (demurrer).” Pa. R. Civ. P. 1028(a)(4). A “preliminary objection in the nature of a demurrer should not be granted if the allegations of the [pleading] state a cause of action under any theoiy of law.” Packler v. State Employees’ Ret. Bd, 368 A.2d 673, 675 (Pa. 1977).

In determining whether the factual averments contained in the pleading sufficiently state a cause of action, all doubts are resolved in favor of sufficiency of the pleading. See Slaybaugh v. Newman, 479 A.2d 517, 519 (Pa. Super. 1984). “While it is not necessary that the [pleading] identify the specific legal theory of the underlying claim, it must apprise the [opposing party] of the claim being asserted and summarize the essential facts to support that claim.” Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 723 (Pa. Super. 1997) (citing Krajsa v. Keypunch, Inc., 622 A.2d 355, 357 (Pa. Super. 1993)). Accordingly, a preliminary objection in the nature of demurrer will be sustained only in cases that are clear and free from doubt. See Cianfrani v. Commonwealth, 479 A.2d 468, 469 (Pa. Super. 1984).

The Van Homs have alleged in paragraph 12 of the complaint that:

12. As defendant, Robert Maisano (“defendant driver”) was traveling West on Jonas Road, he was carelessly, negligently and recklessly inattentive to the other vehicles on the road. He failed to observe the vehicle directly in front of him in his lane of travel slowing to make a turn. To make matters worse, when defendant driver finally took notice of this slowing vehicle, he was too late to avoid a rear end collision with that vehicle, so instead, he recklessly swerved into oncoming traffic at the last minute, lost control of his vehicle, and violently collided with the plaintiff’s vehicle, Complaint, ¶ 12.

The Maisanos contend that the Van Homs’ complaint fails to specify facts that support a claim for punitive damages; therefore, the “recklessness” count of the complaint should be stricken. Punitive damages may be awarded for conduct that is outrageous. Feld v. Merriam, 485 A.2d 742, 747-48 (Pa. 1984). Where there exists no indication of evil motive, then a plaintiff must establish that a defendant acted with reckless indifference to the rights of others. Burke v. Maassen, 904 F.2d 178, 181 (3d Cir. 1990). Punitive damages may be awarded where the evidence shows the defendant knows, or has reason to know, of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act in conscious disregard of that risk. Id. at 181; Martin v. Johns-Manville Corp., 494 A.2d 1097 (Pa. 1985). A claim for punitive damages must plead facts sufficient to summarize and support the claim, including facts tending to cast the alleged actions in a light justifying the label of outrageous conduct. Smith v. Brown, 423 A.2d 743 (Pa. Super. 1980).

The complaint does allege conduct that amounts to reckless indifference to the rights of others, but that alleged conduct took place after the collision. In paragraphs 15 and 16 of the complaint, the Van Homs allege that Robert Maisano fled the scene and together with Sandra Maisano, disposed of the vehicle to avoid liability for the collision.

The conduct causing the collision is alleged to have occurred when Maisano failed to observe the vehicle ahead of him slowing for a turn. He could not stop behind the turning vehicle without colliding with it, and instead turned his car into the path of the Van Horn’s oncoming vehicle. Complaint, paragraphs 12, 14. This is certainly a description of negligent behavior, but it does not rise to the level of outrageous conduct sufficient to support a claim for punitive damages. Although the complaint characterizes Maisano’s driving as reckless, the underlying facts do not “cast the alleged actions in a light justifying the label of outrageous conduct.” See Smith v. Brown, 423 A.2d 743 (Pa. Super. 1980), Henry v. Summit Lanes, 6 D. & C. 5th 254, 256 (Monroe C.P., Miller, J. 2008). Defendants’ preliminary objection to count II of the complaint will be sustained.

The Maisanos also object to the Van Homs’ allegations in paragraphs 15-18 and 43(d) that Robert Maisano fled from the scene and “quickly disposed of the vehicle” by “scrapping” it after the collision. Complaint, paragraph 15. Counsel have not briefed whether evidence of flight to avoid apprehension, which is often introduced in a criminal case to show consciousness of guilt, is admissible in a civil case. The court’s research has not disclosed any Pennsylvania cases addressing this issue. The majority view of courts of other jurisdictions that have addressed it is to admit this evidence. See Rock v. McHenry, 115 S.W.3d 419, 420-421 (Mo.App. W.D., 2003). It is premature to say whether this information will be allowed at trial, but defendants’ request to have these allegations stricken from the complaint will be denied.

Finally, defendants seek to strike what they contend is impertinent matter, pursuant to P.R.C.P. 1028(a)(2), “failure of a pleading to conform to law or mle of court or inclusion of scandalous or impertinent matter.” Defendants object to paragraphs 17 and 18 which relate to the police investigation to determine Maisano’s involvement in the collision, and Maisano’s statements to the police. They also object to paragraph 19 which alleges statutes under the Pennsylvania Motor Vehicle Code which Maisano was cited for violating.

