author: YEAGER, J.,

text:
    DiGregorio v. Glenn O. Hawbaker Inc.

      C.P. of Butler County,
    no. A.D. 04-10026.

      Raymond J. Conlon, for plaintiff.

      Richard A. Mills, for defendant.

      Joseph F. McCarthy III, for additional defendant PennDOT.

      Biyan Campbell, for additional defendant IA Construction.
    December 30, 2004
   YEAGER, J.,

Before this court for consideration is the defendants’, Glenn O. Elawbaker Inc. and Jody E. Clark, preliminary objections to plaintiffs’ third amended complaint in civil action. Defendants, Glenn O. Hawbaker and Jody E. Clark, through their preliminary objections, are requesting this court to strike paragraph no. 32(a) and paragraph no. 41(a) of plaintiffs’ third amended complaint in civil action. For the following reasons, defendants’ preliminary objections to plaintiffs’ third amended complaint in civil action have been granted in part and denied in part.

I. BACKGROUND

This matter arises from a complaint in civil action filed on January 7, 2004, by the plaintiffs, Sandra F. Di-Gregorio and Kurt A. DiGregorio, co-administrators of the estate of Derek D. DiGregorio, deceased, and Sandra F. DiGregorio and Kurt A. DiGregorio, in their own right, seeking damages as a result of the death of their son, Derek D. DiGregorio, on August 16, 2003. Defendants filed their answer and new matter on February 17,2004. Defendants then filed a motion to join additional defendant Pennsylvania Department of Transportation on February 17,2004, which was subsequently granted. Plaintiffs then filed their amended complaint in civil action on April 7, 2004. Defendants then filed a motion to join additional defendant IA Construction on May 21,2004, which was also subsequently granted. On July 2, 2004, plaintiffs filed a second amended complaint in civil action. Plaintiffs’ third amended complaint in civil action was filed on July 23,2004. Defendants filed preliminary objections to plaintiffs’ third amended complaint and brief in support of preliminary objections to plaintiffs’ third amended complaint on August 6,2004. On December 14, 2004, this court heard oral argument on defendants’ preliminary objections to plaintiffs’ third amended complaint in civil action. During oral argument, counsel for the defendants presented argument in support of defendants’ preliminary objections. Counsel for the plaintiffs offered argument in support of his complaint.

Plaintiffs allege that on or about August 16, 2003, Derek D. DiGregorio was driving his automobile southbound on State Route 38 in the Borough of Eau Claire in Butler County. On that same date, defendant, Jody E. Clark, was operating a tractor-trailer, while in the employ of defendant, Glenn O. Hawbaker Inc., northbound on that same roadway and an accident occurred between the two vehicles. This collision resulted in the death of Derek D. DiGregorio.

II. DISCUSSION

When considering preliminary objections, the court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible there-from as admitted and true, and decide whether, based upon the facts averred, recovery is impossible as a matter of law. Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616 (Pa. Super. 1999). Further, the courts have stated that when considering preliminary objections, a court is not limited to the review of only the complaint, but may also review evidence by deposition or otherwise. See Pa.R.C.P. 1028(c)(2); Gale v. Mercy Catholic Medical Center, 698 A.2d 647, 652 (Pa. Super. 1997). Additionally, the Supreme Court of Pennsylvania has held that preliminary objections should only be sustained in cases that are clear and free from doubt, and that the pleaded facts demonstrate that the pleader will be unable to prove facts sufficient to legally establish a right to relief. See Pennsylvania AFL-CIO ex rel. George v. Commonwealth, 563 Pa. 108, 757 A.2d 917, 920 (2000); Highland Sewer and Water Authority v. Forest Hills Municipal Authority, 797 A.2d 385, 388 (Pa. Commw. 2002). Moreover, the courts have stated that any doubts regarding the ability of a plaintiff to sufficiently prove facts establishing a right to relief should be resolved by the court’s refusal to sustain the objections. See Ellenbogen v. PNC Bank N.A., 731 A.2d 175 (Pa. Super. 1999).

This court has but one preliminary objection to decide, one of first impression in the County of Butler. Defendants maintain that plaintiffs’ claim for filial consortium is not a recognized claim in Pennsylvania and should be stricken. With this assertion, the court agrees. In plaintiffs’ third amended complaint in civil action, damages are being claimed under the Wrongful Death Act for “Loss of services, consortium and contribution, which the decedent would have rendered during his lifetime had he not been killed by the conduct of the defendants.” See plaintiffs’ third complaint in civil action at p. 10 paragraph no. 32(a) and p. 16 paragraph no. 41(a). Defendants wish to have paragraph nos. 32(a) and 41 (a) stricken from the complaint. It has been held that a cause of action based on the loss of consortium is limited to spouses and does not extend to the loss of a child’s consortium. Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (1914); Jackson v. Tastykake Inc., 437 Pa. Super. 34, 40, 648 A.2d 1214, 1217 (1994); Schroeder v. Ear, Nose and Throat Associates of Lehigh Valley Inc., 383 Pa. Super. 440, 557 A.2d 21 (1989). This is because consortium is defined as “the legal right of one spouse to the company, affection, and assistance of and to sexual relationship] with the other.” Machado v. Kunkel, 804 A.2d 1238, 1244 (Pa. Super. 2002) (emphasis in original) (quoting Webster’s Collegiate Dictionary, 10th edition (1998)). With this is mind, plaintiffs are prohibited from claiming a loss of consortium, as it is not a recognized claim in Pennsylvania. To the extent that plaintiffs are requesting damages for loss of consortium, defendants’ motion is granted.

This court now turns to the remainder of plaintiffs’ claim, “loss of services and contribution.” In deciding this issue, the court reviewed a number of sources including the Wrongful Death Act. Plaintiffs are claiming damages under the Wrongful Death Act of July 9,1976, 42 Pa.C.S. §8301 and the amendments thereto. In pertinent part, the Act reads as follows:

“(a) General rule. — An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

“(b) Beneficiaries. — Except as provided in subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.”

The purpose of the Wrongful Death Act is to allow individuals to “recover for damages for the death of an individual caused by the wrongful act... of another.” 42 Pa.C.S. §8301(a). The Act goes on to state that the “right of action created by this section shall exist only for the benefit of the spouse, children, or parents of the deceased.” 42 Pa.C.S. §8301(b). It is clear by the words of the Act that the plaintiffs, as the parents of the decedent, are entitled to recoveiy. “[0]ur courts have recognized that under the Wrongful Death Act, children can recover for losses occasioned by the death of their parents.” Machado v. Kunkel, 804 A.2d 1238, 1244-45 (Pa. Super. 2002). (footnote omitted) Being this to be the state of the law, why would the inverse not also be true, so that parents would be allowed to recover for the loss of their children?

Blair v. Mehta, 61 D.&C.4th 246 (2004), presents a situation that is on point with the case at bar. Blair v. Mehta is a common pleas case in Lycoming County. In Blair, the plaintiffs, the parents of decedent, filed a wrongful death action premised on medical negligence. Defendants in this case filed preliminary objections in opposition to plaintiffs’ claim for “damages [for] the loss of companionship, society, comfort, guidance, solace and protection [that the decedent] would have provided her parents.” Id. at 256. Preliminary objections were decided June 10,2004. Not only were the preliminary objections in opposition to the claim denied, but also the theory behind the decision was so firm that it is obligatory upon this court. The court in Blair based its decision on, among other cases, Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490 (1959), a Pennsylvania Supreme Court case in which the court concluded, “All these things — such as companionship, comfort, society, guidance, solace, and protection . . . are the things for which a wrongdoer must pay . . . .” Blair, supra at 259 (quoting Spangler, supra). The court in Blair stated, “[Cjommon sense dictates that the damages suffered by the parents for the loss of their child’s society and comfort may be [recovered] under the Wrongful Death Statute for the same reasons recognized in Spangler ....” Blair, supra at 263.

In the case at bar, plaintiffs are seeking to recover for the loss they have sustained from the death of their child. It is true that there may be emotional aspects to this loss, but the law in Pennsylvania is clear that, “[N]o recovery has been allowed in wrongful death actions for grief and mental suffering resulting from the loss of a decedent.” Papieves v. Kelly, 437 Pa. 373, 380, 263 A.2d 118, 122 (1970). Although the plaintiffs cannot recover for emotional hardship, they are allowed to recover, by words of the Act, for the monetary hardship that may be incurred. Conversely, “[t]he damages recoverable under the Wrongful Death Act are not limited solely to the loss of the decedent’s monetary contributions which the survivors have been denied. The Wrongful Death Act permits recovery for the pecuniary value of the loss of services and included among those services is the providing of society and comfort.” Blair, supra at 260, citing Rittenhouse v. Hanks, 777 A.2d 1113, 1119 (Pa. Super. 2001), appeal denied. The court in Spangler found that “the services that a child may have provided a parent go beyond that which a housekeeper could supply and may involve taking the parents to church, the store, on vacation, or various activities which, were it not for the child’s attention and care, the parent would never enjoy.” Blair, supra at 263, citing Spangler.

“The monetary value of [actual companionship in the way of physical activity, which had been provided by the decedent to the survivors,] is recoverable, or in the words of Spangler, the loss of the bestowed benefits the deceased had given the survivors are to be appropriately compensated in a wrongful death action as a pecuniary loss.” Blair v. Mehta, 61 D.&C.4th 246, 262 (2004). The plaintiffs are bringing a claim under the Wrongful Death Act and, if all elements are proven, could warrant recovery for the plaintiffs. While there may be similarities between the types of services recoverable under the Wrongful Death Action and the definition of consortium, they are not one and the same. Id. at 266.

