author: LASH, J,

text:
    Bartzer v. Bartzer

      C.P. of Berks County,
    no. 02-14469.

      LisaD. Gentile, for plaintiff.

      Rebecca L. Bell, for defendant.
    August 11, 2006
   LASH, J,

This court held a custody trial on August 2 and 9, 2006. At issue is primary custody of the parties’ minor children, Hali Sarah Bartzer, born August 25,1989, and Ethan Emerson Bartzer, bom November 21,1990. The court makes the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Alene K. Bartzer (Mother), is an adult individual who currently resides at 1619 West Leesport Road, Leesport, Berks County, Pennsylvania 19533.

(2) Defendant, Richard Bartzer (Father), is an adult individual who currently resides at 1224 Fox Road, Leesport, Berks County, Pennsylvania 19533.

(3) Father and Mother are the natural parents of two minor children, Hali Sarah Bartzer, bom August 25,1989, and Ethan Emerson Bartzer, bom November 21, 1990 (Minor Children).

(4) The parties were married on August 2, 1986, separated on November 7, 2002, and were divorced on October 23, 2003.

(5) Mother currently resides with the Minor Children. She has a boyfriend named Bill Barthel, whom she has been seeing since December 2004.

(6) Father currently resides with his wife, Karen, and his two stepdaughters, Kacie L. DeWane, bom October 6,1988, and Becca DeWane, bom October 6, 1988, and the Minor Children.

(7) Father and his wife met in October 2004 on the internet. They were married in January 2005 and have resided together since that time.

(8) Both parties reside in the Schuylkill Valley School District.

(9) The minor child, Hali, has Down’s Syndrome. She attends a special needs school in the Muhlenberg School District because the Schuylkill Valley School District does not have programming sufficient to address her needs. The parties are also enrolling her in the Preparation for Adult Learning Program (PAL).

(10) The minor child, Ethan, attends school at the Schuylkill Valley School District and is preparing to enter the 10th grade.

(11) Neither child is involved in daycare or latchkey. However, if Mother needs someone to watch Hali, her neighbor, Kelsey Kondraski, age 15, is available. She generally watches Hali once or twice a week from 3 p.m. to 4:30-5 p.m.

(12) The parties’ residences are within five minutes of each other.

(13) Mother is employed with Travelers Insurance. A good portion of her work is done from her home. When she has to leave the home, her hours are flexible.

(14) Father works at Aramark Uniform Services as a production manager. He is a salaried employee and must work until his job duties are completed. Generally, he starts work at 9 a.m. and is done around 7:30 p.m.

(15) When Father has custody of the Minor Children during the week, because of his work schedule, he is temporarily unavailable to care for the Minor Children. His wife is also unavailable on Tuesdays and Thursdays due to her own work commitments and because her children attend Mechacton High School in another county and are engaged in several activities. As a result, during the school year when Father has custody of both Minor Children, Ethan watches Hali for a short time until either Father or Karen Bartzer arrive home.

(16) Hali is dependent such that a responsible person must be supervising her at all times.

(17) Both parties’ households are suitable for rearing the Minor Children.

(18) Mother’s extended family resides primarily in the Berks County area.

(19) Father’s extended family resides predominately in Florida.

(20) This action was commenced by Mother on or about December 6, 2002, the action being included within the divorce complaint.

(21) On January 29, 2003, the court ordered that Mother would have primary physical custody of the Minor Children and Father would have partial custody, among other times, on alternate Thursdays from after school or 3:30 p.m. until Sunday at 4 p.m., and one evening on alternating weekdays during the week when Father does not have custody on the weekend, after school from 3:30 p.m. until 8 p.m.

(22) On August 25, 2003, the court entered an order modifying the custody arrangement granting Father partial custody on alternating weekends from Fridays at 1 p.m. until Sundays at 8 p.m., and during the week which contain Mother’s weekend, Father would have custody on Tuesday and Thursday evening from 4 p.m. until 8 p.m.

(23) On or about October 20, 2003, Father filed a petition to modify the custody order, seeking revised periods of partial custody.

(24) The parties resolved Father’s petition to modify by agreement, entered as an order of court on October 29,2004, setting forth, among other things, that Father’s partial custody would be revised such that he would now have alternate weekends from Friday at 3 p.m. until Monday at 8 p.m.; on the alternate weeks following Mother’s weekend from Monday at 3 p.m. until Wednesday at 3 p.m.; and Wednesday evenings from 3 p.m. until 8 p.m. with one Minor Child, and on Thursday evenings from 3 p.m. until 8 p.m. with the other Minor Child during the weeks when Father does not have the Monday through Wednesday time period.