While the police investigation following the collision, and Maisano’s denials to the police of his involvement are not facts which are necessary to state a cause of action, they may be relevant at time of trial to establish that Maisano was the driver of the vehicle that struck the Van Horn vehicle. They should not be difficult for the defendants to respond to. As the Commonwealth Court stated in Springdale Tp. v. Kane, 328 A.2d 904, 905 - 906 (Pa. Cmwlth. 1974):

We have carefully reviewed all of the paragraphs contained in the Commonwealth’s new matter, and we do not believe, considering the present state of the record, that it is possible to determine that the new matter is entirely irrelevant to this action or that it could not have any possible influence in leading to the result. We agree with the Townships that many of the paragraphs in the new matter can be characterized as conclusions of law rather than averments of fact, and we recognize that the Commonwealth has changed its legal defense to the complaint. We do not, however, believe that it is impossible for the townships to formulate an adequate answer to the new matter. Although it may appear difficult for the townships to make answer to conclusions of law set forth in the paragraphs of new matter, practicing attorneys have been filing answers to paragraphs such as these from time immemorial.

Id. at 905-906.

Maisano also objects to the recitation in the complaint of the motor vehicle code citations he received as a result of the collision, pointing out that convictions of these offenses are not admissible in the trial of this action. See 42 Pa.C.S.A. §6142(a), which states:

(a) General rule.- A plea of guilty or nolo contendere, or a payment of the fine and costs prescribed after any such plea, in any summary proceeding made by a person charged with a violation of title 75 (relating to vehicles) shall not be admissible as evidence in any civil matter arising out of the same violation or under the same facts or circumstances.

While it is true that “a party need not specifically plead the act of assembly (here the Motor Vehicle Code) ostensibly violated, sufficient facts must be pleaded to bring the case within the appropriate statute.” Goldberg v. Friedrich, 124 A. 186 (Pa. 1924); Godina v. Oswald, 211 A.2d 91 (Pa. Super. 1956), Com., Dept. of Transp. v. Shipley Humble Oil Co., 370 A.2d 438, 440 (Pa. Cmwlth. 1977).

The Van Homs are certainly free to assert negligence per se theory at the trial of this case, and while they are not required to recite the Motor Vehicle Code provisions that they allege Maisano violated, Shipley, supra, the fact that they have done so in the complaint puts the defendants on notice of these claims. When negligence per se theory applies to a case, “duty and breach of that duty are not automatically proven. They are proven only by first referencing the violator’s action (or inaction) against the statute’s words and policy”. McCloud v. McLaughlin, 837 A.2d 541, 544-545 (Pa. Super. 2003). This objection will be denied.

ORDER

And now, this 3rd day of December, 2013, following consideration of the preliminary objections filed by defendants, Robert M. Maisano and Sandra M. Maisano, to the complaint of John A. Van Horn and Dawn M. Van Horn, it is ordered as follows:

1. The preliminary objection to count II, Recklessness are sustained and that count is dismissed.

2. Defendants’ other preliminary objections are denied.

3. Plaintiffs are given leave to file an amended complaint within twenty days that complies with the Pennsylvania Rules of Civil Procedure.


author: BOCCABELLA, J,

text:
    Commonwealth v. Alvarez

      C.P. of Berks County,
    No. 0945-2013

      Chris Mandraccia, for Commonwealth.

      James M. Polyak, for defendant.
    December 4, 2013-
   BOCCABELLA, J,

1. On January 27, 2013 at approximately 1:19 A.M. The defendant was traveling on the 400 block of N. 9th St. Reading, Pa. Berks County

2. Officer Dennis Miller was stationary at the 500 block of N. 9th St.

3. While standing outside assisting other officers in a prior dispatch, Officer Miller observed a silver Hyundai Elantra approaching with his high beams activated. While the vehicle was passing, Officer Miller signaled the defendant to stop.

4. When the defendant pulled over, Officer Miller noticed the high beam indicator was illuminated and asked the defendant to deactivate his high beams. The defendant fumbled around to turn off the high beams. During this time Officer Miller noticed the defendant’s eyes looked “tired and squinted.”

5. Officer Miller saw, in plain view, inside the driver side area, what seemed to be a partially smoked “blunt” in the door handle of the vehicle. He also saw a clear sandwich bag containing what Officer Miller suspected to be rock cocaine.

6. Officer Miller asked the defendant to step out of the vehicle. He searched the area and located one (1) cherry and one (1) grape packets of suspected synthetic marijuana with $240.00 dollars sitting in the center console.

7. Officer Miller asked the defendant to perform a series of SFST’s. The defendant consented and failed all tests given to him.