Consequently, this court concludes that the word “consortium” is to be stricken from plaintiffs’ third amended complaint in civil action at p. 10 paragraph no. 32(a) and p. 16 paragraph no. 41(a). Plaintiffs are, however, allowed to claim damages for loss of services and contribution.

Accordingly, we enter the following:

ORDER

And now, December 30,2004, upon consideration of the defendants’, Glenn O. Hawbaker Inc. and Jody E. Clark, preliminaiy objections to plaintiffs’ third amended complaint in civil action and brief in support of preliminary objections to plaintiffs’ third amended complaint in civil action, plaintiffs’ response to defendants’ preliminary objections to plaintiffs’ third amended complaint in civil action and brief in opposition to preliminary objections to plaintiffs’ third amended complaint in civil action, after hearing oral argument thereon, and in accordance with the foregoing memorandum opinion, it is hereby ordered that plaintiffs are prohibited from claiming a loss of consortium and, to the extent that plaintiffs are requesting damages for “loss of consortium,” defendants’ motion is granted, therefore, the word consortium is to be stricken from paragraph nos. 32(a) and 41(a), respectively. Plaintiffs are, however, allowed to claim damages for loss of services and contribution as set forth in the above designated paragraphs.


source: Caselaw Access Project

author: ABRAMSON, J,

license: Public Domain

text:
    Shapiro v. Albert Einstein Medical Center

      Matthew D’Annunzio, for plaintiffs.

      George Dale, Cy Goldberg, Marcy Landis and Jac-quelin Carolan, for defendants.
    January 26, 2005
   ABRAMSON, J,

This appeal is of an order dated October 26, 2004, which granted defendants’ motion for reconsideration and transferred venue from Philadelphia County to Montgomery County.

This is a medical malpractice action in which plaintiff appeared at Einstein Elkins Park Radiology on January 7, 2002, for her annual mammogram. Plaintiffs allege that defendants failed to detect a cancerous mass in plaintiff’s right breast and failed to timely diagnose her with breast cancer following her mammogram.

Pennsylvania Rule of Civil Procedure 1006(a.l) states that “a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.” The Superior Court interpreted this to mean that the relevant inquiry for venue is where the medical care was “furnished” to the patient. Olshan v. Tenet Health System City Avenue LLC, 849 A.2d 1214, 1216 (Pa. Super. 2004). Significantly, the court held that “it is not the county where the corporate action took place that determines venue, but the county where the action affected the patient.” Id. For example, secondary services, such as hiring physicians, drafting rules, or supervising health care professionals, are not sufficient to create venue. Id., 849 A.2d at 1217.

In the instant case, defendants have sufficiently shown that all of the medical care was furnished to plaintiff in Montgomery County. In support of their position, defendants have presented the deposition of Mable Jones M.D., plaintiff’s radiologist at Elkins Park Radiology. She testified that plaintiff’s January 2002 mammogram was taken, reviewed, and interpreted at the Einstein Elkins Park Radiology facility, which is located in Montgomery County. Depo. Mable Jones M.D. 196:16 to 197:1 (June 28,2004). Additionally, defendants’ answers to interrogatories, which were verified by a representative of Albert Einstein Medical Center, confirm that no treatment was rendered to plaintiff at Albert Einstein Medical Center in Philadelphia County. Specifically, the answers to interrogatories demonstrate that plaintiff’s mammography film was never removed from Elkins Park Radiology, no physician from Albert Einstein Medical Center interpreted plaintiff’s film at a location in Philadelphia County, and no individuals located in Philadelphia County were involved in the process of obtaining outside studies for comparison. See Albert Einstein Medical Center’s answers to interrogatories (August 4,2004).

In paragraph 47 of plaintiffs’ statement of matters complained of, plaintiffs assert what amounts to be their entire basis for arguing that venue properly lies in Philadelphia County. To wit,

“Defendants, in a letter on Albert Einstein Medical Center’s Philadelphia letterhead, assured plaintiffs that they were undertaking to obtain prior mammography films for comparison, and that a final report as to the mammography taken by the Einstein defendants would not be issued until the films had been obtained.”

In fact, Leslie Velasco, the manager of Elkins Park Radiology, testified at deposition that the letter in question was a form letter used by Elkins Park Radiology, which, again, is located in Montgomery County. Depo. Leslie Velasco 125:6-20 (July 8,2004). Therefore, plaintiffs’ premise proves to be false, and it is not cured by an attempt to assert an institutionally-wide duty as found in paragraph 48 of their statement of matters complained of. (The letter is attached as a court exhibit.)

Plaintiffs assert that the administrative acts performed by Albert Einstein Medical Center in Philadelphia County, such as hiring physicians, drafting rules and regulations, supervising staff, and failing to ensure that it would obtain plaintiff’s prior mammography films, constitute “health care services” under 42 Pa.C.S. §5101.1(c). However, the court in Olshan expressly rejected this proposition. On facts almost identical to the present case, the court in Olshan stated that the “health care services” that were provided to the patient were the taking and the reading of a mammogram, and not the hiring, supervising, or providing rules and regulations for staff. 849 A.2d at 1217. In fact, the Olshan court concluded that the new venue rules sought to alleviate the situation where venue is greatly expanded due to the new corporate structure of health care, and sought to limit venue to the location of the alleged negligent care. The court stated,

“The General Assembly has stated that it has recognized that health care in the Commonwealth was becoming controlled by larger entities such as Tenet Health Systems, the University of Pennsylvania, Thomas Jefferson University, Einstein Hospital, the University of Pittsburgh Medical Center, and West Penn Allegheny Health System. As a result of this, any health care provider affiliated with any of these larger corporate entities became fair game to be sued in Philadelphia or Pittsburgh, where the vast majority of corporate entities have their main location or conduct a large amount of business. The result has been an ‘unduly expanded’ reach and scope of venue ... [S] imply by alleging some form of corporate negligence, unrelated to the actual provision of health care services, the venue rules are circumvented and the doctor, in this case practicing in Montgomery County, once again finds himself a defendant in Philadelphia County.” Id., 849 A.2d at 1218.

The policy and interest analysis laid out in Olshan should apply to the present case. Similar to Olshan, the “health care services” provided to plaintiff in this case were the taking and reading of her mammogram at the Elkins Park Radiology facility in Montgomery County, and not the indirect administrative acts in Philadelphia. Thus, all medical care was furnished in Montgomery County, and venue is appropriate there.

Plaintiffs further contend that defendants cannot, for the first time, come forward with factual averments in their motion for reconsideration when they failed to do so in their preliminary objections. However, in plaintiffs’ “Reply of plaintiffs Arline and Fred Shapiro to the petition to transfer venue ...” on July 7, 2003 (filed in response to defendants’ preliminary objections), plaintiffs alleged that corporate negligence occurred in Philadelphia. See ¶1; see also, complaint ^09(b)-(e). At that time, plaintiffs’ allegation provided the proper basis for venue in Philadelphia County since this was before Olshan was decided. Any failure of defendants to earlier allege with particularity that other negligent acts occurred outside of Philadelphia, or to add a notice to plead or verification did not have any effect on the August 27, 2003 decision overruling preliminary objections.

Olshan, decided on April 22, 2004, made clear that the place of the corporate negligence was not sufficient to create venue. The decision in Olshan represents the first appellate decision to so hold. Defendants should not be barred from raising this argument since Olshan effectively changed prior law. Cf. Cleveland v. Johns-Manville Sales Corp., 547 Pa. 402, 411, 690 A.2d 1146, 1151 (1997) (“where a fundamental change in the law occurs after the lower court enters its order, but before the appellate court rules, the failure to raise the issue in the lower court will not preclude appellate review of that issue”); see Vincent v. Fuller Company, 400 Pa. Super. 108, 113-14, 582 A.2d 1367, 1370 (1990) (“if new case law is decided subsequent to an earlier ruling by the court and it clarifies a principle of substantive law or overrules an important case relied upon by one of the parties at an earlier stage of the proceedings, judicial economy and efficiency is best served by consideration of the new case law prior to trial”).

Finally, plaintiffs assert that defendants’ motion for reconsideration is untimely. Plaintiffs maintain that defendants should have filed their motion for reconsideration 30 days from the August 27, 2003 order that overruled defendants’ preliminary objections and denied their motion to transfer venue. Plaintiffs cite 42 Pa.C.S. §5505 in support of this argument. However, the 30-day time limitation for reconsideration imposed by section 5505 only applies to final orders. Hutchison by Hutchison v. Luddy, 417 Pa. Super. 93, 108, 611 A.2d 1280, 1288 (1992). “Where an order does not effectively place the litigant out of court or end the lawsuit, it is within the trial court’s discretion to entertain a motion to reconsider the interlocutory order outside the 30-day time limit set forth in 42 Pa.C.S. §5505.” Id., 417 Pa. Super. at 108-109, 611 A.2d at 1288. The August 27, 2003 order, which effectively kept venue in Philadelphia County, was not a final order. Therefore, the court had discretion to consider this motion for reconsideration beyond the 30-day time limitation. Based on the all the circumstances in this case, the court deemed it proper to decide the motion for reconsideration in favor of defendants.

For the foregoing reasons, the court’s decision should be affirmed.

EXHIBIT

Date 1-7-02

Dear Arline Shapiro,

We wish to inform you that your study has been evaluated. A final report and recommendation require comparison with outside prior studies. We will attempt to obtain them.

A preliminary report of your mammography results was sent to your referring physician.

Your mammogram will become part of your medical file here at Einstein Elkins Park Radiology for at least 10 years. You are responsible for informing any new health care provider or mammography facility of the date and location of this examination.

