author: KOURY, J.,

text:
    S.S. v. B.S.

      C.P. of Northampton County,
    Nos. DR-0079714; 342 EDA 2015

      Stephen Mowrey, for plaintiff.

      Linda Shay Gardner, for defendant.
    March 23, 2015
   KOURY, J.,

And now, this 23rd day of March, 2015, the court issues the following statement:

On January 20, 2015, defendant B. S. filed and served upon this court a timely notice of appeal to the Superior Court of Pennsylvania from the order of court dated December 22,2014. On February 12,2015, pursuant to our request under Pennsylvania Rule of Appellate Procedure 1925(b), we received a statement of matters complained of on appeal.

For the reasons that follow, we respectfully suggest that defendant’s appeal lacks merit.

I. Factual and Procedural History

On June 13,2014, plaintiff S.S. filed a uniform support petition seeking child support for one child, S. B. S. (the “child”), who was bom in the United States on April 11, 2008. See petition for support, S. v. S., No. C-48DR-0079714 (C.P. Northampton County June 13, 2014) (“support petition”). Plaintiff and defendant were married in Pakistan on July 6, 2007, separated on November 20, 2011, and divorced in Pakistan on May 4, 2012.

Plaintiff resides in Texas and filed the petition for support with the child support division of the attorney general’s office (“Texas Support Office”) in Arlington, Texas. See support petition. Defendant resides in Easton, Northampton County, Pennsylvania. The Texas Support Office sent a child support enforcement transmittal to the Northampton County Domestic Relations Section on June 23,2014. See support petition. The parties were ordered to appear for a support conference on July 29, 2014.

On July 21,2014, defendant filed preliminary obj ections to plaintiff’s support petition. See preliminary objections, S. v. S., No. C-48-DR-0079714 (C.P. Northampton County July 21,2014). The parties appeared for a hearing on the preliminary objections on August 25, 2014. See order of court dated August 12, 2014, S. v. S., No. C-48DR-0079714 (C.P. Northampton County Aug. 12, 2014). At the conclusion of the hearing, the parties were directed to file briefs in support of their respective legal positions regarding defendant’s preliminary objections. See order of court dated August 25, 2014, S. v. S., No. C-48DR-0079714 (C.P. Northampton County Aug. 25, 2014) (“August 2014 order”). On September 12,2014, the court, by the Honorable Paula A. Roscioli (“Judge Roscioli”), overruled defendant’s preliminary objections to the support petition and scheduled a support conference for October 15, 2014. See order of court dated September 12, 2014, S. v. S, No. C-48-DR-0079714 (C.P. Northampton County Sept. 12, 2014).

Defendant appeared at the support conference before conference officer Marta E. Husovsky (“Husovsky”). Plaintiff was not required to appear. See summary of trier of fact, dated October 15, 2014 at 2, S. v. S., No. C-48DR-0079714 (C.P. Northampton County Oct. 15, 2014) (“Support conference summary”). Husovsky determined that plaintiff was unemployed but currently volunteered in a hospital in Texas. See support conference summary. It was noted that plaintiff was only temporarily in the United States. See id. Husovsky concluded that plaintiff could not obtain a physician’s salary in the United States because she was only temporarily in the United States, but was not medically unable to work. See id. (emphasis added). Therefore, Husovsky recommended that plaintiff be assessed a full-time income as a home health aide at $9.98 per hour as per the Pennsylvania Occupational Wage Survey. See id. at 3 (emphasis added). On October 17, 2014, Judge Roscioli entered an order of support directing defendant to pay child support in the amount of $1,030.00 per month, allocated as $858.00 for basic support of the one child and $172.00 for arrears. See order of court dated October 17, 2014, S. v. S., No. C-48-DR-0079714 (C.P. Northampton County Oct. 17, 2014) (“October 2014 order”). The order was based on an assessed income for plaintiff in accordance with Husovsky’s recommendation and defendant’s income as determined from pay stubs submitted to the domestic relations section. See October 2014 order.

II. De Novo Hearing

On October 27,2014, defendant filed a written demand for a de novo hearing. See request for hearing de novo, S. v. S., No. C-48-DR-0079714 (C.P. Northampton County Oct. 27,2014). On December 10,2014, defendant and his counsel appeared, as did plaintiff (via telephone) and the Title IV-D advocate, attorney Stephen Mowrey.

At the hearing, attorney Mowrey stated on the record that “there’s a history here of family violence, so there may be certain questions that would be inappropriate based on that history.” See Notes of Transcript at 5:1-3, S. v. S., No. C-48-DR-0079714 (C.P. Northampton Co., Dec. 10, 2014) (“N.T.”). Plaintiff testified she had been in the United States since January 2014 but was not currently employed because she did not have permission to work in the United States. N.T. at 5:22-25; 6:14. While living in Pakistan, plaintiff was employed at the Liaquat National Hospital as a physician. See id. at 6:11-14.

Plaintiff stated that her sole intention in coming to the United States was to bring her daughter to safety as there had been threats made against her life. See id. at 7:18-25. Plaintiff described the circumstances that led to her entry to the United States in January 2014, indicating that she received threatening calls while in Pakistan and, subsequently, contacted the United States Consulate. See id. at 20:7-8. She testified that the United States Consulate instructed her to bring her daughter, a United States citizen, to the United States and granted plaintiff an emergency visitor’s visa to do so. See id. at 20:10-21:1. Plaintiff testified that her visa was stamped with an expiration date of July 18, 2014, but she applied for, and received a stay until December 2014. See id. at 22:5-16. Plaintiff testified that she was in the process of filing for political asylum in the United States. See id. at 9:20-10:7. There was no testimony presented by defendant to contradict any of this testimony by plaintiff. See generally, N.T. While plaintiff did not present documentation to support this testimony at the time of the hearing, we found plaintiff’s testimony credible.

Plaintiff testified that she fears defendant. See id. at 22:22. She stated that she had seen last seen defendant in October 2014, when she met him in court in Texas. See id. at 26:18-20. Plaintiff provided a detailed description of an incident of abuse in which defendant had her pinned on the ground, was sitting on plaintiff’s chest with his knees on her hands and was strangling her while her daughter witnessed this incident. See id. at 27:18-28:9. She indicated that part of the reason she came to the United States was because of the issues with violence she had with her husband. See id. at 28:21-24. While defendant testified that there was no domestic violence in his relationship with plaintiff, we did not find this testimony credible. See id. at 31:18-23.

At the December 10, 2014 hearing, the entire Northampton County Domestic Relations file was made part of the record. Included in the file is an April 21, 2014 letter from Safe Haven of Tarrant County in Arlington, Texas indicating that in February 2014 plaintiff initiated services with Safe Haven to seek counseling for emotional distress and domestic violence. The correspondence notes emotional, verbal, physical and sexual abuse. Also included in the file is a Texas Department of Family and Protective Services report confirmation that a representative of Safe Haven had reported the specific incident of abuse of which plaintiff testified. The report was submitted to the Department of Protective Services on March 5, 2014.

On December 22, 2014, the undersigned entered the order currently before the Superior Court. See order of court dated December 22, 2014, S. v. S., No. C-48-DR-0079714 (C.P. Northampton County Dec. 22, 2014) (“December 2014 order”). The order modified the October 17, 2014 Support Order and required defendant to make monthly support payments of $1,156.00 per month, allocated as $963.00 for basic support of one child and $193.00 for arrears, effective June 13,2014. See December 2014 order. Defendant’s liability for uncovered medical expenses was raised from 77% to 100%. See December 2014 order. The order indicates that the support amount was based upon plaintiff having $0.00 income due to her ineligibility to work legally in the United States. See December 2014 order. All other aspects of the October 17, 2014 order remained in effect. See December 2014 order.

III. Appeal to the Superior Court of Pennsylvania

As noted above, on February 12, 2015, defendant filed his statement of errors complained of on appeal. Defendant raised seven alleged errors:

1. The trial court committed an error of law and abused its discretion in its order of court entered on December 22, 2014 in determining that plaintiff, S. S. has no income or an earning capacity, for purposes of calculating the defendant’s child support obligation, due to plaintiff’s ineligibility to work in the United States when she voluntarily entered the United States on a visitor’s visa.
2. The trial court committed an error of law and abused its discretion in its order of court entered on December 22, 2014 in failing to assess the plaintiff, S. S., with an earning capacity commensurate with that of a physician in the United States, as the plaintiff received medical training and a medical degree, she worked as a physician, and the plaintiff continues to be employable as a physician, and the plaintiff voluntarily came to the United States on a visitor’s visa, with full knowledge that she would not be able to legally work in the United States.
3. The trial court committed an error of law and abused its discretion in precluding defendant from having access to information regarding the mother and the child, including their whereabouts, without more than a mere assertion on the part of mother that there was prior domestic abuse, and therefore violated the requirements of the Interstate Uniform Support Petition (23 Pa.C.S.A. § 7311). Such an error and abuse of discretion precluded father from properly inquiring as to the circumstances, documentation, and factual allegations in this matter, which were pertinent to the petition for support.
4. The trial court committed an error of law and abused its discretion when it permitted the support complaint in Texas to be heard through the interstate support system, where mother is not a United States citizen, does not have legal status to remain in the United States, and has become a financial burden to the courts in Texas and Pennsylvania to hear a matter when mother has essentially used the court system to obtain support when she has no authority to remain in the United States.
5. The trial court committed an error of law and abused its discretion when it relied on mother’s alleged immigration status in the United States without requiring proof thereof and disclosure to father, as a reason for not assigning her an earning capacity, as mother clearly has an earning capacity when she voluntarily left her physician position in Pakistan to enter the United States without the ability to legally work here.
6. The trial court committed an error of law and abused its discretion when it failed to consider that mother voluntarily left her employment in Pakistan and did not mitigate her losses by moving to a location in the world where she could not legally work, which is tantamount to voluntarily leaving her employment without cause.
7. The trial court committed an error of law and abused its discretion when it overruled the defendant’s preliminary objections to the plaintiff’s interstate uniform support petition, where the plaintiff failed to file an answer to the preliminary objections, and where the court failed to consider the Texas statute governing plaintiff’s basis for jurisdiction. (Tex. FA Code ann. § 159.210), which violated the defendant’s due process rights under the Fourteenth Amendment and denied defendant’s contest of registration or enforcement pursuant to 23 Pa.C.S. § 7607.

