author: GRINE, PJ,

text:
    Commonwealth v. Aikey
    C.P. of Centre County,
    no. CP-14-CR-1427-2008.

      Mark S. Smith, for Commonwealth.

      Karen G. Muir, for defendant.
    January 20, 2009
   GRINE, PJ,

Presently before the court is a motion to dismiss pursuant to Rule 1100 of the Rules of Criminal Procedure filed by counsel for defendant Branden M. Aikey. Defendant asserts law enforcement officials violated the 365-day time period in Rule of Criminal Procedure 600 by serving defendant with an arrest warrant almost two years after filing a criminal complaint against him. A hearing on this motion was held on November 20,2008. At the conclusion of the hearing, the court ordered both parties to submit findings of fact and conclusions of law. Both parties did so in a timely manner. After careful consideration, the court now renders its decision.

DISCUSSION

Defendant, who is currently out on bond, claims law enforcement officials did not reasonably attempt to locate and serve the arrest warrant within the period prescribed in Rule 600. On May 15, 2006, Detective Richard L. Saupp of the Patton Township Police Department filed a criminal complaint against defendant for the Class 1 misdemeanors of theft by deception, 18 Pa.C.S. §3922(a) (1), bad checks, 18 Pa.C.S.§4105(a)(1), and receiving stolen property, 18 Pa.C.S. §3925(a). Police issued a warrant for defendant’s arrest on May 19, 2006; however, defendant was not arrested and arraigned until July 29, 2008.

Rule 600 of the Pennsylvania Rules of Criminal Procedure mandates that “when the defendant is at liberty on bail, [trial on the complaint] shall commence no later than 365 days from the date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(3). However, the rule does provide several exclusions. Pa.R.Crim.P. 600(C). One such exclusion tolls the 365-day period if, during the period of time between filing of the written complaint and the defendant’s arrest, “the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence.” Pa.R.Crim.P. 600(C)(1). The Pennsylvania Supreme Court defines due diligence as “not [a] demand for perfect vigilance and punctilious care, but rather a reasonable effort.” Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). When evaluating reasonable effort, the court should not apply hindsight but, instead, balance activities of the police against the interest of the accused in receiving a fair trial. Commonwealth v. Branch, 337 Pa. Super. 22, 486 A.2d 460 (1984). See also, Commonwealth v. Faison, 324 Pa. Super. 406, 471 A.2d 902 (1984).

Testimony reveals police attempted several good faith efforts to the arrest warrant against defendant. Detective Saupp mailed a letter to the address listed on defendant’s driver’s license. This letter was returned, stamped: “attempted not know.” (Transcript 11/20/08, pp. 5 and 13.) Police then sent another letter addressed to defendant’s father. This attempt also proved unsuccessful. Officer Justin Sutherland of the Patton Township Police Department then attempted to serve defendant in person by reporting to the address listed on defendant’s check. After arriving at the address, the officer was unable to locate defendant but did ask neighbors to contact him once defendant returned. Visits to defendant’s place of employment were similarly unsuccessful. Officer Sutherland also attempted to contact defendant by phone but did not receive an answer. (Id. at pp. 9-11.)

In addition to mailing letters, calling the defendant, and visiting locations of his known whereabouts, police registered the arrest warrant with the CLEAN (Commonwealth Law Enforcement Assistance Network) and NCIC (National Crime Information Center) computer systems. These systems alert law enforcement agencies across the nation to the issuance of an arrest warrant. When a defendant’s name is entered into the system, the officer becomes immediately aware of outstanding warrants for their arrest. (Id. at pp. 5,7,8.) However, because defendant did not have the type of contact with police necessary to initiate a search of these databases, an arrest was not triggered. (Id. at p. 11.)

Testimony reveals defendant lived a transient lifestyle during the period after the criminal complaint was filed against him, which frustrated police attempts at service. In the last two years, defendant admits to living at four different locations in State College and Bellefonte. However, only the first of these addresses appears on his license. (Id. at pp. 15-21.) If defendant worried his right to a fair trial or prompt service was in jeopardy, he could have easily updated his address with PennDOT; an act required by all drivers licensed in Pennsylvania.

In addition, there is evidence defendant was aware criminal charges could be filed against him. Officer Sutherland testified that, shortly before filing the criminal complaint, he spoke with defendant on the phone. During this conversation, Officer Sutherland alerted defendant to the possibility of criminal charges if defendant failed to pay restitution to the victim. (Id. at p. 4.) This testimony is somewhat contradicted by defendant who testified that, although he was unsure about when he had contact with the police, he was sure he never spoke with police about “making good” on bad checks. (Id. at p. 22.) Even if the officer was mistaken, defendant admits to knowing the checks were bad. It is reasonable to infer that if one writes bad checks, criminal charges may follow. Defendant, aware of this possibility, may have purposely made his whereabouts difficult to discover to frustrate execution of his arrest.

Based on the testimony presented, police diligently exercised reasonable effort to execute the arrest warrant against defendant. Police entered information into a national database, mailed letters, phoned defendant, attempted personal service, and appeared at defendant’s registered address and place of employment. These methods sufficiently demonstrate reasonable effort to determine defendant’s whereabouts and are sufficient to toll the period for trial prescribed by Rule 600. Therefore, defendant’s motion to dismiss is denied.

ORDER

And now, January 20, 2009, the following is ordered:

(1) Defendant’s motion to dismiss pursuant to Rule 1100 of the Rules of Criminal Procedure is denied.

      . Defendant’s counsel asserts Rule of Criminal Procedure 1100; however, this rule is now known as Rule 600.


source: Caselaw Access Project

author: STALLONE, J.,

license: Public Domain

text:
    Commonwealth v. Mendez
    C.P. of Berks County,
    no. CP-06-CR-1088-2005.

      Kevin F Howard, assistant district attorney, trial counsel for Commonwealth.

      John T. Adams, district attorney, and Kelly Kline, assistant district attorney, PCRA counsel for Commonwealth.

      Robert J. Kirwan II, trial and appellate counsel for defendant.

      Allen Daringer, PCRA counsel for defendant.
    January 15, 2009
   STALLONE, J.,

This matter is presently before this court pursuant to an amended petition for relief under the Post Conviction Relief Act filed by the defendant, Luis Jorge Mendez.

On August 26,2005, a jury found the defendant guilty on a total of 11 charges consisting of aggravated assault manifesting extreme indifference to the value of human life, aggravated assault causing bodily injury with a deadly weapon, recklessly endangering another person, firearms not to be carried without a license and possessing instruments of crime, arising out of the shootings of Emmanuel Sanchez, Christopher Rodriguez, Amado Rodriguez and Marcus Espada, which took place on December 8,2004, at 303 North 9th Street in the City of Reading. Emmanuel Sanchez died as a result of the shooting, while the other three victims survived. On October 17, 2005, this court sentenced the defendant to a cumulative period of 10 to 20 years imprisonment in a state correctional facility. He was represented at trial and at sentencing by Robert J. Kirwan II, Esquire, whom this court had previously appointed to represent the defendant.

Thereafter, the defendant filed a post-sentence motion with this court in the form of a motion for judgment of acquittal or, in the alternative, a new trial, which we denied. This prompted him to file a direct appeal to the Superior Court of Pennsylvania, in which he was also represented by Attorney Kirwan who raised a total of four issues for appellate review, including that:

“He was entitled to a new trial on the basis that he was denied his right to a fair trial based upon the following question posed to him by Assistant District Attorney Howard, on re-cross-examination:

“By Mr. Howard:

“Q. So this is the first time you’re telling us what happened?”

In the memorandum opinion in support of our judgment of sentence dated August 2, 2006, this court concluded that this issue was waived for purposes of direct appeal since the defendant had failed to make a request either for a mistrial and/or curative instruction. The Superior Court affirmed the judgment of sentence and said at page 7 of its February 21,2007 memorandum opinion that:

“In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that this issue was waived since the appellant chose not to request a mistrial or jury instruction after conferring with his attorney. See trial court opinion 8/2/06 at 9-10. The trial court’s determination was accurate, as failure to request a mistrial or curative instruction under these circumstances results in a waiver on appeal. See Commonwealth v. Bell, 386 Pa. Super. 164, 562 A.2d 849 (1989) (failure to request mistrial when a prejudicial event occurs results in a waiver). See also, Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976) (claim linked to improper statement by prosecutor was waived where trial court sustained defense counsel’s objection to prosecutor’s statement, but counsel subsequently failed to request mistrial or curative instruction). Hence, we will not address this issue further.”

Thereafter, the defendant filed a petition for allowance of appeal with the Supreme Court of Pennsylvania, in which he argued that this question asked of the defendant, in the form posed by Assistant District Attorney Howard, constituted prosecutorial misconduct, and as such, should be determined to be an exception to the waiver rule. However, the Supreme Court declined to hear the issue by denying his petition.

On September 11, 2007, the defendant filed a motion for recusal of this court from all further proceedings in this case, which we dismissed without prejudice since there was no matter pending in this case at that time. The defendant then filed his first petition for relief under the Post Conviction Relief Act, along with a second motion for recusal, on December 3, 2007. Upon being advised of both filings, this court appointed Allen Daringer, Esquire to represent him.

