author: TERESHKO, J.,

text:
    Branham v. Rohm and Haas Company

      Aaron J. Freiwald, for plaintiff.

      Dennis R. Suplee, Ralph G. Wellington, Jennifer A.L. Battle and Kate A. Kleba, for defendants Rohm and Haas, Morton Chemical Co. and Huntsman Corp.

      Albert G. Bixler and Elizabeth S. Gallará, for defendant Modine Manufacturing.
    June 4, 2010
   TERESHKO, J.,

Appellant, non-party Dow Chemical Company, appeals this court’s findings and order dated April 26, 2010, denying its motion to quash the subpoena of plaintiff Joanne Branham, individually and as administratrix of the estate of Franklin Branham to compel the appearance of a Dow corporate designee for the purpose of securing trial testimony on the issue of how certain epidemiological studies were conducted.

FACTUAL BACKGROUND

This is one of 30 individual actions involving claims that chemical contamination from a chemicals manufacturing facility in Northern Illinois caused brain cancers and brain tumors in residents of a small, lakeside community approximately one mile away. Mr. Branham was one of three next-door neighbors diagnosed with a rare form of brain cancer in the same year. He died in 2004. As with the other individual plaintiffs, plaintiff, in this case, claims that Mr. Branham’s brain cancer was caused by exposure to vinyl chloride, which is a human carcinogen, and that this exposure came about through contaminated groundwater and air.

The cases are pending in Philadelphia County Court of Common Pleas because Rohm and Haas Chemical Company is headquartered in Philadelphia. The chemical plant in Illinois was owned and operated by Morton Chemical Company during the 1950s through 1999, when Morton was acquired by Rohm and Haas. Rohm and Haas, in turn was acquired by Dow in April 2009. The first eight cases filed were consolidated by this court and the Branham case was designated the lead case. Mr. Branham’s case is schedule for trial to commence on June 7, 2010.

The dispute that leads to this appeal involves plaintiff’s March 3, 2010 service of a subpoena on Dow’s statutory agent in Pennsylvania purporting to compel Dow to designate one or more witnesses to give a videotaped testimony on May 13, 2010 for use at trial in this case on the subjects of cancer research epidemiology studies (Mundt study) in which Dow, Union Carbide Corporation (UCC) and a dozen or more other U.S. manufacturers of polyvinyl chloride plastic and vinyl chloride monomer participated in the 1970s, 1980s and 1990s. On March 26, 2010 Dow filed its motion to quash the subpoena arguing, inter alia, that this court lacks personal jurisdiction over Dow to enforce the subpoena. (Dow motion to quash, control no. 10033269, pp. 3-10.)

On April 15,2010, plaintiff filed her response and Dow filed a reply on April 23, 2010.

On April 26, 2010, this court entered its findings and order, which addressed this issue in addition to other issues. (Attached hereto as exhibit A.) This court denied Dow’s motion to quash the subpoena. A corrective entry order was entered on May 5, 2010.

On April 29, 2010, Dow filed its appeal to the Superior Court and an application for emergency relief requesting a stay of the this court’s April 26,2010 findings and order pending disposition of this appeal. Plaintiff/ appellee filed a motion to quash the appeal, which was subsequently denied on May 11, 2010 and Dow’s application for emergency stay was granted. In addition, an application to expedite was filed by plaintiff and granted by the Superior Court by order dated May 13, 2010. Dow subsequently issued its statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The issue to be addressed on appeal is:

“Whether this court abused its discretion in granting denying Dow’s motion to quash the subpoena to compel a Dow corporate designee for the purpose of securing trial testimony on the issue of how certain epidemiological studies were conducted.”

LEGAL ANALYSIS

On review of a challenge to the disposition of a motion to quash a subpoena, our Superior Court has stated:

“Whether a subpoena shall be enforced rests in the judicial discretion of the court. We will not disturb a discretionary ruling of a [trial] court unless the record demonstrates an abuse of the court’s discretion. So long as there is evidence which supports the [trial] court’s decision, it will be affirmed. We may not substitute our judgment of the evidence for that of the [trial] court.” Slusaw v. Hoffman, 861 A.2d 269, 272, (Pa. Super 2004) (citing In re Subpoena No. 22, 709 A.2d 385, 387 (Pa. Super. 1998).

On March 3, 2010, plaintiff issued and served a subpoena on Dow. (Plaintiff s memorandum of law in opposition to Dow’s motion to quash, p. 3.) The subpoena compelled the appearance of a corporate designee to testify about certain Dow vinyl chloride workers who died of brain cancer but were never reported to Dr. Kenneth Mundt or any of the other epidemiologists, who studied the vinyl chloride industry-wide cohort (Epidemiological study of men employed in the vinyl chloride industry between 1942 and 1972, final report.) The industry-wide vinyl chloride study included three Dow plants. (Plaintiff’s memorandum of law in opposition to Dow’s motion to quash, p. 3.)

According to the documents collected by plaintiff, Dow plant personnel collected the cohort information and determined who met the inclusion criteria for the study and reported that information back to the study investigators. Id. Plaintiff contends that, through discovery and a review of publicly available documents, there is a substantial record showing that the Dow plants failed to report a number of cases of brain cancer to Dr. Mundt, which resulted in underestimating the association between vinyl chloride exposure and brain cancer. Id. atp. 4. Plaintiff’s subpoena seeks trial testimony relating to the three Dow plants and the information provided, and not provided, to Dr. Mundt and other epidemiologists.

Dow argues that the subpoena to compel the trial testimony of a Dow corporate designee should be quashed. Dow cites the following reasons in support of its argument: (1) Dow is not a resident of the Commonwealth and therefore the subpoena cannot be enforced; (2) the subpoena seeks expert testimony and is unduly burdensome on Dow; (3) the subpoena seeks the disclosure of confidential employee records and health information. (Dow motion to quash, control no. 10033269, pp. 3-10.)

First, Dow argues that it is not subject to Pennsylvania’s subpoena power because it is not a resident of Pennsylvania. (Dow reply memorandum in further support of motion to quash, p. 1.) Dow argues that a corporation’s “residence” is exclusively the state in which it is incorporated which is Delaware. Id.

By definition, the residence of a corporation is defined as “the place where a corporation or other enterprise does business or is registered to do business.” Black’s Law Dictionary, (8th ed. 2004). Pennsylvania courts have held that a corporation or person may be a resident of many states because “a domicile and a residence are not interchangeable terms.” Springfield Township v. Kim, 792 A.2d 717, 723 (Pa. Commw. 2002) (citing In re Du Puy s Estate, 373 Pa. 423, 427, 96 A.2d 318, 319 (1953)). In Pennsylvania, the distinction between domicile and residence is that residence is a question of physical fact, while domicile is a matter of intention. Id. (citing Greenwood v. Hildebrand, 357 Pa. Super. 253, 259, 515 A.2d 963, 965 (1986)); see also, Robinson v. Robinson, 362 Pa. 554, 559, 67 A.2d 273, 275 (1949).

To determine whether a corporation is a resident, the court must look at the corporation’s activities within the Commonwealth.

According to 42 Pa.C.S. §5301(a) and §5301 (a)(2)(iii) as it applies to corporations states:

“The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
“(a)(2)(iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.”

