author: NEALON, J.,

text:
    Harris v. Diocese of Scranton

      C.P. of Lackawanna County,
    no. 05 CV 152.
    April 19, 2006

      Jay N. Abramowitch, Kenneth Millman and Richard M. Serbin, for plaintiff.

      James E. O’Brien Jr., for defendants.
   NEALON, J.,

The Diocesan defendants have filed a motion for judgment on the pleadings in this civil action brought by a 57-year-old plaintiff who alleges that he was sexually abused in 1961 by a priest who died in 1974. The Diocesan defendants maintain that this suit is barred by the two-year statute of limitations governing personal injury claims, whereas the plaintiff contends that the Diocesan defendants are estopped from asserting that defense by virtue of the fraudulent concealment doctrine. Since the plaintiff has not identified an affirmative independent act of concealment by the Diocesan defendants upon which the plaintiff justifiably relied in forgoing pursuit of potential claims for more than 40 years, his claims are barred by the applicable limitations period. Consequently, the Diocesan defendant’s motion for judgment on the pleadings will be granted.

I. FACTUAL BACKGROUND

Plaintiff Thomas J. Harris of New York City commenced this action on January 13,2005, asserting causes of action against the Diocese of Scranton, Bishop James C. Timlin and Bishop Joseph F. Martino (Diocesan defendants) for common-law negligence, breach of fiduciary duty, “failure to provide a safe and secure environment,” negligent supervision, negligent misrepresentation, “failure to protect against foreseeable risks,” “duty to warn of unreasonable risk of harm,” “use of improper persons as agents,” “use of incompetent persons,” fraudulent concealment, “intentional failure to supervise,” and “intentional failure to warn.” (Dkt. entry no. 3, ¶¶104-188.) Harris alleges that when he was a 12-year-old parishioner of St. Therese’s Church in Shavertown, Luzerne County, he was sexually abused by Father Francis Brennan. {Id., ¶¶1, 7, 26.) The sexual assaults reportedly occurred in 1961 at a drive-in theatre, in “Father Brennan’s rectory bedroom where [Harris] spent the night,” and in New York City hotels where they stayed together. {Id., ¶¶29-35.)

Harris avers that sometime during the 1961 school year, he reported the abuse to Father Michael Rafferty during confession, and Father Rafferty thereafter met with Harris “for counseling in his office at Gate of Heaven parochial school where [Harris] was a student.” {Id., ¶¶45-46.) In early 1962, “Father Rafferty went to [Harris’] residence to meet with [Harris’] parents, at which time he detailed to them the sexual abuse [Harris] endured at the hands of Father Brennan and expressed concerns for [Harris’] safety and well being.” {Id. ¶47.) After Father Rafferty declined Mrs. Harris’ request that he report the incidents to Bishop Jerome D. Hannan, Mrs. Harris “told Father Rafferty that she would report it to Bishop Hannan herself.” (Id., ¶¶48-49.)

Harris contends that his mother authored “a letter to Bishop Hannan reporting Father Brennan’s sexual abuse” and that his “father hand-delivered this letter to Bishop Hannan.” (Id., ¶¶50-51.) Bishop Hannan allegedly read the letter in the presence of Harris’ father, “discussed its contents with him and provided assurances that Father Brennan would be ‘taken care of...’ in an appropriate way.” (Id., ¶52.) According to Harris, he and his parents were thereby led to believe that “Father Brennan would be punished for his abuse of [Harris] and [that] Father Brennan would be reported to the proper law enforcement authorities.” (Id., ¶53.)

Harris maintains that “[d] espite the representations of Bishop Hannan, Father Brennan did not receive any punishment from Bishop Hannan or any other representative of the Diocese for his abuse of [Harris].” (Id., ¶54.) Instead, “Father Brennan remained active as a priest assigned to St. Therese’s until he was assigned to Marian Convent in Marywood.” (Id, ¶36.) Harris asserts that, “at the time of Father Brennan’s transfer, the Diocesan defendants purposely misrepresented the reason for his transfer, and publicly set forth in the parish bulletin information regarding Father Brennan’s leaving St. Therese’s calculated to conceal from all parishioners, including [Harris] and his parents, as well as the public in general, the true reason for his removal from the parish.” (Id., ¶70.) Father Brennan “remained at Marian Convent until approximately 1970, at which time he was assigned to the parish of St. Maria Goretti,” where he served as a priest “until he died in 1974.” (Id., ¶¶37-38.) Harris alleges that the “Diocesan defendants engaged in affirmative acts of concealment” that misled him “into believing that he had not been harmed by the Diocese or its leaders, thereby relaxing his vigilance as to pursuing these claims.” (Id., ¶¶55-56.)

With regard to the timeliness of Harris’ claims, Harris argues that “[t]he Diocesan defendants have systematically concealed the danger” presented by Father Brennan and “offending clerics” by allowing them unrestricted access to minors, offering misleading explanations for their transfer, removal or retirement, and privately assuring that the problem would be “taken care of’ by the Diocese. (Id., ¶58.) Harris posits that upon discovering sexual misconduct by priests, the “Diocesan defendants systematically concealed said knowledge, failed to report the misconduct to authorities and prevailed upon others not to report said misconduct to law enforcement officials----” (Id., ¶62.) As a result, Harris submits “that the Diocesan defendants actively misled [Harris] into incorrectly believing that he had not been harmed by Father Brennan despite the fact that they knew or should have known otherwise.” (Id., ¶77.)

On February 27,2004, the National Review Board for the Protection of Children and Young People issued “A Report on the Crisis in the Catholic Church in the United States,” which concluded that the Catholic Church leadership in the United States failed to properly address, investigate and prevent “the problem of pedophilia among its priests . . . (Id., ¶86.) Harris contends that “[o]n or about February 28,2004, the Diocese of Scranton publicly released information for the first time revealing that allegations of sexual abuse of children had been reported against 25 priests of the Diocese . . . during the period from 1950 to 2002. (Id., ¶87.) Harris does not aver that Father Brennan was one of the 25 priests referenced in the report, nor does he allege how many, or if any, of those 25 reports of abuse were found to be valid. (See Transcript of Proceedings (T.P.) on 2/28/06, pp. 23-24, 35-36.) Nevertheless, Harris maintains that “[p]rior to the aforesaid disclosures, [Harris] did not know, nor did he have any reason to know, that he had a cause of action against Diocesan defendants for causing tortious injury to him____” (Id., ¶88.) Harris further asserts that “[t]he injuries that [Harris] sustained as a result of the actions of Diocesan defendants could not have been discovered by him earlier, despite the most diligent investigation, due to Diocesan defendants’ fraudulent concealment of their active involvement in protecting parish priests known to them to be child molesters, including Father Brennan.” (Id., ¶90.)

In their answer and new matter, the Diocesan defendants assert that this suit “is barred by the applicable statute of limitations” and aver:

“[Harris] has acknowledged that he was aware of the alleged acts allegedly perpetrated by Father Brennan on him; was in therapy for the condition caused by the alleged acts; and did nothing until over 30 years after the death of Father Brennan. The allegations in [Flams’] complaint list acts that were committed approximately 35-40 years ago and fail in any way under any Pennsylvania statutory or case law to be considered. No tolling of the statute of limitations in this case is recognized under Pennsylvania law.” (Dkt. entry no. 11, p. 21.)

After Harris filed a reply to new matter asserting the discoveiy rule and the fraudulent concealment doctrine (id., no. 9, ¶2), the Diocesan defendants filed a motion for judgment on the pleadings on November 9, 2005. (Dkt. entry no. 11.) The Diocesan defendants argue that Harris’ claims are barred by the two-year statute of limitations period set forth in 42 Pa.C.S. §5524 and Pennsylvania case law construing the fraudulent concealment doctrine. (Dkt. entry no. 12.) Since Bishop Hannan, Father Brennan and Father Rafferty are all deceased, the Diocesan defendants submit that Harris’ 44-year delay in filing this suit has severely prejudiced the Diocesan defendants’ ability to defend this case. (T.P. 2/28/06, pp. 12-13.)

Although Harris originally asserted in his pleadings that the statute of limitations was tolled by the discovery rule, he later withdrew that contention at the time of oral argument. (T.P. 2/28/06, pp. 18-19.) While acknowledging that the Superior Court has previously rejected tolling arguments predicated upon systemic concealment by Diocesan defendants in clerical pedophilia cases, Harris maintains that Bishop Hannan’s alleged statement that Father Brennan would be “taken care of’ distinguishes the instant case from that decisional precedent. (Id, pp. 21-22.) Harris argues that the fraudulent concealment doctrine estops the Diocesan defendants from raising the statute of limitations until such time as the Diocesan defendants publicly acknowledge: (1) that Father Brennan sexually abused Harris; and (2) that Bishop Hannan and the Diocese of Scranton did not “take care of’ Father Brennan as allegedly promised in 1962. (Id, pp. 29-31, 33.) Since the Diocesan defendants have not publicly admitted such liability in this matter, Harris asserts that the two-year statute of limitations has not even begun to run in this case. (Id, pp. 31-33.)