See statement of errors complained of on appeal pursuant to Pa.R.C.P. § 1925(b), S. v. S. No. C-48-DR-0079714 (C.P. Northampton Co. Feb. 12, 2015) (“Defendant’s statement of errors”).

DISCUSSION

I. Standard of Review

In reviewing a child support order, the Superior Court is guided by the following standard:

When evaluating a support order, this court may only reverse the trial court’s determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of that discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. In addition, we note that the duty to support one’s child is absolute, and the purpose of child support is to promote the child’s best interests.

Laws v. Laws, 758 A.2d 1226, 1228 (Pa. Super. 2000).

A. It was not an error of law or abuse of discretion to determine that plaintiff has no earning capacity and/or to not assess plaintiff the income of a physician in the United States.

In defendant’s statement of errors, alleged errors one, two, five and six focus on the court’s determination that plaintiff does not currently have an income or an earning capacity. Defendant argues that plaintiff should have been assessed an income based upon her alleged earning capacity as a physician because plaintiff voluntarily left her employment as a doctor in Pakistan in order to come to the United States where she knew she would not be allowed to work. Based upon the record before the court, it is respectfully submitted that it was not an error of law or an abuse of discretion to use a $0.00 income for plaintiff in the calculation of the child support amount in this matter and to determine that plaintiff currently does not have an earning capacity.

Pennsylvania Rule of Civil Procedure No. 1910.16-2 governs the calculation of net income in the determination of child support. Subsection (d) of Rule 1910.16-2 provides, in relevant part, as follows:

(d) Reduced or Fluctuating Income.
(1) Voluntary Reduction of Income. When either party voluntarily assumes a lower paying job, quits a job, leaves employment, changes occupations or changes employment status to pursue an education, or is fired for cause, there generally will be no effect on the support obligation.
(2) Involuntary Reduction of, and Fluctuations in, Income. No adjustments in support payments will be made for normal fluctuations in earnings. However, appropriate adjustments will be made for substantial continuing involuntary decreases in income, including but not limited to the result of illness, lay-off, termination, job elimination or some other employment situation over which the party has no control unless the trier of fact finds that such a reduction in income was willfully undertaken in an attempt to avoid or reduce the support obligation.
(4) Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.

Pa.R.C.P. No. 1910.16-2 (d). The core of defendant’s arguments in alleged errors one, two, five, and six is that plaintiff “voluntarily” entered the United States on a visitor’s visa, knowing that she would not be eligible to work legally while in the United States on the visitor’s visa, that she “voluntarily” left her position as a physician in Pakistan and that she left that employment voluntarily, without cause, and that her actions should result in a lower amount of child support from defendant. See defendant’s statement of matters complained of on appeal at ¶¶ 1, 2, 5, and 7. Contrary to defendant’s assertions, and upon the record before the court, we do not believe that plaintiff “voluntarily” reduced her income or left her job in Pakistan such that she should be assessed an income for the purposes of establishing child support in this matter.

Pa.R.C.P. No. 1910.16-2(d)(2) provides, in relevant part, as follows:

appropriate adjustments will be made for substantial continuing involuntary decreases in income, including but not limited to the result of illness, lay-off, termination, job elimination or some other employment situation over which the party has no control unless the trier of fact finds that such a reduction in income was willfully undertaken in an attempt to avoid or reduce the support obligation.

Pa.R.C.P. No. 1910.16-2(d). It is respectfully submitted that receiving threats to her life and her child’s life while in Pakistan, and being directed by the United States Consulate to bring the child to the United States constitutes an “employment situation over which [plaintiff] has no control.” Further, we determined that plaintiff had not taken the reduction in income “willfully... in an attempt to avoid or reduce” a support obligation or to obtain a greater amount of support from defendant. “[W]hen a parent has not voluntarily reduced his income to ‘circumvent his support obligation’ the court ‘can consider reducing the parent’s child support obligation.’” Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010) (citing Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006)). Upon further analysis, it is clear to the court that plaintiff did not voluntarily reduce her income, and, even if she had voluntarily reduced her income, she did not do so to circumvent an obligation to support her daughter, but did so for the benefit and safety of her daughter.

Black’s Law Dictionary defines “voluntarily” as “[i]ntentionally; without coercion.” See Black’s Law Dictionary (10th ed. 2014, “voluntarily”). While plaintiff may have left her employment in Pakistan intentionally, she did not do so without coercion. Black’s defines “coercion” as “[compulsion of a free agent by physical, moral, or economic force or threat of physical force.” See Black’s Law Dictionary (10th ed. 2014, “coercion”). Plaintiff was most certainly coerced into coming to the United States. Plaintiff had suffered physical, emotional, verbal and sexual abuse at the hands of defendant. While in Pakistan, she received threatening telephone calls that, as testified to by plaintiff, indicated that her and her daughter’s life were in danger. At the direction of the United States Consulate, plaintiff brought the parties’ daughter to the United States, with plaintiff entering the country with a visitor’s visa.

In Grigoruk, the court noted that “[w]here a parent is fired for cause ... the court can consider reducing the parent’s child support obligation under Rule 1910.16(2) (d)(1) if the parent establishes that he or she attempted to mitigate lost income.” Gigoruk, 912 A.2d at 313. The courts have also noted that “[a] parent’s involuntary loss of income is a serious matter with obvious adverse repercussions on the economic welfare of the children, however, it is a loss which must be weathered.” Haley v. Haley, 549 A.2d 1316, 1318 (Pa. Super. 1988). In Haley, the court noted as follows:

If the parties had still been together when appellant was laid off, the family would have had to make do with what it had, all sharing to a commensurate degree in the loss, rather than the father bearing all. The same should follow when the parents are separated, as here. Here, the record is clear that appellant was unemployed and actively seeking a job, without any type of earnings or capacity to earn other than his unemployment compensation during that period. This may not be likened to the cases wherein an obligor has voluntarily withdrawn from income producing endeavors or reduced his earnings out of malice or concealed earnings by hiding behind family corporate shields, unsubstantiated debts or unwarranted expenses.

Id. at 1318.

The Immigration and Nationality Act (“INA”) governs United States immigration law. The INA defines a business or pleasure visitor as follows:

an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.

See 8 U.S.C § 1101(a)(15)(B). Section 41.31 of Title 22 of the Code of Federal Regulations (C.F.R.) identifies and explains the B-l and B-2 Visitor’s Visas:

(a) Classification. An alien is classifiable as a nonimmigrant visitor for business (B-l) or pleasure (B-2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(B), and that:
(1) The alien intends to leave the United States at the end of the temporary stay (consular officers are authorized, if departure of the alien as required by law does not seem fully assured, to require the posting of a bond with the Secretary of Homeland Security in a sufficient sum to ensure that at the end of the temporary visit, or upon failure to maintain temporary visitor status, or any status subsequently acquired under INA 248, the alien will depart from the United States);
(2) The alien has permission to enter a foreign country at the end of the temporary stay; and
(3) Adequate financial arrangements have been made to enable the alien to carry out the purpose of the visit to and departure from the United States.

22. C.F.R. § 41.31. Subsection (b) defines “business,” in relevant part, as “conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. 22 C.F.R. § 41.31(b). It does not include local employment or labor for hire. See id. That section defines “pleasure” as legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” Id.

In accordance with the above statutes, the United States Department of State, Bureau of Consular Affairs, specifically notes on its website that numerous activities are prohibited by an individual in the United States on a Visitor’s Visa. See U.S. Visas: Visitor’s Visa, http:// travel.state.gov/content/visas/english/visit/visitor.html (last visited Mar. 20, 2015) (“U.S. Department of State Website”). Included in that list are study, employment and permanent residence in the United States. See U.S. Department of State Website.

Upon review of the record before the court, as well as the applicable statutes, plaintiff involuntarily left her employment in Pakistan. She came to the United States on a visitor’s visa. While in the United States on the visitor’s visa, she is not legally permitted to work as a physician or in any other occupation. See U.S. Department of State Website. Therefore, it was not an error to assign plaintiff a $0.00 income in the calculation of the child support in this matter. Although plaintiff is not legally permitted to work in the United States and earn an income, we also note that plaintiff has attempted to improve her situation and mitigate her lost income. The domestic relations file contains a letter of recommendation from the medical facility at which plaintiff is currently volunteering. The file also contains correspondence from the director of that facility indicating that the facility intends to hire plaintiff if she is granted the legal authorization to work in the United States. Plaintiff testified at the hearing that she had extended her stay in the United States and that she was applying for political asylum in the United States. See N.T. at 9:20-10:6; 22:9-16. If plaintiff is granted political asylum or a more permanent status in the United States that allows her to work, plaintiff would be required to report that to domestic relations and defendant could petition for a modification of the support order.