According to 42 Pa.C.S. §5301 (a)(2)(iii), the carrying on of a continuous and systematic part of its general business within this Commonwealth provides the courts with sufficient jurisdiction to exercise general personal jurisdiction over a person to, “enable a tribunal to render personal orders against such person.” Thus, if Dow is found to demonstrate a “continuous and systemic part of its general business” within the Commonwealth, then the court has jurisdiction over Dow as a resident of Pennsylvania.

The evidence that Dow is a resident of Pennsylvania is overwhelming and thus subjects itself to this court’s jurisdiction pursuant to section 5301 and its power to “render personal orders” or enforce subpoenas. Dow has corporate offices, corporate officers, employees and plants in the Commonwealth. Dow occupies a large corporate office building located in Philadelphia, Pennsylvania, along with having corporate officers and its executive leadership committee there as well. (Plaintiffs memorandum of law in opposition to Dow’s motion to quash subpoena, p. 8.)

The case law cited by Dow in support of quashing the subpoena is dissimilar to the situation in this case. The courts in each of the cases mentioned by Dow in its motion involved a foreign corporation or person being subpoenaed and essentially neither had any presence within the Commonwealth other than that of a registered agent. The lack of in-state presence rendered them a non-resident and outside the power of the court. See Syngenta Crop Protection Inc. v. Monsato Co., 908 So.2d 121, 124 (Miss. 2005); Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186 (La. 1994); In re National Contract Poultry Growers’Association, 771 So.2d 466 (Ala. 2000); AARP v. American Family Prepaid Legal Corp. Inc., 2007 WL 2570841 (N.C.Super. 2007).

Although Dow does cite one Pennsylvania case in its argument where a subpoena was quashed, Simon v. Simon, 6 D.&C.3d 196 (Phila. Cty. 1977), the case was detennined prior to enactment of section 5301 and involved a non-resident. In fact, the statute that the trial court relied on in Simon to quash the subpoena specifically stated that the court’s jurisdictional powers were limited to “any writ or process.” Id. at 199-200, citing 12 P.S. §297. As noted above, section 5301 has no such limitation and allows a court to “render personal orders,” which include subpoenas. Additionally, the subpoenaed party in Simon was in Florida and not a resident of Pennsylvania, making it easily distinguishable from Dow’s circumstance here.

As stated in this court’s findings and order, Dow’s argument that it is not subject to the subpoena power of this Commonwealth is misplaced because it succeeded to the prominent corporate presence in Pennsylvania of Rohm and Haas when acquired by Dow and, therefore, maintains residency in the Commonwealth. (April 26, 2010 findings and order, p. 1.) Thus, although Dow may be headquartered in Delaware, it is a resident of Pennsylvania for purposes of the court’s power to “render personal orders” such as subpoenas.

For purposes of argument, were this court to assume that Dow was a defendant in this case, it is clear that Dow would not only be subject to the jurisdiction of this court as stated above, but also the venue of Philadelphia County for service purposes because Dow regularly conducts business in this county.

Pennsylvania Rule of Civil Procedure 2179 states in relevant part:

“[A] personal action against a corporation or similar entity may be brought in and only in:
“(1) the county where its registered office or principal place of business is located;
“(2) a county where it regularly conducts business;
“(3) the county where the cause of action arose; [or]
“(4) a county where a transaction or occurrence took place out of which the cause of action arose. . . .” PaJRC.P. 2179(a).
“In determining whether venue in an action against a corporation is proper on the ground that the corporate defendant regularly conducts business in the county in which it [is] sued, we must focus on the nature of the acts the corporate defendant allegedly performs in that county.” Battuello v. Camelback Ski Corp., 409 Pa. Super. 642, 646, 598 A.2d 1027, 1029 (1991). More specifically, whether a company “regularly conducts business” in a particular county must be assessed both as to the “quality” and “quantity” of business contacts the company has with that county. In Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990), the Pennsylvania Supreme Court elaborated upon the standard:
“ ‘A single act is not enough,’ while ‘each case must depend on its own facts.’ . . . ‘Quality of acts’ means ‘those directly, furthering or essential to, corporate objects; they do not include incidental acts.’ Quantity means those acts which are ‘so continuous and sufficient to be general or habitual.’ In combined form... the acts of the coiporation must be distinguished: those in ‘aid of amain purpose’ are collateral and incidental, while ‘those necessary to its existence’ are ‘direct.’” Id. at 244, 579 A.2d at 1285 (citations omitted) (quoting Shambe v. Delaware and Hudson R. R. Co., 288 Pa. 240, 135 A. 755 (1927)).

Dow’s corporate presence is undeniably within the Commonwealth of Pennsylvania and in Philadelphia County because of its large corporate office located at 100 Independence Mall West, Philadelphia, Pennsylvania. Dow regularly and continuously conducts business at this address as corporate officers and executive committees are housed here and perform business activities here.

In light of this court’s analysis on jurisdiction and venue and Dow’s obvious corporate presence located therein, the law would not intend such a ridiculous result as having such a corporation subject to service of process in this Commonwealth and county, but not to subject to our subpoena powers. Thus, it is clear that the Commonwealth of Pennsylvania and Philadelphia County have subpoena power over Dow.

Dow next argues that this court is bound by the previous ruling of the Michigan courts, which previously held “that it would be inappropriately burdensome to require a non-party such as TDCC [Dow] to identify, assemble, and produce voluminous documentation of TDCC’s contributions to vinyl chloride research spanning several decades . . . .” (Dow’s memorandum in support of motion to quash, p. 13.) Dow also argues that plaintiffs subpoena is burdensome and should be quashed because it calls for expert testimony. (Id. at p. 14.) Dow’s argument is not persuasive. Dow’s argument relies upon facts that are not the facts in this case.

Plaintiff clearly states that its subpoena seeks only fact testimony, not discovery or documents from Dow. (Plaintiffs memorandum of law in opposition to Dow’s motion to quash subpoena, p. 8.) The Michigan court was faced with a discernible issue involving the production of discovery to plaintiff regarding any and all communications and documents, written or electronic between Dow and several other entities from an extensive range of dates, some dating as far back as 1950 to the present. (Dow’s memorandum in support of motion to quash, exhibit 4.) The Michigan court found the assembly and production of this documentation to be burdensome, but did not find the same as to any testimony. Therefore the holding of the Michigan courts in not applicable in this case, as plaintiff seeks the factual testimony regarding Dow’s reasons for reporting some, but not all, of the known brain cancers at three of their plants to Dr. Mundt, who was studying the incidence of brain cancer among vinyl chloride workers.

Plaintiffs requests are much more specific and narrower in scope than the Michigan case and, therefore, are easily distinguishable. Plaintiff’s subpoena for trial testimony is also highly relevant to proving or disproving causation as to the ultimate issue in the case.

According to Pa.R.E. 402, evidence is considered relevant if it logically tends to establish a material fact in the case, tends to make the fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. Gemstar Corp. v. Department of Environmental Protection, 726 A.2d 1120 (Pa. Commw. 1999). If the testimony of a witness is relevant to the elements to be proven, then the testimonial evidence must be permitted, unless otherwise excluded. Carpenter v. Pleasant, 759 A.2d 411, 414-15 (Pa. Commw. 2000). Any competent witness may be compelled to testify in any civil matter so long as the witness has personal knowledge of a relevant matter. Pa.R.E. 601, 602. The customary method of compelling the attendance of a witness is by means of a subpoena. Ra.R.C.P. 234.1(a). Rule 234.1(a) allows a party to request for the issuance of a subpoena, “commanding a person to attend and testify at a particular time and place.” The subpoena may only be used to command a person to attend either at a trial or at the taking of deposition. Pa.R.C.P. 234.1(b). If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those rationally based on the perception of the witness and helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Carpenter, 759 A.2d at 415.