II. DISCUSSION

(A) Standard of Review

A motion for judgment on the pleadings is similar to a demurrer, Consolidation Coal Company v. White, 875 A.2d 318, 325 (Pa. Super. 2005), and may be granted “only where the pleadings demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” In re Weider, 895 A.2d 11, 14 (Pa. Super. 2006). In making that determination, the court must accept as true all well-pleaded allegations in the complaint and consider against the non-moving party only those facts that [s]he specifically admits. Odyssey Contracting Corporation, supra. However, “[n] either party can be deemed to have admitted either conclusions of law or unjustified inferences.” Wilcha v. Nationwide Mutual Fire Insurance Company, 887 A.2d 1254, 1258 (Pa. Super. 2005); Consolidation Coal Company, 875 A.2d at 326. If it is clear that the statute of limitations has expired in a clerical pedophilia case, a motion for judgment on the pleadings may be granted on that basis. See e.g., Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269 (Pa. Super. 2005); Baselice v. Franciscan Friars Assumption B.V.M. Province Inc., 879 A.2d 270 (Pa. Super. 2005), appeal denied, 586 Pa. 733, 891 A.2d 729 (2005); Meehan v. Archdiocese of Philadelphia, 870 A.2d 912 (Pa. Super. 2005), appeal denied, 584 Pa. 719, 885 A.2d 985 (2005), reargument denied (Nov. 22, 2005).

(B) Statute of Limitations

The statute of limitations requires aggrieved individuals to bring their claims within a certain time of the injury, so that the passage of time does not result in the loss or impairment of evidence and damage the defendant’s ability to adequately defend against the claims made. Dalrymple v. Brown, 549 Pa. 217, 223, 701 A.2d 164, 167 (1997); Lesoon v. Metropolitan Life Insurance Co., 898 A.2d 620, 626 (Pa. Super. 2006). It is undisputed that Harris’ tort claims for intentional, fraudulent and negligent conduct are subject to the two-year statute of limitations set forth in 42 Pa.C.S. §5524. See Aquilino, 884 A.2d at 1275; Baselice, 879 A.2d at 275; Meehan, 870 A.2d at 919. In Pennsylvania, “the relevant statute of limitations begins to run as soon as the right to institute and maintain a suit arises, which generally is when the injury was inflicted.” Drelles v. Manufacturers Life Insurance Company, 881 A.2d 822, 831 (Pa. Super. 2005) (citing Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (2005)). Mistake, misunderstanding or lack of knowledge by the plaintiff does not toll the running of the statute of limitations. Dalrymple, supra; Aquilino, 884 A.2d at 1275; Meehan, 870 A.2d at 919. “Once a cause of action has accrued and the prescribed statutory period has run, an injured party is barred from bringing his cause of action.” Fine, supra; Drelles, supra.

The Diocesan defendants maintain that since Harris’ alleged injuries were sustained in 1961 and Bishop Han-nan’s statement was purportedly made in 1962, the two-year statute of limitations expired more than 40 years prior to the filing of this action in 2005. The Diocesan defendants note that since the only witnesses who could testify on their behalf died more than 30 years ago, Harris’ four decade delay in filing suit has severely prejudiced their ability to defend this case. Harris counters that he is not seeking to recover damages from Father Brennan or his estate, and instead is asserting independent causes of action against the Diocesan defendants, which are timely under the fraudulent concealment exception to the statute of limitations.

(C) Fraudulent Concealment Doctrine

The applicable limitations period may be tolled or extended by virtue of the discovery rule or the fraudulent concealment doctrine. The discovery rule is distinct from the fraudulent concealment doctrine and operates to toll the statute of limitations during the period that the plaintiff’s injury or its cause was neither known nor reasonably knowable to the plaintiff. Gustine Uniontown Associates Ltd. v. Anthony Crane Rental Inc., 892 A.2d 830, 835 n.2 (Pa. Super. 2006). The separate doctrine of fraudulent concealment estops the defendant from invoking the statute of limitations if, through fraud or concealment, the defendant caused the plaintiff to relax his/ her vigilance or deviate from his/her right of inquiry into the facts. Fine, 582 Pa. at 270-71, 870 A.2d at 860; Drelles, 881 A.2d at 832 n.6. Harris no longer contends that the discovery rule applies in this matter; rather, he asserts that the fraudulent concealment doctrine precludes the Diocesan defendants from invoking the statute of limitations. (T.P. 2/28/06, pp. 18-19.)

The fraudulent concealment doctrine does not demand fraud in the strictest sense encompassing an actual intent to deceive, but instead requires fraud in the broadest sense, which includes an unintentional deception. Fine, 582 Pa. at 271, 870 A.2d at 860; Meehan, 870 A.2d at 921. However, mere mistake, misunderstanding or lack of knowledge does not suffice and will not operate to estop the defendant from asserting the statute of limitations. Aquilino, 884 A.2d at 1278; Baselice, 879 A.2d at 278. “[I]n order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiff justifiably relied.” Aquilino, supra; Baselice, supra; Meehan, supra; Kingston Coal Company v. Felton Mining Company Inc., 456 Pa. Super. 270, 284, 690 A.2d 284, 291 (1997). The party asserting estoppel under the fraudulent concealment doctrine has the burden of proving such fraud or concealment by “clear, precise and convincing” evidence. Fine, supra; Aquilino, supra; Baselice, supra; Meehan, supra.

Moreover, the standard of reasonable diligence, which is applied to the running of the statute of limitations when tolled under the discovery rule, also applies when a party is seeking to extend the limitations period under the fraudulent concealment exception. Fine, 582 Pa. at 271, 870 A.2d at 861; Drelles, 881 A.2d at 832 n.6. Hence,“a statute of limitations that is tolled by virtue of fraudulent concealment begins to run when the injured party knows or reasonably should know of his injury and its cause.” Fine, 582 Pa. at 272, 870 A.2d at 861. Stated otherwise, “[a] person asserting a claim ‘is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.’ ” Baselice, 879 A.2d at 275; Meehan, 870 A.2d at 919.

The Superior Court holdings in Meehan and its progeny provide guidance as to the type and degree of evidence required for a plaintiff in a clerical pedophilia case to extend the statute of limitations under the fraudulent concealment doctrine. Not unlike Harris, the plaintiffs in Meehan advanced causes of action for “negligence, negligence per se and failure to warn, negligent supervision and failure to supervise, and fraudulent concealment and failure to provide a secure environment,” and charged that the Archdiocese of Philadelphia “engaged in fraudulent conduct with regard to offending priests and nuns by providing known child abusers with unrestricted access to minors, providing child abusers with unrestricted use of church properties, announcing false reasons for re-assignments of child abusers, promoting child abusers within the church hierarchy, falsely listing child abusers ’ status in official directories, transferring child abusers without notifying parishioners of their history, and allowing child abusers to honorably retire.” Meehan, 870 A.2d at 918. The plaintiffs in Meehan similarly “claim[ed] that they did not discover this pattern of conduct until 2002 when the Archdiocese of Philadelphia acknowledged allegations of sexual abuse against some of its priests, and the president of the United States Conference of Catholic Bishops published statements regarding the Catholic Church’s response to the victims of clergy misconduct.” Id. The Meehan “plaintiffs contended] that the general and systemic conduct of the Archdiocese of Philadelphia constitute^] an affirmative act under the doctrine of fraudulent concealment, which therefore require[d] a jury determination and the tolling of the statute of limitations.” Id. at 921-22.

In addressing the plaintiff’s duty to exercise reasonable diligence in attempting to discover the plaintiff’s injury and its cause, the Meehan court reasoned that “ [t]he child abuse is the injury in this matter, not the alleged cover-up by the Archdiocese (otherwise, any member of the Catholic Church could conceivably bring suit against the Archdiocese, absent any abuse, alleging injury from the Archdiocese’s general conduct).” Id. at 920. Finding that the plaintiffs had failed to satisfy the reasonable diligence standard, the Superior Court concluded:

“Here, the plaintiffs knew they were injured, knew the identity of the primary cause of their injury, knew their abusers were employees of the Archdiocese of Philadelphia, and knew the abuses took place on church property, yet the plaintiffs conducted no investigation into any cause of action against their abusers or into any other aspect of the matter. It is undisputed that the plaintiffs were aware that the Archdiocese employed their abusers and that the abuses all occurred on church property. These facts alone were sufficient to put the plaintiffs on notice that there was a possibility that the Archdiocese had been negligent. Neither the plaintiffs’ lack of knowledge of the Archdiocese’s conduct, nor the plaintiffs’ reluctance, as members of the Catholic Church, to investigate the possible negligence of the Archdiocese of Philadelphia after having been abused by one of its priests or nuns, tolls the statute of limitations when the plaintiffs had the means of discovery but neglected to use them.” Id. at 921.

With regard to the requirement of an affirmative independent act of concealment, the Meehan court noted that the Archdiocese “defendants never concealed from any of the plaintiffs the fact of the injury itself[, n]or d[id] the plaintiffs allege that they were lied to by the Archdiocese with regard to the identity of their abusers or their abusers’ place within the Archdiocese, which if relied upon, would have caused them to suspend pursuit of their claims.” Id. at 922. By way of obiter dictum, the Superior Court provided an example of the type of conduct which would be tantamount to fraudulent concealment and remarked:

“Had the plaintiffs (sometime after the abuse but before the running of the statute of limitations) questioned the Archdiocese about their abusers (for example, questions about their abusers’ current location or history within the church), and had the Archdiocese affirmatively and independently acted in response to the plaintiffs’ inquiries so as to mislead the plaintiff into forgoing their suits, the fraudulent concealment exception would later allow the plaintiffs’ suits.” Id.