8. Officer Miller placed him under arrest for suspicion of DUI and he was transported to the St. Joseph’s Hospital to have his blood drawn.

CONCLUSIONS OF LAW

1. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H).

2. Section 6308(b) of the Vehicle Code provides:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. §6308(b) (Emphasis added).

3. “Thus, when an officer has reasonable suspicion a violation of the Vehicle Code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for the investigative purposes stated therein.” Commonwealth v. Chase, 960 A.2d 108, 112 (Pa. 2008) citing 75 Pa. C.S.A. §6308(b).

4. “To establish grounds for ‘reasonable suspicion’... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) citing Commonwealth v. Bennet, 827 A.2d 469, 477 (Pa. Super. 2003) (citing Commonwealth v. Cook, 558 Pa.50, 735 A.2d 673, 676 (1999)).

5. “In order to determine whether the police had a reasonable suspicion, the totality of the circumstances-the whole picture-must be considered.” In the Interest of D.M., 781 A.2d 1161, 1163 (Pa.2001) citing United States v. Cortez, 449 U.S. 411, 417 (1981).

6. In making this determination, we must give “due weight...to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999) quoting Terry v. Ohio, 392 U.S. 1, 27 (1968).

7. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 22 (1968).

8. “Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer.” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Ornelas v. United States, 517 U.S. 690, 696 (1996).

9. “While it is argued the lesser standard [reasonable suspicion] will allow a vehicle stop to be made based on pretextual motives, the United States Supreme Court made clear that case law ‘foreclose^] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.’” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Whren v. United States, 517 U.S. 806, 813 (1996); See also Commonwealth v. Foglia, 979 A.2d 357, 361-62 (Pa. Super. 2009) (Stating that observations made after the officer intends to stop the defendant can be used to support their actions).

10. Section 4306(a) of the Vehicle Code provides:

§4306. Use of multiple-beam road lighting equipment.

(a) Approaching an oncoming vehicle. — Whenever the driver of a vehicle approaches an oncoming vehicle within 500 feet, the driver shall use the low beam of light.

11. “[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002); See also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

12. In Commonwealth v. Beachey, 698 A.2d 1325, the purpose of the Vehicle Code provision requiring drivers to “use” low beams of their headlights when approaching oncoming vehicles within 500 feet, was to prevent use of high beams in range of distance between oncoming vehicles which would disturb or momentarily blind driver of vehicle facing one with high beams in play. In this situation Officer Miller testified that the reason why he pulled over the defendant was because his “high beams” were activated. At the moment Officer Miller noticed the high beams, he was “motionless” outside of his patrol car.

Therefore, Officer Miller vehicle was not an oncoming vehicle facing the defendant. Officer Miller testified that all of the officer patrol cars were parked, and standing next to their vehicles. “The plain legislative intent of section 4306(a) was to prevent motorists from facing excessive glare, so as to reduce the obvious safety hazard not to cause accidents” Kazan v. Wilkes-Barre Ry. Corp., 32 A.2d 32, 347 Pa. 232, Sup. 1943. As you can see all of the officer vehicles were stationary and double parked. Officer Miller testified he could clearly see the defendant’s vehicle and nothing obstructed his view. The defendant’s high beams did not hinder his duties. This statute is designed for “moving vehicles” not pedestrians. Also, Officer Miller testified that there were no other vehicles in the vicinity, and he did not see any oncoming traffic facing the defendant while his high beams were on within 500 feet of any vehicle. If anything, the defendant’s use of his high beams were warranted for the safety of (the officers) pedestrian considering it was dark (at 1:20 A.M.).

The evidence presented is not sufficient to establish reasonable suspicion to support a lawful stop. Furthermore, Officer Miller testified that the only reason he stopped the defendant, was for his high beams, however, out of all of the pending charges, the defendant was ‘never" charged with §4306 Use of multiple-beam road lighting equipment. While charging the defendant is not necessary, the lack of such charge reinforces this court’s view of the situation regarding reasonable suspicion for the stop. Based on the totality of the circumstances, the court finds that the Commonwealth has not met its burden in establishing reasonable suspicion for the vehicle stop. The court finds that the asserted ground for initiating the stop was merely pretextual and not the result of an observation of a violation of the Motor Vehicle Code. Based on all of the foregoing, this court holds that the vehicle stop occurred in violation of the defendant’s constitutional rights. Accordingly, any evidence derived from the stop is inadmissible as fruit of the poisonous tree.

13. The defendant’s Motion for Suppression of the Evidence is granted.

14. “In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged.” Commonwealth v. Hock, 728 A.2d 943, 945 (Pa. 1999); See generally Commonwealth v. Rachau, 670 A.2d 731, 733 n.5 (Pa. Commw. 1996) citing Commonwealth v. Kowalek, 647 A.2d 948, 949 (Pa. Super. 1994).