The factual testimony plaintiff sought by way of subpoena is extremely relevant to whether Mr. Branham’s brain cancer was caused by exposure to vinyl chloride from Rohm and Haas contaminating groundwater and air where he lived. Plaintiff issued this subpoena for the testimony at trial of a Dow corporate designee, to provide factual testimony, not expert opinion, on whether certain brain cancer cases identified in Dow’s internal case studies or its plants were in fact included in the industry wide studies, including Dr. Mundt’s update. (Plaintiff’s memorandum of law in opposition to Dow’s motion to quash subpoena, p. 10.) The Mundt study is the only study which does not show a significant association between brain cancer among workers in the vinyl chloride industry. (Epidemiological study of men employed in the vinyl chloride industry between 1942 and 1972, final report, p. vii.) However, all other industry studies showed a statistically significant excess of brain cancers among the vinyl chloride workers. (Plaintiff’s memorandum of law in opposition to Dow’s motion to quash, p. 10.) Thus, the Mundt study will play an important role in proving or disproving causation at trial. It is plaintiff’s theory that the data supplied to Mundt was manipulated by Dow and other chemical companies because Dow withheld other brain cancer cases of its workers from Dr. Mundt. (Plaintiff’s memorandum of law in opposition to Dow’s motion to quash subpoena, exhibits H, I.) Plaintiff alleges that this was done in an attempt to skew the studies ’ conclusions of causation between brain cancer and vinyl chloride. (Plaintiff’s memorandum of law in opposition to Dow’s motion to quash, p. 11.)

Plaintiffs subpoena is not seeking discovery of documents to prove this theory, as they state that they already posses these documents that were obtained through the discovery process by way of federal subpoena and from researching public archives. The Dow designee will be questioned about the factual information provided by Dow which it has used as a basis for the epidemiological studies that have been referenced and relied upon by Rohm and Haas in developing its defense.

In light of the focus that will be put on the Mundt study and other industry studies to attempt to prove or disprove causation, it clear that Dow, through its corporate designee has relevant factual testimony that will help the jury understand and assign appropriate weight to the epidemiological studies presented, and, given its relevance and significance to both sides, it cannot be gainfully maintained that any burden exists for Dow to produce their corporate designee for this trial testimony. Plaintiff’s subpoena is very specific and narrow in scope and well within Dow’s ability to comply in light of Rohm and Haas’s significant use of these studies.

Lastly, Dow argues that the subpoena should be quashed because it seeks disclosure of privileged and confidential employee health records and health information. (Dow’s memorandum in support of motion to quash, p. 18.)

All of the individuals identified by plaintiff who will be the subject of the Dow designee’s testimony have been identified through “personal identifiers” (i.e., date of birth, date of hire, etc.) without any reference to name or personal health information. (Plaintiffs memorandum of law in opposition to Dow’s motion to quash, exhibit E.) To determine whether a case was included in the Mundt study, the personal identifiers were gathered from company and public documents and cross-referenced with Mundt’s study and public death records and newspapers. Thus, in order to determine whether someone is not part of the Mundt study but was referenced in an internal study or in a news study, one only needs to compare the individual’s personal identifiers to the Mundt study to determine whether they have been included in this study. This does not require the release of any medical or private information of the worker. Therefore, this court finds that no confidential information is being sought or will be necessary to comply with this subpoena as the information that is to be produced can be done so in a manner to preserve the confidentiality of such medical information deserving of this protection. Further, it must be remembered that this court will retain jurisdiction to determine what will ultimately be given to the jury and may direct that the trial deposition be further redacted to protect all such valid considerations.

CONCLUSION

Based on the foregoing, this court believes that it appropriately denied Dow’s motion to quash the subpoena seeking to compel the appearance of a Dow corporate designee for the purpose of securing trial testimony on the issue of how certain epidemiological studies were conducted.

EXHIBIT “A”

TERESHKO, J, April 26, 2010

FINDINGS AND ORDER

And now, April 26, 2010, these brief findings and order are intended to address the issues raised in defendant Rohm & Haas’ motion to enforce the case management order and to preclude plaintiff from collaterally attacking epidemiology studies found under control no. 10033459 and non-party, Dow Chemical Company’s motion to quash plaintiff’s subpoena found under control no. 10033269.

The focus of both motions concern the plaintiff’s attempt to take the deposition of a representative of Rolm’ and Haas/Dow for the purpose of securing trial testimony on the issue of how certain epidemiological studies were conducted.

Dow’s argument that it is not subject to the subpoena power of the court is misplaced as it clearly is a corporate resident of this county as it succeeded to the prominent corporate presence of Rohm and Haas which had been acquired by Dow.

Dow’s motion to quash the subpoena on this basis and on the other asserted bases is denied.

The gravamen of Rohm and Haas’ motion is its objection to plaintiff’s decision to conduct a trial deposition of a fact witness in advance of the trial. In reaching its conclusion which follows below, this court considers the following facts which are relevant hereto.

This court has conducted extensive “Frye” motions during which time there was ample opportunity to be exposed to the various scientific theories of both sides and to be exposed to the evidentiary basis of these theories. This court further had the benefit of very competent legal memoranda with voluminous supporting scientific documentation, which allows this court to anticipate the issues and arguments to be advanced during the upcoming trial.

Defendant Rohm and Haas has manifested its intent to present evidence that would have the effect of contradicting plaintiff’s evidence which is offered to show that there is a significant correlation between exposure to vinyl chloride and brain cancer. The defendants have relied upon the Mundt study in the past and will use the study during the course of this litigation to advance this proposition.

Plaintiff seeks to depose the corporate representatives from Rohm and Haas and/or Dow having certain knowledge of the statistical data which was supplied to the persons conducting the Mundt study. The asserted purpose for this is to allow defendant’s experts to be effectively cross-examined concerning their position, that there is either a weakened and or insignificant correlation between vinyl chloride exposure and the plaintiff’s brain cancer.

Defendant’s various arguments to the contrary, notwithstanding this request by plaintiff, would be permitted at trial if the circumstances were obtained and the request to do it in the form of a trial deposition is also permitted. Given the complexity of the upcoming trial such a methodology is considered to be judicially advantageous and expeditious, To deprive plaintiff of this would prevent a vigorous advocacy and deny plaintiff the right of cross-examination.

The argument that this falls into a case management enforcement issue is unavailing as this is a trial management issue.

The further argument that this is somehow a prohibited collateral attack upon epidemiological studies finds no purchase here as these defendants provided some of the information upon which these studies were founded and clearly plaintiff has raised a valid issue concerning the data supplied upon which the studies conclusions were in part based. Depriving the plaintiff of the ability to question the correctness or the completeness of the information supplied by the party/non-party motioning here, has no basis in fact or in law in this Commonwealth.

Therefore, defendant Rohm and Haas’ motion is denied as is non-party Dow’s motion to quash.

A corporate representative shall be locally produced within 15 days for the purpose described in plaintiff’s instant subpoena as found in exhibit B to plaintiff’s response to the motion herein.