In the interest of judicial economy, a hearing was first held by this court on the defendant’s second motion for recusal, which we denied. Thereafter, and with the continued assistance of Attorney Daringer, the defendant filed an amended first petition for relief under the Post Conviction Relief Act. In that petition, he is asking this court to grant him a new trial based upon alleged ineffective assistance on the part of Attorney Kirwan. Alternatively, he is asking this court to resentence him on the basis that, having been sentenced on Count 4, aggravated assault manifesting extreme indifference to the value of human life, as to Emmanuel Sanchez, he could not also be sentenced on Count 8, aggravated assault causing bodily injury with a deadly weapon, also as to Emmanuel Sanchez, since both offenses arise under the same statute, that being section 2702 of the Crimes Code.

Having now held an evidentiary hearing on the defendant’s amended first petition for relief under the Post Conviction Relief Act, we now file this opinion in which we conclude, for the following reasons, that the defendant is entitled to post-conviction relief in the form of a new trial.

Beginning with his claim of ineffective assistance on the part of Attorney Kirwan, we note that there is a rebut-table presumption that counsel’s stewardship is effective. In order to overcome that presumption, a post-conviction petitioner must prove each of the following three elemerits: (1) that his underlying claim has arguable merit, (2) that counsel had no reasonable basis for his action or inaction; and (3) that he sustained prejudice as a result of the alleged ineffective assistance of counsel. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215 (2007). A failure to prove any one of these three elements would have ended this court’s inquiry. Id.

Specifically, the defendant claims that Attorney Kirwan was ineffective in failing to request a mistrial and/ or a curative instruction from this court in response to the question posed by Assistant District Attorney Howard, as more fully set forth earlier in this opinion. He argues that Assistant District Attorney Howard’s question constituted an improper comment upon his “post-arrest” silence, in violation of his constitutional rights and, therefore, his claim of ineffective assistance on the part of Attorney Kirwan has arguable merit; that Attorney Kirwan had no reasonable basis for failing to make either of those requests to this court, as it resulted in the waiver of this issue for purposes of the defendant’s direct appeal; and that Attorney Kirwan’s ineffectiveness resulted in prejudice to the defendant, by virtue of its impact on the jury’s assessment of his believability and, therefore, the jury’s verdicts.

In response, the Commonwealth contends that this issue does not have any arguable merit because the focus of Assistant District Attorney Howard’s question was not on the defendant’s “post-arrest” silence but, instead, on his “pre-arrest” silence; that there was a reasonable basis for Attorney Kirwan’s decision to not request a mistrial and/or curative instruction, in view of his own testimony at the PCRA hearing that he advised the defendant to not make either request because the case was “going well” and that, in the event of a new trial, the Commonwealth would have a transcript of the defendant’s prior testimony to use against him, and that the defendant did not suffer any prejudice, in view of his acquittal on the more serious charges of first-degree murder and third-degree murder.

With the foregoing in mind, we must first determine whether the defendant’s ineffective assistance claim has any arguable merit. In doing so, we look to the case of Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202 (2003), which we believe is directly on point with the action at bar. There, the defendant, Isaac Mitchell, was convicted of first-degree murder arising out of the shooting deaths of two individuals and was sentenced to death. At trial, he testified on his own behalf and, on direct examination, identified someone else as the shooter, as did Luis Jorge Mendez in this case. On cross-examination, he was asked the following question by the assistant district attorney:

“Q. Sir, isn’t it correct that this is the first time since November ninth of 1997 that you ever told anybody publicly who killed your two cousins?

“Mr. Lorusso [defense counsel]: Objection.

“The Court: Overruled.”

On direct appeal, Mitchell claimed that this question, in the form posed by the prosecutor, infringed upon his constitutional right to remain silent. In agreeing with the defendant’s argument, our Supreme Court reasoned as follows at page 214 of its opinion:

“In this case, most of the questions clearly went to appellant’s pre-arrest actions at the time of the shooting or shortly thereafter. However, when the prosecutor asked the open-ended question, ‘Sir, isn’t it correct that this is the first time since November ninth of1997 that you ever told anybody publicly who killed your two cousins? The time frame was ambiguous. The ambiguity of the question is inherent in the absence of a clear time reference, thus, raising an inference that the question anticipated an answer that would embrace appellant’s actions from the moment of the shooting through the time of his arrest and up until the day of trial. This is exactly the type of question that this court condemned in Clark, 533 Pa. 579, 583-84, 626 A.2d 154, 156 (1993).”

Here, Assistant District Attorney Howard’s question was almost “word-for-word” the same as the ones posed by the prosecutors in the Mitchell and Clark cases. As with both Mitchell and Clark, the difficulty with Assistant District Attorney Howard’s question is that the time frame to which it relates was ambiguous, since it was not posed with respect to any particular date or point in time. Therefore, it potentially covers the defendant’s conduct from the moment of the shootings through the time of his arrest, up until the day of trial, which would constitute an inquiry not only into his “pre-arrest” silence, but also his “post-arrest” silence. For that reason, we conclude that the defendant’s claim has arguable merit.

Next, we must decide whether Attorney Kirwan had any reasonable basis for not requesting a mistrial and/or a curative instruction. Certainly, there is no doubt that Attorney Kirwan was placed in a “catch-22” situation as to whether to take the chance of perhaps highlighting the issue further for the jury, impacting the defendant’s credibility, by asking for a mistrial and/or curative instruction, or to simply “let the issue go.” Notwithstanding that fact, and although he may have believed that the latter was the best course of action, the fact of the matter, however, is that his failure to make' either request resulted in a waiver of the issue for purposes of the defendant’s direct appeal, thereby preventing the defendant from presenting any argument on the merits of that issue to the Superior Court, in support of his request for a new trial. And so, we conclude, as Attorney Kirwan himself did at the PCRA hearing in response to a question posed by Assistant District Attorney Kline:

“To make it clear, it was ineffective for me not to tell Mr. Mendez to ask for a curative instruction. If he asked for a curative instruction, the damage would have been there, but it would have been minimal, but preserved his right to argue that on appeal, that what Mr. Howard said denied him a fair trial. By not asking for a curative instruction, I clearly waived that issue before the Superior Court. We lost from that point forward. If I was effective, I would have said, take the curative instruction, breeze through it, write it out to the judge, make it simple so that no one pays attention to it, slip it in at the right moment, maybe not right then, but wait until after the jury instructions and do it then, but get the instruction on the record to preserve the issue.

“By not putting a curative instruction on the record, he didn’t get his new trial on that basis. The case law is extremely clear. If you hint at post-arrest silence, that’s a basis for a new trial and borderline prosecutorial misconduct. I didn’t give him that opportunity. I don’t enjoy sitting up here saying in open court that I didn’t do my job correctly, but I’m not going to not say it just for ego purposes. I did something wrong. If I did it wrong, I should say that to him.”

That brings us to the third and final element of prejudice. In order to demonstrate prejudice, the defendant must show that there is a reasonable probability that, but for Attorney Kirwan’s alleged ineffective assistance, the outcome of the trial would have been different. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067 (2006). The term “reasonable probability” has been defined as a probability sufficient to undermine confidence in the outcome. Id. Here, the defendant’s credibility was the key issue in the case, given the fact that he was identified as the shooter by three of the Commonwealth’s witnesses (Eliezar Carrasquillo, Jeffrey Rios and Carlos Rios), while the defendant testified that it was Carlos Rios who was the shooter. Based upon the verdicts, it appears that the jury concluded that it was the defendant who shot all four victims, but yet chose to find him not guilty of either first-degree murder or third-degree murder of Emmanuel Sanchez. This has all the earmarks of a compromise verdict, which leads this court to believe that the jury was probably influenced by Assistant District Attorney Howard’s improper and highly prejudicial question. Had they not heard it, the jury might have been inclined to believe the defendant, as opposed to the Commonwealth’s witnesses. However, it appears that the jury instead concluded that the defendant had a duty to tell the police what happened and that his failure to do so was somehow evidence of his guilt of the remaining counts, as was the situation in Commonwealth v. Mitchell. As a result, we have no choice but to conclude that the defendant suffered substantial prejudice as a result of Attorney Kirwan’s failure to request a mistrial and/or a curative instruction.

With that being said, we need not reach the defendant’s second and final claim concerning the legality of the sentence on Count 8 of the information that was imposed by this court.

And so, in accordance with the foregoing, we enter the following attached order:

ORDER

And now, January 15, 2009, it is hereby ordered that the defendant’s amended first petition for post-conviction relief under the petition for relief under the Post Conviction Relief Act is hereby granted.

Accordingly, the judgment of sentence is vacated and the defendant is granted a new trial as to Counts 4, 8, 9, 10,11,12,13,14,15,16 and 18 of the criminal information, which will be scheduled at the request of the district attorney of Berks County.

      . Title 18, 18 Pa.C.S. §2702(a)(l) (Supp. 2008).

      . Title 18, 18 Pa.C.S. §2702(a)(4) (Supp. 2008).

      . Title 18, 18 Pa.C.S. §2705 (Supp. 2008).