Sincerely,

Einstein Elkins Park Radiology

OSF

      . While plaintiffs argue that the motion was made on the “eve of trial” alluding to, one would suppose, some sort of prejudice, it suffices to say that the motion was filed in September 2004, with a projected trial date of January 2005, and an actual trial date to occur about six months later. Factually, the motion then was not made on the eve of trial, and, without more, the timing of the motion does not trump the new venue rules and the policies behind them.


author: McFADDEN, J.,

text:
    Taylor v. Woods Rehabilitation Service

      C.P. of Northampton County,
    no. C0048CV2001003443.

      Thomas Aristide, for plaintiff.

      Michael Dunn, for defendants.
    November 4, 2004
   McFADDEN, J.,

Presently before the court is the defendants’, Woods Rehabilitation Service and Dana L. Chattin, motion for summary judgment. Pursuant to this motion defendants seek judgment as a matter of law on all three claims of the plaintiff. This matter was assigned to the Honorable RP. Kimberly McFadden from the August 31,2004 argument list. Following oral arguments and review of the briefs submitted and the file, this matter is now ready for disposition.

FACTUAL/PROCEDURAL HISTORY

On August 14, 1996, Mr. Taylor was injured on the job while working for the Bethlehem Area School Disrict. As a result of this injury, Mr. Taylor suffers from various conditions including the inability to use and control his bowel and bladder movements. Since the incident, Mr. Taylor has been on medical leave from the Bethlehem Area School District and continues to receive workers’ compensation benefits pursuant to the Pennsylvania Workers’ Compensation Act.

At the time of the incident, Bethelehem Area School District had engaged Selestech Inc. as a third-party administrator to administer the workers’ compensation benefits to the school district’s injured employees. Selestech Inc., in turn, retained the defendants to provide vocational rehabilitation services for the plaintiff. Defendant Woods Rehabilitation Services assigned defendant Dana Chattin to the plaintiff’s case to provide vocational rehabilitation services. Defendants provided ongoing vocational rehabilitation services for the plaintiff, including securing job interviews for Mr. Taylor.

On May 3,2001, plaintiff initiated this action against the defendants for vocational malpractice, breach of contract, and intentional infliction of emotional distress. Plaintiff alleges that defendants failed to take into consideration and inform potential employers of plaintiff’s limitations regarding bowel and bladder control. On December 6, 2002, defendants filed a motion for summary judgment, asserting improper jurisdiction and failure of the claims on their merits. The Superior Court reversed this court’s decision from May 1, 2003, and denied defendants’ motion on March 30, 2004. In its decision, the Superior Court held that plaintiff’s claims are not barred by the exclusivity of remedy provisions of the Pennsylvania Workers’ Compensation Act. The Superior Court, however, did not comment on the merits of the plaintiff’s underlying claim.

Defendants filed this second motion for summary judgment on July 20,2004, asserting failure of the plaintiff’s claims on the merits. We will address each in turn.

LEGAL STANDARD

A court may grant summary judgment only in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998). Pennsylvania Rule of Civil Procedure 1035.2 provides, in pertinent part, as follows:

“After the relevant pleadings are closed, but within such a time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.

“(1) 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, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The underlying goal of this rule is to provide a means of avoiding the trial of cases where a party “lacks the beginnings of evidence to establish or contest a material issue.” Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d. 401 (1996). The court may properly grant summary judgment where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ducjai v. Dennis, 540 Pa. 103, 113, 656 A.2d 102, 107 (1995).

The moving party bears the burden of proving that there are no genuine issues of material fact remaining. First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 198, 653 A.2d 688, 691 (1995). Once the moving party has met this burden, the non-moving party is required to “adduce sufficient evidence on [the] issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Ertel, 544 Pa. at 101-102, 674 A.2d at 1042. The non-moving party may not rest on the pleadings, but must demonstrate to the court that a genuine dispute of material fact exists. New York Guardian Mortgage Corp. v. Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (1987).

In summary judgment proceedings, “it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists.” Fogle v. Malvern Courts Inc., 701 A.2d 265, 266 (Pa. Super. 1997), aff’d, 554 Pa. 633, 722 A.2d 680 (1999). “Summaiy judgment is properly granted ‘if, after the completion of discovery relevant to the motion,... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.’ ” Costa v. Roxborough Memorial Hos pital, 708 A.2d 490, 493 (Pa. Super. 1998), appeal denied, 556 Pa. 691, 727 A.2d 1120 (1998).

DISCUSSION

Plaintiff first alleges that defendants committed vocational malpractice by not informing potential employers of plaintiff’s limitations regarding his bowel and bladder control. In order to support a claim of vocational malpractice, plaintiff must present evidence of a duty, breach, causation and damages. See Crivellaro v. Pennsylvania Power & Light Co., 341 Pa. Super. 173, 181, 491 A.2d 207, 211 (1985). Defendants assert that summary judgment should be granted because, as a matter of law, defendants did not owe a duty to plaintiff and, even if there was a duty, plaintiff did not incur damages as a result of defendants’ actions or failure to act. Plaintiff, on the other hand, asserts that defendants, as vocational experts, owed a duty to plaintiff to consider the injured worker’s impairments, and, more specifically, to inform prospective employers of plaintiff’s condition regarding his bowel and bladder control.

We agree with defendants that they did not owe a duty to plaintiff to advise prospective employers of all medical conditions. According to the Commonwealth Court, it is not necessary to inform a prospective employer of all of a claimant’s medical information or of the precise nature of a claimant’s disability. See Sakell v. W.C.A.B. (Ridgaway Philips Health Care Center), 651 A.2d 704, 707 (Pa. Commw. 1994), petition for allowance of appeal denied, 541 Pa. 647, 663 A.2d 698 (1995); Delaware Valley Truck Parts v. W.C.A.B. (Eskuchen), 168 Pa. Commw. 162, 649 A.2d 999 (1994). As expressed in Delaware Valley Truck Parts, however, a prospective employer need only be informed of those physical restrictions that are relevant to the duties of the proffered job.” Id. at 169, 649 A.2d at 1002.

In the case at bar, defendants were hired to assess plaintiff’s skills and abilities and set up interviews with prospective employers. Defendants did just that. To hold that defendants, as vocational experts, are required to inform prospective employers of every medical impairment of plaintiff would be too onerous a burden, not to mention impractical. Thus, we find that defendants did not have the specific duty to inform prospective employers of the plaintiff’s bowl and bladder control.

Furthermore, plaintiff asserts that, due to the failure of defendants to inform prospective employers of plaintiff’s condition, plaintiff was allegedly damaged by being in a “catch 22” because plaintiff either had to publicly humiliate himself by disclosing his conditions or risk losing or reducing his workers’ compensation benefits. However, there is no evidence to suggest that plaintiff suffered actual damages. Therefore, defendants’ motion for summary judgment based on vocational malpractice is granted.

Plaintiff next claims that defendants breached their contract. Defendants assert that summary judgment should be granted because plaintiff was not an intended third-party beneficiary of the contract between defendant Woods and Selestech. We are unable to grant defendants’ motion, however, because questions of material fact exist as to whether plaintiff was an intended third-party beneficiary.

Plaintiff also asserts a cause of action against defendants based on intentional infliction of emotional distress. Defendants move for summary judgment on the grounds that plaintiff cannot produce evidence of a prima facie case that defendants’ conduct is so outrageous so as to permit recovery. Furthermore, defendants assert that plaintiff’s claim should be dismissed because it is based on a “failure to act,” and there is no right to recover for intentional infliction of emotional distress based upon a defendant’s alleged failure to act. We agree. According to the Superior Court, there is no liability pursuant to section 46 of the Restatement (Second) of Torts where the failure to act, i.e., negligence of a party, forms the basis of the claim. Jackson v. Sun Oil Co. of Pennsylvania, 361 Pa. Super. 54, 58-59, 521 A.2d 469, 471 (1987).

Because the plaintiff’s claim is based on the failure of the defendants to inform prospective employers of plaintiff’s condition, as a matter of law, defendants’ motion for summary judgment based on intentional infliction of emotional distress is granted.

Defendants also seek to dismiss plaintiff’s claims against defendant Chattin individually. Because plaintiff did not respond to defendants’ motion regarding defendant Chattin, plaintiff has waived this right under Pa.R.C.P. 1035.3. Therefore, defendants’ motion for summary judgment dismissing defendant Chattin is granted.

CONCLUSION

For the above-stated reasons, we are granting defendants’ motion for summary judgment in part and denying defendants’ motion in part.

Wherefore, we enter the following:

ORDER

And now, November 4, 2004, upon consideration of defendants’ motion for summary judgment, it is hereby ordered and decreed that defendants’ motion with regards to plaintiff’s claims of vocational malpractice and intentional infliction of emotional distress, and dismissal of defendant Chattin individually are hereby granted, and defendants’ motion with regards to plaintiff’s claim of breach of contract is hereby denied.


author: BARATTA, J.,

text:
    Bethlehem Area School District v. White Brothers Construction Inc.

      C.P. of Northampton County,
    no. C0048CV2002002968.

      Paul A. Logan, for plaintiff.

      Michael J. Revness and Marsha E. Flora, for defendants White Brothers Construction Inc.

      R. Eric Hall, for defendant Joseph Morelli & Co.

      Frederick T. Lachat Jr., for defendant Shippee Mechanical Inc.
    October 28, 2004
   BARATTA, J.,

STATEMENT OF REASONS

Presently before the court is the motion for partial summary judgment filed by plaintiff, Bethlehem Area School District (BASD) on the issue of liability. Specifically, BASD contends that defendants, White Brothers Construction Inc. (WBC), Joseph Miorelli Inc., and Shippee Mechanical Inc., failed to establish any material facts on the issue of liability, such that BASD is entitled to judgment as a matter of law with regards to liability.