Based upon the above, it was not an error of law or abuse of discretion to not assess plaintiff an earning capacity as a physician or as any other type of employee. Plaintiff is not legally allowed to work in the United States and she did not leave her employment in Pakistan voluntarily. Even if plaintiff did leave “voluntarily,” she did not do so for the purpose of avoiding child support or attempting to increase the amount she would receive for her daughter. Plaintiff’s income was properly determined to be $0.00, and that amount was properly utilized in the calculation of defendant’s support obligation. As such, alleged errors one, two, five, and six contained in defendant’s statement of errors complained of on appeal are without merit.

B. It was not an error of law or abuse of discretion to preclude defendant from having access to information regarding plaintiff and the child, including specifically their whereabouts.

In alleged error number three, defendant avers that it was an error of law or abuse of discretion for the court to preclude defendant from having access to information regarding plaintiff and their daughter, including their whereabouts, without more than a mere assertion by plaintiff that there was prior domestic abuse. See defendant’s statement of errors at ¶ 3. Defendant avers that this violated the requirements for an interstate uniform support petition as set forth in 23 Pa.C.S.A. §7311.

Section 23 Pa.C.S.A. § 7311 provides as follows:

A petitioner seeking to establish or modify a support order or to determine parentage in a proceeding under this part must verify the petition. Unless otherwise ordered under section 7312 (relating to nondisclosure of information in exceptional circumstances), the petition or accompanying documents must provide, so far as known, the name, residential address and social security number of the obligor and the obligee and the name, sex, residential address, social security number and date of birth of each child for whom support is sought. The petition must be accompanied by a certified copy of any support order in effect. The petition may include any other information that may assist in locating or identifying the respondent.

Further, 23 Pa.C.S.A. § 7312 provides as follows:

[u]pon a finding, which may be made ex parte, that the health, safety or liberty of a party or child would be unreasonably put at risk by the disclosure of identifying information or if an existing order so provides, a tribunal shall order that the address of the child or party or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this part.

23 Pa.C.S.A. §7312.

As set forth in detail above, the domestic relations file contains the April 21, 2014 correspondence from Safe Haven and the Texas Department of Family and Protective Services report detailing the physical, emotional, verbal and sexual abuse that had been suffered by plaintiff. At the time of the hearing, plaintiff testified to one specific instance of abuse in which defendant pinned plaintiff to the ground, sat on her chest, put his knees on her hands, and attempted to strangle plaintiff. See N.T. at 27:23-28:9. The record, including the Safe Haven letter, the Texas report confirmation, and plaintiff’s testimony, all reflect that this incident occurred while the parties’ daughter was present and that she observed it happen. The record also reflects that the parties’ daughter summoned a relative who was living with them at the time, and that only when said relative intervened did the defendant’s assault on plaintiff cease. See id. at 6-9. In addition to the assault described by plaintiff, she also testified that she received threatening telephone calls while in Pakistan and that she believed her life and her daughter’s life were in danger. See id. at 20:5-8; 21:8-12; and 21:17-22.

Under these circumstances, it was not an error of law or an abuse of discretion for the Texas Attorney General’s Office, the Northampton County Domestic Relations Section, or the court to determine that the health, safety or liberty of plaintiff or the parties’ daughter would be unreasonably put at risk by the disclosure of the identifying information at issue pursuant to 23 Pa.C.S.A. § 7312. While defendant asserts that “[s]uch an error and abuse of discretion precluded father from properly inquiring as to the circumstances, documentation, and factual allegations in this matter, which were pertinent to the petition for support,” we disagree, and believe, that the plaintiff’s address and telephone number are in no way relevant to the determination of whether defendant is required to pay support for his daughter or the amount of such support.

It was not an error of law or abuse of discretion to preclude defendant from having access to plaintiff and the child, including their whereabouts, because access to such information would potentially place plaintiff in danger.

C. It was not an error of law or abuse of discretion to permit the support complaint in Texas to be heard through the interstate support system.

In his fourth alleged error, defendant avers that, because of plaintiff’s immigration status in the United States, the court erred or abused its discretion when it permitted the support complaint to be heard through the interstate support system. Contrary to this assertion, it was not an error of law or abuse of discretion to allow this matter to be heard through the interstate support system.

1. Plaintiff’s Right to File to Child Support

There is no statute or law that would preclude plaintiff from filing for child support because she is not a United States citizen. In fact, case law specifically allows plaintiff to file her claim for child support. It is not disputed by the parties that the parties’ daughter is a United States citizen. It is well established that the right to support is a right of the child, not the mother or father. See Kesler v. Weniger, 744 A.2d 794, 796 (Pa. Super. 2000) (emphasis added). The right to support is a property right of the child arising from the parent-child relationship. See Michael v. Michael, 520 A.2d 473, 475 (Pa. Super. 1987) (emphasis added). The support sought in the instant matter is not a right of plaintiff, but rather is a right of the child.

Title 42 U.S.C. § 1981 makes it abundantly clear that:

[a] 11 persons within the jurisdiction of the United States shall have the same right in every State and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property....

42 U.S.C. § 1981(a). Plaintiff is clearly a “person” and is within the jurisdiction of the United States. Plaintiff therefore has the right in Pennsylvania to sue defendant. Further, Pa.R.C.P. No. 1910.3 provides, in relevant part, that an action for child support may be brought:

(1) by a person, including a minor parent or a minor spouse, to whom a duty of support is owing, or;
(2) on behalf of a minor child by a person having custody of the child, without appointment as guardian ad litem, or;
(3) on behalf of a minor child by a person caring for the child regardless of whether a court order has been issued granting that person custody of the child, or;
(4) by a public body or private agency having an interest in the case, maintenance or assistance of a person to whom a duty of support is owing.

Pa.R.C.P. No. 1910.3(a). Plaintiff clearly qualifies as eligible to file for support of her daughter under any of the above sections and was, in fact, receiving the assistance of the Title IV-D attorney to do so.

2. Plaintiff’s Interstate Support Order

Title 23 Pa.C.S.A. § 8301 provides for the establishment of an order for child support or registration of an order for child support of another county for enforcement or modification ofa support order. See 23 Pa.C.S.A. § 8301(a). Subsection (b) provides that “[a]n individual petitioner or a support enforcement agency must commence a proceeding authorized under this part by filing a petition or complaint in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or complaint directly in a tribunal of another county which has or can obtain personal jurisdiction over the respondent.” 23 Pa.C.S.A. § 8301(b). Further, § 8303 provides that “[ujpon the filing of a petition or complaint authorized by this part, an initiating tribunal shall forward one copy of the petition or complaint and its accompanying documents to the responding tribunal.” 23 Pa.C.S.A. § 8303. Additionally, § 8304 then provides the duties and powers of the responding tribunal, stating as follows:

a) Filing and notice. — If a responding tribunal receives a petition, a complaint or comparable pleading from an initiating tribunal or directly pursuant to section 8301 (b)(relating to proceedings under this part), it shall file the pleading and notify the petitioner by first class mail where and when it was filed.
(b) Action. — A responding tribunal, to the extent otherwise authorized by law, may do any of the following:
(1) Exercise continuing, exclusive jurisdiction to issue or enforce a support order, modify a support order or render a judgment to determine parentage.
(2) Order an obligor to comply with a support order, specifying the amount and the manner of compliance.
(3) Order income withholding.
(4) Determine the amount of any arrearages and specify a method of payment.
(5) Enforce orders by civil or criminal contempt, or both.
(6) Set aside property for satisfaction of the support order.
(7) Place liens and order execution on the obligor’s property.
(8) Order an obligor to keep the tribunal informed of the obligor’s current residential address, telephone number, employer, address of employment and telephone number at place of employment.
(9) Issue a bench warrant for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the bench warrant in any state and local computer systems for criminal warrants.
(10) Order the obligor to seek appropriate employment by specified methods.
(11) Award reasonable attorney fees and other fees and costs.
(12) Issue a temporary child support order pending judicial resolution of a dispute regarding paternity if any of the following apply:
(i) The obligor has signed an acknowledgment of paternity.
(ii) The obligor has been determined under state law to be the parent.
(iii) There is clear and convincing evidence that the obligor is the child’s parent.
(13) Grant any other available remedy.

23 Pa.C.S.A. § 8304.

Plaintiff filed the required paperwork in Texas. Pursuant to relevant statutes, the Texas Court, as the initiating tribunal, forwarded the support complaint and paperwork to Northampton County. The Northampton County Domestic Relations Section sent notice to the plaintiff and then began the process of establishing the support order. Defendant had a support conference which resulted in judge Roscioli’s support order being entered. After the de novo hearing, which was requested by defendant, the December 22, 2014 support order was entered by the undersigned. Plaintiff, as well as both states involved, have fully complied with the Interstate Family Support Act. Mother is not precluded from pursuing child support for the parties’ daughter, as it is in fact the parties’ daughter that is entitled to receive the monetary support from her father, the defendant. Defendant’s alleged error number 4 is without merit and the appeal should be denied.

D. It was not an error of law or abuse of discretion to overrule Defendant’s Preliminary Objections.

Defendant’s seventh and final alleged error is that the court committed an error of law or abused its discretion by overruling defendant’s preliminary objections to the support petition. Defendant argues that it was an error to overrule the preliminary objections when plaintiff did not file an answer to the preliminary objections. Defendant also alleges that the court ignored §159.210 of the Texas Code. These allegations are without merit.