ORDER

And now, May 5, 2010 , it is hereby ordered and decreed that a corrective entry is made to the court’s order of April 26, 2010. The ninth paragraph is corrected as follows:

“Defendant’s various arguments to the contrary notwithstanding, this request by plaintiff would be permitted at trial if the circumstances were obtained and therefore, the request to depose the witness in the form of a trial deposition should also be permitted. Given the complexity of the upcoming trial such a methodology is considered to be judicially advantageous and expeditious. To deprive plaintiff of this would prevent a vigorous advocacy and deny plaintiff the right of cross-examination.

      . Dow Chemical Company now owns Rohm & Haas and is not a defendant in this action. This current ownership creates an ostensible standing to lodge an objection to the subpoena.


source: Caselaw Access Project

author: ALBRIGHT, T,

license: Public Domain

text:
    Nika v. Schelkun

      Peter J. McNamara, for plaintiff.

      Gary V. Gittleman and Thomas A. McCormack, for defendants.
    July 26, 2010
   ALBRIGHT, T,

The plaintiff, Jannina Nika, appeals from this court’s order, dated December 31, 2009, denying the plaintiff’s motion for post-trial relief. For the reasons that follow, the undersigned believes that the order should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

This medical/dental malpractice lawsuit arises out of the alleged negligence stemming from both the oral surgery performed upon Jannina Nika and her subsequent post-operative treatment. The defendants, Dr. P. Michael Schelkun and Dr. Michael T. Dachowski, completed Ms. Nika’s initial surgery on October 22, which was followed by a second surgery by Dr. Schelkun who thereafter oversaw much of the plaintiff’s post-operative care and treatment.

During the course of the three-week trial that occurred in the fall of 2008, the court heard approximately five hours of testimony from defendant Schelkun’s expert witness, Dr. Raymond J. Fonseca. While testifying, Dr. Fonseca discussed two issues which plaintiff’s counsel argued constituted grounds for a mistrial and have now become the central focus of his client’s appeal. (N.T. 11/10/08, first afternoon session, at 3-13.) According to the plaintiff, the first basis for mistrial concerned Dr. Fonseca’s allegedly deliberate violation of the court’s order prohibiting the doctor from criticizing the plaintiff’s expert, Dr. Decidue, and blaming Dr. Decidue’s subsequent treatment for the plaintiff’s post-surgical and present “complications.” (N.T. 11/10/08, morning session, at 92-94; N.T. 11/10/08, second afternoon session, at 3.) The plaintiff’s second ground for mistrial arose when Dr. Fonseca gratuitously offered that he had previously testified in a case against the plaintiff’s expert witness, Dr. Streck. (N.T. 11/10/08, first afternoon session, at 124-25; N.T. 11/10/08, second afternoon session, at 3.)

Following the allegedly inappropriate comments by Dr Fonseca and outside the presence of the jury, the plaintiff’s attorney verbally moved for a mistrial, arguing that Dr. Fonseca’s discussion of both Dr. Decidue’s purported breach of the standard of care and Dr. Fonseca’s statement that he had testified “against [the plaintiff’s expert,] Dr. Streck” constituted grounds for mistrial. (N.T. 11/10/08, second afternoon session, at 3; N.T., 11/10/08, first afternoon session, at 124-25.) The undersigned denied the plaintiff’s motion after concluding that neither of the bases set forth in support of her request warranted the granting of a mistrial. (N.T. 11/10/08, second afternoon session, at 10, 13; N.T. 11/10/08, first afternoon session, at 124-26.) The trial proceeded to its conclusion when, on November 14, 2008, the jury returned a verdict in favor of the defendants.

On November 21, 2008, the plaintiff filed a motion for post-trial relief, requesting that the judgment entered in favor of the defendants be vacated and a new trial granted. In her motion, the plaintiff claimed the trial court erred by denying her motion for mistrial. On December 31, 2009, following a much delayed briefing schedule and argument, the undersigned denied the plaintiff’s motion for post-trial relief. The plaintiff’s timely appeal ensued, and, in response to the trial court’s Pa. R.A.P. 925(b) request, Ms. Nika filed and served upon the undersigned the following statement of matters complained of on appeal (Pa. R.A.P. “1925(b) statement”):

“(1) Plaintiff Jannina Nika complains that the trial court committed error when it refused to declare a mistrial when requested by plaintiffs counsel during trial.
“(2) Plaintiff JanninaNika contends that the trial court committed error when it refused to order a new trial when considering the post-trial motions especially in light of the language used by the trial court during the argument held at the time the mistrial was requested.
“(3) Plaintiff complains that it was error when the court failed to declare a mistrial or a grant a new trial when the court was considering the misconduct committed not only by defendant’s expert witness (Dr. Fonseca), but also by defendant’s counsel, specifically the references by defendants’ expert about his testifying in a case where plaintiffs expert, Dr. Streck, was a defendant.
“The error consisted of Dr. Fonseca gratuitously and prejudicially telling the jury that he was an ‘expert against Dr. Streck’ (11/10/08, p. 125-26.) Additionally, this prejudicial statement was compounded by the statement of defendant’s counsel, Mr. Gittleman, when he prejudicially added ‘he (Dr. Fonseca) was telling about a case he testified against Dr. Streck.’ (11/10/08, p. 126.)
“(4) Plaintiff contends that it was error for the trial court to refuse to grant a new trial or declare a mistrial when faced with the testimony of defendants’ expert, Dr. Fonseca, when he blatantly violated the courts order about not criticizing plaintiffs’ treating doctor.
“(5) Plaintiff contends that it was error for the trial court to refuse to declare a mistrial and to refuse to grant a new trial when considering the post-trial motions, in light of the fact that Dr. Fonseca specifically violated the court’s order and testified outside the scope of his expert report. The records show that the court had a colloquy with Dr. Fonseca (in the presence of counsel) outside the hearing of the jury on the nature of Dr. Fonseca’s testimony and whether he could criticize Dr. Decidue, one of plaintiffs treating physicians. The court specifically gave Dr. Fonseca instructions and the doctor blatantly disregarded the court’s rulings.
“(6) Plaintiff complains that that conduct was unfairly prejudicial and that the prejudice could not be corrected or rectified. The defendants and their expert crossed the line and since the defendants have characterized this case as a “battle of the experts”, prejudicial conduct should have resulted in a mistrial when requested and/or a new trial when considering post-trial motions.
“(7) Plaintiff contends that the trial court committed error by failing to use the proper standard when considering a mistrial and improperly considered the time that had already been put into the case ahead of the plaintiffs right to a fair trial.
“When considering Dr. Fonseca’s testimony and the request for a mistrial, the court noted that the conduct was ‘wrong’. The court went on to add that the issue was preserved on appeal. The court then considered the time spent in the trial, rather than legal basis that should be considered when a mistrial has been requested. The court’s concern about the time spent and length of trial are evidence by the court’s language as follows:
“ ‘but at this stage, with the commitment that you have all made to the case, I think it is more important that we finish it. And than let the jury make its decision. We will take things as they come.’
“(8) Plaintiff contends that the trial court committed error when the court refused to grant plaintiff a new trial when plaintiff again raised these issues at the post-trial level. The court was reminded of the fact that the court knew the defendant’s expert’s conduct was wrong, and plaintiff complains that the court did not correct this error by granting a new trial.”