The plaintiffs in Meehan argued that they had averred the requisite concealment since the “alleged abuser, Reverend Gallagher, disguised [his] illegal and immoral acts as sanctioned by God” and thereby caused the plaintiffs to relax their vigilance and deviate from their right of inquiry. Id. at 923. Meehan rejected that contention and held that “a defendant’s general assurances that a situation or condition being experienced by the plaintiff is normal do not rise to the level of fraudulent concealment where the plaintiff’s own common sense should inform him that he has been injured.” Id. (quoting E.J.M. v. Archdiocese of Philadelphia, 424 Pa. Super. 449, 462, 622 A.2d 1388, 1395 (1993)). In so holding, the Meehan court stated that “to postpone the accrual of causes of action until the plaintiffs completed their investigation of all potential liability theories would destroy the effectiveness of the limitations period.” Meehan, 870 A.2d at 922-23.

Less than four months later, a separate panel of the Superior Court reached an identical conclusion in Baselice. Baselice asserted the same causes of action and tolling arguments that are being advanced by Harris in the case sub judice. See Baselice, 879 A.2d at 274-75. Confirming again that the operative “injury” is “the underlying child abuse” in clerical pedophilia cases, id. at 277, the Baselice court noted that Baselice had the means of discovering his potential claims against the Archdiocese of Philadelphia and held:

“Here, appellant knew he was injured, knew the identity of the primary cause of his injury, and knew his abuser was an employee of the Archdiocese of Philadelphia, yet appellant conducted no investigation into any cause of action against Father Newman or into any other aspect of the matter. These facts alone were sufficient to put appellant on notice that there was a possibility that the Archdiocese had been negligent.” Id. at 278.

Since Baselice did not allege that the Archdiocese had lied about the identity or location of his purported abuser, the Superior Court found as a matter of law that the fraudulent concealment exception did not extend the limitations period. Id. at 279. Quoting from Meehan, the Baselice court reasoned that “for a cause of action to accrue, the entire theory of the case need not be immediately apparent... as soon as appellant became aware of the alleged abuse, he should also have been aware that appellees, as the priest’s employers were potentially liable for that abuse.” Id. (quoting Meehan, 870 A.2d at 922).

More recently, in Aquilino, supra, an alleged victim of sexual abuse by a priest sought to invoke the fraudulent concealment exception based upon his abuser’s affirmative conduct in “telling Aquilino that he would not go to heaven if he told anyone about the abuse, and saying such things as it was ‘God’s secret’ and ‘this is the way to heaven.’ ” Aquilino, 884 A.2d at 1274. Aquilino also alleged active complicity by the Archdiocese of Philadelphia and “contended that the Archdiocese and the parish deliberately concealed sexual abuse by priests including Father D’Onofrio, whom they later transferred from parish to parish and, eventually, to Peru.” Id. Although Aquilino made a specific assertion regarding the Archdiocese’s handling of the offending priest, the Superior Court “reject[ed] Aquilino’s fraudulent concealment argument on the basis of Meehan and Baselice. Id. at 1279. The Aquilino court concluded that “[d] espite this more specific assertion with regard to the Archdiocese’s handling of Father D’Onofrio,” the fraudulent concealment exception was nonetheless inapplicable since Aquilino did not “assert that he questioned the Archdiocese/parish about ‘his abuser’s current location or history with the church’ ” and “that the Archdiocese/parish responded by misleading him into forgoing his suit against them.” Id.

Although the jury must generally determine what remarks were actually made by a defendant to a plaintiff, it is for the court to decide whether those established remarks constitute fraudulent concealment. See Fine, 582 Pa. at 273, 870 A.2d at 862; Drelles, supra. Cf. E.J.M., supra (priest’s assurances that acts of sexual abuse upon minor were necessary for minor’s “spiritual growth and preparation for ordination” and “would rid [the minor] of pride unpleasing to God” were “insufficient to constitute fraudulent concealment.”). In the case at hand, the Diocesan defendants have filed a motion for judgment on the pleadings, and as a result, all well-pleaded allegations contained in Harris’ complaint must be accepted as true for purposes of deciding that motion. Therefore, it must be determined whether Bishop Hannan’s alleged statement that Fr. Brennan would be “taken care of’ is sufficient under Meehan, Baseline and Aquilino to estop the Diocesan defendants from invoking the statute of limitations.

(D) Affirmative Independent Act of Concealment and Plaintiff’s Justifiable Reliance

Harris contends that Bishop Hannan’s alleged comment that Father Brennan would be “taken care of’ establishes an affirmative independent act of concealment upon which he justifiably relied. Harris ostensibly interpreted that remark as meaning that Father Brennan would be reported to law enforcement authorities and punished for his abuse. (Dkt. entry no. 3, ¶¶52-53.) Harris submits that this purported statement by Bishop Hannan led Harris to believe that he had not been injured by the Diocesan defendants and caused him to forgo inquiry into possible tortious conduct by the Diocese. (Id, ¶¶55-56, 77.) Although Harris originally averred that the national report dated February 27, 2004 and the Scranton Diocese’s press release of February 28, 2004 triggered his inquiry and prompted this suit, but see Meehan, supra, (rejecting comparable argument), he posited at the time of oral argument that the two-year statute of limitations will not begin to run until the Diocesan defendants admit that Father Brennan sexually abused Harris and that Bishop Hannan and the Diocese of Scranton did not “take care of’ Father Brennan as reportedly promised. (T.P. 2/28/06, pp. 29-33.)

Under the fraudulent concealment standard articulated in Meehan, Baselice and Aquilino, it is clear that Harris’ allegations are insufficient to toll the statute of limitations for more than 40 years. Like the plaintiffs in those cases, Harris knew that he allegedly had been injured on church property and that Father Brennan was the person who committed the abuse. The Diocesan defendants did not conceal Father Brennan’s alleged abuse from Harris or his parents and, to the contrary, Father Rafferty reported that information to Harris’ parents. There is no allegation that Harris or his parents inquired about the putative abuser’s identity, current location or history within the Church or that the Diocesan defendants furnished false information to them in response to those particular inquiries. Absent such an affirmative act of concealment regarding the commission of the abuse or the identity, location or history of Father Brennan, Harris cannot satisfy the fraudulent concealment criteria. See Aquilino, 884 A.2d at 1279; Meehan, 870 A.2d at 922.

Even assuming arguendo that Harris could establish an affirmative independent act of concealment by clear, precise and convincing evidence, Harris was not justified in relying upon any such concealment for four decades. It is beyond dispute that Harris was aware of his alleged injury, i.e., the sexual abuse, in 1961. In accordance with the reasonable diligence standard that governs the fraudulent concealment exception, see Fine, 582 Pa. at 272, 870 A.2d at 861, Harris should have known of the Diocese’s possible liability at least 30 years prior to the filing of this suit. Harris contends that Bishop Hannan’s representation that Father Brennan would be “taken care of’ led him to believe that Father Brennan would be reported to law enforcement and punished for his abuse. However, by Harris’ own admission, Father Brennan continued to remain active as a priest at St. Therese’s, the Marian Convent and St. Maria Goretti throughout the 1960s and early 1970s. Hence, it was patently obvious to Harris and his parents that Father Brennan had not been prosecuted, punished or reported and that Bishop Hannan had not “taken care of’ Father Brennan inasmuch as he continued to serve as a priest. As with the plaintiffs in Meehan and Baselice, “[tjhese facts alone were sufficient to put [Harris] on notice that there was a possibility that the [Diocesan defendants] had been negligent.” Baselice, 879 A.2d at 278; Meehan, 870 A.2d at 921. Furthermore, common sense dictates that when Father Brennan died in 1974 without having been prosecuted or punished, Harris was no longer justified in relying upon Bishop Hannan’s alleged assurance that Father Brennan would be “taken care of’ by the Diocese. No facts have been alleged that would have caused a reasonably diligent person to refrain from exploring or pursuing possible claims against the Diocese for over 40 years.

Statutes of limitation “are designed to effectuate three purposes: (1) preservation of evidence; (2) the right of potential defendants to repose; and (3) administrative efficiency and convenience.” Aquilino, 884 A.2d at 1275; Baselice, 879 A.2d at 276; Meehan, 870 A.2d at 919. The effectiveness of the limitations period would be destroyed if the accrual of causes of action were postponed for decades until the plaintiff had subjectively completed his investigation of all potential theories of liability. See Aquilino, supra at 1278; Baselice, supra at 279; Meehan, supra at 922-23. Harris has simply not alleged facts which are sufficient to constitute an affirmative independent act of concealment upon which Harris justifiably relied until the 21st Century. Based upon the fraudulent concealment test enunciated in Meehan, Baselice and Aquilino, it is clear and free from doubt that Harris’ claims against the Diocesan defendants are barred by the statute of limitations. Accordingly, the Diocesan defendants’ motion for judgment on the pleadings will be granted.

ORDER

And now, April 19, 2006, upon consideration of the motion for judgment on the pleadings filed by the defendants, the Diocese of Scranton, Bishop James C. Timlin and Bishop Joseph F. Martino, the memoranda of law submitted by the parties and the oral argument of counsel on February 28,2006, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendants’ motion for judgment on the pleadings is granted; and

(2) The Clerk of Judicial Records is directed to enter judgment in favor of the defendants, the Diocese of Scranton, Bishop James C. Timlin and Bishop Joseph F. Martino, and against the plaintiff, Thomas J. Harris.