15. “Aprima facie case of defendant’s guilt exists, so as to satisfy Commonwealth’s burden at pre-trial stage of criminal prosecution, when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) citing Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citing Commonwealth v. Wojdak, 466 A.2d 991 (Pa. 1983)).

16. “The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

17. “In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Commonwealth v. Schmohl, — A.2d —, 2009 WL 1451451, filed May 26, 2009.

18. “[Ijnferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) quoting Commonwealth v. Owen, 580 A.2d 412, 414 (Pa. Super. 1990).

19. In this case, having already determined that the vehicle stop is illegal, the court finds that the Commonwealth has presented insufficient evidence to establish a prima facie case with respect to all counts.

20. The defendant’s Petition for Writ of Habeas Corpus is granted.

ORDER

And now, this 4th day of December 2013, it is hereby ordered that the defendant’s Motion for Suppression of the Evidence is granted. It is further ordered that the defendant’s Petition for Writ of Habeas Corpus is granted with respect to all counts.


author: CHARLES, J.,

text:
    Light v. Esbenshade

      C.P. of Lebanon County,
    No. 2009-20401

      Edward J. Coyle, for plaintiff.

      Wiley P. Parker, for defendant.
    December 10, 2013
   CHARLES, J.,

— For almost two centuries, the law governing authenticity of evidence evolved to regulate admissibility of written documents. In less than two decades, electronic communication has supplanted written documentation as the primary method of transmitting and storing information. As it relates to authenticity, the law is struggling to keep up with technology. As aptly noted in one respected treatise:

Proper authentication of emails and other instant communications, as well as all computerized records, is of critical importance in an ever-increasing number of cases, not only because of the centrality of such data and communications to modem business and society in general, but also due to the ease in which such electronic materials can be created, altered, and manipulated.

34 A.L.R. 6th 253 — Authentication of Electronically Stored Evidence, Including Text Messages at Section 2.

Before us today is the defendant’s authenticity challenge to text message and email communications offered into evidence by the plaintiff. The defendant asserts that he did not author incriminating e-messages sought to be introduced. He further claims that the messages were fabricated in an effort to portray him as something he is not. Because admissibility of e-communication in the above-referenced case is of critical importance, and because Pennsylvania law regarding authenticity of e-communications is still evolving, we will take this opportunity to author an opinion to explain why we will admit some exhibits and exclude others.

I. FACTS

Defendant Paul J. Esbenshade (hereafter “father”) and plaintiff Jenna M. Light (hereafter “mother”) are the parents of a five year old daughter who is the subject of a custody order entered into on December 11,2012. Among other things, the custody order afforded each parent with three weeks of uninterrupted custody during summer months. The custody order also permitted reasonable telephone and email communications between the child and the non-custodial parent. In addition, the court order stated: “Neither parent shall engage in a course of conduct designed to alienate the child from the other parent.”

On October 4, 2013, father filed a pro se petition for civil contempt alleging that mother was “not obeying any provisions of the court order.” Three weeks later, mother’s attorney filed a request for a bill of particulars. By a court order dated October 30, 2013, we directed that father provide a written statement within ten days outlining which terms of our court order he alleges were violated by mother.

On November 12,2013, father filed a counseled bill of particulars. In that document, father alleged that mother withheld two one week periods of physical custody during the summer. Father also alleged that mother refused to allow father to see his daughter during certain weekends. He also alleged that mother encouraged the child to call someone else “daddy” and that mother precluded telephone contact between himself and the child.

We scheduled a hearing regarding father’s contempt motion and began that hearing on November 21, 2013. During the hearing, it became obvious that mother intended to rely heavily upon text message and email communications purportedly sent by father. According to mother, one of father’s emails stated: “I don’t want to see are little girl anymore and you can leave alone please drop up the papers so I can sing off and she is all yours.” [sic] Other emails purportedly offered to sign over parental rights in return for a withdrawal by mother of her child support complaint, father objected to the authenticity of these emails. Pursuant to the authority vested in us by Pa.R.Ev. 104, we recessed the contempt hearing and convened a separate factual hearing to determine the admissibility of the emails.

During our Rule 104 hearing, we learned that father communicated with mother via text message from seven different phone numbers. Mother testified that she always knew which number belonged to father because his name would appear whenever his text message was received. In addition, mother stated that she knew she was communicating with father due to the context of the messages themselves and due to the fact that father was a notoriously bad speller. Finally, mother stated that she did not have the technological expertise to edit or change text messages in order to make them appear that they were being sent by father.