1. The preliminary objections are not properly before the court

As an initial matter, the preliminary objections are not properly before the court. As set forth above, on July 21, 2014, counsel for defendant filed the preliminary objections to plaintiff’s uniform support petition. The order overruling the preliminary objections was filed on September 12, 2014. Defendant did not file a motion for reconsideration or an appeal of the September 12, 2014 order. Pa.R.C.P. No. 1930.2 governs post trial practice in domestic relations matters as well as motions for reconsideration. Rule 1930.2(b) states as follows:

[a] party aggrieved by the decision of the court may file a motion for reconsideration in accordance with Rule of Appellate Procedure 1701(b)(3). If the court does not grant the motion for reconsideration within the time permitted, the time for filing a notice of appeal will run as if the motion for reconsideration had never been filed.

The note to that subsection refers to Pa.R.A.P. No. 903, which provides that “[e]xcept as otherwise prescribed by this rale, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.” The time in which to appeal the order overruling the preliminary objections has expired.

Defendant took no action related to the order overruling his preliminary objections within the required time frame. Defendant has therefore waived any argument regarding those preliminary objections and any issue related to the preliminary objections should be deemed moot.

2. Plaintiff’s Failure to File an Answer

Addressing the two issues raised in alleged error number 7, on their merits, they are each without merit. Initially, as noted, defendant alleges the court erred in overruling the preliminary objections when plaintiff did not file an answer to the preliminary objections. After the preliminary objections were filed, on August 12,2014, the parties were ordered to appear for a hearing on August 25, 2014. The hearing was held on August 25, 2014, and at the conclusion of the hearing counsel for defendant was ordered to file a brief within ten days, with service upon the court and the Title IV-D advocate. The Title IV-D Advocate, attorney Stephen Mowrey, was granted fifteen days from the date of the hearing to provide his brief to the court and counsel for defendant. The briefs were timely submitted and were reviewed by the court prior to the September 12, 2014 order overruling the preliminary objections.

The record clearly reflects that plaintiff’s counsel did not file a paragraph by paragraph written response to the preliminary objections. This is not, however, determinative of this matter. Once the preliminary objections were filed, the court ordered that a hearing be held. At that hearing, plaintiff was granted the opportunity to respond in the form of a written brief. Both plaintiff and defendant submitted briefs. The court thoroughly reviewed the briefs and performed a legal analysis of the issues. While no “answer” was filed, plaintiff clearly opposed the preliminary objections, a hearing was held and briefs were submitted. It was not an error of law or abuse of discretion to overrule the preliminary objections merely because a paragraph by paragraph answer was not filed by the Title VI-D attorney on behalf of plaintiff.

2. Application of Texas Statute §159.210

Defendant next alleges that the court ignored section 159.210 of the Texas Code. See Tex. FA Code ann. § 159.210. That statute is entitled “Applicability to Nonresident Subject to Personal Jurisdiction” and states as follows:

(a) Except as provided by Subsection (b), Subchapters D-H do not apply to a tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under this chapter or under other law of this state relating to a support order or recognizing a support order of a foreign country or political subdivision on the basis of comity. The tribunal shall apply the procedural and substantive law of this state in a proceeding described by this subsection.
(b) Notwithstanding Subsection (a), a tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under this chapter or under other law of this state relating to a support order or recognizing a support order of a foreign country or political subdivision on the basis of comity may:
(1) receive evidence from another state as provided by Section 159.316;
(2) communicate with a tribunal of another state as provided by Section 159.317; and
(3) obtain discovery through a tribunal of another state as provided by Section 159.318.

Tex. FA Code ann. § 159.210. Contrary to the assertions of defendant, this statute is not applicable. The Texas courts did not, in fact, exercise personal jurisdiction over defendant in the instant matter. As discussed above, 23 Pa.C.S.A. § 8301(b) provides that “[a]n individual petitioner or a support enforcement agency must commence a proceeding authorized under this part by filing a petition or complaint in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or complaint directly in a tribunal of another county which has or can obtain personal jurisdiction over the respondent.” 23 Pa.C.S.A. § 8301(b). Section 8303 provides that “[ujpon the filing of a petition or complaint authorized by this part, an initiating tribunal shall forward one copy of the petition or complaint and its accompanying documents to the responding tribunal.” 23 Pa.C.S.A. § 8303. 23 Pa.C.S.A. § 8304 then provides the duties and powers of the responding tribunal, stating as follows:

(a) Filing and notice. — If a responding tribunal receives a petition, a complaint or comparable pleading from an initiating tribunal or directly pursuant to section 8301(b)(relating to proceedings under this part), it shall file the pleading and notify the petitioner by first class mail where and when it was filed.
(b) Action. — A responding tribunal, to the extent otherwise authorized by law, may do any of the following:
(1) Exercise continuing, exclusive jurisdiction to issue or enforce a support order, modify a support order or render a judgment to determine parentage.
(2) Order an obligor to comply with a support order, specifying the amount and the manner of compliance.
(3) Order income withholding.
(4) Determine the amount of any arrearages and specify a method of payment.
(5) Enforce orders by civil or criminal contempt, or both.
(6) Set aside property for satisfaction of the support order.
(7) Place liens and order execution on the obligor’s property.
(8) Order an obligor to keep the tribunal informed of the obligor’s current residential address, telephone number, employer, address of employment and telephone number at place of employment.
(9) Issue a bench warrant for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the bench warrant in any state and local computer systems for criminal warrants.
(10) Order the obligor to seek appropriate employment by specified methods.
(11) Award reasonable attorney fees and other fees and costs.
(12) Issue a temporary child support order pending judicial resolution of a dispute regarding paternity if any of the following apply:
(i) The obligor has signed an acknowledgment of paternity.
(ii) The obligor has been determined under state law to be the parent.
(iii) There is clear and convincing evidence that the obligor is the child’s parent.
(13) Grant any other available remedy.

23 Pa.C.S.A. § 8304.

Plaintiff filed the required paperwork in Texas. As the initiating tribunal, the Texas agency then forwarded the complaint and paperwork to Northampton County, where defendant resides. The Northampton County domestic relations section sent notice to the plaintiff and then began the process of establishing the support order. At no time did Texas exercise jurisdiction in this matter. Once the initiating tribunal forwarded the paperwork to Northampton County, it was Northampton County that exercised jurisdiction to establish the support order in this matter. Defendant attended the court-ordered support conference which resulted in judge Roscioli’s order. Defendant had the right to file for a de novo hearing, which he did. After the de novo hearing, the current support order was put in place. Defendant was not deprived of any right in this process, and the court fully complied with the processes and procedures established by the Interstate Uniform Support Act. Defendant has not contested the jurisdiction exercised by Northampton County and has fully engaged in the legal process in Northampton County.

Defendant’s alleged error number seven is without merit.

CONCLUSION

Each of the issues raised by defendant in his appeal is without merit. The court carefully considered plaintiff’s legal status in the United States, as well as the circumstances which led to her coming to the country. It was not an error of law or abuse of discretion to conclude that defendant had a $0.00 net monthly income and it was further not an error or abuse of discretion to decide that she should not be assessed an earning capacity at this time. We properly determined that, under the circumstances, defendant was not entitled to have access to certain information regarding plaintiff, including her address. It was also not an error of law or abuse of discretion to allow the complaint to be heard through the interstate support system, as the court complied with each of the necessary processes and procedures. Finally, while the preliminary objections of defendant to the complaint are not properly before the Superior Court, even considering those arguments on the merits, the preliminary objections were properly overruled. Therefore, it is respectfully submitted that defendant’s appeal is without merit and should be dismissed.

      . Judge Roscioli is the administrative judge for the Northampton County Court of Common Pleas, Domestic Relations Section.

      . We believe, however, that the Texas Courts could have exercised personal jurisdiction over defendant in a support matter should they have chosen to do so. As set forth above, defendant had submitted to jurisdiction in Texas for a custody matter involving the parties’ daughter, for whom support was being sought. See N.T. at 26:18-20; 32:2-4.


source: Caselaw Access Project

author: NANOVIC, P.J.,

license: Public Domain

text:
    Wells Fargo Bank, N.A. v. Miceli

      C.P. of Carbon County,
    No. 13-2051

      Thomas M. Federman, for plaintiff.

      Jason M. Rapa, for defendant.
    Dec. 29, 2014
   NANOVIC, P.J.,

Plaintiff seeks summary judgment in this suit to foreclose on a residential mortgage executed by defendant. For the reasons which follow, plaintiff’s motion will be granted.

FACTUAL AND PROCEDURAL BACKGROUND

On March 24, 2008, defendant, Jacqueline Miceli, borrowed $232,000.00 from Wachovia Mortgage, FSB (“Wachovia”), mortgaging her home at 255 Brittany Drive, Penn Forest Township, Carbon County, Pennsylvania, as security. This loan was evidenced by a fixed rate mortgage note (“note”) and first lien mortgage (“mortgage”) of the same date, both of which named Wachovia as the lender. Under the note, defendant was obligated to make specified monthly payments on or before the first day of each calendar month, with the first payment due on May 1, 2008. Plaintiff, Wells Fargo Bank, N.A. (“Wells Fargo”), is the successor by merger to Wachovia.

On October 8, 2013, plaintiff filed a complaint in mortgage foreclosure against defendant alleging, inter alia, that the mortgage was in default for failing to pay all monthly mortgage payments beginning with the payment due January 1, 2013, and seeking an in rem judgment against the mortgaged premises. Defendant filed preliminary objections on October 29, 2013. On November 15, 2013, plaintiff filed an amended complaint asserting substantially the same claims as in the original complaint. Defendant filed her answer and new matter on December 19, 2013, to which plaintiff filed a reply on January 7,2014.