      . Title 18, 18 Pa.C.S. §6106(a)(1) (Supp. 2008).

      . Title 18,18 Pa.C.S. §907(a) (Supp. 2008).

      . The convictions, as they relate to each of the four victims, were as follows:
      A. As to Emmanuel Sanchez:

      Count 4 aggravated assault manifesting extreme indifference to the value of human life;
      Count 8 aggravated assault causing bodily injury with a deadly weapon;
      Count 12, recklessly endangering another person;
      B. As to Christopher Rodriguez:

      Count 9 aggravated assault causing bodily injury with a deadly weapon;
      Count 13 recklessly endangering another person;

        C. As to Amado Rodriguez:

      Count 10 aggravated assault causing bodily injury with a deadly weapon;
      Count 14 recklessly endangering another person;
      D. As to Marcus Espada:

      Count 11 aggravated assault causing bodily injury with a deadly weapon; and
      Count 15 recklessly endangering another person.
      And as related to all four victims, the jury also found the defendant guilty of Count 16, firearms not to be carried without a license, and Count 18, possessing instruments of crime.

      . However, the juiy acquitted him of the following charges:
      Count 2 murder of the first degree — 18 Pa.C.S. §2502(a);
      Count 3 murder of the third degree — 18 Pa.C.S. §2502(c);
      Count 5 aggravated assault — 18 Pa.C.S. §2702(a)(l);
      Count 6 aggravated assault — 18 Pa.C.S. §2702(a)(l);
      Count 7 aggravated assault — 18 Pa.C.S. §2702(a)(l);
      Count 17 discharge of a firearm into an occupied structure — 18 Pa.C.S. §2707.1(a); and
      Count 19 possessing instruments of crime (concealed upon the person) — 18 Pa.C.S. §907(b).

      . The individual sentences imposed were: five years and two months to 10 years and four months on Count 4, aggravated assault; one to two years on Count 8, aggravated assault, consecutive to the sentence imposed on Count 4; one to two years on Count 9, aggravated assault, consecutive to the sentence imposed on Count 8; one to two years on Count 10, aggravated assault, consecutive to the sentence imposed on Count 9; one to two years on Count 11, aggravated assault, consecutive to the sentence imposed on Count 10; nine months to 24 months on Count 16, firearms not to be carried without a license, consecutive to the sentence imposed on Count 11; and one month to 24 months on Count 18, possessing instruments of crime, consecutive to the sentence imposed on Count 16.

      . See the defendant’s concise statement of matters complained of on appeal, filed May 15,2006.

      . At this point, we note that the defendant withdrew his remaining claims, with prejudice, at the hearing. See N.T., PCRA hearing, pp. 74-78.

      . All language which appears in italic type or is otherwise highlighted in this opinion is for emphasis only.

      . The proceedings which followed relative to this matter at trial are set forth in detail at pages 8-9 of our memorandum opinion dated August 2,2006, and are incorporated by reference as though the same were fully set forth herein.

      . N.T., PCRA hearing, p. 50.

      . N.T., PCRA hearing, pp. 48-50.

      . At this point, we note that the Commonwealth also makes a separate argument, relative to the curative instruction, that there is no arguable merit to that part of the defendant’s ineffective assistance claim because, had Attorney Kirwan obtained a curative instruction from this court, there would have been no basis for relief on this issue on direct appeal. We do not clearly understand the logic of this argument and, therefore, we see no need to address it any further at this time.

      . N.T., PCRA hearing, pp. 52-53.

      . That is obviously what Attorney Kirwan, one of the best lawyers to ever appear in my courtroom did, and is the reason we are in the position to do justice today in this case.


author: WALLACHMILLER, J,

text:
    Somers v. Butler’s Disposal Co.

      C.P. of Monroe County,
    no. 6735 Civil 2002.

      Thomas B. Helbig, for plaintiffs.

      Michael P. Shay, for defendant.
    July 12, 2006
   WALLACHMILLER, J,

On September 30,2002, plaintiffs, Daniel Somers and Diane Somers, his wife, filed a complaint against defendant, Butler’s Disposal Company, alleging injuries sustained by plaintiff Husband on the morning of July 26, 2001 while he was delivering milk to a Salvation Army children’s camp in Wayne County, Pennsylvania. At the time of the incident, defendant Butler owned three large dumpsters, each about six yards long, which were placed behind the Camp Ladore kitchen area in Waymart, Pennsylvania. From March of 2000, defendant Butler provided garbage disposal services to Camp Ladore, returning about three times a week during the summer months to empty the dumpsters. This was done by using a large dump truck with arms which slid onto the dumpsters which were then hoisted upside down and the garbage unloaded into the truck. The verbal agreement did not outline any specific designation for placement of the dumpsters except to have them placed outside behind the kitchen area so Camp Ladore employees could easily dump garbage into them. From March of 2000 to the date of this incident, Butler never received any formal complaints or concerns about the positioning of the dumpsters from Camp Ladore, plaintiff Somers or plaintiff’s employer.

Prior to his accident, plaintiff Somers testified in his deposition that he made deliveries to Camp Ladore three times each week in the summer of 2001. However, on July 26,2001, plaintiffs allege that a metal handle bar at one end of the dumpster blocked one of two loading docks at Camp Ladore. Plaintiff chose this one loading dock to make his delivery that day and somehow wedged his truck in it. Subsequently, plaintiff, with the help of two kitchen staff employees of Camp Ladore, tried to push the dumpster about two to four inches in order to move his truck. In doing this, plaintiff injured his left arm and shoulder.

Procedurally, defendant filed an answer and new matter to plaintiffs’ complaint, and discovery took place. With the discovery period closed, defendant now moves for summary judgment against plaintiff Somers.

In its summary judgment motion, defendant Butler argues that summary judgment is appropriate because it owes no duty to protect plaintiff Somers. Defendant first argues that a dumpster is not a dangerous condition from which defendant must be protected; second, defendant argues that plaintiff’s injury is not a reasonably foreseeable event associated with a large, heavy stationary garbage dumpster. Therefore, as a matter of law, defendant argues that no duty could be imposed upon defendant.

The standard for determining whether summary judgment should be granted is set forth in Pa.R.C.P. 1035.2:

“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 discovery 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 a jury.”

In a summary judgment proceeding, the court need not determine the facts essential to the case, but only determine if a material issue of fact exists. Kelly by Kelly v. Ickes, 427 Pa. Super. 542, 629 A.2d 1002 (1993). Summary judgment is only properly granted in cases where the right to judgment is clear and free from doubt, with any existing doubts viewed in a light most favorable to the non-moving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992); Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991); J.H. ex rel. Hoffman v. Pellak, 764 A.2d 64 (Pa. Super. 2000). In order to determine whether a case is free from doubt, the court may consider pleadings, depositions, answers to interrogatories, admissions and supporting affidavits. Pa.R.C.P. 1035.1. Non-moving parties may not rest upon mere allegations or denials of pleadings; rather, the non-moving party must set forth specific facts demonstrating that there are genuine issues for trial. Pa.R.C.P. 1035.3; Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986); Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989). Failure to allege such specific facts will result in a summary judgment, if appropriate, against the non-moving party. Id.

With regards to defendant’s first argument that it owes no duty to plaintiff because a garbage dumpster does not constitute a dangerous condition, it is well settled that the issue of whether a dangerous condition exists is not a question of law but rather a question of fact for the jury to resolve. Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000); Kilgore v. City of Philadelphia, 553 Pa. 22, 717 A.2d 514 (1998); PennDOT v. Patton, 546 Pa. 562, 686 A.2d 1302 (1997). Therefore, we cannot reach the merits of defendant’s first argument and cannot grant summary judgment on this basis.

In his second argument, defendant Butler argues it also does not owe a duty to plaintiff because plaintiff’s injury was not a reasonably foreseeable risk associated with a large, heavy stationary dumpster. However, plaintiffs argue that defendant could have reasonably foreseen the danger inherent in a dumpster out of position and that defendant Butler could have anticipated the harm such a dumpster could cause.

In order to establish a cause of action in negligence, a plaintiff bears the burden of demonstrating that there is a duty or obligation recognized by law, a breach of that duty by the defendant, a causal connection between the defendant’s breach of that duty and the resulting injury, and actual loss or damage suffered by the complainant. Roche v. Ugly Duckling Car Sales Inc., 879 A.2d 785 (Pa. Super. 2005); Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003); First v. Zem Zem Temple, 454 Pa. Super. 548, 553 n.2, 686 A.2d 18, 21 n.2 (1996). When considering the question of duty, it is necessary to determine whether a defendant is under any obligation for the benefit of that particular plaintiff, and, unless there is a duty upon the defendant in favor of the plaintiff which has been breached, there can be no cause of action based upon negligence. Id. However, duty, in any given situation, is predicated upon the relationships existing between the parties at the relevant time. Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983); Zanine v. Gallagher, 345 Pa. Super. 119, 123, 497 A.2d 1332, 1334 (1985).