This matter arises out of a contractual relationship entered into between BASD and WBC to replace the existing roof of the west wing of Freemansburg Elementary School, and to install a new bituminous modified roofing system over portions of it. To assist with its duties under the contract, WBC entered into subcontract agreements with defendants Miorelli and Shippee.

In June 2000, the defendants, WBC, Shippee, and Miorelli, commenced work on the west wing of the elementary school. In the course of their performance of the contract, it is alleged that WBC, Miorelli, and Shippee individually and collectively altered, damaged, and/or changed the roof and roof drainage system of the elementary school. It is further alleged that after three rain storms in July 2000, rainwater accumulated on the roof and infiltrated the elementary school.

After the third storm on July 25,2000, Norman Snader and Tony White, both representatives of WBC, inspected the water damage to the elementary school. The next day, July 26, 2000, Snader sent a letter to Mike Franceski of D-Huy Engineering Inc. The content of the Snader letter contains the evidentiary support for BASD’s motion. In his letter, Snader acknowledged damage to the school from water penetration coming from the roof. The letter provides a detailed list of the party responsible (either WBC or Shippee) for certain water damage to ceiling tiles and carpeting in various rooms within the elementary school.

As a result of the water infiltration, on April 24,2002, BASD filed a complaint against the defendants to recover for water damage to the elementary school. In addition to the water damage, BASD alleges that the defendants are liable for mold and mildew growth caused by the defendants’ defective work in replacing the elementary school’s west wing roof.

The instant motion for partial summary judgment was filed on June 29,2004. BASD alleges that the letter sent by Snader to Franceski serves as an admission of liability such that the only issue left is the amount of damages to be imposed.

In response, WBC asserts that, while the Snader letter may acknowledge liability for limited damage in the nature of ceiling tiles and carpeting, it does not acknowledge liability for the mold growth which WBC contends was likely caused by other factors and/or parties. Further, WBC asserts that the BASD motion is premature because there will be anywhere from 35 to 40 depositions addressing the factual record. Thus, the defendants contend that BASD’s motion is premature.

I. Legal Standard

Pennsylvania Rule of Civil Procedure 1035.2 states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) 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 discover or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.” Id. at Pa.R.C.P. 1035.2.

Further, under Pa.R.C.P. 1035.3(a), the nonmoving party may not rest upon mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion. In other words, the nonmov-ing party has a clear and affirmative duty to respond to a motion for summary judgment. Harber Philadelphia Center City Office Limited v. LPCI Limited Partnership, 764 A.2d 1100, 1104 (Pa. Super. 2000). Also, Pa.R.C.P. 1035.3(d) specifically provides that “[sjummary judgment may be entered against a party who does not respond.” Id.

Summary judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and also demonstrates that the moving party is entitled to judgment as a matter of law. Trowbridge v. Scranton Artificial Limb Co., 560 Pa. 640, 747 A.2d 862 (2000); P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999). Summary judgment is only appropriate in the clearest of cases because an order favorable to the moving party will prematurely end an action. Scopel v. Donegal Mutual Insurance Company, 698 A.2d 602 (Pa. Super. 1997).

The moving party has the burden of proving the nonexistence of any genuine material fact. O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039 (Pa. Commw. 1999); citing Kee v. Turnpike Commission, 722 A.2d 1123 (Pa. Commw. 1998). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law.” Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 590, 777 A.2d 418, 429 (2001), citing Young v. PennDOT, 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000). The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

II. Discussion

BASD argues that there are no genuine issues of material fact in this case with regards to liability for water, mold, and mildew damage to the elementary school. BASD contends that the Snader letter to D-Huy is an admission of liability for the water damage to the elementary school and, therefore, the only issue to be resolved is to assess damages against the defendants. BASD asserts that “there can be no doubt that WBC accepted responsibility for certain items of water-infiltration damage caused by its faulty workmanship as set forth in WBC’s letter of July 26,2000, and that such acceptance is a clear admission of liability.” See plaintiff’s memorandum, pp. 8-9.

BASD relies on Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 449 A.2d 1366 (1982), to support their position. In Rochester Machine, the plaintiff sought the admission of a letter from the defendant to the plaintiff where the defendant accepted responsibility for certain damages and denied responsibility for other damages.

While Rochester Machine did hold that the letter in issue served as an admission and acceptance of responsibility for specific items of damages, a careful reading of the Supreme Court’s decision does not support BASD’s argument that the Snader letter must be construed as an admission of liability for the mold damage.

BASD asserts that the Snader letter admits liability for all of the damage caused to the elementary school. However, a plain reading of the Snader letter establishes that the admission is limited in scope and refers only to “Water damage to interior of Freemansburg Elementary School,” which is referenced in the letter as damage to ceiling tiles and carpeting. The Snader letter fails to speak to the issue of mold or mildrew growth which is at the crux of BASD’s claim for damages against the defendants. We also note that as of July 25,2000, no party had yet to discover the existence of the mold growth.

WBC argues that its letter is clearly limited in scope. Further, WBC argues that even the letter is not explicit in its limitation of liability, that the letter’s intent cannot be read to include liability for the mold growth without additional factual support or proof. Therefore, there remains material issues of fact that must be resolved before liability for the mold growth can be determined. Finally, WBC argues that the cause of the mold growth has not been established. WBC asserts that there are other possible causes for mold growth, independent of the July water penetration, including the HVAC system and interior plumbing.

Hence, because summary judgment is only appropriate in the clearest of cases, and the record must be viewed in the light most favorable to the nonmoving party, summary judgment on the issue of liability as related to mold growth is not appropriate as there remains material issues of fact that must be resolved at trial. However, because the Snader letter is clear as to liability for water damage to the ceiling tiles and carpet, summaiy judgment for those damages is appropriate.

ITT. Conclusion

We find that there is no genuine issue of material fact regarding liability for the damaged ceiling tiles and carpeting reference in the Snader letter. However, we find that there remains material issue of fact with regard to liability for the mold growth. Consequently, BASD’s motion for summary judgment is granted in part and limited only to judgment against WBC for the damage to the ceiling tiles and carpeting specifically referenced in the Snader letter. BASD’s motion for partial summary judgment regarding liability for the mold growth is denied.

ORDER

And now, October 28, 2004, motion for partial summary judgment filed on behalf of the plaintiff, Bethlehem Area School District, on the issue of liability, is granted in part and limited only to judgment against WBC for the damage to the ceiling tiles and carpeting specifically referenced in the July 26, 2000 letter written by Norman Snader of White Brothers Construction Inc. Bethlehem Area School District’s motion for partial summary judgment regarding liability for the mold growth is denied.

      . Mike Franceski is the project engineer for BASD with regards to the elementary school roof project.


author: BROWN, Member,

text:
    Office of Disciplinary Counsel v. Durney

      Disciplinary Board Docket no. 55 D.B. 2003.
    July 30, 2004
   BROWN, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On April 28,2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, Joseph James Durney Jr. The petition charged respondent with violations of the Rules of Professional Conduct based on allegations that he converted client funds from an estate checking account on six occasions. Respondent filed an answer to petition on May 30, 2003.

A disciplinary hearing was held on October 27,2003, before Hearing Committee 3.04 comprised of Chair Donald H. Brobst, Esquire, and Members David E. Hershey, Esquire, and Jack M. Stover, Esquire. Respondent was represented by Clyde W. Vedder Jr., Esquire. Respondent stipulated to the facts of the matter as contained in the petition for discipline. Respondent testified on his own behalf and presented the testimony of an expert witness as well as three character witnesses. Petitioner presented the testimony of one expert witness.

Following the submission of briefs by the parties, the Hearing Committee filed a report on March 17, 2004, finding that respondent violated the Rules of Professional Conduct as charged in the petition for discipline, and recommending that he be suspended for one year followed by probation with a practice monitor for one year.

Respondent filed a brief on exceptions on April 6, 2004, and requested oral argument.

Petitioner filed a brief opposing exceptions on April 26, 2004.

Oral argument was held on May 10, 2004, before a three-member panel of the Disciplinary Board chaired by Laurence H. Brown, Esquire, with Members Smith Barton Gephart, Esquire, and C. Eugene McLauglin.

This matter was adjudicated by the Disciplinary Board at the meeting of May 18,2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, PA 17101, is invested, under Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving professional misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Joseph James Durney Jr., was bom in 1955 and was admitted to practice law in this Commonwealth in 1980. His registered address is P.O. Box 164, 15 North Cherry Lane, York, PA 17405. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has no prior record of discipline.

(4) In January 1997, respondent became employed as an associate attorney for the York law firm of Andrew Kagen.

(5) Renee S. Gatling of York County, Pennsylvania, died on April 5,1997. As an employee of the Kagen firm, respondent undertook the representation of Gwendolyn Smith of Norfolk, Virginia, the mother of Renee Gatling. On April 21, 1997, respondent caused letters of administration to be issued to Ms. Smith in York County for the Renee S. Gatling estate.

(6) On April 21, 1997, respondent took Ms. Smith to Mellon Bank in York and opened checking account no. ******* as an estate account for the Gatling estate. Ms. Smith was the sole signatory on this account.

(7) At respondent’s request, Ms. Smith signed some blank checks on the estate account to facilitate the administration of the Gatling estate.

(8) Respondent prepared estate account check no. 1040, dated July 24, 1998, in the amount of $700, and payable to respondent.

(9) Estate account check no. 1040 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(10) On or about July 24,1998, respondent negotiated estate account check no. 1040.

(11) Respondent personally utilized the entire $700 proceeds from estate account check no. 1040.

(12) Respondent’s use of the proceeds was without the knowledge or permission of Ms. Smith.

(13) Respondent used the $700 in partial payment of a $ 1,000 car repair bill that had been anticipated to be about $300.

(14) Respondent prepared estate account check no. 1041, dated September 25,1998, in the amount of $500, and payable to respondent.