Father vehemently denied that he ever offered to give up parental rights in return for child support indulgence. He further stated that he never communicated a desire to give up his one week periods of custody during the summer. Father pointed out that one of the primaiy telephone numbers from which the disputed messages emanated was 717-454-1719. He states that his boss, Dave Hacket, had access to this telephone and could have sent the offensive messages. Father also testified that none of his cell phones were password protected. He hypothesized that others in addition to Mr. Hacket could have taken the telephones and sent the offending text messages. Finally, father argued that mother could have fabricated the text messages. Based upon these factors, father argued that none of the proffered e-communications could be admitted without technical testimony from his internet or cell phone provider.

Following completion of the rule 104 hearing, we took under advisement the authenticity challenged raised by father. Since the hearing concluded, we have conducted extensive legal research regarding admissibility of electronic communications and social media. Our conclusions generated from this research will be described below.

II. LEGAL DISCUSSION

The requirement of authentication is a long-standing principle of evidence. It has been codified at Pa.R.Ev. 901. That rule states:

General Rule Provision — The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Pa.R.Ev. 901(a). Historically, authentication has been established either by direct proof or circumstantial evidence. Our Superior Court has stated:

A document may also be authenticated by circumstantial evidence, a practice which has been uniformly recognized as permissible...Proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing. The courts of this Commonwealth have demonstrated the wide variety of types of circumstantial evidence that will enable a proponent to authenticate a writing. See, e.g., Commonwealth v. Nolly, 290 Pa. 271, 138 A. 836 (1927) (letters authenticated by contents; facts known only to sender and recipient); Commonwealth v. Bassi, 284 Pa. 81, 83, 130 A. 311 (1925) (unsigned letter authenticated by defendant’s nickname written on it, along with contents indicating knowledge of matters familiar to both defendant-sender and witness-recipient); McFarland v. McFarland, 176 Pa. Super, 342, 345, 107 A.2d 615, 616 (1954) (authentication by writer’s style and diction); Commonwealth v. Gold, 123 Pa. Super. 128, 135-36, 186 A. 208, 2011 (1936) (dicta) (circumstantial evidence authenticating telephone call by recipient’s subsequent actions would have sufficed to identify cable gram if offered); Campbell v. Wade, 83 Pa. Super, 415, 418 (1924) (purported author’s subsequent keeping of appointment arranged in letters sufficient to authenticate)...
Clearly then, a writing can be authenticated by circumstantial evidence that may take a number of forms, and tends to show that the writing is what it purports to be. As the above-cited cases indicate, such evidence may, depending upon the facts at issue, include proof of: the timing and method of delivery of the document, information in the contents of the writing that is known by the purported sender and the recipient, events preceding and following the execution or delivery of the writing, other communications by the purported sender prior to or following the execution or delivery of the document, the appearance of the purported sender’s name or letterhead on the document, the handwriting technique, or the style of expression used in the language of the writing.

Commonwealth v. Brooks, 508 A.2d 316, 318-20 (Pa. Super. 1986) (some citations omitted).

While none of the principles articulated above have been altered by our appellate courts, application of the traditional rules governing authenticity has been complicated by recent technological advances. These complications have been highlighted in three recent Pennsylvania appellate court decisions. In chronological order, these decisions are as follows:

(1) Hood-Ohara v. Wills, 873 A.2d 757 (Pa. Super. 2005) — Hood involved a PFA order that was entered after a contested hearing. At trial, the defendant sought to present evidence in the form of emails. These emails were purportedly offered by the plaintiff’s mother and contained references to the plaintiff’s purported drinking problem. The court noted that these emails were hearsay and were inadmissible as such. However, the court also addressed the issue of authenticity. The court stated:
Additionally, as pointed out by the trial judge, there were authentication problems with regard to the emails. Although testimony revealed that the email address grannyprix@aol.com did in fact belong to O’Hara’s mother, Mrs. Hood, it was denied by Mrs. Hood that she was the author of the emails. FN N.T., 06/02/2004, at 54-55. We find that the emails were properly excluded.
FN Mrs. Hood testified that she had problems in the past with her email account and had to, on at least one occasion, change her password. Although the trial judge may have improperly interjected that she had been told it was possible to “fake” an email and have it look as if someone else had sent it, we agree with the trial judge that the emails were not properly authenticated.
(2) In re F.P., 878 A.2d 91 (Pa. Super. 2005) — F.P. was a juvenile delinquency case via which the defendant was charged with aggravated assault. Transcripts of instant messages between the defendant and the victim were admitted in evidence at trial. In the messages, the defendant accused the victim of stealing from him and threatened to beat her up. On appeal, the defendant argued that the messages should not have been admitted because “it was not proved that appellant was the author.” He also contended that email and instant messages are “inherently unreliability” and should not be easily authenticated. The Superior Court disagreed and stated:
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. The requirement of authentication or identification is codified at Pennsylvania Rule of Evidence 901, 42 Pa.C.S.A.: “(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa.R.E. 901(a). Testimony of a witness with personal knowledge that a matter is what it is claimed to be may be sufficient to authenticate or identify the evidence.”
A document may be authenticated by direct proof and/or by circumstantial evidence. [Pjroof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing. The courts of this Commonwealth have demonstrated the wide variety of types of circumstantial evidence that will enable a proponent to authenticate a writing.