DISCUSSION

The standard of review pertaining to a trial court’s denial of a motion for mistrial is “to assess and determine whether or not the trial court abused its discretion in denying such a motion.” Poust v. Hylton, 940 A.2d 380, 382 (Pa. Super. 2007). (internal citation omitted) “An abuse... exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will.” Graham v. Campo, 990 A.2d 9, 13 (Pa. Super. 2010). The trial court has broad discretion when deciding to grant a new trial and should do so only when “the unavoidable effect of the conduct or language [used] was to prejudice the fact-finder to the extent that the fact-finder was rendered incapable of fairly weighing the evidence and entering an objective verdict.” Poust v. Hylton, 940 A.2d 380, 385 (Pa. Super. 2007). In addressing prejudicial remarks, the Supreme Court of Pennsylvania has observed that only where “the remark is obviously prejudicial” should the trial court grant a new trial. Poust, 940 A.2d at 382. Indeed, all of the evidence should be viewed in the light most favorable to the verdict winner to determine if a new trial might produce a different verdict. Haddad v. Gopal, 787 A.2d 975 (Pa. Super. 2001).

Despite the plaintiff’s lengthy 1925(b) statement, Ms. Nika essentially presents two issues for appellate review, namely: (1) that the trial court erred in denying her motion for mistrial based upon Dr. Fonseca’s violation of the undersigned’s instruction precluding him from testifying outside the scope of his expert report and blaming Dr. Decidue for the plaintiff’s complained of surgical complications and post-operative treatment, and; (2) that the trial court erred in denying Ms. Nika’s motion for mistrial based upon Dr. Fonseca’s that he had previously testified “against Dr. Streclc.”

A. The Trial Court Correctly Denied the Plaintiff’s Motion for Mistrial Based on Dr. Fonseca’s Alleged Violation of the Undersigned’s Order Prohibiting Him From Giving Testimony Critical of Dr. Decidue’s Subsequent Treatment of the Plaintiff and Opining That He Was in Some Way Responsible for Her Post-Surgical Complications and Complaints

In addressing the merits of the plaintiff’s first contention of error, it is well-settled that a new trial is appropriate only where the trial court has abused its discretion or committed an error of law. In this case, the undersigned denied the plaintiff’s motion for mistrial after determining that Dr. Fonseca’s testimony regarding Dr. Decidue’s treatment would not have the “unavoidable effect” of prejudicing the jury to the extent that they would be rendered incapable of reaching an objective verdict based upon the evidence already presented in this ease which had by now been through approximately six days of trial. See Poust, 940 A.2d at 382-85.

Unlike the relatively benign though arguably somewhat brazen conduct of Dr. Fonseca, which was entirely uncalled for in his thinly disguised attempt to assign blame or responsibility for the plaintiff’s surgical and post-surgical care difficulties to her treating physician, Dr. Decidue, reference to the case of Poust v. Hylton, where the offending, prejudicial remarks necessitated the granting of a new trial is instructive. Id., 940 A.2d 380. The Poust matter involved a wrongful death and survival action brought by the decedent’s estate following his being struck and killed by an automobile driven by the defendant. Id. In Poust, the appellate court held that the trial court had abused its discretion in denying the plaintiff’s motion for a new trial, based on defense counsel’s flagrant and intentional violation of a pretrial order. Id. at 385. In that case, the trial court precluded defense counsel from mentioning the word “cocaine” with reference to the decedent during the course of the trial. Id. at 383. Despite the trial court’s order, on cross-examination of the plaintiff’s treating physician, defense counsel referenced the fact that the doctor’s report indicated that the decedent had “cocaine” in his system. Id. at 383. Plaintiff’s counsel moved for mistrial and the trial court denied the motion. The appellate court reversed the trial court after determining that it had abused its discretion, concluding that defense counsel’s deliberate violation of the pretrial order and obviously prejudicial conduct “contributed to the verdict,” which was subsequently rendered in favor of the defendant, thereby meriting the grant of a new trial. Id. at 385.

In this case, plaintiff’s counsel contends that Dr. Fonseca “deliberately disobeyed” the undersigned’s instruction to him that he was “not permitted to give any expert testimony regarding the standard of care provided the plaintiff by her treating physicians [including, Dr. Decidue]” because his report did not address that topic. (11/10/08, second afternoon session, at 3; 11/10/08, morning session, at 92-93.) The trial court instructed Dr. Fonseca as follows, “[wjhat you are permitted to address in response to Mr. Gittleman’s inquiry ... is that which concerns Dr. Decidue’s notes, comments, regarding the plaintiff’s condition or conditions, her symptoms that he noted . . . And you will be able to reference back as to whether or not any of those symptoms, any of those conditions, any of those problems noted by Dr. Decidue, were as the result of any breach in the standard of care provided by either Dr. Schelkun or Dr. Dachowski.” (N.T. 11/10/08, morning session, at 93.)

According to the plaintiff, the allegedly inadmissible testimony regarding Dr. Decidue’s treatment first occurred during Mr. Gittleman’s direct examination of Dr. Fonseca. (N.T. 11/10/08, morning session, at 71-72.) At the time, Mr. Gittleman referenced testimony by Dr. Decidue that, in his opinion, the plaintiff had developed an “oral anthral fistula in her upper jaw” as a result of Dr. Schelkun’s October 20,1999 surgery, and then asked “[d]o you agree with that opinion?” (N.T. 11/10/08, morning session, at 72.) Dr. Fonseca responded in the negative, thus criticizing Dr. Decidue’s findings and, according to plaintiff’s counsel, impliedly blaming Dr. Decidue’s treatment for the plaintiff’s present complications. (N.T. 11/10/08, morning session, at 72-74.) Plaintiff’s counsel then objected to Dr. Fonseca offering testimony critical of Dr. Decidue and the trial court overruled the objection, but cautioned Dr. Fonseca that he was “not permitted to give any expert testimony regarding the standard of care provided the plaintiff by her treating physicians [including, Dr. Decidue]nor was he permitted to opine or relate his belief that the plaintiff’s complications were “[Reasonably associated with Dr. Decidue’s surgeries.” (N.T. 11/10/08, morning session, at 92-93.)

Later that same day on cross-examination, Mr. Gittleman asked Dr. Fonseca “in your opinion, what was the cause of the symptoms” suffered by the plaintiff? (N.T., 11/10/08, first afternoon session, 115.) Before Dr. Fonseca could respond, plaintiff’s counsel immediately objected. (N.T., 11/10/08, first afternoon session, 115.) This time, the trial court sustained the objection, barring Mr. Gittleman and Dr. Fonseca from further exploring the issue of whether Dr. Decidue breached the standard of care and caused the plaintiff’s complications. (N.T. 11/10/08, first afternoon session, at 120.) Finally, when asked whether Dr. Fonseca had an opinion within a reasonable degree of medical certainty as to whether the plaintiff’s complications were caused by Dr. Schelkun’s October 20,1999 surgery, Dr. Fonseca responded in the negative. (11/10/08, first afternoon session, at 123-24.) Fie further testified that, in his opinion, the complications had “nothing to do with Dr. Schelkun’s surgery . . . [bjecause these [complications] are all related to things that occur secondary to TMJ arthroscopic surgery and arthrocentesis.” (N.T., 11/10/08, first afternoon session, at 124.)