(25) On or about March 3, 2005, Father filed a new petition to modify custody requesting that he be awarded primary physical custody of the Minor Children.

(26) On or about July 26, 2005, the court entered an order, by agreement of the parties, to remove the case from the trial ready list for the purpose of obtaining an updated psychological evaluation.

(27) By separate order on July 26, 2005, the court modified the temporary custody arrangement by entering a temporary custody order setting forth, among other things, that the parties would share legal custody, and would share 50/50 custody of Ethan on a week-on/week-off basis, with the transfer to occur Fridays at 3 p.m. Regarding Hali, Mother would retain primary physical custody with Father to have partial physical custody on alternate weekends from Friday at 3 p.m. until Tuesday at 3 p.m. In the alternate weeks, Father would have partial custody of Hali from Monday at 3 p.m. until Tuesday at 3 p.m.

(28) A psychological evaluation was performed by Phillip J. Tietbohl Ph.D., Licensed Psychologist. A written report was submitted to this court under correspondence dated March 24, 2006. Among other things, Dr. Tietbohl interviewed the parties, Ethan, Father’s wife, Karen, conducted home visits of both residences and reviewed several records. He had also prepared a previous psychological evaluation for the court, dated June 30, 2004, which was considered.

II. DISCUSSION

At issue is primary custody of the parties’ Minor Children. In making its determination, this court considered the testimony of the parties, an in camera conference with the minor child, Ethan, Father’s work supervisor, Mina Lisiewski, Father’s wife, Karen, a telephone conference with Dr. Johanna Kelly, Hali’s pediatrician, and the exhibits of the parties, including a written evaluation compiled by Dr. Tietbohl.

Father presented first! He is seeking equal time with Hali and wants to be the primary custodian of Ethan. He testified that he loves both Minor Children a great deal and wants to spend as much time as possible with them.

Regarding Hali, Father believes he is attentive to her needs, and he and his family are willing and able to provide her with stable, loving care. He would like to see Hali living at his household, engaged in activities with his family and Ethan, including going to restaurants, enjoying an extended family breakfast on Sunday mornings, going to movies, taking trips, cooking and doing the things that close families do together. He wants to increase his assistance to Hali. He suggested that Hali could learn “signing”, which she began doing after watching a DVD that is geared to young children.

Father believes that Mother does not provide sufficient flexibility to allow Hali freedom to enjoy his family’s activities. Because of this inflexibility, and because Hali and Ethan’s schedules are different, Father believes Hali is sometimes left out. He would like to remedy this through a modification of the order.

Regarding Ethan, Father believes that he should have primary custody. He states that Ethan has expressed a desire to reside with him for some time. This is in part due to the common interests they share, including Florida State football, sports in general, as well as the family activities already cited. He also believes he can help Ethan improve his grades through his assistance. He has suggested utilizing the Sylvan Learning Center to augment Ethan’s education.

Father also believes that his method of rearing Ethan is superior to Mother’s. Whenever something comes up involving Ethan, Father and Ethan sit down and discuss the matter. Father listens to Ethan’s view on the issue and considers it. Ultimately, Father will make the decision regarding what is best. Ethan likes this approach, as it permits him to provide input into the issue, and because it manifests a respectful treatment of Ethan as a young man. Conversely, Mother’s method is to make decisions on her own and impose them on Ethan, which Ethan feels is arbitrary and unfair.

Father would like to see Ethan have some autonomy to visit between households. In other words, if Father has custody of Ethan but Ethan wants to spend some time with his Mother, this should be permitted without condition, except in those limited situations where Ethan’s time has already been committed for a specific purpose. While Father is prepared to do this, he perceives that Mother rigidly adheres to the schedule set by court order, and when Ethan complains she responds: “You can’t go over to your Father’s now because it’s my time.”

Father also believes that Mother thwarts cooperation by having a defensive attitude. He cites her refusal to participate in mediation.

Mother is seeking to have the custody arrangements stay the same. Regarding Hali, she notes that she has been the primary caretaker of Hali since her birth, while the parties were together, and now after the parties have separated. She claims that Father was more invested in Ethan than in Hali until very recently. Mother tends to Hali’s daily needs and also engages in many activities with her, including taking her to the petting zoo, her family farm, dancing and swimming. Hali has engaged in the Special Olympics for several years, with Mother providing support. Mother believes that if Hali’s schedule is changed, it will be disruptive to her and could cause her anxiety.

Mother points out that Father does not have the same understanding of Hali’s needs as she does. For instance, Mother believes that teaching Hali “signing” would be counterproductive, based on her conversations with Hali’s doctors. Hali is engaged in speech therapy, and if she is permitted to communicate through signing, this would impede the development of her speaking. Mother also questions Father’s long-term commitment, as he has spoken of ultimately moving to Florida, which would then mean that he would be limited in his access to Hali.