On March 14, 2014, plaintiff filed a verified motion for summary judgment (“motion”), alleging that there are no genuine issues of material fact as defendant’s general and/or ineffective denials are deemed to be admissions under the Pennsylvania Rules of Civil Procedure. The motion was supported by plaintiff’s vice president of loan documentation’s affidavit attesting that defendant owes $283,284.88 on the mortgage, plus per diem interest in the amount of $55.21 accruing from February 14, 2014, forward. Attached to the motion and incorporated by reference were copies of various documents marked as supporting exhibits.

Defendant filed an unverified response in opposition to the motion on April 17,2014, wherein defendant disputed (1) that there are no genuine issues of material fact; (2) that plaintiff is the current holder of the note and entitled to enforce the mortgage; (3) that plaintiff complied with the notice requirements of Act 6, 41 P.S. § 403(a), and Act 91, 35 P.S. §1680.401c, before commencing its suit; and (4) that plaintiff has complied with the guidelines of the federal Home Affordable Modification Program (“HAMP”).

In response to defendant’s fourth claim, plaintiff argued it had complied with the HAMP guidelines but that defendant failed to make application for a mortgage modification under HAMP. Additionally, on June 20, 2014, plaintiff filed a second affidavit attaching copies of two HAMP solicitation letters it sent to defendant on February 26, 2013, and April 30, 2013, respectively, and asserting that because defendant failed to formally apply for assistance, there was no active review for HAMP and no HAMP denial letter. The parties presented oral argument before this court on June 13, 2014.

DISCUSSION

Before analyzing each of the parties’ contentions, we note the standard for summary judgment. When deciding a motion for summary judgment, we “examine the record, which consists of all pleadings, as well as any depositions, answers to interrogatories, admissions, affidavits, and expert reports, in a light most favorable to the non-moving party, and [the court] resolves all doubts as to the existence of a genuine issue of material fact against the moving party.” LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009); Pa.R.C.P. 1035.1. We are to enter summary judgment under two circumstances. First, “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense.” Pa.R.C.P. 1035.2(1). Second, “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.” Pa.R.C.P. 1035.2(2). “Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.” Petrina v. Allied Glove Corp., 46 A.3d 795, 798 (Pa. Super. 2012) (quoting Chenot v. A.P. Green Servs., 895 A.2d 55, 61 (Pa. Super. 2006)). Amotion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. See Fine v. Checcio, 870 A.2d 850 (Pa. 2005); Pa. R.C.P. 1035.2.

The burden of proving that there exists no genuine issue of material fact is upon the moving party. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000). Furthermore, the court may not consider any assertion of fact made by a party that is not supported by the record. Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 606 (Pa. Super. 1997) (citing Erie Idem. Co. v. Coal Operators Case Co., 272 A.2d 465, 466-67 (Pa. 1971)). “Bold unsupported assertions of conclusory accusations cannot create genuine issues of material fact.” Botkin v. Metro. Life Ins. Co., 907 A.2d 641, 647 (Pa. Super. 2006) (internal citation omitted).

In ruling on a motion for summary judgment, the court must restrict its review to material filed in support of and in opposition to the motion, and to uncontroverted allegations in the pleadings. Overly v. Kass, 554 A.2d 970, 972 (Pa. Super. 1989); Washington Federal Savings & Loan Association v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986). In opposing a motion for summary judgment on the basis of disputed issues of material fact, the non-moving party may not rely solely upon the averments contained in its pleadings, but must point to evidence in the record controverting the evidence cited in support of the motion, or challenge the credibility of witnesses testifying in support of the motion. Phaff v. Gerner, 303 A.2d 826, 829 (Pa.1973); Adamski v. Allstate Ins. Co., 738 A.2d 1033, 1035 (Pa. Super. 1999); Pa.R.C.P. 1035.3.

To be deemed a material fact, the fact must be both material in the sense of bearing on an essential element of the plaintiff’s claim and genuine in the sense that a reasonable jury could find in favor of the non-moving party. U.S. ex rel. Cantekin v. University of Pittsburgh, 192 F.3d 402, 408 (3d. Cir. 1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251. (1986)). A fact is material if it directly affects the disposition of the case. See Zuppo v. Com., Dep’t of Transp., 739 A.2d 1148, 1156 (Pa. Cmwlth. 1999).

In evaluating the facts of the case, the trial court must view the facts “in the light most favorable to the party opposing the motion and resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party.” Drellis v. Mfrs. Life Ins. Co., 881 A.2d 822, 830 (Pa. Super. 2005) (internal citation omitted). All reasonable inferences must be drawn in favor of the party opposing the motion for summary judgment. See Rosenberry v. Evans, 48 A.3d 1255, 1261 (Pa. Super. 2012).

In its consideration of whether there exists a genuine issue of material fact, “the court does not weigh the evidence, but determines whether a reasonable jury, faced with the evidence presented, could return a verdict for a non-moving party.” 401 Fourth Street, Inc. v. Investors Ins. Group, 879 A.2d 166, 175 n. 4 (Pa. 2005). Conversely, summary judgment may be granted when the facts are so clear that reasonable minds could not differ on a factual question. Kvaerner Medals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 896 (Pa. 2006). Nevertheless, only when “the right to such judgment is clear and free from doubt” may the court grant summary judgment. 401 Fourth Street, Inc., 879 A.2d at 175 n. 4.

A. Genuine Issues of Material Fact

Plaintiff contends there are no genuine issues of material fact, in part because the defendant made several general denials in her answer which should be viewed as admissions. Defendant contends her denial that the mortgage payments are in default and denial of the amount due present genuine issues of material fact that preclude the entry of summary judgment.

We address first defendant’s contention that the mortgage is not in default. Paragraph 7 of the amended complaint avers that defendant is in default under the terms of the mortgage for, inter alia, failing to make the monthly payment of principal and interest due January 1, 2013. In his affidavit in support of the motion, Michael Reynosa, vice president of loan documentation at Wells Fargo, deposes and states that defendant’s mortgage payments due January 1, 2013, and each month thereafter are due and unpaid. (Plaintiff’s motion for summary judgment, ¶ 9; Exhibit B (Affidavit, ¶ 5)). This statement is supported by defendant’s payment history also attached to the motion. (Plaintiff’s motion for summary judgment, ¶ 10; Exhibit Bl).

Defendant responded to paragraph 7 of the amended complaint as follows:

7. Denied. Calls for a conclusion of law to which no response is necessary. To the extent a response is deemed necessary, Defendant has requested a modification of the mortgage and plaintiff has failed to address defendant’s requests. A modification of the mortgage would cure any default, which defendant specifically denies.

Plaintiff argues this response is a general denial, which should be treated as an admission. On this point, Pa.R.C.P. 1029 provides:

(a) A responsive pleading shall admit or deny each averment of fact in the preceding pleading or any part thereof to which it is responsive. A party denying only a part of an averment shall specify so much of it as is admitted and shall deny the remainder. Admissions and denials in a responsive pleading shall refer specifically to the paragraph in which the averment admitted or denied is set forth.
(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivision (c) and (e) of this rule, shall have the effect of an admission.
(c) A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.

Although defendant’s response to paragraph 7 of the amended complaint uses the phrase “specifically denies,” she does not specifically deny the averment that she failed to pay the monthly installment due on January 1, 2013. Nor does she aver that the payment was made. At a minimum, defendant should know what payments were made on the mortgage and when the last payment was made. Her averment that she has requested a modification and plaintiff failed to respond to that request is irrelevant. Cf. U.S. Bank v. Cox, 11 Pa.D.&C.5th 179, 189 (2010) (holding a bank has no obligation to modify a borrower’s mortgage). Paragraph 7 of defendant’s answer is therefore a general denial which has the effect of admitting that the January 1, 2013, monthly installment was not paid. Pursuant to the mortgage this is a default rendering the entire debt collectible immediately.

In conjunction with defendant’s denial of a default, we also consider defendant’s response to plaintiff’s motion wherein defendant states that if there was a default, it was cured by a modification of the mortgage. Defendant avers that the parties, after negotiations and payments by the defendant, agreed to a modification of the mortgage which constituted a novation and cured any alleged default. (Defendant’s response in opposition to plaintiff’s motion for summary judgment, ¶¶ 3,9,19). Defendant also alleges that the loan history that plaintiff has attached to its motion is inaccurate because she made payments pursuant to the alleged modification agreement. Id. at ¶ 10.

The party opposing summary judgment:

may not rest upon the mere allegations or denials of the pleadings but must file a response . . . identifying one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion.

Pa.R.C.P. 1035.3(a); see also Banks v. Trustees of Univ. of Pennsylvania, 666 A.2d 329, 331 (Pa. Super. 1995). Defendant has identified nothing in the record that controverts plaintiff’s averments that the mortgage has been in default since January 1,2013.

As the party opposing the motion, defendant is allowed to supplement the record with evidence to justify her opposition or set forth the reasons why she is unable to do so. See Pa.R.C.P. 1035.3(b). Defendant has not submitted any depositions, affidavits, documents, or other evidence to support her averments that the mortgage was modified or that the default was cured, nor has she given any reason why this evidence cannot be presented. Viewing the evidence in the light most favorable to defendant as the party opposing the motion, there are no genuine issues of material fact that defendant has failed to make the monthly payments secured by the mortgage, starting with the payment due on January 1,2013, or that the mortgage has not been modified.