      . When considering the merits of a motion for judgment on the pleadings, the court must accept as true all well pleaded averments of fact contained in the non-moving party’s pleadings and any documents attached thereto. Maryland Casualty Company v. Odyssey Contracting Corporation, 894 A.2d 750, 753 (Pa. Super. 2006).

      . Harris’ complaint identifies Bishop Timlin, Bishop Martino and the Diocese of Scranton as “the Diocesan defendants.” (Id., ¶¶2-4.) As the complaint indicates, Bishop Timlin served as the Bishop for the Diocese of Scranton from 1984 until his retirement in 2003, at which Diocese of Scranton from 1984 until his retirement in 2003, at which time he was replaced by Bishop Martino. (Id, ¶¶3-4.) Thus, although Bishop Timlin and Bishop Martino are named as Diocesan defendants in this lawsuit, neither was involved with the transfer of Father Brennan to the Marian Convent in the 1960s or the drafting of the parish bulletin at issue.

      . The pleadings do not indicate whether Harris’ parents, who were allegedly involved with the above-referenced discussions in 1961 and 1962, are still living and available to testify.

      . The Minor Tolling Statute was amended in 2002 to extend the statute of limitations applicable to certain childhood sexual abuse claims (sexual intercourse, deviate sexual intercourse or indecent contact) which result from forcible compulsion or the threat of forcible compulsion. Section 5533(b)(2)(i) of the Judicial Code became effective on August 27, 2002 and provides that “[i]f an individual entitled to bring a civil action arising from childhood sexual abuse is under 18 years of age at the time the cause of action accrues, the individual shall have a period of 12 years after attaining 18 years of age in which to commence an action for damages regardless of whether the individual files a criminal complaint regarding the childhood sexual abuse.” 42 Pa.C.S. §5533(b)(2)(i). However, section 3 of the Act of June 28, 2002, P.L. 518, no. 86 states that the 2002 amendment “shall not be applied to revive an action which has been barred by an existing statute of limitations on the effective date of this Act.” Since Harris reached 30 years of age in 1979 and section 5533(b)(2) cannot be applied retroactively to revive his claims, see Baselice, 879 A.2d at 274 n.1, the 2002 amendment does not afford Harris relief from the Diocesan defendants’ statute of limitations defense.

      . The attorneys who represent Harris in this litigation also represented the plaintiffs in Baselice and Meehan. See Baselice, 879 A.2d at 273; Meehan, 870 A.2d at 916.

      . The gravamen of Harris’ argument is that Bishop Hannan’s alleged statement caused Harris to relax his vigilance and refrain from investigating potential claims against the Diocese. However, in his “Brief contra-motion of defendant,” Harris appears to argue the converse by asserting that the Diocese’s failure to report Father Brennan, rather than the promise to report him, caused Harris to forego any claims. Specifically, Harris asserts in his brief that, “because the Diocese failed to report Father Brennan’s abuse of [Harris] to any law enforcement authorities, and instead transferred Father Brennan to various other assignments in order to hide him from [Harris], it caused [Harris] to forgo these claims until just recently.” (Dkt. entry no. 15, p. 8.)


source: Caselaw Access Project

author: WHERRY, S.J.,

license: Public Domain

text:
    Hackers Inc. v. Palmer

      C.P. Lawrence County,
    no. 10361 of 2004, C.A.
    April 6, 2006

      Andrew M. MenchykJr., for plaintiff.

      James R. Schadel, for defendant.
   WHERRY, S.J.,

This matter is before the court for disposition of defendant’s motion for summary judgment. The standards which govern summary judgment are well settled. When a party seeks summary judgment, a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Swords v. Harleysville Insurance Companies, 584 Pa. 382, 883 A.2d 562, 566 (2005); Pa.R.C.P. 1035.2. A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. Id. In considering the merits of a motion for summary judgment, a court views 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. Id. The court may grant summary judgment only when the right to such a judgment is clear and free from doubt. Id., 883 A.2d at 567.

The facts are as follows: In July of 2002, Hacker Inc. (plaintiff) purchased the assets of Quicksilver Golf Club Inc. Prior thereto, plaintiff retained Allen L. Palmer, Esquire (defendant), to prepare an asset purchase agreement. The agreement provided that plaintiff was to assume many of Quicksilver’s liabilities. Plaintiff claims that it was unaware of this assumption of liabilities and contends that its lack of knowledge was the result of defendant Palmer’s failure to properly explain the agreement to plaintiff. Plaintiff also claims that defendant Palmer failed to complete and file appropriate documents relating to a liquor license with the Pennsylvania Liquor Control Board. As a result, plaintiff filed a complaint stating causes of action in negligence, breach of contract, and breach of fiduciary duty.

Defendant argues that it is entitled to summary judgment because plaintiff has failed to meet its burden of proving facts essential to these causes of action. Specifically, defendant claims that (1) plaintiff has presented no evidence that defendant Palmer breached his duty to plaintiff; furthermore, defendant also claims the record reflects that he acted in a manner that was careful, reasonable, proper, and at the very least, with the ordinary skill and knowledge required under the standard of care; (2) plaintiff has failed to prove causation and loss; (3) plaintiff’s president signed the asset purchase agreement without reading it and is now precluded from complaining that he was unaware of its contents; (4) plaintiff’s claim is barred by its own contributory negligence; (5) plaintiff has not supported its cause of action for an alleged breach of fiduciary duty; and (6) plaintiff’s allegations regarding the liquor license are unsupported. See brief in support of motion for summary judgment pp. 10-21.

Plaintiff filed an answer and a brief in opposition to the instant motion. In response, defendant submitted an additional brief claiming that (1) plaintiff’s subjective intentions regarding the asset purchase were not articulated to the defendant; (2) plaintiff’s affidavit is improper as it contradicts prior testimony and pleadings; and (3) plaintiff’s affidavit should be disregarded because it contains information not personally known to the plaintiff. See defendant’s response to plaintiff’s brief in opposition to motion for summary judgment (response) p. 1.

With respect to defendant’s claim that plaintiff has presented no evidence of a breach of duty, an attorney has an obligation to exercise care in determining the effect of an agreement which his clients were being asked to sign. Collas v. Garnick, 425 Pa. Super. 8, 15, 624 A.2d 117, 121 (1993). In order to advise a client adequately, a lawyer is obligated to scrutinize a contract and disclose to the client the full import and consequences of the instrument. Fiorentino v. Rapoport, 693 A.2d 208, 213 (Pa. Super. 1997).

Plaintiff claims that defendant Palmer never explained the clause of the asset purchase agreement that denoted what liabilities were assumed. See brief in opposition to motion for summary judgment at unnumbered page 10. To support its claim, plaintiff has submitted a deposition of defendant Palmer. In this deposition Mr. Palmer indicates that he didn’t discuss what liabilities were or were not assumed because the clause in the contract was never questioned, and the language contained therein was “pretty self-evident.” See deposition of A. Palmer at p. 56. This raises a material issue of fact that precludes the entry of summary judgment. Defendant Palmer certainly did not need to explain every word of the contract to plaintiff, but whether a reasonable attorney exercising the skill and care customary to the profession would have determined it was necessary to explain the consequences of the clause at issue requires a factual determination.

With respect to defendant’s second argument, in most legal malpractice cases, a plaintiff must not only prove that his attorney was negligent, he also must prove that but for this negligence, the result in the underlying case would have been different; this is known as the “case within a case” methodology of proving legal malpractice. See e.g., Kituskie v. Corbman, 452 Pa. Super. 467, 682 A.2d 378 (1996), aff’d and remanded, 552 Pa. 275, 714 A.2d 1027 (1998). However, this matter involved no underlying litigation; it is strictly a transactional matter. As a result, plaintiff cannot prove the result in the underlying litigation would have been different because there was no underlying litigation.

However, although plaintiff cannot prove the result in any underlying litigation would have been different but for the alleged negligence of their attorney, plaintiff may still establish a claim for legal malpractice, viz., it must demonstrate three basic elements: (1) employment of the attorney or other basis for a duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff. Kituskie v. Corbman, 552 Pa. 275, 281, 714 A.2d 1027, 1029-30 (1998). (citations omitted) An essential element to this cause of action is proof of actual loss rather than a breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm. Id. As stated above, in a matter involving litigation, a plaintiff must prove that, but for his attorney’s negligence, a different result would have occurred in the litigation. In a transactional legal matter, the proximate cause prong can be satisfied by showing that, butfor this breach of professional duty, client would not have suffered an actual loss.

Plaintiff has submitted to the couit a deposition of its former president, Mr. Charles Long, who stated that various liabilities would not have been incurred but for defendant’s alleged negligence. See Long deposition pp. 160-64; 180-84; 191-94; 210-12; and 220-22. Mr. Long also testified that defendant was aware of his refusal to assume liabilities. Id. Plaintiff claims that it would not have incurred these liabilities but for the alleged negligent legal representation. These liabilities represent actual losses; whether these losses were proximately caused by any negligence attributable to defendant is an issue of material fact that precludes the entry of summary judgment.