Therefore, we must determine the relationship between the parties in order to determine if any duty exists. Plaintiffs argue three grounds for determining the parties’ relationships. First, plaintiffs state that the relationship is a contractual one, whereby defendant Butler, through its verbal contract with the Salvation Army, is contractually bound to protect plaintiff because he is a third-party beneficiary of the contract. Second, plaintiffs argue that he is a business invitee, who is owed a heightened duty of care from defendant Butler because defendant is subject to the same liability as a possessor of land by carrying on an activity upon Camp Ladore’s land. Finally, plaintiff argues that if the plaintiffs and defendant are strangers, defendant still owes a general duty of care to protect plaintiff from conduct which foreseeably creates an unreasonable risk of harm to others.

Examining plaintiffs’ first argument that there is a duty owed through a contractual relationship, Pennsylvania case law holds that a contract may create a duty which requires a party to the agreement to use due care in performing the contract for the benefit of the other party to the agreement, as well as for third parties who are strangers to the contract. See Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974); see also, Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961); Heath v. Huth Engineers Inc., 279 Pa. Super. 90, 420 A.2d 758 (1980). If a duty to a third party arises from the contract, the defendant is not relieved of liability to those third parties merely because the defendant has satisfied its obligation to the original party with whom it has contracted.

However, in examining the case law, a contracting party’s duty to a third party only arises when the contracting party provides a service that is not only intended for use by the other contracting party, but also third party people who regularly used the contracted services for its intended purpose. Korvette’s Inc., 457 Pa. at 615, 327 A.2d at 102 (under agreement with building owner, escalator company owing duty to building owner as well as persons using the elevator); Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 199 A.2d 875 (1964) (under contract with municipality to supply water hydrants, water company owed duty to homeowner whose house caught fire); St. Clair v. B & L Paving Company, 270 Pa. Super. 277, 279, 411 A.2d 525, 526 (1979) (under contract with the state to repave road, paving company also owed duty to the motoring public); Hess v. Fuellfgraf Electric Co., 350 Pa. Super. 235, 504 A.2d 332 (1986) (under contract with coal processing plant to install safely device, electrical contractor owed duty to plant’s employee).

In this case, defendant contracted with the Salvation Army to provide garbage disposal services to Camp Ladore. The agreement contemplated that only the Salvation Army, its staff, and campers would use the garbage disposals. There was no third party to the agreement, and no third party regularly used the services nor was any third party ever meant to regularly use the service. The above cases all deal with plaintiffs who sustained injuries while using the contracted service for their intended purpose; however, here, plaintiff sustained injuries by pushing the dumpster and not in using the garbage disposal for its intended purpose, namely trash collection. Thus, we find none of the above cases cited by plaintiffs to be controlling and find that Butler had no duty to protect plaintiff under that theory.

Even if there is no contractual duty, plaintiffs argue that plaintiff was a business invitee owed a heightened duty of care from defendant, who is subject to the same liability as a possessor of land. Plaintiff directs us to section 384 and section 343 of the Restatement (Second) of Torts, which holds that: “one who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to the same liability as though he were the possessor of the land, for bodily harm caused to others within and without the land, while the work is in his charge, by the dangerous character of the structure or other condition.” Duffy v. Fischbach & Moore Inc., 386 Pa. 533, 539, 126 A.2d 413, 416 (1956); Stringert v. Lastik Products Co. Inc., 397 Pa. 503, 155 A.2d 625 (1959); McKenzie v. Cost Brothers Inc., 487 Pa. 303, 409 A.2d 362 (1979).

The adopted comment (d) under section 384 states:

“A possessor of land may put a number of persons severally in charge of the particular portions of the work of erecting a structure or creating any other condition upon the land. Again, a general contractor employed to do the whole of the work may, by the authority of his employer, sublet particular parts of the work to subcontractors. In such a case, the rule stated in this section applies to subject the particular contractor or subcontractor to liability for only such harm as is done by the particular work entrusted to him.” Id.

Adopted section 343 states:

“A possessor of land is responsible for injuries suffered by business visitors if he ‘knows, or by the exercise of reasonable care could discover, the condition which, if known to him, should realize as involving an unreasonable risk to them.’ ” Id.

In the present case, there is no dispute that plaintiff was a business invitee at Camp Ladore, as he clearly entered Camp Ladore in furtherance of his business purpose, which was delivering milk to the camp. Furthermore, the Salvation Army contracts to defendant the particular work associated with servicing the garbage dumpsters and defendant Butler maintained this responsibility and did not shift the responsibility back to Camp Ladore or another party. Under section 384, defendant Butler could consequentially be subject to the same liability as a possessor of land for any harm associated with any work in defendant Butler’s control, i.e., servicing garbage disposals. Therefore, for purposes of determining the relationship between the parties, we find that plaintiff was a business invitee, and defendant Butler acts as a possessor of land with respect to the garbage dumpsters at the camp.

In analyzing whether defendant Butler owes a duty to plaintiff as a business invitee, we find at the outset that, under Pennsylvania case law, the duty of care owed to a business invitee is the highest duty owed to any entrant upon land. Gutteridge v. A.P. Green Services Inc., 804 A.2d 643 (Pa. Super. 2002); Emge v. Hagosky, 712 A.2d 315, 317 (Pa. Super 1998); Crotty v. Reading Industries, 237 Pa. Super. 1, 8, 345 A.2d 259, 262 (1975). The landowner must protect an invitee not only against known dangers, but also against those which might be discovered with reasonable care. Id. Our case law sets forth the duty that a possessor of land owes to business invitees as follows:

“A possessor of land is subj ect to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

“(c) fails to exercise reasonable care to protect against the danger.”

However, a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339 (2000); Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983).

Examining the case law, we found few cases involving dumpsters. However, our Pennsylvania Superior Court dealt with a case analogous to this in Cresswell v. End, 831 A.2d 673 (Pa. Super. 2003). In Cresswell, plaintiff, a meter reader for Penn-American Water Company, sustained injuries while performing her duties at defendant End’s house. Id. The water meter was located outside the defendant’s house and above a window well. Id. After reading the meter, plaintiff fell through the window well. At deposition, Ms. Cresswell testified that she had been to defendant’s house numerous times, and her company never notified defendant of any problems with the meter. Id.

The Superior Court held that even if plaintiff was an invitee, defendant would not be liable because the possessor of land is not liable to invitees for physical harm caused by a condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge. Id. at 678. The Superior Court held that the window well was an obvious danger known to the meter reader because plaintiff had been on the land numerous times, knew of the well, and also that there is an obvious danger associated with falling in a well, whereby one could hurt herself. Moreover, the Superior Court held that defendant could not anticipate the harm because defendant never was notified of any problem associated with the well. Id. Therefore, the court found no duty for the defendant to protect plaintiff as an invitee in this circumstance. Id.

Our present case involves a situation factually similar. Here, plaintiff testified in his deposition that he had been to Camp Ladore numerous times and knew that the dumpster was a problem. Moreover, the danger and risks associated with manually moving a heavy six-yard, metal dumpster with no wheels is clearly obvious to any reasonable person. Therefore, defendant Butler, unless it could have anticipated the harm despite such knowledge, cannot be liable for any physical harm associated with the garbage dumpster because it was a known and obvious danger. However, defendant Butler could not have anticipated the harm either because, like Cresswell, defendant owner was never notified of any problems with the dumpster from the plaintiff, plaintiff’s employer or the camp. Moreover, Butler’s agreement with Camp Ladore was only that the dumpsters would be placed behind the kitchen area, which defendant Butler complied with. Therefore, there is no way defendant Butler could reasonably anticipate such harm from a dumpster because it had no knowledge. As a result, we find defendant Butler did not owe a duty to protect plaintiff Daniel Somers as a business invitee.

Because we hold that the parties’ relationship is one of business invitee to possessor of land, we do not need to examine plaintiff Somers’ last argument that defendant Butler owes a general duty of care, which applies only if the parties are deemed strangers. Gerdes v. Booth & Flinn Ltd., 300 Pa. 586, 591, 150 A. 483, 485 (1930); Roche, 879 A.2d at 791; Gallagher, 345 Pa. Super. at 123, 497 A.2d at 1334.

To summarize, we find that in this particular case, defendant owed no duty to plaintiff because it was not reasonably foreseeable that someone would attempt to move an obviously heavy, metal dumpster by hand and be injured.

ORDER

And now, July 12,2006, defendant, Butler’s Disposal Company’s, motion for summary judgment is granted.

      . See Amarhanov v. Fassel, 442 Pa. Super. 111, 658 A.2d 808 (1995). No duty found owed by owner/occupier of land for injuries sustained by dumpster diver when dumpster hit by vehicle.


author: LASH, J,

text:
    Kerns v. Garman

      C.P. of Berks County,
    no. 04-10779.

      Valerie West, for plaintiff.

      Allan R. Kauffman, for defendant.
    August 8, 2006
   LASH, J,

This court held a child custody trial on July 18 and 31, 2006. At issue is primary custody of the parties’ minor child, Breyana L. Garman. The court makes the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Lacey Kerns (Mother), born September 19, 1979, is an adult individual residing at 217 Upland Avenue, Reading, Berks County, Pennsylvania.

(2) Defendant, Dennis Garman Jr. (Father), bom July 24, 1977, is an adult individual residing at 29 N. State Street, Shillington, Berks County, Pennsylvania.