(15) Estate account check no. 1041 bore the signature of Ms. Smith but was drawn by respondent without her permission or knowledge.

(16) On or about September 25,1998, respondent negotiated estate account check no. 1041.

(17) Respondent’s use of the $500 proceeds was without the knowledge or permission of Ms. Smith.

(18) Respondent does not recall how he utilized the $500 proceeds, or the proceeds of any of the checks he wrote subsequent to the first check for $700.

(19) Respondent prepared estate account check no. 1042 dated October 26, 1998, in the amount of $250, and payable to respondent.

(20) Estate account check no. 1042 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(21) On or about October 26,1998, respondent negotiated estate account check no. 1042.

(22) Respondent personally utilized the entire $250 proceeds of estate account check no. 1042, without permission by, or knowledge of, Ms. Smith.

(23) Respondent prepared estate account check no. 1043, dated January 23, 1999, in the amount of $350, and payable to respondent.

(24) Estate account check no. 1043 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(25) On or about January 23, 1999, respondent negotiated estate account check no. 1043.

(26) Respondent personally utilized the entire $350 proceeds of the estate account check no. 1043 without the knowledge or permission of Ms. Smith.

(27) Respondent prepared estate account check no. 1050, dated February 15, 1999, in the amount of $25, and payable to respondent.

(28) Estate account check no. 1050 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(29) On or about February 15, 1999, respondent negotiated estate account check no. 1050.

(30) Respondent personally utilized the entire $25 of estate account check no. 1050 without knowledge or permission of Ms. Smith.

(31) Respondent prepared estate account check no. 1044, dated February 16, 1999, in the amount of $50, and payable to respondent.

(32) Estate account check no. 1044 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(33) On or about February 16, 1999, respondent negotiated estate account check no. 1044 for cash.

(34) Respondent personally utilized the entire $50 proceeds of estate account check no. 1044 without the knowledge or permission of Ms. Smith.

(35) When respondent wrote the Gatling estate checks to himself and utilized the proceeds he knew that he had no entitlement to those funds.

(36) On each of the six occasions when respondent wrote checks to himself on the Gatling estate account, he had a need for funds, knowingly retrieved the Gatling estate checkbook, wrote a check to himself, cashed that check and used the proceeds.

(37) Respondent never wrote a check against any other estate account.

(38) Respondent was aware that he owed restitution to the Gatling estate, but he did not take any action in that regard because he claimed he did not have access to funds, as his wife was in charge of the family finances.

(39) Beginning around 1998, respondent began experiencing financial difficulties as the Kagen firm reduced his salary by 20 percent, and in June 1998, his wife lost her job.

(40) At that time respondent also had an IRS debt of $20,000 and credit card debt of approximately $15,000.

(41) Respondent’s wife handled all of the household finances and by the couple’s agreement respondent received a weekly allowance.

(42) Respondent’s employment with the Kagen firm ended in July 2000.

(43) Prior to leaving the Kagen firm, respondent reviewed his case files with the firm, including the Gatling estate.

(44) When the Gatling estate file was reviewed by the Kagen firm, respondent was aware that he had improperly taken $1,875 but he did not disclose this fact.

(45) The Kagen firm audited their records for the Gatling estate and, in or about December 2000, the firm obtained copies of the six estate account checks payable to respondent and totaling $1,875 and determined that those funds did not represent fees or costs due to the firm.

(46) By letter of December 15, 2000, to respondent, the Kagen firm demanded that he provide an accounting and an explanation for the six estate account checks.

(47) In January 2001, respondent, through counsel, returned $1,875 to the Kagen firm.

(48) On the advice of his wife, respondent contacted George DeSau, a psychologist, in August 2000 for the purpose of exploring perceived difficulties and failings in his professional life. Respondent did not mention to Dr. DeSau his misuse of the estate funds until after the Kagen firm demanded return of the funds.

(49) Respondent subsequently contacted Ellis Berk-owitz, a licensed social worker, in April 2001 and began counseling with him on a weekly basis.

(50) Respondent indicated to Mr. Berkowitz at their first meeting that he had been contacted by Office of Disciplinary Counsel relative to misused funds.

(51) Respondent admitted to Mr. Berkowitz that he personally used the funds of the Gatling estate with the intent of paying them back.

(52) On each occasion of his misuse of funds, respondent was short of funds, feared recriminations from his wife, and so panicked and used the estate funds.

(53) Mr. Berkowitz diagnosed respondent with Attention Deficit Hyperactivity Disorder (ADHD) with some evidence of dysthymia, which is a low-level depression where a person will have ongoing symptoms of depression for six months or longer.

(54) Respondent was initially placed on Adderal for his ADHD. Adderal influences the brain chemistry and decreases the symptoms of ADHD, causing a person to be less distracted, impulsive, inattentive and reckless.

(55) Mr. Berkowitz stated that a characteristic of respondent that indicated ADHD was his trouble thinking clearly and using sound judgment, especially under stressful conditions. Respondent’s ADHD negatively impacted his ability to control his impulsive actions.

(56) Mr. Berkowitz opined that a causal connection existed between respondent’s misconduct and his ADHD.

(57) Mr. Berkowitz believed that at the times of the misuse of the funds respondent reacted inappropriately due to financial pressures.

(58) Mr. Berkowitz could not explain why respondent’s ADHD impacted his behavior in the Gatling estate, and no other case that he was working on.

(59) Respondent’s ADHD did not adversely impact his ability to understand right from wrong.

(60) Dr. Vincent Berger, a licensed psychologist, was retained by petitioner to evaluate respondent and comment on Mr. Berkowitz’ conclusions.

(61) Dr. Berger did not dispute Mr. Berkowitz’ADHD diagnosis, but opined that there was no causal relationship between respondent’s ADHD and the misconduct.

(62) At the time of the misconduct, respondent was facing various stressors in his life, among them his mother’s terminal illness, his chronic degenerative disc disease, financial pressures from his wife, and his parent’s decision to seek other legal counsel relative to their estate planning.

(63) During this time respondent was consuming large amounts of alcohol on a daily basis.

(64) Respondent testified on his own behalf.

(65) Respondent testified that he panicked under ongoing pressure from the various factors in his life and misappropriated the estate funds.

(66) Respondent admits he did not always respond to a pressure situation in the way that he should have.

(67) Three character witnesses testified on behalf of respondent.

(68) Robert Bowen is a financial advisor who has known respondent for many years. He believes respondent has good moral character and this opinion is shared by the community.

(69) George Kain III, is an attorney who practices in York. Mr. Kain believes respondent enjoyed a good reputation for honesty in the community, but acknowledged that at least some in the community would feel that respondent engaged in inappropriate conduct relative to his use of the Gatling funds.

(70) Susan Baugh is the executive director of Atkins House, a half-way house for women in York. She believes respondent has a good reputation in the community for having a high moral caliber. She also believes the misconduct was out of character for respondent, but it did not change her initial opinion of him.

(71) Respondent expressed sincere remorse for his actions and fully admitted his wrongdoing.

(72) Respondent cooperated with Office of Disciplinary Counsel.

(73) Respondent has been very active in the York legal community. He served on the York County Estate Planning Council and the Orphans’ Court Rules Committee.

(74) Respondent has been active in civic matters in the York community. He has served Atkins House both as president and a member of the board of directors. He has been on the policy committee of the Jewish Community Center since 2002. He served as president and a board member of the Kiwanis Club and was a graduate of the Leadership York Class of 2002. He is currently a board member of the Multiple Sclerosis Society.

(75) Since July 2000, respondent has conducted himself as a sole practitioner.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with the representation separate from the lawyer’s own property.

(2) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with violations of the Rules of Professional Conduct based on his mishandling of estate monies. Respondent stipulated to the facts of the matter as contained in the petition for discipline and admitted that he violated Rules 1.15(a) and 8.4(c) of the Rules of Professional Conduct.

What remains to be decided by the board is the appropriate sanction to be imposed on respondent in light of his ethical misconduct. This case involves the misappropriation of funds from an estate, a serious act of misconduct. Precedent has established that unauthorized dealings with client money requires some form of public discipline due to the breach of trust involved. In re Anonymous No. 124 D.B. 97, 47 D.&C.4th 338 (1998). The appropriateness of a disciplinary sanction is based on the nature and gravity of the misconduct and the aggravating and mitigating factors present. In re Anonymous No. 85 D.B. 97, 44 D.&C.4th 299 (1999).

Respondent does not contest the six separate acts of misconduct nor the rule violations. Respondent, relying on Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989), argues that his conduct was substantially the consequence of his psychiatric disorder, thus entitling him to mitigation of the discipline to be imposed.

Respondent presented the expert testimony of Ellis Berkowitz, a licensed clinical social worker. Mr. Berko-witz diagnosed respondent with Attention Deficit Hyperactivity Disorder. Some of the hallmarks of this disorder are difficulty thinking clearly and using sound judgment, especially under stressful conditions. Mr. Berkowitz described respondent in the low to moderate range of symptoms for ADHD. Mr. Berkowitz opined that the ADHD was a substantial causal factor in respondent’s misconduct.

Petitioner presented the testimony of Dr. Vincent Berger, a licensed psychologist. Dr. Berger did not find fault with Mr. Berkowitz’ diagnosis of ADHD, but did dispute the opinion that it caused respondent’s misconduct. Dr. Berger opined that while ADHD contributed to respondent’s method of handling his law practice and his personal life, it did not substantially cause the theft of the funds. Respondent experienced stress from a variety of situations in his life at the time of the misconduct. ADHD was merely one of the ongoing factors in his life.