Id. at 93-94 (citations omitted).

In F.P., the following evidence was presented:

(a) The messages were listed on the recipient’s screen as having been generated by a user with the name of “lcp4Life30.”
(b) The victim believed that the defendant used this screen name.
(c) The messages involved an alleged stolen DVD. Evidence was presented to corroborate that the defendant believed the victim had stolen this DVD.
(d) Other conversations existed via instant messaging. The victim testified that these other conversations involved issues between himself and the defendant.
(e) In the first instant message communication, the victim asked, “Who is this?” and the appellant replied by giving his first name.
(f) The victim notified his school counselor that he received threatening messages from the defendant. The guidance counselor conducted a mediation between the defendant and the victim. During this mediation, the defendant did not deny sending instant messages under the screen name outlined above.
(g) In the final instant message conversation that occurred just prior to the assault, the defendant referenced the victim’s report of his behavior to school officials and reiterated his threats.

The court stated:

Clearly, there was sufficient evidence that appellant was “lcp4Life30” and sent the threatening messages to [the victim]. He referred to himself by his first name. He repeatedly accused [the victim] of stealing from him, which mirrored testimony that appellant was angry about a stolen DVD. Appellant referenced the fact that [the victim] had approached high school authorities about the instant messages...Repeatedly, appellant called [the victim] vile names and threatened to beat him up. All of this evidence, taken together, was clearly sufficient to authenticate the instant message transcripts as having originated from appellant. See Commonwealth v. Brooks, 508 A.2d 316 (Pa. Super. 1986) at 321 (“[T] he foundation may consist of circumstantial evidence and may include factors relating to the contents of the writing and the events before and after the execution of the writing.”).

Id. at 95.

(3) Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) — As part of a drug investigation, police seized two cell phones, one of which belonged to the defendant. The text messages on the defendant’s phone were transcribed and the Commonwealth offered the contents of these messages in evidence. The trial court admitted this evidence over objections based upon authenticity and hearsay. The defendant appealed based upon the argument that the Commonwealth was not able to establish authenticity of the text messages.

The Superior Court defined authentication within the context of text messaging as follows:

Pennsylvania Rule of Evidence 901 provides that authentication is required prior to admission of evidence. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. Furthermore, electronic writings typically show their source, so they can be authenticated by contents in the same way that a communication by postal mail can be authenticated. Circumstantial evidence may suffice where the circumstances support a finding that the writing is genuine.

Id. at 1002 (citations omitted).

In Koch, police conceded that while the messages were recovered on the defendant’s phone, there was no evidence to establish that the defendant herself authored the messages. Moreover, some of the disputed messages referenced the defendant “in the third person.” The court concluded that these messages were “not written by her.” Furthermore, some text messages had been deleted and others were not complete. The court stated:

[T]he difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.
Text messages are somewhat different in that they are intrinsic to the cell phones in which they are stored. While e-mails and instant messages can be sent and received from any computer or smart phone, text messages are sent from the cellular phone bearing the telephone number identified in the text message and received on a phone associated with the number to which they are transmitted. The identifying information is contained in the text message on the cellular telephone. However, as with e-mail accounts, cellular telephones are not always exclusively used by the person to whom the phone number is assigned.

Id. at 1004-1005.

The trial court ruled that the messages found on the defendant’s phone were sufficiently authenticated to be admissible. The trial court reasoned that doubts as to the identity of the sender went to the weight of evidence and not its admissibility. The Superior Court responded:

We disagree. Authentication is a prerequisite to admissibility. The detective’s description of how he transcribed the text messages, together with his representation that the transcription was an accurate reproduction of the text messages on appellant’s cellular phone, is insufficient for purposes of authentication where the Commonwealth concedes that appellant did not author all of the text messages on her phone. We held in In the Interest of F.P., a Minor, and courts of other jurisdictions concur, that authentication of electronic communications, like documents, requires more than mere confirmation that the number of address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.

Id. at 1005.

Based upon the above, the Superior Court reversed the defendant’s conviction and returned the case to the trial court for a new trial.

As is obvious from the above, there has not been unanimity of result among our appellant courts relative to authenticity of e-communications.