Next, we address defendant’s contention that her denial of the amount alleged by plaintiff to be due on the mortgage is a genuine issue of material fact. In paragraph 8 of the amended complaint, plaintiff avers the unpaid principal balance due as of November 12, 2013 was $256,715.55 and that the total amount then due and owing — consisting of the unpaid principal balance, accumulated interest, late charges and other fees — is $278,191.62. In her answer to this averment, defendant states:

8. Denied. After reasonable investigation, defendant is without sufficient information to admit or deny this averment, as plaintiff has not provided proof of alleged expenditures. Strict proof is demanded at time of trial.

Defendant does not aver what she believes to be the correct amount or any reason to believe that the amounts averred by plaintiff are incorrect.

Pursuant to the affidavit of Michael Reynosa attached to the motion, the total amount due and owing as of February 13, 2014 was $283, 284.88, plus per diem interest in the amount of $55.21 accruing from February 14, 2014. (Plaintiff’s motion for summary judgment, ¶¶ 9, 11; Exhibit B (Affidavit, ¶ 6)). These statements contained in Mr. Reynosa’s affidavit are also corroborated by defendant’s payment history. (Plaintiff’s motion for summary judgment, ¶ 10; Exhibit Bl).

As discussed supra, Pa.R.C.P. 1029(c) permits a party to deny an averment by stating that after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the averment. Nevertheless, a party cannot deny under Rule 1029(c) allegations whose truth or falsity it must know. Cercone v. Cercone, 386 A.2d 1, 4 (Pa.Super 1978). In mortgage foreclosure actions, “general denials by mortgagors that they are without information sufficient to form a belief as to the truth of the averments as to principal and interest ow[ed] must be considered an admission of those facts.” First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995) (citing New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987)). See also In re Carmichael, 443 B.R. 698, 702 (Bankr.E.D. Pa. 2011) (“[I]n a mortgage foreclosure action, the mortgagors, aside from the mortgagee or assignee, are the only parties with sufficient knowledge to base a specific denial.”). Under our case law, paragraph 8 of defendant’s answer admits the amount claimed to be due by plaintiff.

B. Notice of Intent to Foreclosure

Defendant avers in her answer to the amended complaint that she does not recall receiving notice of plaintiff’s intent to foreclosure and alleges that plaintiff has not provided proof that such notice was mailed. (Answer, ¶ 9). On this issue, defendant challenges at most plaintiff’s compliance with the service requirements of Act 6 and Act 91, not its compliance with the substantive requirements of either statute.

Act 6 provides that before a mortgagee commences a legal action against the grantor of a residential mortgage, it must first send written notice, by registered or certified mail, to the mortgagor at her last known address and, if different, at the residence which is the subject of the residential mortgage. 41 P.S. § 403(b). This written notice must be sent to the mortgage debtor by registered or certified mail at least thirty days in advance of commencing an action in mortgage foreclosure, and the debtor must be allowed to cure the default and thus avoid foreclosure proceedings within this prescribed time frame. 41 P.S. §§ 403(a) and 404(c). The Section 403 notice is mandatory. See General Electric Credit Corp. v. Slawek, 409 A.2d 420, 422 (Pa. Super. 1979); see also Potter Title & Trust Co. v. Berkshire Life Ins. Co., 39 A.2d268, 270 (Pa. Super. 1944) (“Where notice in a specific manner is prescribed by statute, that method is exclusive.”); and Ertel v. Seitzer, 31 Pa.D.&C.3d 332, 333 (1982) (“The service requirements of Act 6 must be strictly construed.”).

Similarly, Act 91 requires a mortgagee who intends to foreclose to send written notice to the mortgagor at her last known address before beginning a foreclosure action. 35 P.S. § 1680.403c(a). The Act 91 notice is to be sent by regular mail, and if the mailing is documented by a certificate of mailing obtained from the United State Postal Service, the notice is deemed to have been received on the third business day following the date of mailing. 35 P.S. § 1680.403c(e); cf. Donegal Mutual Insurance Company v. Insurance Department, 719 A.2d 825 (Pa. Cmwlth. 1998) (discussing the “mailbox rule”). The written notice under the combined Act 6/91 provisions of Act 160 of 1998 must be sent to the homeowner’s last known residence by regular and either registered or certified mail, and to the mortgaged premises, if different. 12 Pa.Code § 31.203(a) (1).

Defendant’s purported failure to receive notice is not grounds for denying summary judgment in favor of the plaintiff. A copy of the notice and proof of mailing was attached to plaintiff’s motion. (Plaintiff’s motion for summary judgment, Exhibit F). This exhibit evidences that the combined Act 6/91 notice of intention to foreclose was sent to defendant at 255 Brittany Drive, Penn Forest Township, PA 18219 on July 15, 2013 via certified mail, which address is the same as that given for the property encumbered by the mortgage and which was identified as defendant’s residence in the original complaint, at which location service of the complaint was made on defendant by the Carbon County Sheriff’s Office. Since defendant’s last known address was the same as that for the mortgaged premises, the combined notice required by Acts 6 and 91 was required to be sent to this address alone. Plaintiff also submitted a certificate of mailing, thereby entitling plaintiff to the statutory inference that the notice was deemed to have been received by defendant as of July 18, 2013, three business days after the date of mailing. See 35 P.S. § 1680.403c(e).

The complaint was filed on October 8,2013, more than thirty days after the notice of foreclosure was deemed to have been received. Defendant has not alleged that the address on the notice was incorrect, nor has she submitted any evidence to support her averment that service was defective. See Pa.R.C.P. 1035.3(b). Absent a fatal defect in service appearing on the face of the record, defendant’s averments that she did not receive notice are insufficient to establish that the notice sent was defective. See Peoples Bank v. Dorsey, 683 A.2d 291, 296 (Pa. Super. 1996) appeal denied, 693 A.2d 967 (Pa. 1997); see also First Federal Sav. & Loan Ass ’n of Wilkes-Barre v. Van Why, 29 Pa.D.&C.3d 675, 682 (1983) (holding that when a plaintiff has strictly complied with the service requirements of Act 6, service is valid unless defendant alleges that the address on the notice was incorrect). Having found that plaintiff strictly complied with the service requirements of Act 6 and Act 91, defendant’s unsupported averments that she does not recall receiving notice are insufficient to deny the grant of summary judgment.

C. Plaintiff’s Compliance With HAMP Guidelines

Defendant avers that plaintiff is a participant in the federal Home Affordable Modification Program (“HAMP”). Defendant further alleges that plaintiff has failed to comply with HAMP guidelines that require a participating lender, upon request of the mortgagor, to evaluate a mortgage in default for modification before bringing a foreclosure action. Defendant argues that she made a request for modification and plaintiff failed to comply with the HAMP guidelines by not issuing a written denial on her request before proceeding with the foreclosure sub judice. This non-compliance, according to defendant, prevents plaintiff from proceeding with the foreclosure.

Before we evaluate the merits of defendant’s claim, a brief review of HAMP is helpful. The United States court of appeals for the first circuit summarized the history of HAMP as follows:

In an effort to mitigate the destabilizing effects of the financial crisis of 2008, Congress enacted the Emergency Economic Stabilization Act of 2008 (“EESA”), [12 U.S.C. § 5201, et seq.,] Pub. L. No. 110-343, 122 Stat. 3765. EESA authorized the Secretary of the Treasury to, inter alia, “implement a plan that seeks to maximize assistance for homeowners and . . . encourage the servicers of the underlying mortgages” to minimize foreclosures. To effectuate these goals, the Secretary was given the power to “use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures.” Pursuant to this authority, the Secretary created an array of programs designed to identify likely candidates for loan modifications and encourage lenders to renegotiate their mortgages. HAMP is one of these programs.
HAMP urges banks and loan servicers to offer loan modifications to eligible borrowers with the goal of “reducing [their] mortgage payments to sustainable levels, without discharging any of the underlying debt.” The secretary, through Fannie Mae, entered into agreements with numerous home loan servicers, including Wells Fargo, pursuant to which the servicers “agreed to identify homeowners who were in default or would likely soon be in default on their mortgage payments, and to modify the loans of those eligible under the program.” The servicers are to conduct an initial evaluation of a particular homeowner’s eligibility for a loan modification using a set of guidelines promulgated by the Treasury Department. If the borrower meets those criteria, “the guidelines direct the servicer to offer that individual a Trial Period Plan (‘TPP’)” as a precursor to obtaining a permanent modification. If the borrower complies with the TPP’s terms, including making required monthly payments, providing the necessary supporting documentation, and maintaining eligibility, the guidelines state that the servicer should offer the borrower a permanent loan modification. Loan servicers receive a $1,000 payment for each permanent modification, in addition to other incentives.

Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 228-29 (1st Cir. 2013) (internal citations omitted).

Defendant cites a Servicer Participation Agreement (“SPA”) template, which she avers is the basis for the agreement that plaintiff entered into with Fannie Mae when it chose to participate in HAMP. Although defendant has not submitted a copy of the actual SPA entered between plaintiff and Fannie Mae, this is not fatal to her claim because plaintiff admits that it participates in HAMP insofar that it acknowledges that it sent letters to defendant soliciting her to seek an evaluation of her mortgage for HAMP eligibility. (Affidavit of Jorge Salamanca, ¶ 2, Exhibit A). Additionally plaintiff’s participation in HAMP is a matter of record in numerous published federal cases. See e.g. Young v. Wells Fargo Bank, N.A., supra; Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 880 (9th Cir. 2013); Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir. 2012).