Respondent’s own testimony is informative. He understood each time he took funds from the Gatling estate that it was wrong to do so. Respondent indicated that his continued use of the Gatling estate funds involved bad decisions and irrational decisions that he made when he panicked under pressure. Respondent pinpointed the source of the pressure as financial difficulties he and his wife were experiencing and his inability to be truthful with her as to his monetaiy needs because he feared her bad temper. He believed he could not ask her for money. Respondent related that each misappropriation was due to a financial crisis. The evidence of record in its totality does not clearly and convincingly support a conclusion that respondent’s ADHD caused him to misappropriate estate funds. For this reason the board concludes that respondent did not meet his burden pursuant to Office of Disciplinary Counsel v. Braun.

While the board does not find mitigation pursuant to Braun, other mitigating factors are present in this particular matter. Respondent showed remorse for his actions and was forthright and cooperative with Office of Disciplinary Counsel. He has taken action to address his ADHD, attending counseling sessions and taking medication. Respondent has cut back on the amount of alcohol he drinks in his continuing efforts to make positive changes in his lifestyle. Respondent has no prior discipline of record and has had no complaints filed against him since the misconduct, which occurred in 1998-1999. Respondent made restitution to the Gatling estate. Although respondent had access to other estate accounts, he never wrote checks against them or otherwise acted inappropriately. Review of respondent’s files by the Kagen firm revealed no improprieties other than the Gatling estate. Respondent’s three character witnesses spoke highly of his good reputation in the community. Respondent has remained active in legal and philanthropic endeavors in his community. Respondent is willing to have a practice monitor oversee his case files and make certain he is handling his practice in an appropriate manner.

A careful review of the case law in Pennsylvania reveals that the Supreme Court has imposed a wide range of suspension on attorneys who have converted money from a client or law firm. The length of the suspension is predicated on the specific facts underlying the conversion. The number of conversions, the length of time involved, and the attorney’s attempts to make restitution are pertinent factors. In the Matter of In re Anonymous No. 32 D.B. 89, 13 D.&C.4th 478 (1992), a three-year suspension was imposed on a lawyer who misappropriated approximately $7,500 in fees over a period of three and a half years. In the case of In re Anonymous No. 8 D.B. 97, no. 402 disciplinary docket no. 3 (Pa. April 20, 1998), the attorney was suspended for one year and one day after he diverted an unspecified amount of fees to himself from his law firm over a 13-month period of time. In the case of In re Anonymous No. 123 D.B. 90, 17 D.&C.4th 464 (1992), a lawyer who misappropriated estate funds in the amount of $2,300 and had a prior record of discipline was suspended for one year and one day. In the recent matter of In re Muir, no. 79 D.B. 2002, no. 891 disciplinary docket no. 3 (Pa. March 1, 2004), the attorney was suspended for three months after she converted a single $500 fee that was payable to her law firm, and further failed to timely pay fees over to her law firm in three other matters. This attorney was aware of the wrongfulness of her actions, yet did not remedy her carelessness with the funds of others until questioned by her law firm more than one year later.

After review of the nature of the misconduct and the mitigating factors in the context of the case law, the board is persuaded that a suspension of six months is appropriate, followed by probation and a practice monitor for one year.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Joseph James Durney Jr., be suspended from the practice of law for a period of six months followed by probation for a period of one year, subject to the following conditions:

(1) Respondent shall select a financial and practice monitor subject to the approval of the Office of Disci-plinaiy Counsel.

(2) The financial and practice monitor shall do the following during the period of respondent’s probation:

(a) Meet with respondent on a monthly basis to review respondent’s caseload and trust account to ensure continued compliance with proper handling of funds and maintenance of appropriate records;

(b) File quarterly written reports on a board-approved form with the executive director and secretary; and

(c) Shall immediately report to the executive director and secretary of the board any violation of the respondent of the terms and conditions of probation.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Members Saidis, Newman, Pietragallo and Nordenberg dissented and would recommend a one-year suspension followed by one year of probation.

Board Chair Teti recused himself.

Board Vice-Chair Rudnitsky did not participate in the May 18, 2004 adjudication.

ORDER

And now, October 15, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated July 30, 2004, it is hereby ordered that Joseph James Durney Jr. be and he is suspended from the practice of law in the Commonwealth of Pennsylvania for a period of one year, followed by probation for a period of one year, subject to the following conditions:

(1) Respondent shall select a financial and practice monitor subject to the approval of the Office of Disciplinary Counsel.

(2) The financial and practice monitor shall do the following during the period of respondent’s probation:

(a) Meet with respondent on a monthly basis to review respondent’s caseload and trust account to ensure continued compliance with proper handling of funds and maintenance of appropriate records;

(b) File quarterly written reports on a board-approved form with the executive director and secretary; and

(c) Immediately report to the executive director and secretary of the board any violation of the respondent of the terms and conditions of probation.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: MINORA, J,

text:
    Commonwealth v. Smith

      C.P. of Lackawanna County,
    no. 97 CR 1101.

      Carole Colombo, assistant district attorney, for Commonwealth.

      Charles Witaconis, assistant public defender, for defendant.
    October 7, 2004
   MINORA, J,

I. INTRODUCTION

Currently before the court on a reversal and remand from the Superior Court of Pennsylvania is the issue of the voluntariness of defendant’s confession. On August 3, 2001, the Superior Court of Pennsylvania (no. 1357 MDA 2000) issued an order indicating that Miranda warnings were not applicable to the case at hand. However, the court further stated that:

“This does not, however, end the analysis of whether appellee’s statement is admissible under Commonwealth v. Nester, [551 Pa. 157, 162,] 709 A.2d 879, 882 (1998). We must still examine the totality of the circumstances surrounding the interrogation to determine if his confession was voluntary. Because the trial court did not conduct this analysis and the record lacks sufficient information for our review, we remand to the suppression court for a determination of whether appellee voluntarily confessed.” (See Superior Court decision no. 1357 MDA 2000 at p. 5.)

Counsel for the parties met on April 5,2004, and agreed this issue could be decided on the evidentiary record and transcripts from the suppression hearings of September 20, 1999 and March 31, 2000.

The parties have submitted supplemental briefs and the remand directive is now ripe for disposition.

II. SOLE ISSUE ON REMAND

A. Was the Confession of the Defendant Involuntary or Voluntary Such As To Require or Not Require Its Suppression?

III. DISCUSSION

A. The Standards for a Voluntary Confession

As indicated by the Superior Court, the controlling authority in determining whether a confession was voluntary in the Child Protective Services setting such as this case is Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879 (1998).

As indicated in Nester, supra, when deciding a motion to suppress, the touchstone issue is whether the confession was voluntary. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).

Voluntariness is determined by the totality of the circumstances surrounding the confession. Fulminante, supra; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181 (1996).

The question of voluntariness is not whether the defendant would have confessed without interrogation, but whether the interrogation was so. manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess. Miller v. Fenton, 796 F.2d 598 (3d Cir. 1986), cert. denied sub nom., Miller v. Neubert, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986). The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily. Commonwealth v. Watts, 319 Pa. Super. 179, 465 A.2d 1288 (1983), aff’d, 507 Pa. 193, 489 A.2d 747 (1985); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

We must remember that the voluntariness standard derives from the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution and the right to due process guaranteed by the Fourteenth Amendment to the United States Constitution. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); Miller, supra.

As indicated by the Superior Court, their decision indicated that Miranda warnings were not required to be given the defendant Bruce Smith. (See page 4 of said decision filed at no. 1357 MDA 2000.)

However, although he was not in “custody” by a government official, the employees of the La Sa Quick facility where the defendant was situated had an obligation to report child abuse to law enforcement personnel. 23 Pa.C.S. §6311; 23 Pa.C.S. §6313; 55 Pa. Code §3490.55.

Therefore, we are directed and must still examine the totality of the circumstances surrounding the interrogation to determine if the confession was voluntary because even a non-custodial interrogation might possibly, in some situations, by virtue of some special circumstances, result in an involuntary confession. Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1 (1976).

Ultimately, when assessing voluntariness pursuant to the totality of the circumstances, a court should look at the following factors:

(1) the duration and means of the interrogation;

(2) the physical and psychological state of the accused;

(3) the conditions attendant to the detention;

(4) the attitude of the interrogation; and

(5) any and all other factors that could drain a person’s ability to withstand suggestion and coercion. See Commonwealth v. Jones, supra; Commonwealth v. Nester, 551 Pa. 157, 162, 704 A.2d 879, 882 (1998); Commonwealth v. DeJesus, 567 Pa. 415, 430, 787 A.2d 394, 403 (2001); Commonwealth v. Paxton, 821 A.2d 594 (Pa. Super. 2003).

B. Analysis of the Nester Factors

By way of further background and keeping in mind the relevant time line regarding the incriminating statements at issue, the defendant was confined by court order for unrelated charges at the La Sa Quick facility for juveniles charged with sexual offenses. The first interview was conducted by Kenneth Dady, a La Sa Quick family therapist on March 15, 1997. This interview resulted from a call placed by the defendant’s mother (an interested adult normally contemplated as protecting the juveniles’ interest) informing La Sa Quick that the defendant has sexually abused his stepsister. During this interview, the defendant made the first of his incriminating statements. Mr. Dady, a mandatory reporter of sexual abuse by law, then called the Child Abuse Hotline and the defendant’s juvenile probation officer.

Subsequently, the defendant met with the second interviewer, Karen Choate, a clinical program specialist, regarding the subject matter of the incriminating statements. Over a four-month period, Ms. Choate met with the defendant approximately three times a week. On April 9, 1997, the defendant signed a sexual disclosure form at the behest of Ms. Choate.

Finally, on April 23, 1997, Dawn Harer of Lycoming Children and Youth Services interviewed the defendant at the La Sa Quick facility, where more incriminating statements were made. Eventually, Children and Youth Services referred the matter to law enforcement.