(3) Mother and Father are the natural parents of one child, Breyana L. Garman (Minor Child), born March 17, 2003.

(4) Mother and Father have never been married, but resided together at various times.

(5) The parties first resided together from some time in 2002 until August 6, 2004 at 227 South Wyomissing Avenue, Shillington, Berks County, Pennsylvania 19607. On August 6, 2004, both parties filed a petition for protection from abuse and received a temporary order from this court, based on allegations of an altercation occurring on August 3,2004 at the parties’ home. In the temporary protection from abuse order, the court set forth a temporary custody arrangement with Father having the Minor Child from Friday, August 6,2004, until Sunday, August 8, 2004, at 8 p.m. and on Thursday, August 12, 2004, until Friday, August 13,2004, with Mother having the Minor Child at all other times, until the protection from abuse hearing scheduled for August 13, 2004.

(6) On August 13,2004, the parties agreed to reciprocal protection from abuse orders setting forth that neither party would have any contact with the other. Regarding custody, the parties agreed that Mother would have the Minor Child every Sunday from 7 p.m. until Tuesday at 7 p.m., Father would have the Minor Child every Tuesday from 7 p.m. until Thursday at 7 p.m., and the parties would alternate weekends. Mariah Chiccio would be an intermediary between the parties for custody purposes.

(7) Pursuant to the temporary protection from abuse order, Father was evicted from the parties’ residence on August 6, 2004. At that time, he moved in with the paternal grandparents, Dennis and Louann Garman, at 1029 Fern Avenue, Kenhorst, Berks County, Pennsylvania 19607.

(8) On or about August 6, 2004, Mother filed a complaint for custody. This action resulted in the entry of a custody order by agreement, entered September 8,2004, which superseded the custody terms of the protection from abuse order. In the order of September 8, 2004, it was directed that the parties would share legal custody, that Mother would have primary custody, with Father having partial custody every weekend beginning Friday at 7 p.m. until Sunday at 6 p.m., every Thursday from 6 p.m. until 9 p.m., and every other Wednesday from 6 p.m. until 9 p.m. Provisions were also made for holidays and vacations.

(9) At or about the same time the custody agreement was being entered, the parties withdrew their respective protection from abuse orders against each other, with the orders to vacate being entered September 8, 2004.

(10) At some point in time, probably in the fall of2004, the parties began residing together again, this time at 314 South Eighth Street, Reading, Berks County, Pennsylvania. The cohabitation continued until December 1, 2004, when the parties each filed a second protection from abuse petition against the other. Temporary orders were granted on December 1, 2004, and Father was evicted from the parties’ residence. The custody arrangement did not change.

(11) On December 10, 2004, the court postponed the hearing on the protection from abuse petitions and amended the temporary protection from abuse order to provide specifics regarding the Christmas holiday and to permit Father to take the Minor Child to Florida over the Christmas vacation.

(12) The temporary protection from abuse order was again modified on January 28, 2005 to provide that the parties shall exchange the Minor Child at a gas station on Lancaster Avenue in Reading, Pennsylvania, with Mariah Chiccio acting as intermediary.

(13) On or about February 24, 2005, Mother filed a petition to modify the custody order requesting that the order of September 8,2004 be amended to permit her to have some time during the weekends.

(14) On or about March 31, 2005, Mother pleaded guilty to indirect criminal contempt of the PFA order against her, after being accused of violating the stalking clause by contacting Father via telephone on or about March 23, 2005.

(15) On April 29, 2005, after several continuances granted upon request of the parties, reciprocal protection from abuse orders were entered against both parties, prohibiting the parties from having contact with each other, except regarding custody exchanges. The terms of the order provided for expiration on October 29, 2006.

(16) On June 10, 2005, by agreement, the parties entered a temporary custody order providing that the parties would have joint legal custody, that Mother would have primary physical custody and that Father would have partial physical custody on alternate weekends from Friday after he finishes work until Sunday at 6 p.m. The order also directed that the parties would engage in co-parenting counseling with Anthony Florney, with Father to pay 55 percent of the cost and Mother 45 percent.

(17) On June 24, 2005, the parties amended the temporary custody order to include additional custody time for Father on Thursdays from 6 p.m. until 9 p.m.

(18) On July 1,2005, Father filed a petition for special relief and motion to vacate the court order of June 24, 2005, requesting, among other things, that the original custody order of September 8, 2004 be reinstated.

(19) Even though the parties had protection from abuse orders entered against each other, during times in 2005, the parties spent some time residing together.

(20) On or about October 13, 2005, the parties were both arrested and charged with indirect criminal contempt after spending time together in the parking lot of Angelica Park in Reading, Berks County, Pennsylvania, in violation of the reciprocal protection from abuse orders. At that time, Father was searched by the police and methamphetamines were found in his possession. Both parties pleaded guilty to the indirect criminal contempt on October 20,2005. Father was issued a fine on the drug possession.

(21) On or about October 14,2005, the parties sought and obtained an order to vacate the protection from abuse orders entered against each other.

(22) Sometime in October 2005, Mother moved into the home of the paternal grandparents, although Mother and Father continued to be estranged.

(23) The parties again resumed cohabitation sometime in December 2005 and as a result, requested and received an order from this court entered December 13, 2005, dismissing defendant’s petition for special relief and his motion to vacate the court order of June 24, 2005.

(24) In January 2006, Mother moved from the home of the paternal grandparents to her current residence at 217 Upland Avenue, Reading, Berks County, Pennsylvania.

(25) Even after Mother moved to her current residence, Mother and Father did continue to see each other. However, on April 9, 2006, after another argument, Father removed his belongings from Mother’s residence. Within minutes after Father left Mother’s residence, the paternal grandmother, Father’s sister and Father’s aunt arrived at Mother’s residence and removed the Minor Child from Mother without her permission. According to Mother, the women assaulted Mother. Charges were filed by the police, which continue to be pending against the paternal grandmother and Father’s aunt. Father’s sister, Amy, pleaded guilty to interference with custody of a child.

(26) Mother filed a new protection from abuse action against Father on April 24, 2006, alleging that on April 13, 2006, Father attempted to influence Mother to drop the charges against his mother, sister and aunt. When Mother refused, he became verbally abusive, shoving and threatening her.

(27) Father responded by filing his own protection from abuse petition against Mother, alleging that on April 22,2006, Mother has been verbally harassing and stalking him and his family constantly.

(28) Both of the latest protection from abuse petitions were withdrawn by the parties and the temporary orders vacated by agreement on April 28, 2006.

(29) Mother currently resides with the Minor Child and her other child, Matthew M. Hornberger, born December 1, 1998.

(30) Father currently resides with a friend, Justin Gardner, since July 1, 2006.

(31) Mother is currently employed by Day Springs Homes, since May of 2006. Her hours are Monday through Friday from 7 a.m. to 1:30 p.m., and alternate weekends from 9 a.m. to 9 p.m. on Saturday and 9 a.m. to 9 p.m. on Sunday. She is on call for emergencies. The weekends are the weekends she does not have custody of the Minor Child.

(32) Her job duties include providing care for developmentally disabled adults. She has received extensive training, including first aid, CPR, non-violence crisis intervention, and medical treatment training. She is a residential advisor, supervising staff.

(33) Previously, Mother was employed at Prospectus Berks, working there from 1999 to April of 2006. She was terminated from her employment because she refused to report to work, which she claims was because Father had an affair with a co-worker, who is also a friend of Mother’s since Mother’s childhood. Additionally, Mother borrowed a camera from the organization without permission and against policy.

(34) Father is currently employed by Amity Fence, working from 6:30 a.m. until approximately 4:30 p.m., Monday through Friday. Previously, he worked for Schlouch Inc., in construction, with similar hours.

(35) Other than when she resided with Father or with the paternal grandparents, Mother, for a short time, resided with a paramour, Reuben Rivera. For a time, she had a boyfriend, Larry Gaul Jr., however, she is currently not seeing anyone.

(36) The Minor Child is in general good health. There is a concern that she may have asthma or allergies, as she has difficulty breathing during the winter months.

(37) When Mother is unable to care for the Minor Child due to her work schedule, she has used her family members in the past, particularly her sisters, Tonya and Melissa. She has also used friends of hers. Currently, the Minor Child is enrolled at a day care known as the Academy for Early Learning.

(38) The paternal grandparents are very involved in watching the Minor Child. At Father’s request, the paternal grandmother has come to the parties’ residence on occasion to remove the Minor Child from the house when the parties were involved in an argument or altercation. The paternal grandfather has acted as an intermediary, transporting the Minor Child between the parties. When the paternal grandparents are unavailable, because they also work, Father’s aunt and uncle, Jerry and Amy Garman, are available to care for the Minor Child.