This diversity of results is consistent with evolving law from across the United States. See 34 A.L.R. 6th 253; Annotation — Authentication of Electronically Stored Evidence, Including Text Messages. For example, some cases have admitted text messages even in the face of legitimate authenticity questions. See, e.g., U.S. v. Mebrtatu, 2013 WL5814139 (3rd Cir. 2013) (The court stated: “The content of the text messages indicates that Mebrtatu was the user of the seized phone and hence the sender and receiver of messages found on that phone... the government produced sufficient evidence to satisfy its slight burden of proof for authentication.”) and Dickens v. State, 927 A.2d 32 (M.D.App. 2007) (Text messages allegedly sent by defendant were admitted even though the phone from which messages were sent belonged to the defendant’s son). On the other hand, other cases have refused to authenticate text messages, especially when the only authenticating testimony is from an investigator or the text recipient. See, e.g., U.S. v. Netschi, 511 Fed. Appx.58 (2nd Cir. 2013) (An investigator’s testimony that he discovered text messages in the inbox of the defendant’s telephone was not sufficient to establish authenticity) and State v. Harris, 2011 WL6365165 (Mo.App. 2011) (Testimony of text recipient alone is not enough to authenticate the message).

Even though unanimity of outcome does not exist, we have nevertheless been able to glean some important common themes from all of the cases we reviewed. From those common themes, we have reached the following conclusions of law:

(1) Authentication requires a fact-specific analysis. There is no one-size-fits-all rule that either guarantees or precludes admissibility of e-communication.
(2) Direct evidence from an internet or cell phone provider is not required. While such evidence is indeed relevant, no case has required that a provider’s technician be present to verify when, how and by whom a message was sent.
(3) Circumstantial evidence is critical to determining authenticity. In the case of e-communications, the contents of the actual messages are vital to determine whether they were actually sent and/or seen by the objecting party.
(4) The bar of authenticity is neither high nor difficult to hurdle. As stated in U.S. v. Mebrtatu, supra, the proponents’ burden to prove authenticity is “slight.”

We will employ these legal conclusions when analyzing the authenticity of the text messages that father challenges.

III. ANALYSIS

Mother asks us to admit email communications and text messages sent from two separate telephones. Employing the legal paradigm outlined above, we will separately address each type of e-communication.

1. Text Message From 717-454-1719

Mother seeks to introduce a series of text messages contained in exhibits 4 and 5. The text messages contained in these exhibits are the ones of primary importance to the above-referenced dispute because they contain father’s purported statements that he would give up custody rights in return for an elimination of child support. With respect to the text messages sent from 717-454-1719, the parties presented significant evidence.

Father acknowledged that some of the text messages from 717-454-1719 were in fact his. However, he denied authorship of the more damaging text messages found in exhibits 4 and 5. He indicated that his phone was not password protected. He also indicated that both his boss and his wife had access to his phone and could have sent the troubling text messages. Alternatively, father argues that mother had the expertise to fabricate these text messages and that she did so in an effort to deflect responsibility for her own contemptuous conduct.

In response, mother presented a plethora of circumstantial evidence to establish authenticity. This circumstantial evidence included the following:

(1) Father admitted that 717-454-1719 was his telephone number.
(2) Father admitted that with only a few exceptions, he generally retained possession of his cell phone.
(3) Father purchased the phone for which 717-454-1719 was the number.
(4) Father paid for the cellular service for telephone number 717-454-1719.
(5) Between April and October of 2013, mother frequently called 717-454-1719 and father answered the telephone.

In addition to the above evidence, the actual contents of exhibits 4 and 5 were presented for our consideration. From the text messages themselves, we gleaned the following:

(1) Mother described father as a notoriously bad speller. Many of father’s text messages did in fact contain misspelled words.
(2) A text message on April 27 referred to the parties’ daughter by her correct name.
(3) A text message of April 27 indicated that father was traveling to Pittsburgh. In his testimony, father acknowledged that he moved to Pittsburgh for a time.
(4) A text message of June 26 again mentions the parties’ daughter by her correct name.
(5) Extensive text messages on June 26 and June 27 refer to a child support dispute that was pending between the parties.
(6) Exhibit 3 contained an email sent to mother that involved the daughter’s eye doctor appointment on May 14. This email begins: “Jenna, Hello this is Paul...” A text message sent from 717-454-1719 on May 14 references the parties’ daughter by name and discusses “her next appointment for her eyes.”

From the above, we are satisfied that enough information has beenpresented to circumstantially establish authenticity of exhibits 4 and 5. Does this preclude the possibility that some of the text messages were fabricated? No it does not. Does this ruling prevent father from substantively arguing that he was not the author the disputed text? Once again, it does not. All we say today is that the relatively low bar of authenticity has been hurdled by mother with respect to text messages sent from 717-454-1719. Therefore, exhibits 4 and 5 will be admitted in evidence. Decisions regarding the weight and believability of the information contained therein cannot and will not be made until the underlying contempt hearing is concluded.

2. Text Messages from 717-644-7170

Exhibit 6 contains text messages sent from a different telephone number than the one referenced in the preceding section. These text messages were sent between November 5 and November 7. Almost all of these text messages are sexually explicit. None of them refer by name to the parties’ daughter.