Defendant next argues that plaintiff should be barred from recovery on a theory of contributory negligence. Pennsylvania law provides that the doctrine of contributory negligence is a complete defense in a legal malpractice action. Gorski v. Smith, 812 A.2d 683, 702 (Pa. Super. 2002). Contributory negligence is conduct on the part of a plaintiff which falls below the standard of care to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff’s harm. Id. at 703. Contributory negligence may arise from a plaintiff’s carelessness or from his failure to exercise reasonable diligence for his own protection. Id. However, in a legal malpractice case, Pennsylvania law provides that a client cannot be contributorily negligent as a matter of law for relying on a lawyer’s erroneous legal advice or for failing to correct errors of the lawyer which involve professional expertise. Gorski, supra at 703.

Contributory negligence of a client in a legal malpractice action is a proper defense in those instances where the client has withheld or misrepresented information that is essential to the attorney’s representation of the client; where the client has chosen to disregard the legal advice; or when the client has violated the instructions of the attorney. Id. at 703-704. Such actions by the client are a clear hindrance to the attorney’s ability to adequately protect or advance the client’s interests during the course of the attorney’s representation. Id. Moreover, contributory negligence is an affirmative defense, and as such the burden of proof is on the defendant. Smith v. Port Authority Transit, 257 Pa. Super. 66, 71, 390 A.2d 249, 251 (1978).

Therefore, to prove plaintiff was contributorily negligent, defendant must prove plaintiff acted in some manner that represents a clear hindrance of defendant’s ability to adequately protect or advance plaintiff’s interests. In this case, if a reasonable attorney acting with the required level of skill and care would advise a client to read an asset purchase agreement before signing it, and defendant Palmer did not advise Mr. Long to read the agreement, plaintiff cannot be found contributorily negligent as a result of Mr. Long’s failure to read the agreement. But if a reasonable attorney acting with the required level of skill and care required would not advise a client to read the contract before signing it, Mr. Long’s act of signing the contract without reading it could be considered a clear hindrance to defendant’s ability to adequately protect or advance plaintiff’s interests; and therefore would constitute contributory negligence. Defendant, who has the burden of proof, has not submitted evidence or supplied any Pennsylvania law to support its contention that signing a contract without reading it, in and of itself, constitutes contributory negligence. As such, a material issue of fact exists and defendant is not entitled to summary judgment on the basis of contributory negligence.

With respect to defendant’s argument that plaintiff has not supported its cause of action for breach of fiduciary duty, Pennsylvania common law imposes on attorneys the status of fiduciaries vis-a-vis their clients; that is, attorneys are bound, at law, to perform their fiduciary duties properly. Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 253, 602 A.2d 1277, 1283 (1992). It is axiomatic that an attorney who undertakes representation of a client owes that client both a duty of competent representation and the highest duty of honesty, fidelity and confidentiality. Capital Care Corporation v. Hunt, 847 A.2d 75, 84 (Pa. Super. 2004). “An intentional misrepresentation to a client during any transaction where an attorney represents that client is clearly a violation of that attorney’s duty of honesty.” Id. (emphasis in original)

Defendant argues that plaintiff has not established that any confidential information was disclosed, and as such, he has not set forth a claim for breach of fiduciary duty. However, plaintiff’s claim is premised on the fiduciary duty of utmost honesty, not the duty of non-disclosure of confidential interest. Plaintiff claims that it is apparent from the deposition of Mr. Long that defendant Palmer made statements to Mr. Long that the agreement was written as expected, i.e., it did not result in plaintiff incurring the liabilities at issue. Plaintiff supports this claim with the deposition testimony of Mr. Long at p. 155 and the deposition testimony of defendant Palmer at pp. 102-104. Whether defendant actually misrepresented the contents of the agreement to plaintiff, and whether this misrepresentation is actually apparent from Mr. Long’s testimony, are material issues of fact that bar the entry of summary judgment as to the breach of fiduciary duty claim.

Defendant’s next argument for summary judgment is that plaintiff’s allegations regarding the liquor license are unsupported. Defendant argues that it cannot be held liable for any damages suffered because it was in the process of completing the transfer when defendant Palmer was discharged. Plaintiff claims, and supports this claim by an affidavit of Mr. Long, that the appropriate paperwork was overdue when it discharged defendant Palmer; and also that it incurred costs to correct his alleged failure to complete this task. A material issue of fact clearly exists as to whether defendant Palmer did or did not act with the requisite standard of care with respect to preparing the paperwork necessary to transfer the liquor license, and as such, summary judgment on this claim will not lie.

With respect to the first contention raised by defendant in its response, defendant claims that the statement of plaintiff’s witness, Mr. Long, offered allegedly to communicate its desire not to assume liabilities, is insufficient. This statement is as follows: “[Wjhen I asked Allen the question, Allen, are you covering all of our bases, and he tells me I got it covered, then I don’t push him, and I didn’t push him.” See response p. 2. This statement is ambiguous, at best. It is not clear what the parties meant by “all of our bases” and what exactly would “cover” those bases. As such, an issue of material fact exists as to whether defendant was ever informed that plaintiff did not intend to assume Quicksilver’s liabilities.

With respect to defendant’s allegation that the affidavit submitted in response to the motion for summary judgment is defective, defendant claims that plaintiff’s affidavit contains information not personally known and legal conclusions. Defendant is correct that plaintiff cannot testify as to facts absent personal knowledge thereof, nor can plaintiff offer legal conclusions. But, although any legal conclusions and improper testimony contained in the affidavit are inadmissible, the balance of the affidavit, combined with the deposition testimony submitted, is sufficient to raise material issues of fact that preclude entry of summary judgment.

Defendant last argues that Mr. Long should not be permitted to deny he received various e-mails from defendant Palmer. In this affidavit, Mr. Long avers, among other things, that he did not receive or send e-mail correspondence; he did not authorize defendant Palmer to correspond by e-mail; and at no time did he correspond with defendant Palmer by e-mail. See brief in opposition to motion for summary judgment at exhibit 3, ¶¶4-6. These statements raise an issue of material fact as to whether the parties ever agreed to communicate via email.

Defendant also argues that the court should apply the “mailbox rule” and presume that plaintiff received the emails. This argument is based upon a ruling by the United States Court of Appeals for the 8th Circuit. The court held that a jury is permitted to infer that information sent via any reliable means, including e-mail, is received. American Boat Co. Inc. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir. 2005). The presumption of receipt does not provide the court with a basis to enter summary judgment. It is clear from the decision of the 8th Circuit that the jury, not the court, is permitted to infer receipt of an e-mail communication.

Hence, this order:

ORDER

And now, April 6,2006, defendant’s motion for summary judgment is dismissed.

      . Defendant relies on the decision of the California Supreme Court in the case of Viner v. Sweet, 30 Cal.4th 1232, 1240, 70 P.3d 1046, 1051, 135 Cal.Rptr.2d 629, 636 (Cal. 2003), to support its argument that the “case within a case” methodology applies equally to transactional matters. See brief in support of motion for summary judgment p. 13. But defendant cites to no Pennsylvania authority to support this position and this court is not bound by the decision of the California Supreme Court.

      . Defendant cites to the recent decision of a Texas court in McRanie v. Chamberlin, Hrdlick, White, Williams & Martin P.C., 2006 WL 278276, to support its contention that a client is not relieved of his duty to read a contract simply because he hires a lawyer. See response p. 3 n.3. However, Pennsylvania has not adopted a rule that failure to read a contract is considered de facto contributory negligence in a legal professional liability action.

      . Defendant cites to Maritrans, supra, as support for this argument. But the holding in Maritrans is not limited only to fiduciary duties involving misusing client confidences and representing conflicting interests. A plaintiff may seek redress for a breach of any fiduciary duty.

      . Defendant admits that no Pennsylvania law has addressed this subject. See response p. 8.

      . The 8th Circuit also determined that the e-mail recipients were entitled to an evidentiary hearing to rebut the presumption of delivery and receipt. American Boat Co. Inc. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir. 2005). Even if the holding of the 8th Circuit represented the law in Pennsylvania, a factual determination would be required that would preclude the entry of summary judgment.


author: VAN HORN, J,

text:
    Beneficial Consumer Discount Company v. Hoffman

      C.P. of Fulton County,
    no. 41 of 2005-C.
    March 29, 2006

      Andrew L. Markowitz, for plaintiff.

      Joseph A. Macaluso, for defendant.
   VAN HORN, J,

FACTS OF CASE

(1) Susan B. Rupert (defendant), f/k/a Susan B. Hoffman, is the owner of a residence located at 29310 Great Cove Road, Fort Littleton, PA 17223. This property is the subject of this foreclosure action.

(2) Defendant entered into a loan agreement with Beneficial Consumer Discount Company (plaintiff) on or about May 26, 1998. The loan agreement was further secured by a mortgage on the residential property.

(3) The agreement between the parties called for the defendant to pay monthly payments of $521.11 to the plaintiff. The payments were set to commence on June 26, 1998 and continue thereafter until May 2003.

(4) On May 26, 2003, a “balloon payment” of $36,121.90 was due as the final payment.

(5) On April 4, 2003, the defendant made her April payment directly to the plaintiff in the plaintiff’s Chambersburg office. During this visit, she allegedly inquired about the balloon payment and possible refinancing. As per the defendant’s pleadings, Karen Parker, an employee and representative of the plaintiff, advised the defendant that there was in fact no balloon payment due in May and further directed the defendant to continue to only pay the monthly payments of $521.11.

(6) In May 2003, the defendant made atypical monthly payment to the plaintiff’s office and again purportedly inquired about the balloon payment being due. Ms. Parker again allegedly insisted that no balloon payment was due at any time.