(39) The maternal grandmother has some limited contact with the Minor Child, which has increased of late. Father objected to the maternal grandmother having any contact with the Minor Child because of his belief that the maternal grandmother mistreated the Minor Child on at least two occasions, first, when she put a pillow over the Minor Child’s face to stop her from crying, and secondly, when she required the Minor Child to remain in a car seat for several hours, even though the Minor Child was extremely agitated. The maternal grandmother denies these allegations, arguing that she never placed a pillow over the Minor Child’s head, rather the Minor Child was involved in a temper tantrum banging her head against the floor and holding her breath. The maternal grandmother picked the Minor Child up to stop her from banging her head and flicked water in her face to stop her from holding her breath. Regarding the second incident, grandmother admits that she kept the Minor Child in the car seat, but claims that the Minor Child was asleep the whole time and further that keeping her in the car seat was necessary because the grandmother’s basement was flooding from the recent floods, and the Minor Child being around that environment would have been unsanitary and unhealthy.

(40) Pursuant to a court order, a psychological evaluation was performed by Alison L. Hill Ph.D., of Berks Counseling Associates P.C. Dr. Hill evaluated the parties, the Minor Child, Mother’s other son, Matthew Homberger, and the paternal grandparents. Dr. Hill met with the parties on September 6, 2005, September 28, 2005, October 5, 2005, and October 17,2005. Dr. Hill administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), Parent Awareness Skills Survey (PASS) and Access Parent Self-Report Data Form. Subsequently, Dr. Hill prepared a written report, admitted into evidence as exhibit D-3.

II. DISCUSSION

In making a determination on primary custody, this court considered the testimony of the parties, the paternal grandfather, Dennis Garman Sr., Mother’s sister, Tonya Kerns, the testimony and written evaluation of Alison L. Hill Ph.D., the questionnaires provided by the parties as directed by the court, and exhibits submitted.

Mother presented first, requesting that she retain primary custody and contending that Father’s time with the Minor Child be supervised. She portrayed herself as providing all the necessary characteristics of a good mother. She believes she has bonded well with the Minor Child and her other child, Matthew. She loves both of them a great deal. She has always been the primary caretaker of the Minor Child, overseeing her feeding, diaper maintenance, toilet training, bathing, and providing all supervision when the Minor Child was in her care. She also enjoys and engages in recreational activities with the Minor Child. When she is unavailable, she believes she was careful to place the Minor Child with appropriate caretakers, including her two sisters, some friends, and lately, with the day care.

Throughout the Minor Child’s life and even during her pregnancy, Mother was consistently employed full-time. Her employment, which requires her to provide extensive assistance to developmentally delayed adults, includes bathing, brushing teeth and otherwise maintaining the adults. This helped Mother to develop skills that can be transferred to the care of a minor child. Further, the training she has received, particularly on medical and emergency issues, would also serve her well in parenting.

The predominant theme of Mother’s presentation, however, was Father’s shortcomings. First, she claimed that Father chose to have very little involvement in the Minor Child’s day-to-day maintenance. While the parties were living together, Father was often unemployed and available to care for the Minor Child. Sometimes he did this, but more often he required Mother to obtain a babysitter. He refused to participate in the maintenance duties for the Minor Child, preferring to either relax or go out with his friends. When he did watch the Minor Child, as well as her other child, Matthew, he was neglectful. She would come home to find the house torn up and Father asleep. Additionally, she discovered that Father would let Matthew walk to school in the morning by himself so he could sleep. As a result, Mother hired a neighbor to oversee taking the children to school if she was unavailable due to her work schedule. Further, Father also refused to purchase anything for the Minor Child or provide child support.

Secondly, Mother claims that Father is engaged in alcohol and drug abuse. He would smoke marijuana cigarettes, as well as regular cigarettes, in the home despite her objection. Given the Minor Child’s possible asthmatic condition, this could be harmful to her breathing. Father was involved in a motorcycle accident, which Mother claimed occurred because he was driving under the influence of alcohol. Mother believes that Father refuses to act responsibly with alcohol, and is involved in possession and even sales of illicit drugs.

Mother also contends that Father is both physically and verbally abusive to her. She has obtained several protection from abuse orders against him. She portrays herself as a battered woman who was constantly screamed at and sometimes beaten, due to Father’s extreme temper and substance abuse. She believes the Minor Child is traumatized by the constant violence and screaming.

Mother stated that Father would often destroy items in the house, including breaking glass in the front door and the back door, putting a crack in the bathroom door by constantly punching into it, and, over the course of time, destroying approximately 13 phones, as it was his practice to pick them up and throw them when he was angry.

Mother alleges that Father refuses to communicate with her. She tried several methods, including direct communication in person or by telephone. She tried a communication book after being directed to use same by the court, none of which had any effect. She states Father would often respond to her inquiries by cursing at her or ignoring her.

Mother also believes that the paternal grandparents have caused problems for her and the Minor Child. She believes they are manipulative, attempting to orchestrate the custody arrangement to serve their purposes and Father’s. She testified regarding an incident which she described as “kidnapping” when the paternal grandmother, Father’s sister and his aunt came to her residence, shortly after Father had departed after collecting his belongings. Before Mother was able to get out of her car, the three women converged on her, assaulting her, and removed the Minor Child from the car seat. The automobile drifted into another vehicle during the course of this altercation. Ultimately, Mother was unable to see her Minor Child for approximately four days. Charges were filed against the women, resulting in a guilty plea by Father’s sister, with the other charges still pending.

Mother’s sister, Tonya, supports Mother’s assertions. Tonya temporarily resided with the parties and she testified that she observed Mother being physically assaulted by Father. She testified to Father being constantly verbally abusive toward Mother. She stated that the paternal grandmother would come to the house without Mother’s knowledge and take the Minor Child from the residence at Father’s request during some of these altercations. Tonya also testified that one day while the parties were away, she discovered a bag of cocaine in plain view in the ceiling of the basement. After confronting the parties, it became clear to Tonya that the cocaine belonged to Father, as he made no pretense of denying the knowledge of its existence or that it was his, but demanded it back because “he needed to make a profit with it.” She also testified to his laziness, by relating a bizarre practice where Father would urinate into an empty ice tea container and leave the container sitting around with urine inside, rather than take the time to use the bathroom facilities.

Father presented in much the same manner as Mother, also requesting primary custody of the Minor Child. Fie related his love for the Minor Child and his desire to have as much time with the Minor Child as possible. When she is with him, he places his entire focus on her, playing with her and otherwise interacting. He reads to her extensively. He testified that he provides all of the important maintenance activities, even when he resided with the paternal grandparents. He applies appropriate discipline when necessary.

Father had extensive complaints about Mother’s care of the Minor Child. He believes that she is either neglectful, or worse, abusive, testifying that the Minor Child has been returned to him on several occasions with lumps on her head or black and blue eyes. There was one occasion when she had a burn on her hand, which Mother claimed occurred when the Minor Child fell on a lamp at a campground. Father claims the Minor Child’s hygiene is poor when he receives the Minor Child from Mother, that she has diaper rash and infections, and does not appear to have been washed properly.

Father claims that Mother does not provide proper parenting, acting more like a sister than a mother, teasing the Minor Child, as well as her half brother, Matthew, and engaging in dangerous fun, such as swinging the Minor Child around. He believes that Mother is unstable, moving several times, and being involved in several short-term relationships. She often delegates care of the children to her sisters or friends, who have established themselves to be poor caretakers. According to Father, Mother’s sister, Melissa, sleeps rather than watch the Minor Child. Melissa also had a boyfriend who has a criminal background. Generally, Father believes that Mother is willing to expose the Minor Child to individuals who are of questionable character and will not provide proper attention to the Minor Child.

Father argues that Mother is extremely volatile and sparks the altercations. The incident involving Father’s family started after Father told Mother of a court proceeding that was coming up. According to Father, Mother became inconsolable, threatening suicide, and was totally out of control. Father chose to leave, but shortly thereafter, the paternal grandmother, Father’s sister and aunt arrived and took the Minor Child from Mother “for the child’s own safety.”

Father denies many of the allegations Mother asserted, including that he smokes in the house around the Minor Child, that he continues to use drugs, that he was inattentive to the Minor Child and refused to provide any care or maintenance when the parties resided together, or that he physically or verbally abused Mother.

The paternal grandfather testified and supported Father’s position. The paternal grandfather believes that the Minor Child does not want to live with Mother, and that it is very difficult for him to turn the Minor Child over to her when required. The thrust of his testimony is that he and the paternal grandmother have often had to “rescue” the Minor Child from Mother, her instability or her neglect. Grandfather believes that Father is an appropriate caretaker, loves the Minor Child a great deal and should be awarded primary custody. Grandfather disputes many of the allegations Mother has asserted against Father, including extensive drug use.

The psychologist, Dr. Hill, recommended that the parties share both legal and physical custody of the Minor Child. The parties should alternate weekends, and the weekday time should be split as evenly as possible. Due to the Minor Child’s tender age, she should have as much contact with both parents as possible, never going more than two or three days without contact with the other parent. Dr. Hill also mandated that the parties should participate in co-parenting counseling. She also recommended that Mother take a parenting education class and that the Minor Child should participate in play therapy.