It is during the Dady, Choate and Harer interviews that we must apply the standards for voluntariness set forth above by Nester; DeJesus and Paxton, supra.

i. Findings of Fact (The Kenneth Dady Interview)

(1) Kenneth Daty (actually Dady) was a family program specialist whose duties consisted of therapy with the family. (N.T. September 20, 1999 p. 12.)

(2) He was employed at La Sa Quick facility for juveniles charged with sexual offenses. (Supra.)

(3) Mr. Dady had sessions with the defendant and/or his family. (N.T. September 20, 1999 p. 14.)

(4) Sessions with the defendant often were informal such as pulling of the defendant off to the side to talk to him or in Mr. Dady’s office with the door open. (N.T. September 20, 1999 p. 17.)

(5) La Sa Quick facility was not a secure facility that was locked down. Children could run away. (N.T. September 20, 1999 p. 17.)

(6) When restraining individuals the facility has a strict hands-off policy. (N.T. September 20, 1999 p. 18.)

(7) In March of 1997, Mr. Dady received a report that the defendant had sex with his younger sister, Michelle. (N.T. September 20,1999 p. 20.)

(8) He subsequently took the defendant to his office where the defendant eventually admitted having sex with his sister, Michelle. (N.T. September 20, 1999 pp. 20-27.)

(9) No one was present in the office other than Mr. Dady and defendant. (N.T. September 20, 1999 p. 27.)

(10) The defendant was not restrained in any way. (N.T. September 20, 1999 p. 27.)

(11) The information was sent to defendant’s probation officer and Children and Youth Services. (N.T. September 20, 1999 p. 28.)

(12) On cross-examination, Mr. Dady admits his job was to counsel Bruce Smith regarding conflicts within the dynamics of the family. (N.T. September 20,1999 p. 36.) (I.e., provide therapy to help the kids that were in the program as well as their families.) (N.T. September 20, 1999 p. 37.)

(13) On cross-examination, Mr. Dady admitted that the defendant was at La S a Quick under a court order and if he left the facility, La Sa Quick would have to report this to the state police as it would be tantamount to escape. (N.T. September 20, 1999 p. 37.)

(14) Mr. Dady admitted he was a mandatory reporter of child abuse incidents and such reporting could result in criminal charges. (N.T. September 20, 1999 p. 41.)

(15) Mr. Dady admitted no written consent form or Miranda warnings were given. (N.T. September 20,1999 pp. 43-44.)

(16) Mr. Dady admitted he did not give the defendant an opportunity to have an interested adult or guardian present. (N.T. September 20, 1999 pp. 44-45.)

(17) Mr. Dady testified that his primary concern with disclosing the incident at issue to authorities is to make sure the victim is taken care of and then to help defendant with his therapy. (N.T. September 20, 1999 p. 52.)

(18) Mr. Dady testified there are no security guards at La Sa Quick facility. (N.T. September 20, 1999 p. 54.)

ii. Findings of Fact (The Karen Choate Interview)

(1) Karen Choate was employed at La Sa Quick facility as the defendant’s clinical program specialist. (N.T. September 20, 1999 p. 56.)

(2) She saw him three times a week for a four-month period. (N.T. September 20, 1999 p. 57.)

(3) Her primary purpose was to engage the defendant in therapy and education using a “Pathways book” in which the defendant described he had anal and vaginal sex with his sister Michelle Smith. (N.T. September 20, 1999 pp. 55-60.)

(4) The Pathways book was not to be sent to law enforcement, juvenile probation or the state police. (N.T. September 20,1999 p. 60.)

(5) The purpose of the Pathways book was for the defendant to gain a better understanding of his sexual behaviors. (N.T. September 20, 1999 pp. 60-61.)

(6) She discussed the incidents regarding Michelle Smith with the defendant in her office. (N.T. September 20, 1999 p. 63.)

(7) Her office was average sized and in an open setting. (N.T. September 20,1999 p. 63.)

(8) She discussed the Michelle Smith incidents with the defendant after Mr. Dady had given her the facts about the disclosure. (N.T. September 20,1999 p. 63.)

(9) She had defendant fill out a sexual offense disclosure form in her office and told the defendant the county was requesting that the form be filled out. (N.T. September 20, 1999 p. 65.)

(10) On cross-examination, Ms. Choate admitted she knew the defendant was placed at La Sa Quick under a court order.

(11) She admitted she was a mandatory sexual abuse reporter by law. (N.T. September 20, 1999 pp. 68-69.)

(12) She testified that she learned of the sexual contact between defendant and his sister, Michelle, from Mr. Dady, and talked to defendant about that the next day. (N.T. September 20, 1999 p. 70.)

(13) She talked to the defendant at least three times about the incident with Michelle. (N.T. September 20, 1999 p. 70.)

(14) She testified that the “Pathways book” goes into the defendant’s regular file at La Sa Quick facility. (NT. September 20, 1999 p. 72.)

(15) She testified that a sexual disclosure form was signed by defendant and, though she told him verbally it could be turned over to certain agencies, no written consent was acquired. (N.T. September 20, 1999 p. 74.)

(16) At no time was there an interested adult present with the defendant, nor was an opportunity given the defendant to have one present. (N.T. September 20,1999 p. 75.)

(17) Mr. Dady requested that Ms. Choate secure the sexual disclosure form for juvenile probation. (N.T. September 20,1999 p. 76.)

(18) Again she admitted she was a mandatory reporter by law in this case. (N.T. September 20, 1999 p. 77.)

(19) On re-direct exam, Ms. Choate again testified that she verbally told the defendant she would have to report the sexual incident information, but that no adults were present in this interview context except for family members. (N.T. September 20,1999 p. 78.)

(20) On re-cross, Ms. Choate was told to have the defendant fill out the sexual disclosure statement at the request of Mr. Dady and at that point she did not feel there was a possibility of criminal charges. (N.T. September 20, 1999 pp. 78-79.)

iii. Findings of Fact (The Dawn Flarer Interview)

(1) Dawn Harer was, at all times relevant, a child protective services worker with Lycoming County Children and Youth and assigned to primarily investigate reports of child abuse and neglect reported to her office. (N.T. March 31, 2000 p. 5.)

(2) She was contacted by Lackawanna Children and Youth Services to investigate the incidents at issue in this case. (N.T. March 31,2000 p. 6.)

(3) She testified that she conducted an interview of the defendant on April 23, 1997 at 1:05 p.m. at La Sa Quick facility and the interview lasted a half hour. (N.T. March 31,2000 p. 11.)

(4) The interview was conducted in a conference room or office type room and the people present were Harer and the defendant. (N.T. March 31, 2000 p. 11.)

(5) There were no bars on the windows. (N.T. March 31,2000 p. 12.)

(6) Defendant was escorted into the room by a counselor and he was not handcuffed or shackled in any way. (N.T. March 31, 2000 p. 12.)

(7) She said the defendant told her he knew why she was there to interview him. (N.T. March 31,2000 p. 12.)

(8) She did not Mirandize the defendant. (N.T. March 31,2000 p. 13.)

(9) She never gave defendant any conditions prior to his interview about what would happen to him after his interview. (N.T. March 31, 2000 pp. 13-14.)

(10) She did not tell him that she was arresting him. (N.T. March 31, 2000 p. 14.)

(11) She did not tell him he could not leave prior to the interview being completed. (N.T. March 31,2000 p. 14.)

(12) Defendant provided a narrative to her of the pattern of sexual conduct with his sister, Michelle. (N.T. March 31, 2000 pp. 14-16.)

(13) She testified she explained the investigative process to defendant and that report would be given to Lackawanna County Children and Youth Services who would make a final determination on the case. (N.T. March 31, 2000 p. 17.)

(14) On cross-examination, Ms. Harer testified the purpose of her interview with defendant was to confirm information given to her by Lackawanna County CYS. (N.T. March 31, 2000 p. 20.)

(15) She admitted she knew she would be asking defendant about specific questions regarding sexual relations with his sister. (N.T. March 31, 2000 p. 21.)

(16) She was a mandatory reporter of child abuse. (N.T. March 31, 2000 p. 21.)

(17) She never told defendant what his legal rights might be. (N.T. March 31, 2000 p. 23.)

(18) She knew he was a minor. (N.T. March 31,2000 p. 23.)

(19) She never informed defendant he could have an adult present nor gave him an opportunity to do so prior to the interview. (N.T. March 31, 2000 p. 23.)

(20) She never advised him of a right to consult a lawyer. (N.T. March 31, 2000 p. 23.)

(21) All the words in the report were words of her own choosing. (N.T. March 31, 2000 p. 25.)

(22) Ms. Harer never told defendant he could terminate the interview and walk out of the room. (N.T. March 31,2000 p. 28.)

(23) She never informed him of any options he may have had prior to the interview. (N.T. March 31,2000 p. 29.)

(24) She only told defendant about reporting the results of her interview to Lackawanna County Children and Youth Services after the interview was conducted. (N.T. March 31,2000 p. 30.)

(25) The record further indicates defendant was at La Sa Quick pursuant to a court order and was not there voluntarily. (N.T. March 31, 2000 p. 32.)

C. Final Analysis and Conclusion

The court is still not convinced that the Commonwealth has proven by a preponderance of the evidence that the totality of the circumstances show that the defendant’s statements were voluntary. Commonwealth v. Watts, supra; Colorado v. Connelly, supra.

First of all, it is clear from the record that defendant was confined to La S a Quick pursuant to a court order. He could not leave on his own volition without penalty of law enforcement.

Secondly, while formal Miranda warnings were not required, the defendant was never clearly advised that all the interviewers were mandatory reporters under the Child Protective Services Act, 23 Pa.C.S. §6311, nor was he informed fully of the ramifications of any statements he would make to them.