(7) Furthermore, the defendant asserts that she continued to inquire, for a third time, about the balloon payment and was again told that only monthly payments were due on her account.

(8) Through the next several months until February 2004, the defendant timely made her monthly payments. By mutual agreement, the payments for March, April and May 2004 were deferred. In June 2004, the defendant again commenced paying her monthly payments to the plaintiff.

(9) Due to financial difficulties, the defendant admits that she defaulted on the mortgage in October, November and December 2004. As a result, the plaintiff sent a foreclosure notice to the defendant in December 2004. The notice stated that the defendant needed to pay, in 30 days, an amount of $1,563.33 to reinstate the mortgage.

(10) By January 3,2005, the defendant had forwarded $ 1,5 71.11 to the plaintiff and believed that she had reinstated the mortgage.

(11) Despite the balance being paid, the plaintiff returned the payments to the defendant. Also, the defendant received a second foreclosure notice stating that $41,530.53 was due to reinstate the mortgage. This larger amount was due to the incorporation of the balloon payment.

(12) The defendant did not pay the stated amount in the second notice; therefore, on February 22, 2005, the plaintiff filed the foreclosure complaint. The defendant filed an answer, new matter and counterclaim on March 28, 2005.

DISCUSSION

Background

This matter comes before the court as a result of the plaintiff’s motion for summary judgment that was filed in the case on July 12,2005. The court held very limited oral arguments in December of2005 because of the parties’ firm assertion to the court that the matter was moving towards absolute settlement. After argument, the parties were instructed to keep the court abreast on the progress of the settlement discussions. It was not until February of 2006 that the court was made aware of the breakdown in negotiations and the need for a ruling on the outstanding motion.

After duly reviewing the record and reading the briefs of the parties, the court is now ready to render a decision on the plaintiff’s motion for summaiy judgment.

Summary Judgment Generally

As per Pennsylvania Rule of Civil Procedure 1035.2, “any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report.” The record is to be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of material fact must be resolved against the moving party. Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159 (1997). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). In response, the non-moving party may not rest upon pleadings alone, but must set forth specific facts which demonstrate a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). The purpose of summary judgment is to preserve judicial time and promote faster dispositions of matters by avoiding unnecessary trials.

Should the Court Grant Plaintiff’s Motion for Summary Judgment in Regards to the Original Foreclosure Action?

In the plaintiff’s brief in support for the motion for summary judgment, the plaintiff contends that the defendant has admitted in the various pleadings that (1) she is the owner of subject property; (2) she executed the mortgage encumbering the property; (3) the mortgage is in default; (4) she has not paid the mortgage; and (5) she was sent all statutorily required notices. With these admissions, the plaintiff therefore believes that contractual liability of the defendant can be clearly determined as a matter of law. See Paul Revere Protective Life Insurance Co. v. Weis, 535 F. Supp. 379 (E.D. Pa. 1981); Kane Gas Light & Hearing Co. v. Pennzoil Co., 587 F. Supp. 910 (W.D. Pa. 1984). Since the defendant has not provided any evidence or argument to the contrary, the plaintiff asserts that the summary judgment motion should be granted.

The defendant promptly responded to the argument set forth in the plaintiff’s motion for summary judgment. In pleadings and an opposition brief, the defendant raises, though awkwardly and confusingly, the defense of waiver as part of the foreclosure action. The defendant defends the foreclosure action by asserting that representatives of the plaintiff informed her that a balloon payment was not due, and then the plaintiff continued to accept monthly payments, in the alternative, for a substantial period of time. Therefore, the defendant would contend that the plaintiff’s course of conduct clearly indicated an intention to waive the contractual right to a balloon payment. It was only in January of2005 that the plaintiff required the balloon payment. In the end, the defendant asserts this genuine issue of material fact and argues that summary judgment would be inappropriate.

First, for its analysis, this court again notes that summary judgment would only be appropriately granted if the case involved no issues of material fact and the case could then be decided as a matter of law. The plaintiff is correct in stating: “the entry of summary judgment is proper if the mortgagors admit that the mortgage is in default, that they have failed to pay interest on the obligation and that the recorded mortgage is in the specified amount.” Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998). However, the court is not convinced that this case is as clear as the plaintiff portrays it to the court. The defense of waiver, as per Pa.R.C.P. 1030 and 1032, shall be pleaded in a responsive pleading under the heading “new matter” or the party waives the defense. In the defendant’s answer dated May 28,2005, the defendant properly raised the issue of waiver in regards to the plaintiff freely accepting monthly payments as normal for a period of a year after the balloon payment was due. A waiver defense is a proper one in a foreclosure action. “[Cjourts have made it clear that one is estopped to claim rights under a contract where one party to the contract leads the other party to the belief the former waives strict compliance with its terms.” Bailey v. Williams, 45 D.&C.3d 349, 352 (1987). In such a case, reasonable notice of the need for future compliance must be given to the other party. Id. The issue of waiver is a matter of fact to be shown by the evidence; this question of fact is to be determined by a jury and not by the court. Mayer Brothers Construction Co. v. American Sterilizer Co., 258 Pa. 217, 101 A. 1002 (1917).

Currently, this court will not be making a decision as to whether the plaintiff, or its representatives, actually waived the balloon payment or any other contract provision by their conduct or whether reasonable notice was given to the defendant about the intent of requiring full compliance in the future; the court is simply stating that these are factual concerns to be determined by the fact-finder. Therefore, summary judgment would be premature and inappropriate at this time.

Since the defendant has raised genuine issues of fact concerning a valid defense, the matter cannot be disposed by way of summary judgment The plaintiff’s motion for summary judgment is hereby denied.

Should the Court Grant Plaintiff’s Motion for Summary Judgment in Regards to the Defendant’s Counterclaims ?

For the plaintiff’s next argument, the plaintiff asserts that the counterclaims raised by the defendant must be dismissed by way of summary judgment due to the mandate of Pa.R.C.P. 1148. The rule permits the pleading of a counterclaim in a mortgage foreclosure; however, the rule only authorizes those counterclaims that arise from the same transaction from which the plaintiff’s cause of action arose. The law regarding this rule is clear in that the rule must be interpreted narrowly. Therefore, if the counterclaim is not part of or does not deal with the creation of the mortgage itself, Rule 1148 bars the claim. By way of a limited response, the plaintiff squarely asserts that the counterclaims all arise from the mortgage transaction.

For this determination, it is important to recognize that the decision to separate a counterclaim from the original suit is discretionary. Pa.R.C.P. 213(b). In this case, the defendant brings forth four counterclaims against the plaintiff: (1) breach of contract; (2) fraudulent representation; (3) negligent representation; and (4) violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law. This court agrees with the plaintiff that the case precedent involving counterclaims in mortgage foreclosure actions is clear. “Only those counterclaims that are part of or incident to the creation of the mortgage relationship itself are permitted to be raised in a foreclosure action.” See generally, Cunningham v. McWilliams, 714 A.2d 1054 (Pa. Super. 1998) and Chrysler First Business Credit Corp. v. Gourniak, 411 Pa. Super. 259, 601 A.2d 338 (1992). The defendant has failed to provide a convincing analysis to prevent the applicability of Rule 1148 to these facts. The four claims asserted by the defendant arose or occurred a significant period after the creation of the mortgage and are unrelated to the actual creation of the security interest.

Therefore, by way of Pa.R.C.P. 1148, the counterclaims are barred and cannot be asserted in this action. The plaintiff’s motion for summary judgment regarding the counterclaims is hereby granted, and the claims shall be dismissed as a matter of law.

CONCLUSION

The plaintiff’s motion for summary judgment in regards to the original foreclosure action is denied for all the reasons stated herein. The foreclosure action shall proceed forward with this court. However, the plaintiff’s motion for summary judgment in regards to the defendant’s counterclaims is granted; therefore, these claims shall be disposed of in their entirety.

ORDER

And now, March 29, 2006, after consideration of plaintiff’s motion for summary judgment, briefs submitted by counsel, and oral arguments presented to the court on this matter, it is hereby ordered—

(1) Plaintiff’s motion for summaiy j udgment in regards to the original foreclosure action is hereby denied.

(2) The plaintiff’s motion for summary judgment in regards to the counterclaims asserted by the defendant is hereby granted. Defendant’s counterclaims are hereby dismissed.

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


author: ZULICK, J,

text:
    Crowell v. Lasker

      C.P. of Monroe County,
    no. 1135 D.R. 2002.
    March 14, 2006

      Rebecca Craggs, for plaintiff.

      Kimberly Fedrigon, for defendant.
   ZULICK, J,

This is a custody dispute between Wayne D. Crowell (Father) and Tia E. Lasker (Mother), who are the parents of Nathaniel R. Lasker, bom September 25, 2002. Mother and Father were never married. Mother is single, age 25 and resides in Lodi, New Jersey. Father is 28 years of age and is married to Angie Crowell, age 27. They are temporarily residing in Cordova, Tennessee while repairs on their home in Slidell, Louisiana are being completed.

Custody litigation began in this county on September 13,2004, when Father filed a complaint for custody. An interim custody order was entered on November 23,2004, granting primary physical custody to Mother with Father having partial physical custody one weekend per month and one week over the Christmas holiday. The parties obtained home studies and psychological reports. They reached agreements between themselves to give Father time with Nathaniel this past summer and this past Christmas holiday.