The implementation of HAMP has spawned a plethora of litigation in both federal and state courts. Borrowers have brought actions alleging that lenders have violated the HAMP guidelines and requested that the courts order the lenders to comply with the guidelines. See, e.g., Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 775 (4th Cir. 2013); Miller v. Chase Home Finance, LLC, 611 F.3d 1113, 1116 (11th Cir. 2012); Pfeifer v. Countrywide Home Loans, Inc., 150 Cal.Rptr.3d 673 (Cal. App. 2012), review denied, 150 Cal.Rptr.3d 673 (Cal. App. 2013); JP Morgan Chase Bank, Nat. Ass’n v. Ilardo, 940 N.Y.S.2d 829, 36 Misc.3d 359 (N.Y. Sup. 2012). Almost universally state and federal courts have held that a borrower does not have a private cause of action to seek enforcement of the HAMP regulations and guidelines against a lender. See, e.g., Spaulding, 714 F.3d at 776 n. 4; Miller, 677 F.3d at 1116; Sinclair v. Citi Mortg., Inc., 519 F.App’x. 737, 739 (3d Cir. 2013), cert. denied, 134 S.Ct. 245, 187 L.Ed.2d 182 (U.S. 2013), reh’g denied, 134 S.Ct. 1054, 188 L.Ed.2d 140 (U.S. 2014); Pfeifer, 150 Cal.Rptr.3d at 698 n. 17; Ilardo, 940 N.Y.S.2d at 837, 839.

Defendant raises plaintiff’s non-compliance with HAMP guidelines as a defense against the foreclosure, instead of as a cause of action in its own right or as a counterclaim. Defendant argues that the HAMP guidelines prohibit plaintiff from foreclosing on defendant’s home until it has evaluated her mortgage for a modification pursuant to HAMP. Defendant further argues that if defendant was subsequently found to be ineligible for a modification, plaintiff must provide defendant with written notice of this determination before proceeding with its foreclosure action. (Defendant’s brief in opposition to plaintiff’s motion for summary judgment, pp. 2-3 (citing HAMP guidelines, §§ 2.3.2.1, 3.1)).

In contrast to the hundreds of cases filed in state and federal courts asserting a private right of action under HAMP, very few cases involve an assertion of HAMP as a defense to a foreclosure action, as is raised here. Recently, however, the Pennsylvania Superior Court held that a defendant in a foreclosure action may not raise as a defense compliance with HAMP guidelines. HSBC Bank, NA v. Donaghy, 101 A.3d 129, 136-37 (Pa. Super. 2014). In Donaghy, the court concluded that because a borrower has no right to bring a private cause of action against a lender to enforce compliance with the HAMP guidelines, it is equally futile for a borrower to raise noncompliance as a defense. Id. In reaching this conclusion, the court noted that HAMP is not codified as public law and is neither a federal statute nor regulation. Donaghy, 101 A.3d at 131 n. 5. Accord Charter Bank v. Francoeur, 287 P.3d 333 (N.M.Ct.App. 2012), cert. granted, 296 P.3d 491 (N.M. 2012), and cert, quashed, 301 P.3d 859 (N.M. 2013) (holding that because a defendant borrower cannot maintain a cause of action to enforce the lender’s HAMP SPA, the lender’s failure to comply with HAMP requirements does not provide a meritorious defense to foreclosure); see also CitiMortgage, Inc. v. Carpenter, 2012-Ohio-1428, 2012 WL 1079807 (Ohio App. Mar. 30, 2012) (concluding that a borrower may not assert a defense based on non-compliance with the HAMP guidelines because a borrower is not a third-party beneficiary to the lender’s HAMP SPA and the HAMP guidelines do not have the force and effect of law). Pursuant to Donaghy, plaintiff’s alleged noncompliance with HAMP guidelines on the theory that HAMP provides defendant with a private cause of action against plaintiff cannot serve as a basis to preclude the granting of summary judgment. Nor do we believe the result would be different if defendant’s defense were premised upon defendant being a third party beneficiary to plaintiff’s HAMP SPA, which defendant has not argued. See Donaghy, 101 A.3d at 136.

CONCLUSION

On the record before us, the material facts are undisputed that plaintiff is the real party in interest with standing to bring suit for breach of the defendant’s obligations under the mortgage, that defendant has breached the payment terms of the mortgage, and that the amount claimed by plaintiff is the amount defendant owes. Nor does a factual dispute exist that plaintiff has not served notice of its intent to foreclose as required by Act 6 and Act 91. To the extent defendant claims it has requested a mortgage modification and plaintiff has failed to comply with HAMP, not only is this claim unsupported by the record, as a matter of law the claim does not raise a cognizable defense to plaintiff’s action. Based on the foregoing, we conclude, as a matter of law, that Wells Fargo is entitled to summary judgment in its favor.

Civil Law — Real Estate — Mortgage Foreclosure — Residential Mortgage — Act 6 — Act 91 — Home Affordable Modification Program (“HAMP”) — Standard for Granting Summary Judgment — Waiver of Issues (Failure to Brief) — Pa.R.C.P. 1029(c) — Admissions

1. A record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.

2. In opposing a motion for summary judgment on the basis of disputed issues of material fact, the non-moving party may not rely solely upon the averments contained in its pleadings, but must point to evidence in the record controverting the evidence cited in support of the motion, or challenge the credibility of witnesses testifying in support of the motion.

3. Issues not briefed are waived.

4. A party is not permitted under the guise of Pa.R.C.P. 1029(c) to deny an averment whose truth or falsity it must know. Consequently, general denials by a mortgagor in a mortgage foreclosure action that the mortgagor is without information sufficient to form a belief as to the truth of the averments as to principal and interest owed will be deemed an admission of those facts.

5. Where a mortgagee strictly complies with the service requirements of Act 6 and Act 91, a defendant’s averments that she did not receive notice are insufficient to establish that the notice sent was defective or to deny the grant of summary judgment on this basis.

6. The Home Affordable Modification Program (“HAMP”) is a federally sponsored Fannie Mae program with participating lenders pursuant to which homeowners in default, or likely to be in default, on their mortgage payments are evaluated for a loan modification to reduce their mortgage payments to affordable levels, without discharging any of the underlying debt, with the object of avoiding foreclosure. For those loans which meet the regulations and guidelines of HAMP, upon successful completion of a trial period, the homeowners are offered a pennanent loan modification.

7. A borrower does not have a private cause of action to seek enforcement of the HAMP regulations and guidelines against a lender. Nor may a defendant in a mortgage foreclosure proceeding raise as a defense non-compliance with HAMP regulations or guidelines.

      . Defendant subsequently waived this issue at oral argument. Defendant had earlier argued that Wells Fargo was a separate legal entity from Wachovia and, absent an assignment from Wachovia, was not the real party in interest. At argument defendant acknowledged that Wells Fargo was the successor by merger with Wells Fargo Bank Southwest, N. A., formerly known as Wachovia Mortgage, FSB, and that, consequently, Wells Fargo owned the note and was entitled to enforce the mortgage.

      . Defendant’s brief in opposition to plaintiff’s motion addresses only one issue: whether its alleged application for modification stays foreclosure, which we discuss below. Because defendant has not briefed the remaining issues raised in her response to plaintiff’s motion, they are waived. Browne v. Commonwealth, 843 A.2d 429, 434-35 (Pa. Cmwlth. 2004). Nevertheless, we review what we perceive to be the most significant of these in the discussion which follows.

      . Sometimes referred to as the “Home Affordable Mortgage Program.” See e.g. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 554 (7th Cir. 2012); Nevada v. Bank of Am. Corp., 672 F.3d 661, 665 (9th Cir. 2012).

      . Plaintiff denies that it has not complied with HAMP. To the contrary, through Mr. Salamanca’s affidavit, plaintiff alleges not only that it informed defendant about HAMP, but asked her to contact it to determine if she was eligible for a loan modification. As represented in Mr. Salamanca’s affidavit, because plaintiff did not formally apply for assistance, there was no active review for HAMP and no HAMP denial letter. Again, defendant has presented no evidence to contradict Mr. Salamanca’s representations. Notwithstanding this absence of evidence by defendant, plaintiff argues that even if defendant’s unverified response to plaintiff’s motion created a material issue of fact, as a matter of law, non-compliance with HAMP does not provide a defense to foreclosure.

      . The court of appeals in Wigod noted that in cases where borrowers brought HAMP-related claims, they relied on at least one of three different legal theories: (1) a private cause of action under HAMP, (2) a right to enforce the HAMP SPAs as third-party beneficiaries to those agreements, and (3) claims arising out of TPP agreements between the borrower and the lender. 673 F.3d at 559 n. 4. As neither plaintiff nor defendant allege that a TPP agreement was entered between them, this third basis for enforcement of the HAMP guidelines is inapplicable.

      . The HAMP guidelines refer to participating mortgage holders as “servicers,” as do several of the published cases examining this issue. However, many of the cases cited herein use the term “lenders” to refer to the participating mortgage holders. We use the term “lender” throughout, except for quotations from those cases that use the term “servicer.”