Moreover, the defendant was a juvenile who clearly was not afforded an opportunity to have an interested adult present during any of the interviews. In the Interest of C.L., 714 A.2d 1074, 1075 (Pa. Super. 1998); Commonwealth v. Carter, 855 A.2d 885 (Pa. Super. 2004). The court is troubled by the fact that no one spoke for this minor defendant and no one was acting as defendant’s interested adult in this matter. Recall his mother actually reported his alleged misconduct. This juvenile defendant had no guardian ad litem nor any attorney to guide him.

Clearly, the duration, the repetition and means of interrogation was in the context of a court-ordered and enforced environment that was triggered by a report of sexual abuse from the only interested adult in the scenario ii.e., the defendant’s mother).

Obviously, the physical and psychological state of the defendant was that of a minor who had no interested adult acting on his behalf nor was he fully informed of the legal ramifications of any statements he would make.

Moreover, the conditions attendant to the interrogation were, besides the above factors, a series of interviews purposely manipulated to extract the legal equivalent of a confession from the defendant to statutory mandated reporters.

The attitude of these repeated interviews was that of an interrogation and was really a manipulative series of interviews cloaked in a supposedly “therapeutic” setting but acting in reality as an interrogation, a tool for law enforcement and not therapy.

Therefore, when you look at the totality of the circumstances that existed in this case, we feel it is abundantly clear that the Commonwealth has not proven by a preponderance of the evidence that the defendant’s statements given to Kenneth Dady, Karen Choate and Dawn Harer even approached being voluntaiy.

Ultimately, we are therefore constrained by law to suppress those statements.

An appropriate order will follow.

ORDER

And now to wit, October 7, 2004, upon directive of the Superior Court memorandum and order dated August 3, 2001, filed to no. 1357 MDA 2000 to apply the “totality of the circumstances” test of Commonwealth v. Nester, 551 Pa. 157, 162, 709 A .2d 879, 882 (1998), to the defendant’s omnibus motion for the suppression of the statement he gave to Kenneth Dady, Karen Choate and Dawn Harer, and in consideration of the foregoing memorandum, it is hereby ordered and decreed that the Commonwealth has not proven by a preponderance of the evidence that said statements were voluntarily given by the defendant. It is further ordered and decreed that the statements given by the defendant to Kenneth Dady, Karen Choate and Dawn Harer are suppressed.

      . The underlying charges against defendant include rape and aggravated indecent assault (18 Pa.C.S. §§3121 and 3125).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: RENN, J,

text:
    Blackburn v. Blackburn

      C.P. of York County,
    no. 2004-FC-01316-Y03.

      Daniel M. Fennick, for plaintiff.

      James G. Keenan, for defendant.
    October 4, 2004
   RENN, J,

This matter is before the court on Mother’s “Preliminary objections and motion to transfer based upon lack of jurisdiction,” raising the issue of jurisdiction of this court to proceed in this matter. This court will retain jurisdiction over Father’s petition for contempt, but with regard to any matters on the merits of the underlying custody issue, the objections will be sustained, and further proceedings in this matter will be stayed consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND:

From the record we determine the following facts. Christopher Lee Blackburn (Father) and Rebecca Lynn Blackburn n/k/a Rebecca Mattison (Mother) were married and on July 3, 1993, Chelsi Lynn Blackburn was bom and on February 2, 1996, Brittni Christine Black-bum was bom. Subsequently, on December 9, 1996, Mother and Father were divorced.

Thereafter, Mother moved to Maryland with the parties’ children and remarried. They have resided in Maryland for approximately the past seven years.

On April 21, 1998, the parties entered into a stipulated custody agreement giving them shared legal and physical custody of their minor children, with Mother having primary physical custody and Father having partial physical custody every other weekend. During the summer, Father has primary physical custody and Mother has partial physical custody every other weekend.

On January 1, 2000, Father filed a petition for contempt. In response to the petition a conciliation conference was scheduled for February 28,2000, before James A. Holtzer, Esquire. The parties reached an agreement that reiterated the April 21, 1998 order which was entered on March 6, 2000.

On July 14, 2004, Father filed a petition to modify existing custody order seeking primary physical custody of the parties’ minor children.

On July 14, 2004, Father also filed a petition for contempt alleging that the April 21, 1998 order, and the March 6, 2000 order were violated by Mother.

On July 29,2004, Mother filed a custody action in the Circuit Court of Anne Arundel County, Maryland.

On July 30,2004, Mother filed preliminary objections, presumably to Father’s petition to modify, since the objections do not refer to a specific pleading and concede jurisdiction for this court to hear the contempt issue. The objections also request a transfer of this action to Anne Arundel County, Maryland.

On August 2, 2004, Mother filed a counterclaim to Father’s petition for contempt alleging that the court order entered on April 21, 1998, was violated by Father.

ISSUES:

The record presents the court with two issues to resolve.

(1) Whether the court has jurisdiction over a petition for contempt requesting enforcement of the court’s prior custody order.

(2) Whether the court should decline to exercise jurisdiction over the underlying custody action.

DISCUSSION:

1. Jurisdiction To Hear Contempt Issues:

Jurisdiction for a court to hear matters involving contempt of its own orders is different than jurisdiction to determine custody or to modify a prior custody order. “There is a great difference between modification jurisdiction, which involves holding an evidentiary hearing on the best interests of the child in order to determine custody, and enforcement jurisdiction, which is limited to determining whether the prior custody order can be enforced, i.e., whether the decree was valid when entered and never modified.” Commonwealth ex rel. Taylor v. Taylor, 332 Pa. Super. 67, 72, 480 A.2d 1188, 1190 (1984).

“Taylor, most significantly, stands for the proposition that so long as a custody decree has not been modified by an order issued by another forum, in a valid exercise of its jurisdiction, it is enforceable by the original forum.” Goodman v. Goodman, 383 Pa. Super. 374, 395, 556 A.2d 1379, 1389 (1989).

It is clear that this court’s previous orders have not been modified by a court of any other jurisdiction. Regardless of whether this court could exercise jurisdiction over the underlying custody dispute, this court clearly has jurisdiction over an alleged contempt of its own orders.

2. Jurisdiction Over Underlying Custody Dispute:

We have already noted that pending in this court is Father’s petition to modify existing custody order. There have been pleadings filed in the State of Maryland by Mother setting forth a request for primary physical custody with the right of visitation for the father.

In determining whether a court has jurisdiction of a custody “proceeding,” the Uniform Child Custody Jurisdiction Act (UCCJA) sets forth factors which the court must consider to determine whether it has jurisdiction in the first instance. (23 Pa.C.S. sec. 5401 et seq.) Among the factors this court finds significant are:

“(a) the ‘home state’ of the child;

“(b) the child and one parent have significant contacts with the state of jurisdiction; and

“(c) the availability of substantial evidence concerning the present or future care, protection, training, and personal relationships of the child.” 23 Pa.C.S. sec. 5344.

Additionally, even though this court should determine that it has jurisdiction over a custody modification proceeding, we may still decline to exercise that jurisdiction because this court is no longer a “convenient forum” in which to hear the matter.

In the present case, it is clear from the record that Maryland has been the “home state” of the child since approximately 1997. In the hierarchy of considerations in the UCCJA, there is a clear preference for the “home state” of the child to take jurisdiction over a modification request. Goodman v. Goodman, supra at 388, 556 A.2d at 1386. No argument was presented to the court to indicate that the children were removed from Pennsylvania for the purpose of defeating this Commonwealth’s jurisdiction. The children and Mother have significant contacts with the State of Maryland due to their residency there. Finally, it can certainly be inferred from the undisputed facts in the record that substantial evidence concerning the future care of the children is found in Maiyland.

Further, we do not believe that it is in the best interest of the children for this court to continue our jurisdiction over the underlying custody matter. While the children visit their father, who lives in Pennsylvania, on a regular basis, we cannot say that such contact constitutes a “significant connection” with this Commonwealth to the degree that a court of this Commonwealth would divest the jurisdiction of the Commonwealth of Maryland.

We note that we would have reached the same result had this case been decided under the UCCJEA. See 23 Pa.C.S. §§5421, 5422.

Since we are faced with a pending custody claim filed in the State of Maryland which may or may not be pursued, we will decline to exercise our jurisdiction over any request for modification of the custody orders presently in effect, and stay further custody proceedings in this Commonwealth, except those proceedings relating to the enforcement of our orders currently in effect.

An order will be entered consistent with this opinion.

ORDER SUSTAINING PRELIMINARY OBJECTIONS

And now, October 4,2004, the preliminary objections by defendant-Mother, to the petition to modify existing custody order, are sustained.

All matters not related to enforcement of this court’s existing orders are hereby stayed pending the State of Maryland assuming jurisdiction. Upon request of Mother or the Circuit Court of Anne Arundel County, Maryland, the prothonotary may transfer the contents of the file, or such part thereof which may be requested, to the court of Anne Arundel County, Maryland.

A hearing on the allegations on the petition for contempt filed by plaintiff-Father, and the counterclaim to Father’s petition for contempt filed by defendant-Mother is hereby scheduled for Monday, October 18, 2004 at 3 p.m. in courtroom no. 9 of the York County Judicial Center, at which time testimony may be taken and argument heard. One and one-half hours have been allocated for the hearing. Counsel are expected to conclude their presentations within the time allotted.

A copy of this opinion and order shall be sent to counsel for the parties, and a copy shall be sent to the Circuit Court of Anne Arundel County, Maryland.

      . The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was signed into law on June 15,2004, becoming effective 60 days thereafter. However, the Act, by its terms, does not apply to actions commenced before the effective date of this Act, as this proceeding was. See Act 39 of 2004, §6.