In making her recommendation, Dr. Hill found that the Minor Child has bonded well with both parties, but otherwise found problems with both parties, in general, and with Mother, in particular. She found that Mother can be manipulative and selectively report information, that she tends to rationalize her own behavior, deny conflict and repress her emotions. Dr. Hill noted that Mother is impulsive and lacks inhibition when she becomes frustrated or upset. She may engage in maladaptive or unacceptable behavior, then rationalize the behavior. Dr. Hill opined that Mother displayed minimal understandings of child development issues and appropriate behavior at different stages. “She would sometimes offer consequences for unacceptable behavior, but they were often not meaningful enough, such as simply speaking to an 11-year-old who has stolen money. Sometimes the consequences that she suggested inadvertently reinforced the behavior, such as giving a food treat to a 5-year-old child who is having a temper tantrum in a grocery store.” Dr. Hill was also concerned about Mother’s choice of caretakers.

Dr. Hill also stated that Mother’s general parenting skills are fair. To her credit, Mother has maintained stable employment.

In critiquing, Dr. Hill accepts Father’s statements that he assumes primary caretaking responsibility for the Minor Child during his periods of partial custody and that he is dedicated to the well-being of the Minor Child. She notes his strong backup with the paternal grandparents, as well as the aunt and uncle, to help out when necessary. However, Father’s personality profile reveals an underlying depression, along with suspicious and paranoid thought processes. He tends to hold resentments, becoming critical and angry, and can verbally attack others, which can cause difficulties in interpersonal relationships.

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

The most striking features of the parties’ profiles are the substantial negative characteristics, many of which are shared equally. Both parties can be impulsive, irrational and immature. Both have quick and harsh tempers, which can lead to physical altercations. Each blames the other for all the problems and refuses to take any responsibility for his/her behavior. Both are capable of breaking the law. Both give little regard to court orders or the costs to the taxpayers for their constant burdening of the court system or the police. Both are capable of gross exaggerations and intentional lying, appearing to have done so to Dr. Hill and to this court while under oath, to the extent that it is difficult to get a clear and truthful picture of the circumstances.

In viewing Dr. Hill’s report, it appears that she obtained a good reading on Mother’s characteristics, amply listing her shortcomings. However, regarding Father, Dr. HilFs acuity was not as demonstrated. It is apparent from the record that Father has substantial issues with drugs and alcohol, which should be addressed. Some of the things Mother complains about, such as Father smoking in the house, which is a concern for an asthmatic child, likely does happen, as Father does not appear to be overly concerned about the ramifications of his behavior. This reflects a level of immaturity, failure to be accountable or to accept responsibility for his actions. This perspective nearly got him killed when he was operating a motorcycle while under the influence of alcohol.

The paternal grandparents are an important and integral part of the Minor Child’s life and need to continue to be included in the Minor Child’s upbringing. They also have a good handle on Mother’s shortcomings, but as parents often do, they minimize their own son’s behavior. Further, the paternal grandmother’s involvement in the taking of the Minor Child during the “kidnapping” incident was wholly inappropriate and likely traumatized the Minor Child. If the paternal grandmother was concerned that Mother was temporarily incapable of caring for the Minor Child due to her own extreme emotion, the paternal grandmother had several legitimate remedies, including the police, Children and Youth Services, or the court. Instead, she now faces criminal charges for her actions.

It is very important that the parties learn to treat each other in an adult and civil manner. Most importantly, for the sake of the Minor Child, they must act as good parents. This court will mandate co-parenting counseling. The court previously ordered same, but Father, in the usual fashion common to both parties, disregarded the court’s mandate. That will now change. If either party refuses to attend the co-parenting counseling as ordered, the court, upon proof of that party’s failure, shall impose substantial sanctions which may involve extensive fines and community service, as appropriate.

There is one positive feature about Mother’s parenting, which separates her from Father. She has been the primary caretaker since the Minor Child’s birth, doing so while she maintained full-time employment. She was even working during her pregnancy. This is in contrast to Father, who appeared very willing to let Mother take care of the Minor Child while he partied with his friends or relaxed at home. This court believes that when the Minor Child is in Father’s care, the paternal grandparents assume most of the parenting duties, not Father. Accordingly, it appears that the current custody arrangement with Mother having primary custody and Father having alternate weekends and evenings continues to be appropriate.

Father needs to establish a commitment to the difficult duties involved in parenting. Both parties need to extensively overhaul their lifestyles to eliminate the fussing, backbiting, temper tantrums, police involvement, and all other drama. We can already see the fruit of their actions through the Minor Child. She has begun acting out through serious temper tantrums, including holding her breath and banging her head on the floor. This action was likely learned from her parents. Hopefully, before the Minor Child turns 18, the parents will be willing to teach her some other, more suitable behavior.

We enter the following order:

ORDER

And now, August 8, 2006, after trial held, custody of the parties’ Minor Child, Breyana L. Garman, bom March 17, 2003, shall be as follows:

(1) The parties shall share legal custody.

(2) Plaintiff, Lacy Kerns (Mother), shall have primary physical custody of the Minor Child.

(3) Defendant, Dennis Garman Jr. (Father), shall have partial physical custody of the Minor Child on alternate weekends from Friday after work until Sunday at 6 p.m., every Thursday from 6 p.m. to 9 p.m., and at such other times as the parties may agree.

(4) Mother shall have custody on Mother’s Day and Father on Father’s Day each year from 10 a.m. to 6 p.m.

(5) The parties shall share the following named holidays with the custodial parent having custody from 10 a.m. to 6 p.m., with Father having the next holiday after the date of this order: Easter, Memorial Day, July 4th, Labor Day and Thanksgiving.

(6) The parties shall alternate the Christmas holiday with one parent having custody from 6 p.m. on December 24 until 1 p.m. on December 25, and the other parent having custody from 1 p.m. on December 25 until 6 p.m. on December 26. Father shall have custody for the first time period and Mother for the second time period on odd-numbered years, with the parties to reverse the time periods on even-numbered years.

(7)The parties shall have the right to one week of vacation each summer with the Minor Child. Each party shall provide the other party with at least 30 days advance notice of their choice of week under this paragraph. Mother’s choice of week shall take priority in the odd-numbered years and Father’s choice shall take priority in the even-numbered years.

(8)The parties shall equally share transportation for custody transfers by meeting at the Giant located in Shillington.

(9)The parties shall enroll in co-parenting counseling with Anthony Homey. The parties are to be responsible for the costs with Father paying 55 percent and Mother paying 45 percent. The parties shall follow any and all recommendations of Anthony Homey.

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

APPENDIX TO ORDER

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

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

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.

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

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

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

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

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

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

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

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

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

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

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

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

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

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

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

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

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

      . Psychological evaluation of Alison L. Hill Ph.D., atp. 16.


author: HANNA, J,

text:
    Shoop v. Shoop
    C.P. of Indiana County,
    no. 10143 CD 2002.

      Myron Tombs, for plaintiff.

      Thomas Bianco, for defendant.
    August 15, 2006
   HANNA, J,

This matter comes before the court on Wife’s petition for enforcement of a marriage settlement agreement. For the reasons set forth below, the court concludes that Wife is entitled to enforcement of the agreement.

FACTS AND PROCEDURAL HISTORY

On July 17, 1998, Debra Ann Shoop (Wife) and Harold W. Shoop (Husband) were married in Indiana, Pennsylvania. Sometime into the marriage, the parties had a variety of marital differences including Husband’s drinking problem, which resulted in the parties separating on June 4, 2001. In August of the same year, the parties entered into a separation agreement. The agreement provided that Husband would cease consuming alcohol, join Alcoholics Anonymous and obtain counseling for the problems that affected the marriage. The agreement stated that the process of counseling and rehabilitation would take approximately two years.

On January 29, 2002 Wife filed for divorce. Husband answered the divorce complaint on Februaty 13,2002 and also counterclaimed for equitable distribution of marital property. Wife answered this counterclaim on April 1, 2002 stating that Husband’s claim for equitable distribution was precluded by the parties’ separation agreement.

The next year, in June of 2003, Husband filed a petition to vacate separation agreement. His petition advanced three arguments: (1) Husband was unrepresented and failed to carefully read the agreement; (2) the terms of the separation agreement shock the conscience; and (3) Wife committed fraud and induced Husband to enter into the separation agreement. In regards to the last argument, Husband stated that Wife had committed fraud by filing for divorce less than six months after signing the agreement. The agreement stated that if the “parties have not resolved their problems at the conclusion of the two years, that either of the parties may obtain a divorce without objection by the other party.” (Agreement, paragraph 9.)

Testimony was taken and evidence was received during a hearing on March 11, 2004. The court entered an opinion on April 8,2004, holding that the agreement cannot be voided because Husband failed to consult counsel or carefully read the agreement, the reasonableness of the agreement is not a proper subject for judicial review, and Wife had not committed fraud. The separation agreement was left intact and enforceable by Wife.

On December 13,2005, Wife filed a petition for contempt, alleging that Husband had refused to comply with the portion of the separation agreement that ordered him to convey all of his title and interest in a parcel of land located in Blacklick Township to Wife. Wife asked the court to both enforce the separation agreement and award her attorney’s fees, costs and expenses, as provided for in the agreement.