A custody hearing was scheduled for September 20, 2005, but was continued at Father’s request due to damage to his home suffered during Hurricane Katrina. The hearing was held on February 17,2006.

It is the decision of this court that the parties will share legal custody of Nathaniel. Mother will have primary physical custody and Father will have partial physical custody during the times specified in the accompanying order for the reasons which follow.

FINDINGS OF FACT

(1) Nathaniel Lasker, son of Wayne D. Crowell and Tia E. Lasker, was born on September 25,2002. He was a healthy three-year old at the time of the hearing. His mother was single, age 25, and his father, age 28, married to Angie Crowell, age 27.

(2) The parties were never married.

(3) Mother and Father were acquaintances while growing-up in Indian Mountain Lakes in Albrightsville, Pennsylvania, although Tia Lasker was three years younger than Wayne Crowell.

(4) The parties met again when Ms. Lasker was a junior in college at Indiana University of Pennsylvania and Mr. Crowell came home from Louisiana to visit his family.

(5) They met at the Shenanigan’s Bar in Big Boulder and, after becoming acquainted again, Mr. Crowell invited Ms. Lasker to his apartment in New Orleans where she visited from December 30, 2001 until January 8, 2002. During that time they were intimate.

(6) On January 23, 2002, Ms. Lasker discovered that she was pregnant and called Mr. Crowell to notify him of that. He requested that she go to a doctor to confirm the pregnancy. When she called him several days later to confirm that she was indeed pregnant, he denied that the child was his.

(7) Ms. Lasker again called Mr. Crowell in March of 2002, and in September 2002, advising him that she was pregnant with his child. He denied paternity and asked her to leave him and his family alone.

(8) Nathaniel was born September 25, 2002.

(9) Ms. Lasker graduated from college in December 2002, and was assisted by her family with support for necessities.

(10) She filed for child support from Mr. Crowell when Nathaniel was bom, but the support office was unable to serve him with the complaint until March 2004.

(11) Ms. Lasker resided with a sister for six months and her brother in Wind Gap for one month. She was on public assistance during this time.

(12) She then decided to go back to work and obtained a job with a wholesale distributor, Manhattan Trading and Marketing. She went to San Diego for two months and then was transferred to South Hackensack, New Jersey, working as a human resources manager in that office. Her job required her to travel and she was in the field for long hours while her son was at her mother’s home in Indian Mountain Lakes.

(13) Mother then moved to Lodi, New Jersey where she was living at the time of the hearing. Her mother assisted her with daycare or she obtained daycare while she worked.

(14) Mother’s employer, Michael Madrigal, testified on her behalf, stating that she is a valuable employee and that she will have flexible hours when necessary for daycare arrangements. He testified that although Ms. Lasker has traveled for her work frequently in the past, less travel is necessary now.

(15) Mother received no child support from Father until July of 2004.

(16) Nathaniel was in good health at the time of the hearing.

(17) Mother is a smoker but testified that she does not smoke in Nathaniel’s presence.

(18) Until December of 2005, she did not have medical insurance for Nathaniel. In December of 2005, he became insured under Father’s plan.

(19) Mother moved into the Lodi, New Jersey apartment in March 2004. She testified that her apartment in Lodi is in a nice neighborhood.

(20) Mary Lou Malloy of Catholic Social Services investigated Mother’s home and found an excellent mother/son relationship to exist between Mother and Nathaniel. She found Mother’s apartment to be adequate to meet Nathaniel’s needs and the housekeeping standards to be excellent.

(21) In a typical day, Mother gets Nathaniel up between 6 a.m. and 6:30 a.m., they have breakfast and he goes to daycare. She spends a few minutes with him at daycare settling him down and she then goes to work. She picks him up at the end of the day. They do something before and after dinner and read at night.

(22) Mother was interviewed by Dr. John Abbruzzese, who wrote a psychological evaluation dated May 3, 2005. In the evaluation, Dr. Abbruzzese found Mother to be self-sufficient, independent and decisive, self-assured, confident and resourceful. He concluded that “[tjhere is no question that Ms. Lasker cares for her son, however she admits her inability to provide financially for him as well as Mr. Crowell can. She is a hard working young woman who is attempting to provide, as best she can, for the welfare of Nathaniel.” Dr. Abbruzzese expressed concern that Mother had allowed her apartment (that she shared with Nathaniel and a roommate) to become a mess, and noted that she needs to gain security and stability in her life to properly care for Nathaniel.

(23) Mother’s family and friends have established a support network for Mother and the minor child since the child’s birth and have engaged in the caretaking of Nathaniel.

(24) Nathaniel has attended and continues to attend a daycare preschool for the last two years.

(25) Mother’s employment allows her to take Nathaniel with her during some of the employment related travel. She is at times allowed to work from home by her employer.

(26) Mother’s extended family lives in New Jersey and Pennsylvania and has regular contact with the child. Mother’s family members have frequently cared for Nathaniel when Mother was away on business or when Nathaniel was ill.

(27) Like Mother, Father grew up in the Indian Mountain Lakes community, where his family moved when he was in middle school. He attended Pocono Mountain High School. After graduating, he attended Penn State and Northampton Community College, studying computer science. He did not obtain a degree. His work experience has been in computer technology. At the time of the custody hearing, he worked for Lockheed Martin testing computer software in Millington, Tennessee. He intended to move back to Slidell, Louisiana in May 2006 and relocate his job with Lockheed there.

(28) After he was served with the support complaint, Father requested apatemity test. In May of2004, Father’s paternity was established.

(29) Father’s wife, Angie Crowell, works as an occupational therapist. The Crowells are expecting a child in May.

(30) Father was interviewed by Dr. Abbruzzese for a psychological evaluation. Dr. Abbruzzese found Father to be “genuinely concerned and interested in Nathaniel’s welfare.” Page 2. He also found Father and his wife were willing to provide to the best of their abilities for Nathaniel’s care.

(31) Father also had a home study done of his home by Bonnye G. Pardo A.C.S.W., L.C.S.W. of Slidell, Louisiana. She found the Crowell home in Slidell to be in an “upscale” neighborhood, and was in immaculate condition. Nathaniel has his own bedroom and there is an enclosed back yard for safe play. The social worker met both Father and his wife and concluded that “Mr. and Mrs. Crowell have a great deal to offer Nathaniel for optimal health, nurturing and well-being.” Page 4 of home study report.

(32) Father is the fourth of five sons of Gordon and Laura Crowell. His family members do not live near his home in Louisiana but maintain regular close contact with each other.

(33) Angie Crowell’s family lives near Father’s home and Nathaniel has been accepted as a member of the family.

(34) When at his Father’s home, Nathaniel wakes up around 7 a.m. and has breakfast with his Father and stepmother. During the time that Nathaniel has been with Father, Angie’s grandmother has cared for him during the day when he and his wife are working. Father expects that his wife will work part-time after they have their child in May of 2006, and that it will not be necessary for Nathaniel to be in daycare full-time.

(35) The first time Father saw Nathaniel was Labor Day in 2004, when Mother allowed his parents to visit with the boy.

(36) Father’s parents, Laura Crowell and Gordon Crowell drove Nathaniel to Louisiana to visit F ather over the Christmas holiday in 2004. When they returned Nathaniel, they found the conditions in Mother’s apartment, which she shared with a roommate, to be deplorable. A report was made to the New Jersey Department of Youth and Family Services which investigated Mother’s home and eventually closed its file. Mother testified that the apartment was in poor condition because her roommate was in the process of moving out. There has been no suggestion that Mother’s housekeeping is inadequate since that incident.

(37) Father and Angie Crowell arranged for treatment of Nathaniel’s dental cavities following notice to Mother of Father’s concern and Mother’s failure to take the child to the dentist for a period of two months in the fall of 2005. Father noticed decay in Nathaniel’s front teeth in September. He notified Mother about the problem, and when it persisted, he took Nathaniel to the dentist who removed the front teeth in November of 2005. Mother testified that she did not have insurance or the funds to have Nathaniel’s teeth repaired and that her doctor said that the tooth could be “watched.”

(38) Nathaniel’s maternal and paternal grandparents reside near each other in Indian Mountain Lakes Community in Albrightsville, Pennsylvania.

(39) Janice Lasker testified that she has a close relationship with Nathaniel and has provided care for him when her daughter was away on business. She talks to him daily on the telephone and sees him every two weeks. Before the custody complaint was filed, she arranged for the paternal grandparents to visit with Nathaniel.

(40) Father kept Nathaniel for two weeks at Christmas time when the agreement between the parties was that he would have Nathaniel for one week.

DISCUSSION

The court’s paramount concern in every custody case is for the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). Where there is no order awarding primary custody to either parent before a request involving relocation, the court must scrutinize both as custodial environments under a best interest analysis before considering the Gruber relocation issue. Kirkendall v. Kirkendall, 844 A.2d 1261 (Pa. Super. 2004). There is no presumption in favor of either parent. Marshall v. Marshall, 814 A.2d 1226 (Pa. Super. 2002).

Pennsylvania courts are reluctant to disturb existing custody arrangements which have satisfactorily served the best interest of the child. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998). Under the primary caretaker doctrine, the trial court is required to give positive consideration to the parent who has been the primary caretaker and a child should not be lightly removed from a parent with whom the child has lived since birth. Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997); Wiseman v. Wall, supra at 847. When both parents are otherwise fit, one parent’s role as the child’s primary caretaker may be given weight as a determining factor in a custody determination. Wiskoski v. Wiskoski, 427 Pa. Super. 531, 629 A.2d 996 (1993), appeal denied, 536 Pa. 646, 639 A.2d 33 (1994).