The type of circumstantial evidence presented by mother with respect to 717-454-1719 was glaringly absent as it relates to 717-644-7170. In fact, the name affixed to the latter telephone number in mother’s cellular phone is denoted: “Paul?” This connotes that there was at least some question in mother’s mind as to whether 717-644-7170 could be linked with father. Because none of the sexually explicit text messages include information that could be linked uniquely to father, the contents of the text messages found on exhibit 6 do not assist us in determining authenticity.

Even though the standard for determining authenticity is relatively liberal, we must conclude that insufficient evidence was presented to authenticate the text messages found in exhibit 6. Accordingly, father’s objection to exhibit 6 will be sustained.

3. Email Communications

A series of emails were presented as exhibit 3. These emails were between Jenna Light at “lightyl618@gmail. com” and Andrea Cole at “Christian_girl61704@yahoo. com.” Most of these emails deal with doctors ’ appointments and counseling sessions for the parties’ daughter.

The key evidence linking father to these emails is one email entry dated March 31, 2013. This email was sent to mother from the Andrea Cole web address and stated:

Jenna,
Hello this is Paul however the counseling appointment doesnt fit my schedule please reschedule for a time after 3:30 p.m. and my wife is to be present if that is a issue we will take further action thanks
Paul

In addition, the Andrea Cole emails consistently referred to communications referencing the parties’ daughter by her correct name. Mother also testified that she and father had verbal telephone conversations regarding many of the appointments referenced in those emails. More important, father did not challenge that he utilized the Andrea Cole email address to communicate with mother.

We believe that sufficient evidence was presented to authenticate the emails. Father acknowledged that he used the Andrea Cole email address. All of the emails refer to the parties’ daughter by name. In one email, father identifies himself. Moreover, the emails refer to appointments that would have been of importance only to mother and father. Accordingly, we will declare exhibit 3 to be authentic and will admit into evidence.

IV. CONCLUSION

Even though the law of evidence as it relates to e-communications is still evolving, we are confident that Pennsylvania’s use of circumstantial evidence to establish authenticity will persevere. To be sure, the form of the circumstantial evidence has changed and will continue to change with the advent of new technology. However, we are confident that the legal precept that authenticity can be based upon circumstantial evidence will remain ingrained within Pennsylvania common law.

In this case, abundant circumstantial evidence exists to establish authenticity of the text mails received by mother from telephone number 717-454-1719. We also conclude that sufficient circumstantial evidence exists to justify admission of the emails contained in exhibit 3. However, insufficient circumstantial evidence exists to authenticate those text messages from 717-644-7170 found in exhibit 6. Therefore, exhibits 3, 4 and 5 will be admitted into evidence and exhibit 6 will hot.

None of our rulings today will prevent either party from presenting additional evidence to challenge or corroborate the substantive veracity of information contained in the admissible text messages and emails. Still, exhibits 3,4 and 5 will be considered by us along with all other information and testimony that the parties choose to present. An order to effectuate the above will be entered this date.

ORDER OF COURT

And now, to wit, this 10th day of December, 2013, after a hearing conducted pursuant to Pa. R.Ev. 104 and in accordance with the attached opinion, the evidentiary rulings of this court are as follows:

1. The defendant’s objection to exhibit 3 is overruled. Said exhibit is admitted into evidence.

2. The defendant’s objection to exhibit 4 is overruled. Said exhibit is admitted into evidence.

3. The defendant’s objection to exhibit 5 is overruled. Said exhibit is admitted into evidence.

4. The defendant’s objection to exhibit 6 is sustained.

The conclusion of the parties’ underlying contempt hearing will take place on the 7th day of January, 2014 commencing at 11:00 a.m. in Courtroom No.3.

      . Pa.R.Ev. 104 authorizes a trial court to conduct a separate factual hearing to determine admissibility of challenged evidence. The Rule further provides: “In so deciding, the Court is not bound by evidence rules, except those on privilege.”

      . According to father, mother bragged about having the expertise to create fictitious text messages. We do not find father’s testimony in this regard to be credible.

      . Koch was appealed to the Pennsylvania Supreme Court. The Supreme Court granted alocatur. A decision should be issued by the Supreme Court in the relatively near future.

      . From a procedural standpoint, the above conclusions reinforce and reaffirm our decision to conduct a hearing under Pa.R.Ev. 104. The beauty of a Rule 104 hearing is that we can consider otherwise inadmissible evidence in making our preliminary authenticity decision. In other words, we are not limited in a Rule 104 proceeding to information that would be admissible in the underlying trial. This is of critical importance with respect to text messaging because the contents of the disputed text and otherwise irrelevant texts can be reviewed to determine whether the texts themselves were authentic.