Thereafter, the plaintiff’s counsel moved for a mistrial, outside the jury’s presence, on the basis that Dr. Fonseca had disobeyed the trial court’s specific instruction and impermissibly criticized Dr. Decidue. (11/10/08, second afternoon session, at 3.) Despite Dr. Fonseca’s potentially transgressive testimony, the undersigned determined that Dr. Fonseca had not offered any direct criticism of Dr. Decidue’s treatment of plaintiff. Therefore, the jury was not rendered incapable of reaching a fair and objective verdict, and the plaintiff’s motion for mistrial was, accordingly, denied.

After the trial, and with the plaintiff’s motion for post-trial relief asserting in part, that the trial court erred when it failed to grant a mistrial based on Dr. Fonseca’s testimony criticizing Dr. Decidue, the undersigned had yet another opportunity to examine Dr. Fonseca’s testimony. After briefing and argument on the plaintiff’s motion, the trial court determined that a new trial would not likely produce a different verdict. See Poust, 940 A.2d at 382. Given the abundant evidence presented by the defendants at trial, the trial court concluded that the jury fairly weighed all of the evidence and determined that the defendants were not the factual cause of the plaintiff’s alleged injuries. The undersigned appropriately concluded that any fleeting reference by Dr. Fonseca to potential causes of the plaintiff’s complications did not, in any way, render the jury incapable of reaching an objective verdict and consequently, denied the plaintiff’s motion for post-trial relief. See Poust v. Hylton, 940 A.2d at 385; see also, Haddad v. Gopal, 787 A.2d at 975 (Pa. Super. 2001).

B. The Defense Expert’s Brief Reference to His Prior Experience As a Witness Appearing Against Plaintiff’s Expert Witness Did Not Warrant the Grant of a Mistrial in this Case

In evaluating the complained-of comments made by the defendant’s expert, as well as the remarks made by defense counsel, which the plaintiff asserts only exacerbated the harm already done, it is important to examine the context within which the alleged offending comments arose. The defense expert, Dr. Fonseca, was, at the time, nearing the end of his nearly five hours of often intense and exhausting testimony when, while undergoing recross-examination in the late afternoon by plaintiff’s counsel, Mr. Freiwald, the following exchange took place:

“Mr. Freiwald: Dr. Fonseca, Mr. Gittleman asked you if you’re testifying today on the basis of your textbooks or on the basis of your 30 years of experience as an oral and maxillofacial surgeon, do you recall that?
“The Witness: Yes.
“Mr. Freiwald: You are also testifying as somebody who has testified a lot of times as an expert, and overwhelmingly for the doctor, when you do so, correct?
“Mr. Gittleman: Objection, your honor.
“The Court: Correct. Overruled.
“Mr. Gittleman: It’s beyond the scope of cross-examination, your honor.
“The Court: Overruled.
“The Witness: About 80 percent for the defense. 20 percent for the plaintiff.
“Mr. Freiwald: That’s overwhelmingly.
“The Witness: Well, I was an expert against Dr. Streck, so—
“Mr. Freiwald: Okay, okay.
“Mr. Gittleman: Let him finish his answer.
“Mr. Freiwald: Move to strike. Come on.
“The Court: He didfinish his answer.
“Mr. Gittleman: I don’t know if he finished his answer. He was telling about a case he testified against Dr. Streck.
“The Court: He finished his answer, Mr. Gittleman. Thank you.
“Mr. Freiwald: Doctor, you disagree with Dr. Wolford about whether the patient should have bilateral TMJ replacement surgery. You used to work at Penn, correct?
“The Witness: Correct. I was the dean at Penn.
“Mr. Freiwald: Do you know Dr. Quinn?
“The Witness: Yes, he was my chairman of oral surgery.
“Mr. Freiwald: Do you know he recommends the same thing as Dr. Wolford?
“The Witness: Correct.
“Mr. Freiwald: Nothing further.
“The Court: Thank you, doctor. You may step down carefully. Ladies and gentlemen, we’re finished for the day.” (N.T. 11/10/08, first afternoon session, at 124-26. (emphasis added)

At the conclusion of Dr. Fonseca’s testimony and after the jury had been sent home for the day, plaintiff’s attorney moved for a mistrial based upon the witness’ reference to both Dr. Decidue and Dr. Streck. As to the latter reference, Mr. Freiwald asserted, in pertinent part, that Dr. Fonseca had:

“testified gratuitously by offering that he testified against Dr. Streck in a matter which was clearly irrelevant, clearly not called for by that question and clearly designed to cause prejudicial against . . . [Dr. Streck] . . . , clearly designed by a witness clever enough and experienced enough as an expert witness to know how to sneak something in that is improper, and was done so, once again, only to introduce prejudicial testimony in a way that I could not stop him.” (N.T. 11/10/08, second afternoon session, at 3.)

While the trial court was, at the time, troubled by the witness’ unsolicited reference and not-so-thinly disguised critical assessment of plaintiff’s expert, Dr. Streck, the prejudice or harm done, if any, was minimal and of no particular consequence, occurring in the last week of a lengthy contested three-week-long trial. However unfortunate or inconsiderate one might view the comment made regarding Dr. Streck, it was, quite clearly, made in response to a question propounded by plaintiff’s counsel. That question sought confirmation by Dr. Fonseca of his alleged history of testifying “overwhelmingly” in favor of physicians. In response, the witness admitted that, over the years, he appeared “about 80 percent for the defense, 20 percent for the plaintiff.” When plaintiff’s counsel, in perhaps an ill-advised attempt to emphasize or point out before the jury Dr. Fonseca’s possible bias in favor of the defendants with his observation by stating “that’s overwhelmingly,” the witness’ somewhat knee-jerk reaction, though surprising, should not have been totally unexpected. Dr. Fonseca’s retort was meant simply to counter plaintiff counsel’s insinuation that he was a biased or impartial witness — a “hired gun” for doctors — by assuring the jury and the trial court that he had, indeed, testified previously for plaintiff’s, and on whose behalf, in one particular case, he had appeared against Dr. Streck where the latter apparently had been named as a party defendant.

The exchange between Dr. Fonseca and his interrogator was short, and the incident concluded with the trial court’s gentle, but stem admonishment to defense counsel, Mr. Gittleman, regarding his rather unwitting attempt to come to the defense of his witness — then under attack —and to explain his response and thus, perhaps, not thinking of how just a few ill chosen words might possibly compound the benign consequence of a careless response into something much worse. The entire episode lasted only “seconds” and occurred at the end of a long and tiring day in a hotly contested case that was headed into its third week of trial when emotions of the participants were running high and their tempers becoming short. In retrospect, the provocative moment was representative of nothing more than the classic give and take between a skilled lawyer and a crafty hostile witness, well-schooled and experienced in the ways of both his profession and the courtroom.

CONCLUSION

For all of the aforementioned reasons, the trial court believes that the order, dated December 31,2009, should affirmed.

      . The order appealed from was docketed on January 4,2010.

      . Argument on the plaintiff’s motion for post-trial relief was not scheduled until more than a year after its filing as a result of the plaintiff’s delay in retaining appellate counsel.

      . Transcribed exactly as submitted by the appellant.


author: HODGE, J,

text:
    In the Interest of Skyler Cross

      Deanna L. Nocero, for petitioner.