A hearing was scheduled for May 4, 2006. In lieu of taking testimony, the court conferenced with counsel and it was agreed that the matter would be submitted to the court on briefs and the transcript of the March 11, 2004 proceeding. Counsel also agreed that Wife’s petition for contempt should be amended to be a petition for enforcement of marriage settlement agreement. Astipulation of counsel was filed on May 5, 2006 so permitting the amendment of the action.

Husband’s counsel made the following arguments in support of his position in a brief filed on May 17, 2006:

(1) Collateral estoppel does not prevent the court from addressing Husband’s allegation that Wife breached the separation agreement.

(2) Wife breached the separation agreement by filing for divorce less than a year after signing the agreement.

Wife’s counsel advanced the following arguments in a brief filed on May 24, 2006:

(1) Res judicata bars Husband from raising the issue of Wife’s alleged noncompliance with the separation agreement.

(2) There is insufficient testimony in the record to support Husband’s allegation that Wife breached the agreement.

(3) Wife is entitled to attorney’s fees, costs and expenses because she has been forced to incur legal expenses as a result of Husband’s refusal to comply with the agreement.

DISCUSSION AND ANALYSIS

The court will first address the arguments of collateral estoppel, also known as issue preclusion, and res judicata, also known as claim preclusion. Collateral estoppel concerns whether or not an issue has previously been determined and is decided by the following five-pronged test:

“(1) the issue decided in the prior case is identical to the one presented in the later case;

“(2) there was a final judgment on the merits;

“(3) the party against whom the plea is asserted was a party or in privity with a party in the prior case;

“(4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and

“(5) the determination in the prior proceeding was essential to the judgment.” McArdle v. Tronetti, 426 Pa. Super. 607, 614, 627 A.2d 1219, 1223 (1993) (citing Melat v. Melat, 411 Pa. Super. 647, 653-54, 602 A.2d 380, 384 (1992)). Elements two and three are met here without question. The opinion this court issued on April 8,2004 was a final judgment on the merits and the parties here are identical to the parties in the prior case. However, element one, from which elements four and five derive their meaning, is not met in this case. In order for the doctrine of collateral estoppel to apply, the issue in this and the prior case must be identical. In the action decided on April 8, 2004, Husband sought to have the agreement vacated for the following reasons: (1) Husband did not have a lawyer prior to signing the agreement; (2) Husband did not read or understand the agreement prior to signing; (3) the terms of the agreement shock the conscience; and (4) Wife made promises she never intended to keep. (Opinion of April 8,2004, p. 2.) At that time, Husband did not argue that the agreement was unenforceable because Wife had breached the agreement. The court examined Wife’s actions relative to the agreement for the purpose of determining Wife’s intent in signing the agreement, but Husband never asked for a determination of whether Wife breached the agreement. For this reason the issue raised today, whether or not Wife breached the agreement, has not already been litigated and collateral estoppel does not bar Husband from raising this issue.

In contrast to collateral estoppel, the doctrine of res judicata does not apply only to those issues that have already been actually raised and determined in an earlier proceeding, but also to those issues that might have been raised. McArdle, 426 Pa. Super. at 611, 627 A.2d at 1222 (citing Dyer v. Travelers, 392 Pa. Super. 202, 572 A.2d 762 (1990)). The purpose of this doctrine is “to conserve limited judicial resources, establish certainty and respect for court judgments, and protect the party relying upon the judgment from vexatious litigation.” Id. (citing Mintz v. Carlton House Partners, Ltd., 407 Pa. Super. 464, 595 A.2d 1240 (1991)). In order to accomplish this purpose, the doctrine must be liberally construed. Id. Res judicata is determined through the following four-pronged test:

(1) identity of issues;

(2) identity of causes of action;

(3) identity of parties or their privies; and

(4) identity of the quality or capacity of the parties suing or being sued. Id.

Whether or not res judicata applies in the case before us turns on the presence of a single cause of action, as elements one, three and four are easily met. In both this action and the prior action, the issue is whether or not the separation agreement is enforceable and Husband and Wife have been the only parties to each action.

The presence of a single cause of action is determined by whether there is a similarity in the “identity of the acts complained of, the demand for recovery, [and] the identity of witnesses, documents and facts alleged.” McArdle, 426 Pa. Super. at 612, 627 A.2d at 1222 (citing Davis v. Unites States Steel Supply, 688 F.2d 166 (1982)). The identity of causes of action does not rely upon the use of an identical legal theory in each action, but rather “the essential similarity of the underlying events giving rise to the various legal claims.” Id. The identity of the acts complained of in this action and in the action decided on April 8,2004 are the same. In the action before us, Husband argues that Wife’s action in filing for a divorce less than a year after signing the separation agreement constitutes a breach of the agreement. In the action decided on April 8, 2004, Husband argued that Wife’s action in filing for a divorce less than a year after signing the agreement evidenced her lack of intent to keep the promises made in the agreement. While the legal argument is different, the acts complained of are identical. Both arguments rely on the same series of events and litigation of both arguments would require the same witnesses and documents. Although Husband did not specifically raise the issue of Wife’s alleged breach of the agreement in the April 8, 2004 action, that issue could have been raised at that time. This court has already issued an opinion stating that the separation agreement is enforceable. Husband’s current claim that Wife breached

the agreement offers no new facts, but instead seeks to re-litigate facts that this court has already examined. For this reason, res judicata bars Husband’s claim of breach.

Even though the court has found that res judicata bars Husband’s claim of breach, the court will examine whether Wife’s actions immediately subsequent to signing the separation agreement constitute a breach of the agreement. The parties signed the separation agreement in August of 2001. Wife filed a divorce complaint on January 29,2002, and began dating another man in April of2002. Husband argues that these actions by Wife were a breach of the agreement. He bases this argument on the following paragraph from the agreement:

“Husband agrees to terminate the consumption of alcohol, to join Alcoholics Anonymous, and to obtain counseling for the problems that have affected the marriage. It is contemplated that this process of counseling and rehabilitation shall take approximately two years. The parties agree that in the event that the parties have not resolved their problems at the conclusion of the two years, that either of the parties may obtain a divorce without objection by the other party.” (Agreement, p. 3, paragraph 9.) Husband interprets this paragraph to mean that Wife had an obligation to give Husband two years in which to save the marriage. Husband argues that Wife’s actions, in beginning to date another man and filing for divorce less than a year after signing the agreement, made it impossible for Husband to save the marriage and constitute a breach of the agreement. In response to this argument, Wife notes that after signing the agreement Husband did not refrain from drinking alcohol and did not attend Alcoholics Anonymous. (Transcript of March 11, 2004 hearing, p. 74.) Wife also testified that when she filed for divorce on January 29,2002 she was aware that there was a waiting period of two years for a contested divorce and did not intend to obtain an immediate divorce. (Transcript, p. 61.) The court also notes that as of the writing of this opinion, five years after the agreement was signed, the parties have still not obtained a divorce.

In the court’s opinion of April 8,2004, the court made the following finding: “The agreement posed no duty on the Wife to either take any action or do anything else. The agreement never specifically granted the Husband a set number of years to comply. It only contemplated that his abstinence and counseling would take two years.” No facts have been presented to the court that would make the court change that ruling. Today the court still holds that the agreement posed no duty on the Wife; therefore, Wife’s actions did not breach the agreement.

Finally, the court will address Wife’s argument that she is entitled to attorney’s fees, costs and expenses because she has been forced to incur legal expenses as a result of Husband’s refusal to comply with the separation agreement. Paragraph 15 of the agreement provides that when a party breaches the agreement, “he or she shall be liable for all legal costs incurred by the wronged party.” Wife’s petition for contempt of court filed on December 13,2005, states that Husband refuses to convey to Wife his interest in a parcel of land situated in Blacklick Township. Husband has never denied his refusal to convey his interest in the real estate; instead, he has argued that he is not required to convey his interest because Wife has breached the agreement. As stated above, the court has found that Wife did not breach the agreement and Husband’s failure to convey the real estate constitutes a breach. Therefore, this court awards Wife legal fees and costs in the amount of $1,909.50 for the expenses she has incurred in litigating this action.

Wherefore, the court makes the following order:

ORDER

And now, August 15, 2006, this matter having come before the court on Wife’s petition for enforcement of a marriage settlement agreement, it is hereby ordered and directed as follows:

(1) Husband is directed to execute and deliver the deed conveying the real estate that is the subject of the agreement between the parties;

(2) Husband is directed to pay Wife’s legal fees and costs in the amount of $1,909.50 to Myron H. Tomb, Esquire, within 30 days from the date of this order.

      . The court derives these facts from the pleadings, and the testimony of both parties at a proceeding that occurred on March 11, 2004.

      . At the conference, counsel for Husband argued that a contempt action could not proceed because there is no court order incorporating the parties’ agreement.

      . It is notable that counsel agreed to have this court base its decision on the testimony and evidence given at the prior proceeding. “The true test to determine whether a final determination in a former action is a bar to a subsequent action is whether the evidence to support both is the same.” Standard Pennsylvania Practice, §65:86. See also, Mintz v. Carlton House Partners Ltd., 407 Pa. Super. 464, 595 A.2d 1240 (1991), wherein the court stated that if the same evidence is required to support a final determination in a former action and in a subsequent action, res judicata bars the second action.