I am presented here with two parents who love their son and who are willing to make the commitment and the sacrifices necessary to be the primary custodial parent. Father is better able to meet Nathaniel’s material needs and offers him a two-parent household with a spouse who has welcomed Nathaniel to their home. Flow-ever, Mother has been the parent who has raised Nathaniel from birth and has struggled to become self-sufficient while she cares for her son.

Father became involved in Nathaniel’s life after learning that Nathaniel was his child, but showed no interest before the birth and for almost two years after the child’s birth. Father was told by Mother that he was Nathaniel’s father when Mother became pregnant, but Father followed a course of terse denial that led to Mother taking the responsibility for Nathaniel on her own, without Father’s help or support.

The first two years of Nathaniel’s life were a challenge to Mother, who finished her college degree and found her first job after school while raising an infant by herself. Through hard work and persistence, she has found stable employment and has provided a home for her son, leaving public assistance and becoming self-supporting. While her living circumstances are on a lower economic scale than Father’s, she has an acceptable apartment for herself and her son and a network of daycare and family support that allows her to meet the demands of work and child-rearing.

I will not sever the bond that exists between Nathaniel and his mother now that Father has taken a sincere interest in his son’s life. However, Father has raised some serious concerns about Mother’s care of Nathaniel which I have also considered. Mother’s apartment was in poor condition when the Crowell grandparents dropped Nathaniel off there in January 2005. This was fully investigated by the New Jersey Department of Youth and Family Services which closed its file without taking any action for Nathaniel’s protection, and Mother’s home study by Mary Lou Malloy reflected good attention to cleanliness and order in Mother’s apartment now.

Another serious concern was that Nathaniel had cavities in one or both front teeth, which Father notified Mother about in September of 2005 and then had the teeth pulled by a dentist in the South when Mother took no action. Mother’s explanation that she had no insurance and could not afford the treatment is not acceptable when Nathaniel has a health concern. No other evidence of this type of neglect was offered, and Mother now has child support and health insurance. This should eliminate any financial excuse for lack of proper dental care for Nathaniel.

Father also complained that Mother’s work schedule kept Nathaniel shuttling back and forth from his grandmother’s home in Indian Mountain Lakes and to daycare. It is true that Mother’s work required her to travel between offices in the Mid-Atlantic region. Sometimes Nathaniel did stay for extended periods with his maternal grandmother, who has an excellent relationship with him. This was a consequence of a single mother trying to balance responsibilities of child-raising and a new career. Testimony from Mother and her employer supported the fact that Mother does not have to travel as much now and has some flexibility when child care needs interfere with her work schedule.

Father complained that Nathaniel was unkempt and smelled like smoke when he arrived in Louisiana. This was true in part because there was a very long automobile ride to Father’s home on some occasions. Mother testified that she does not smoke in the house or expose her son to secondhand smoke. Father’s parents also smoke, so the question of Nathaniel smelling like smoke after traveling in his parents’ car may have resulted from their habits. As to Father’s contention that Nathaniel was at times unkempt, nothing in Mother’s psychological report or home study indicated that she neglected her son’s basic hygiene, and I find that she has not. However, like dental and medical care, proper attention to Nathaniel’s hygiene is the parents’ responsibility and each is expected to be diligent about tending to it.

Finally, Mother complained that Father did not return Nathaniel after an agreed upon one week of custody over the Christmas-New Year holiday this year. The parties’ custody order did not provide for holiday exchanges this year. Now that an order is being entered that governs the parties’ custody of their son at all times, each party may reasonably expect this court to enforce its custody order.

I do not address the question of relocation because I do not find that Nathaniel’s best interests require a relocation of primary physical custody.

CONCLUSIONS OF LAW

(1) The best interests of Nathaniel are served by granting his parents shared legal custody with primary physical custody in his mother.

ORDER

And now, March 14,2006, following a hearing before the court at which plaintiff, Wayne D. Crowell, was present and was represented by Rebecca Craggs, Esq. and defendant, Tia E. Lasker, was present and was represented by Kimberly Fedrigon, Esq., it is ordered that all prior custody orders with respect to the parties’ minor child, Nathaniel Lasker, age 3, are rescinded and the following order is entered:

1. Shared Legal Custody

Mother and Father shall share legal custody of their son. For purposes of this recommendation, “shared legal custody” shall mean:

(a) All decisions affecting the child’s growth and development, including but not limited to education, choice of school, medical and dental treatment, religious training, athletic pursuits and extracurricular activities shall be considered major decisions, and shall be made by the parties jointly after discussion and consultation with each other with a view toward obtaining and following a harmonious policy in the child’s best interest;

(b) Each party agrees to keep the other informed of the progress of the child’s education and social adjustment. Each party agrees not to impair the parties’ right to shared legal or physical custody of the child. Each party agrees to give support to the other in the role as parent and take into account the consensus of the other for the physical and emotional well-being of the child with the recognition that their life styles may be different;

(c) While in the presence of the child, neither party shall make or permit any other person to make any remarks or do anything which would in any way be construed as derogatory or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the other parent as one whom the child should love and respect;

(d) It shall be the obligation of each parent to make the child available to the other in accordance with the following schedule and to encourage him to participate in the plan hereby set forth;

(e) Each parent shall have the duty to notify the other of any event or activity that could reasonably be expected to be of significant concern to the other parent or to the child;

(f) The parents shall communicate with one another concerning any parenting issues requiring consultation and agreement regarding a proposed modification of the custody schedule which may, from time to time, become necessary, and shall specifically not use the child as a messenger at any time. Neither party shall discuss with the child any proposed changes to this schedule or any other issue requiring consultation and agreement prior to discussing the matter and agreement with the other parent;

(g) With regard to any emergency decisions which must be made, the parent with whom the child is physically residing at the time shall be permitted to make a decision necessitated by the emergency without consulting the other parent in advance; however, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Day-to-day decisions of a routine nature will be the responsibility of the parent having physical custody at that time;

(h) Mother and Father agree to share complete and Ml information from any doctor, dentist, teacher or other authority, and each parent may have copies of any reports given to them as a parent. Each parent shall also request any authority to forward copies to both parents at their respective addresses. Such documents include, but are not limited to, medical reports, athletic and school reports, birth certificates, etc. Both parents may and are encouraged to attend conferences and activities with the child. Both parents shall be listed with any school or day-care center as parents to be contacted in the event of an emergency and to be notified regarding school events. Mother and Father agree to share copies of any school notices in a timely fashion;

(i) Both parents shall attempt to avoid scheduling any activities or appointments for the child which would require his attendance or participation during the time when he is scheduled to be in the physical custody of the other parent without the parent’s prior approval; however, both parents agree to cooperate and be flexible in accommodating the child’s scheduled activities.

2. Shared Physical Custody

Mother and Father shall share physical custody of their son, with Mother having primary physical custody under and subject to Father’s periods of partial custody, as follows:

(a) from 9 a.m. on April 22,2006 until 5 p.m. on May 6, 2006;

(1) in future years before Nathaniel is in kindergarten, this consecutive two-week period shall be exercised in February, with 90 days notice to Mother, otherwise it shall be the first two weeks of that month, commencing at 9 a.m. on the 1 st and concluding at 5 p.m. on the 14th. After kindergarten begins, this period of custody will cease.

(b) from June 3,2006 at 9 a.m. until July 15,2006 at 5 p.m.;

(1) in future years Father shall have custody from the first Saturday in June and then for six weeks. Once Nathaniel begins school, Father shall have custody of him from the second Saturday after school ends for a period of eight weeks.

(c) in September each year until kindergarten begins, for two consecutive weeks, with 90 days notice to Mother, otherwise it shall be the first two weeks of September. After kindergarten begins, this period of custody will cease.

(d) After kindergarten begins,

(1) Thanksgiving — Father shall have partial custody on Thanksgiving each year from the Wednesday prior to Thanksgiving at 5 p.m. through the Sunday following Thanksgiving at 5 p.m.

(2) Easter — Father shall have partial custody on Easter every year from the close of the last day of school before Easter until 5 p.m. on the day before school starts following the Easter holiday.

(3) Christmas — In even numbered years, Father will have custody for Christmas from 9 a.m. on December 24 until the day before school commences at 5 p.m. In odd numbered years, Father’s period of Christmas custody shall begin at 9 a.m. on December 26 and end on the day before school commences at 5 p.m.

(4) Father may exercise custody for two weekends per month from Friday at 5 p.m. until Sunday at 5 p.m., upon 90 days notice to Mother, provided that Nathaniel shall not travel more than 250 miles from Mother’s residence on those weekends without Mother’s consent.

3. Transportation

Father will be responsible to provide all necessary transportation except summer periods of custody, and shall pay the costs of that transportation. Mother shall be responsible for all transportation and its costs for summer custody.

4. Telephone Access

Each parent shall allow the other parent to have private, liberal and reasonable telephone access with their son during that parent’s period of partial custody. This shall include the child initiating such contact. Reasonable telephone access shall be construed to be during the child’s normal waking hours, emergencies excepted. If the calling parent leaves a message at the residence of the custodial parent, the custodial parent shall require the child to return the telephone call to the noncustodial parent.