      Ryan C. Long, for respondents.

      Joanne Nene, for C.Y.S.
    June 28, 2010
   HODGE, J,

This case is brought before the court by the Natural Father’s petition to vacate adoption decree. The law of adoption in Pennsylvania is governed by the Adoption Act, 23 Pa.C.S. §2101, placed into effect January 1, of 1981, and then amended in 1992. In any type of adoption proceeding, Pennsylvania law requires that the natural parents’ rights be terminated either voluntarily or involuntarily. 23 Pa.C.S. §§2501, 2502 and 2511.

On November 3, 2006 the natural father voluntarily executed a consent to adoption. This consent indicated his intent to relinquish all rights he had as the child’s natural father. Although the consent had a provision, which granted the natural father biweekly visitation with the minor child, it was expressly stated in the consent that if Natural Father did not exercise more than half of his biweekly visits during any one-year period, his right to visitation would be terminated. Moreover, this court takes notice of paragraph 12 in Natural Father’s consent to adoption which states, “I believe the best interest and permanent welfare of the child shall be served by the adoption. This consent, being made of my own free will and accord without coercion is intended by me to be irrevocable.” (emphasis added) Once 30 days had passed since Natural Father executed the consent, Natural Father was no longer able to exercise his right to revoke his consent to adoption. All of the above described provisions were expressly stated in clear and unequivocal terms in Natural Father’s consent to adoption.

On March 23,2007, this court conducted a hearing on a petition to confirm consent to adoption by the natural parents of Skyler Cross. Even though Natural Father received notice of the hearing, he failed to present himself before the court. Consequently, this court confirmed the consent pursuant to the requirements of 23 Pa.C.S. §2504.

By final decree, on May 3, 2007, this court approved the adoption of Skyler Cross Thompson by the adoptive parents, Charles A. and Lois J. Cross. At this point in time, a full six-month period had passed since Natural Father executed his consent to adoption. Additionally, the May 3,2007 decree does not provide that the natural father is entitled to any visitation or other rights regarding the minor child, and at no point in time have the adoptive parents entered into an agreement with the natural father granting him visitation.

Natural Father did visit with the minor child on various and irregular occasions, and then a period of time passed when no visitation arrangements were made. On November 9,2009, Natural Father, by and through his attorney, presented this court with a motion to enforce the consent agreement. The adoptive parents of the minor child in question (respondents) responded to Natural Father’s petition. Consequently, a hearing was scheduled for January 12, 2010. At the January hearing, this court ordered that the hearing be bifurcated to initially determine, as a matter of law, whether Natural Father has a legal right to enforce the terms of the consent to adoption agreement he entered into on November 3, 2006.

An adoption decree is presumed to be valid; as such, a person who challenges such a decree has the burden of showing its invalidity by clear and convincing evidence. In the Matter of the Adoption of Christopher P., 480 Pa. 79, 84, 389 A.2d 94, 97 (1978); Singer Adoption Case, 457 Pa. 518, 522, 326 A.2d 275,277 (1974); List Adoption Case, 418 Pa. 503, 509, 211 A.2d 870, 873-74 (1965). In addition the Pennsylvania Supreme Court in List held that proof of the invalidity of an adoption decree must be clear and convincing, and unless the petitioner can overcome this heavy burden, an adoption decree should not be vacated. Id. at 517, 211 A.2d at 877.

Both parties in this action cite the case of Singer Adoption Case, 457 Pa. 518, 326 A.2d 275 (1974) to support their position. In Singer, the natural father of the minor child in question executed a consent to adoption, and like the case at bar, the minor child was subsequently adopted. However, Singer must be distinguished by several facts: (1) the natural father in Singer did not have notice of the subsequent adoption proceedings; (2) he was under the impression that there would be a preservation of his parental rights and duties; and (3) the natural father sought to have the adoption decree vacated within six months. Id., 457 Pa. at 525, 326 A.2d at 278-79. Because of these three factors, the court in Singer affirmed the lower court’s decision to open the adoption decree.

The case now put before the court has several factors which clearly distinguish it from the case of Singer. First, Natural Father did in fact have notice of the adoption proceedings. The record indicates that this court properly terminated the parental rights of Natural Father on March 23,2007, after a hearing on a petition to confirm consent to adoption. Although Natural Father was represented by counsel at this hearing, Natural Father did in fact fail to present himself before the court.

Furthermore, although Natural Father was under the presumption that he would have biweekly visits with the minor child, he is not contending that regardless of his consent, it was his belief that he would still have some form of parental rights over the minor child. This case is apparently different from Singer in that Natural Father is under no obligation to support or care for the minor child. Nor does Natural Father present any evidence that it was his intent to support and care for the minor child regardless of his consent. Natural Father knew that the consent to adoption would result in a complete termination of all his parental rights, and consequently of any obligation to care for his daughter. His intention is clearly evidenced though the clear and unequivocal terms of the consent to adoption that Natural Father willfully executed.

How could this court expect any individual child to succeed in his newly established household, if not for the permanent nature of the adoption proceeding. The new status created by adoption cannot be terminated merely because of a second thought regret on the part of a natural parent. Nauman Adoption Case, 177 Pa. Super. 317, 320, 110 A.2d 925, 926 (1955). Although petitioner asserts that the decree of adoption should be terminated, because his consent was not intelligent, voluntary, and deliberate, the facts presented to this court cannot support such a conclusion. Rather, this court believes Natural Father’s consent agreement best reflects his true intent to allow the minor child to be adopted.

Lastly, Natural Father petitioned this court to enforce his consent to adoption agreement on November 9,2009, almost three years to the day that Natural Father executed the agreement in the first place, and two and a half years after this court entered a final decree of adoption. Natural Father later petitioned this court on July 11,2010 to vacate the adoption decree altogether.

There is ample case law to support the finding that consent by the natural parent may be withdrawn “at any time before the entry of a final decree of adoption,” but not thereafter. Hildenbrand Appeal, 405 Pa. 579, 176 A.2d 900 (1962); Hunter Adoption Case, 421 Pa. 287, 218 A.2d 764 (1966); Gunther Adoption Case, 416 Pa. 237, 206 A.2d 61 (1965); Stone Adoption Case, 398 Pa. 190, 156 A.2d 808 (1959); Harvey Adoption Case, 375 Pa. 1, 99 A.2d 276 (1953). The court in Hildenbrand further reasoned that it would be cruel and unjust to subject the adoptive parents to “the risk of a change of mind by the natural parents... with resulting heartbreaks to several persons and possible harm to the child.” Id., 405 Pa. at 582, 176 A.2d at 901. Likewise this court considers the unjustifiable injury that would certainly result if the decree of adoption was vacated and Natural Father’s consent to adoption was voided.

The findings of the Pennsylvania Supreme Court in Harvey Adoption Case, 375 Pa. 1, 3-4, 99 A.2d 276, 277 (1953), properly summarizes the everlasting nature of an adoption proceeding; “a decree of adoption terminates forever all relations between the child and its natural parents, severs it entirely from its own family tree and engrafts it upon that of its new parentage. Persons who rely on the court system to finalize the adoption of minor children seek one common underlying element: finality. List, 418 Pa. at 516-17, 211 A.2d at 877 (citing Nauman, 177 Pa. Super, at 320, 110 A.2d at 926).