      . We note that the URL for the HAMP guidelines defendant cites in her brief is no longer functioning and appears to refer to an obsolete version of the guidelines (i.e. Version 3.0). The HAMP guidelines in effect at the time this foreclosure action was initiated can be found in the Making Home Affordable Program Handbook for Servicers of Non •— GSE Mortgages (MHA Handbook), Version 4.3, pp. 84-85, 88 (September 16, 2013), available at http://www.hmpadmin.com/portal/ programs/docs/hamp_servicer/mhahandbook_43.pdf.


author: PER CURIAM,

text:
    In the Matter of Conrad

      Disciplinary Board,
    Nos. 171 DB 2007, 169 DB 2008, 187 DB 2011
    March 17, 2015
   PER CURIAM,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, The Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

By order of September 25, 2013, the Supreme Court of Pennsylvania suspended W. Christopher Conrad for a period of 18 months, retroactive to August 22, 2012. This suspension was based on a criminal conviction for alcohol-related crimes. Mr. Conrad filed a petition for reinstatement on December 24, 2013. Office of Disciplinary Counsel filed a response on March 19,2014.

A reinstatement hearing was held on May 12, 2014, before a District IV Hearing Committee comprised of Chair Philip W. Zarone, Esquire, and Members Regina C. Wilson, Esquire, and Jill D. Sinatra, Esquire. Petitioner was represented by John E. Quinn, Esquire. Petitioner testified on his own behalf and introduced exhibits PE-A through PE-G.

Following the submission of a brief by petitioner, the hearing committee filed a report on November 14, 2014 and recommended that the petition for reinstatement be granted.

This matter was adjudicated by the disciplinary board at the meeting on January 15, 2015.

II. FINDINGS OF FACT

The board makes the following findings of fact:

1. Petitioner is W. Christopher Conrad. He was bom in 1949 and was admitted to the practice of law in Pennsylvania in 1978. His current attorney registration address is 2700 Broadway Ave, Apt. 7, Pittsburgh PA 15216. Petitioner is subject to the disciplinary jurisdiction of the disciplinary board of the Supreme Court of Pennsylvania.

2. Petitioner was suspended on consent from the practice of law by the Supreme Court of Pennsylvania by order of September 25, 2013, effective August 22, 2012, for a period of 16 months.

3. That order of suspension resulted from petitioner’s conviction of DUI and alcohol-related crimes in the Court of Common Pleas of Allegheny County on April 6, 2011, which conviction had been certified to the Supreme Court by Chief Disciplinary Counsel and had been the subject of a rule to show cause proceeding. (N.T. 11)

4. Petitioner has a record of discipline in Pennsylvania. He received a private reprimand in 2008 with probation for a period of two years. The basis for the discipline was petitioner’s January 2007 guilty plea to one count of DUI. Petitioner violated his disciplinary board probation by subsequent DUI arrests and the instant conviction.

5. Following petitioner’s admission to the bar in 1978, he was employed as an Assistant District Attorney in Allegheny County from 1978 to 1998, rising to the position of chief of the homicide division. (NT. 15-16)

6. Petitioner unsuccessfully ran for Allegheny County District Attorney in 1998. He then went into private practice. (NT. 16-17)

7. Respondent remained in private practice from 1998 until his suspension in 2012. (NT. 16-19)

8. During the period from 1998 through 2012, petitioner was primarily engaged in private criminal practice, handling all types of matters through court appointments and private retention. He was also subcontracted by the City of Pittsburgh to defend its police officers in federal civil rights cases. (NT. 16-19)

9. Petitioner was a member of the Pennsylvania Bar Association and Association of Government Attorneys in Capital Litigation while a prosecutor. In 1997, he served as President of the Allegheny County Bar Association and as a Board Member of the Association of Government Attorneys in Capital Litigation. (NT. 20-21)

10. Petitioner is an alcoholic who has consumed alcohol regularly throughout his adult life. He started to drink heavily in approximately 2000. (NT. 22)

11. Petitioner has been sober since July 5, 2011. (NT. 22)

12. Petitioner checked himself into Gateway Rehabilitation in Beaver County for inpatient treatment for approximately three weeks after he was twice arrested in May and June of 2011 by the Mount Lebanon Police Department for various offenses. These arrests followed petitioner’s April, 2011 conviction. (NT, 22-23)

13. Following his discharge from Gateway Rehabilitation, petitioner entered an outpatient program at Greenbrier Treatment in Robinson Township, Pennsylvania for eight weeks. The program consisted of treatment for five days per week, six hours per day. (NT. 23)

14. Both Gateway and Greenbrier are Alcoholics Anonymous (“AA”) related programs. (NT. 24)

15. Petitioner remains active in AA recovery, attending five to seven meetings a week and regularly attending the weekly lawyer meeting in Pittsburgh. (NT. 25-26)

16. Since March of 2012, petitioner has participated in bi-weekly cognitive therapy individual sessions with Robin Witt, a licensed professional counselor. (NT. 32)

17. At the time of the hearing, petitioner was participating in treatment at Cove Forge Behavioral Health as a result of a September 12, 2011 sentence from Judge David Cashman of Allegheny County on one of the criminal charges that was included in the joint petition for discipline on consent. (NT. 32)

18. Subsequent to the reinstatement hearing, disciplinary counsel confirmed with petitioner’s therapist at Cove Forge that he attended therapy until June 18,2014, had participated in group therapy while in attendance, and to the best of the therapist’s estimation, successfully completed the program, had by all observation remained sober, and expressed a serious desire to remain sober. (Cove Forge Letter dated August 19, 2014)

19. Petitioner intends to continue attending AA meetings five days a week and continue with his sobriety efforts. (N.T. 25, 34)

20. Petitioner’s prospects for continued sobriety remain promising as long as he continues his current treatment.

21. As of the time of the hearing all of petitioner’s criminal matters had been resolved or dismissed. (N.T. 26,33)

22. There is no evidence that petitioner’s alcoholism resulted in any prejudice to a client.

23. Petitioner has shown remorse for his criminal conduct and the shame brought upon the bar and the legal community as a result of his actions. (N.T. 49, 57)

24. Attorneys Bryan Campbell, Patrick Tomassey, Bruce Carsia, and Joseph Paletta testified on petitioner’s behalf at a previous hearing in June 2012. These attorneys lauded petitioner’s expertise as both a prosecutor and a defense lawyer in the field of criminal law. (PE C-F)

25. Petitioner has no judgments or civil matters pending against him, his taxes are current, and he is receiving Social Security retirement benefits. (N.T. 38)

26. Petitioner has taken the requisite number of Continuing Legal Education (“CLE”) hours for reinstatement. (N.T. 35-37)

27. If reinstated, petitioner intends to resume private law practice. (N.T. 53-54)

28. Office of disciplinary counsel does not oppose reinstatement.

III. CONCLUSIONS OF LAW

1. Petitioner has met his burden of proof by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice law in the Commonwealth of Pennsylvania, Pa.R.D.E. 218(c)(3).

2. Petitioner has met his burden of proof by clear and convincing evidence that the resumption of the practice of law in the Commonwealth by petitioner will be neither detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. Pa.R.D.E. 218(c)(3)

IV. DISCUSSION

Petitioner seeks readmission to the practice of law in Pennsylvania following his suspension for a period of 18 months. Rule 218(c)(3) requires that a suspended attorney demonstrate by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice law and that the petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.

A reinstatement proceeding is an inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgression which gave rise to the lawyer’s suspension but rather the nature and extent of the rehabilitative efforts made since the time the sanction was imposed and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers. Inc. v. Disciplinary Board of the Supreme Court, 363 A.2d 779 (Pa. 1976)

Pursuant to Supreme Court order of September 25, 2013, petitioner was suspended for 18 months, retroactive to August 22, 2012, the date of his temporary suspension, petitioner’ssuspensionwasbasedonhis criminal conviction in April 2011 for DUI and related offenses. Petitioner’s history with the attorney disciplinary system goes back to November 2008, when he was privately reprimanded for his conviction of one count of DUI. At that time he was placed on probation, which he subsequently violated on two occasions due to separate incidents of driving under the influence of alcohol. Petitioner’s misconduct caused great damage to his own reputation and the reputation of the bar.

Petitioner has accepted full responsibility for his misconduct and has expressed obvious and sincere remorse and regret. Petitioner’s misconduct occurred at a time in his life when he was addicted to alcohol and his misconduct is attributable to that addiction.

Petitioner sought recovery from alcohol addiction and the record amply supports the finding that he has been successful in his efforts. Petitioner participated in inpatient and outpatient treatment and has followed up with regular and committed participation in Alcoholics Anonymous and cognitive therapy with a licensed alcohol counselor. Petitioner has been continuously sober since July 5, 2011.

The record reflects that the focus and concern of the office of disciplinary counsel and the hearing committee at the reinstatement hearing was petitioner’s sobriety efforts. As to his competency and learning in the law, the evidence of record reflects that petitioner was an extremely talented and successful criminal lawyer, both in the prosecutor’s office and in private practice, and has kept abreast of developments in the law since the time of his suspension, as well as fulfilling the requisite number of CLE hours. The testimony of four lawyers was compelling and persuasive that despite petitioner’s serious personal struggles with alcoholism and the related criminal activity, he was able to maintain a good reputation in the legal community for his skills and competency. If reinstated, petitioner intends to resume a private practice of criminal law, and the evidence suggests that he will have no trouble transitioning back to practice.

The complete record of evidence in this matter supports the conclusion that petitioner has achieved sobriety and is dedicated to that sobriety. We conclude that petitioner has met his burden of demonstrating that he is morally qualified, competent and learned in the law, and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.

For these reasons we recommend that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, W. Christopher Conrad, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(f), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

ORDER

And now, this 17th day of March, 2015, upon consideration of the report and recommendations of the disciplinary board dated February 12, 2015, the petition for reinstatement is granted.

Petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement. Pa.R.D.E. 218(f).