This court does recognize that in cases like Singer adoption decrees can be vacated because the petitioning party was able to establish that the consent to adoption was invalid. However, there is also case law representing instances where courts refused to vacate the adoption decree on the grounds that the natural parents’ consent was valid and enforceable. See e.g, Hildenbrand Appeal, 405 Pa. 579, 176 A.2d 900 (1962); Hunter Adoption Case, 421 Pa. 287, 218 A.2d 764 (1966). As previously stated, a party petitioning the court to vacate an adoption decree has the burden of proving by clear and convincing evidence that the decree is invalid. Natural Father in this case is unable to meet that burden. The record indicates that Natural Father was represented by counsel throughout the adoption proceedings, and as such was properly advised as to the finality of his consent. Furthermore, as previously noted, Natural Father’s consent expressly stated that it was his intent for the consent to adoption to be final. Natural Father had the opportunity to withdrawal his consent up to the time of the adoption hearing; his failure to do so should not prevent this court from exercising its discretion in accepting the efficacy of his consent agreement. List, 418 Pa. at 516, 211 A.2d at 877.

Additionally, this court executed the decree of adoption pursuant to the statutory provisions which require that the court be satisfied that: (1) the statements made in the adoption petition are true; (2) the welfare of the person being adopted will be promoted; and (3) the requirements of the statute are being complied with. The May 3,2007 final decree was entered into after a hearing at which the child proposed to be adopted was present, along with the adoptive parents and one witness, the decree states that the court was satisfied that all the statements made in the petition for adoption were true and that “all of the requirements of the Adoption Act have been met.” Because all of the statutory requirements have been meet and complied with, the petition to vacate adoption decree is denied, and this matter is held for further proceedings.

ORDER

And now, June 29,2010, this matter being before the court on June 17, 2010, for argument on petitioner’s petition to vacate adoption decree, after consideration of the arguments of counsel, and a complete and through review of the record and briefs of the parties, the court hereby orders and decrees as follows:

(1) The petitioner’s petition to vacate adoption decree is hereby denied.

(2) The prothonotary shall properly serve notice of this order upon counsel of record and any party not represented at their last known address as contained in the court’s file.


author: HODGE, J.,

text:
    Budzinski v. Friello

      Kenneth S. Budzinski, pro se.

      Barbara J. Friello, pro se.
    July 20, 2010
   HODGE, J.,

This case was before the court on June 9,2010, for a custody hearing to determine the issue of where the minor child, Chelsea Budzinski should reside. The parties are the natural parents of Chelsea who is currently 17 years old. Chelsea was born on May 13, 1993, and currently resides with her father, Kenneth Budzinski, the plaintiff in this action.

Prior to a custody complaint being filed in this matter, Chelsea resided with her mother, Barbara Friello, the defendant, until June 1, 2009. On or about that date, the defendant evicted Chelsea from her household. For approximately six months thereafter, Chelsea stayed with various relatives. When the plaintiff became aware of Chelsea’s unstable living arrangements, he contacted his daughter and made the necessary arrangements so that Chelsea could live with him. Plaintiff did not have immediate knowledge of Chelsea’s situation due to the fact that he is a long-haul truck driver and was on the road at that time.

Plaintiff, believing that he could best serve Chelsea’s needs and provide a more environment for her to live, presented this court on January 14,2010 with a complaint for custody. A custody conference was consequently scheduled for February 16,2010, at which time the court ordered that plaintiff be awarded primary physical custody of the minor child and the parties shall have shared legal custody. The defendant was also granted partial custody each week from Friday at 6 p.m. until Saturday at 4 p.m. At the completion of the custody conference, the court determined that a hearing on the matter was necessary, as the underlying issue of where Chelsea should live had not been resolved.

This court must now make a determination, regarding the most appropriate custody arrangements for the minor child. In doing so, this court bases its decision on what is the best interest of the child. The best interest of the child is determined by considering all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). Such consideration must be made on a case by case basis. Moore v. Moore, 535 Pa. 18, 634 A.2d 163 (1993).

The court further considers each parent’s ability to care for the needs of Chelsea. A parent’s ability to care for a child must be determined at the time of the custody hearing, and not as of an earlier time. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998). Both plaintiff and Chelsea testified to the emotional instability of the defendant. Defendant herself has admitted to having been diagnosed with bi-polar disorder and anxiety. Chelsea has expressed her love for her mother, and wishes to maintain a relationship with her, however, the defendant’s inability to establish some level of emotional stability affected almost every aspect of Chelsea’s daily life while she lived with her mother.

Due to the defendant’s current diagnosis, she is unable to work and consequently relies on Social Security disability and support payments from plaintiff to maintain her current standard of living. Plaintiff, on the other hand, is able to work and does have a full-time job, which allows him to better care for Chelsea. While the court is concerned that the plaintiff’s job requires him to be away from home for extended periods of time, Chelsea has reported that she gets along well with her father’s girlfriend, Charlene Brown, who lives at plaintiff’s house. Chelsea further testified that while she is at her father’s, she eats better, as meals are regularly cooked, and she sleeps better, as she is more comfortable in general at plaintiff’s residence.

While the court does not solely consider the testimony of Chelsea, it does rely heavily on her preferences because the court finds that not only does Chelsea establish that she is a mature and intelligent young lady, but also that she is nearly an adult, being less then 10 months away from her eighteenth birthday. Consequently, this court finds that her preference to live at her father’s residence to be an equal factor in conducting a best interest analysis. See e.g. Carlisle Appeal, 225 Pa. Super. 181, 310 A.2d 280 (1973); Snellgrose Adoption Case, 432 Pa. 158, 247 A.2d 596 (1968).

Taking all the above factors into consideration, the court finds that the child’s interest is best served by plaintiff being awarded primary physical and legal custody of Chelsea Budzinski, subject to the partial custody rights of the defendant as outlined in the attached order.

ORDER

And now, July 20,2010, these casing being before the court for a custody hearing on June 9, 2010 with both parties appearing pro se, and with the parties not having reached an agreement; it is hereby ordered, adjudged and decreed that:

(1) The plaintiff shall have primary physical and legal custody of the minor child, Chelsea Budzinski born on May 13,1993, subject to the partial custody rights ofthe defendant as outlined below. All parties shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/or releases for school reports, medical reports, insurance documents and documents required by state, local or federal authorities.

(2) The defendant is awarding partial custody rights with the minor child every Friday at 6 p.m. until Saturday at 4 p.m. This schedule may need to be periodically changed by the parties pursuant to the minor child’s work schedule.

(3) The minor child is free to contact the defendant whenever she feels necessary and is encouraged by this court to continue to maintain a relationship with her.

(4) In any transporting of the minor child, all parties and anyone involved with such transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania including those regarding child safety restraint apparatus in any vehicle used to transport the child.

(5) The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter. Failure to do so may result in sanctions being imposed by the court upon the offending party including suspension of custody and payment of attorney’s fees.

(6) No party shall remove the minor child from the jurisdiction of this court with the intent of changing the physical residence of the minor child without written consent of the other party or the court.

(7) This order of court supersedes all prior custody provisions in the within captioned case.

(8) The parties shall read and fully comply with the provision of the appendix to custody order which is attached hereto [not published herein] and filed with this order.

(9) The prothonotary shall properly serve notice of this order and opinion by regular mail or personal service upon counsel of record and any party not represented by counsel at their last known address.