Mother also claims that Father is difficult in adjusting his custody schedule when necessary. She points out that Hali recently attended a prom event. This event was scheduled to occur on Father’s weekend. Mother made all the arrangements and requested additional time with Hali for the prom. Father’s response was somewhat ambiguous, as he cited other plans that he already had. Ultimately, he agreed to allow Hali to attend the prom, but the situation was much more complicated than it needed to be.

Regarding Ethan, Mother acknowledges that Ethan would like to spend more time with his Father. However, she does not feel this is in his best interests, particularly since his grades and his social life need improvement. She believes that Father is too easy going. He is more of a “buddy” to Ethan than a father. Regarding Ethan’s schooling, Father will not follow through as needed to ensure Ethan’s successful matriculation. Further, Ethan has become a virtual recluse. He does not have any friends and spends a great deal of time on the computer, some of which is productive time where he develops his ability in graphic art, but much of the time is simply for his own entertainment.

Mother believes that Father has imposed his will on Ethan to the extent that Ethan’s mission is simply to please his father. Mother states that Father was verbally abusive to Ethan in the past. Mother is concerned that Ethan has not developed his own identity.

Dr. Tietbohl concludes that it would be best for Hali if the parties would split time with her on a 50/50 basis. Regarding Ethan, Dr. Tietbohl would like to see Ethan spend more time with his father, suggesting that he spend as much as nine days out of 14 with his father.

Dr. Tietbohl believes that both Ethan and Hali should have fewer transitions. Comparing the two homes, he believes that Father’s home is more suitable for rearing teenagers through adolescence, due to some of the physical characteristics which provide for greater privacy.

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

Starting first with Hali, we feel that it is important to reiterate that Hali’s needs are substantial. Dr. Tietbohl described her in the following manner:

“Hali is an easygoing adolescent girl who struggles with significant information processing problems and issues associated with having Down’s Syndrome. Her level of cognitive processing is in the moderately mentally retarded range. Her speech is difficult to understand. Her thinking is fairly simple and straightforward. She doesn’t complain much and she can dress herself and brush her teeth independently. She can follow simple commands or requests. She walks slowly. She has fewer fears and less awareness of things in her immediate environment that could be dangerous. She will approach all kinds of animals. She is affectionate and enjoys close physical contact and hugs. She cannot be safely left on her own for very long and both parents are aware of this. She becomes frustrated with change and does best with consistency. Hali will always need close monitoring, supervision and ongoing medical care. She is in a life skills classroom at Muhlenberg High School. Both parents are hopeful Hali might obtain future employment working with animals, one of her interests. She will need direct assistance to stay involved in the community and connected to activities and this will be necessary throughout her life. Hali is content spending time in both homes.”

We find that Mother has been, and will continue to be, better able and committed to attending to Hali’s needs. As stated, Mother has been the primary caretaker for Hali at all times. Mother’s investment has been greater than Father’s. Father does not have the same level of understanding of Hali’s needs, as evidenced by the “signing” suggestion. His future commitment is uncertain, as he may be willing to move to Florida. It is clear that Mother would never consider any option that did not include Hali. While this court believes that Father is sincere in his desire to attend to Hali’s needs, this court also believes that Father does not fully appreciate the level of Mother’s commitment that has been a given from the time of Hali’s birth to the present.

It is also clear that, under the current arrangement, Hali is thriving. Courts are reluctant to disturb existing custody arrangements which have satisfactorily served the best interests of the child. Wiseman v. Wall, 718A.2d 844, 846 (Pa. Super. 1998). Accordingly, the current arrangement with Father having custody of Hali on alternate weekends from Friday at 3 p.m. until Tuesday at 3 p.m., then on the off week from Monday at 3 p.m. until Tuesday at 3 p.m., shall remain the same.

Regarding Ethan, Father should have more time with him. The bond between the two has grown quite close, and this is certainly positive. Father’s parenting approach reflects an understanding of Ethan’s need to know where he stands and why things are done a certain way. Contrary to Mother’s assertions, Father does not treat Ethan as a “buddy”, but as a parent who is interested in guiding his son into adulthood. There was no evidence that Ethan questions or challenges Father’s authority. Father’s perspective may also reflect growth on his part, as the anecdotal comments appearing in Dr. Tietbohl’s first report express that Father was previously much more rigid in his familial relationships.

This court recognizes that there are also some concerns surrounding Ethan, particularly his willingness to distance himself from personal relationships. His Father appears to be better capable of coaxing Ethan from his indulgence on the computer into a more social lifestyle.

Mother’s intentions are well meaning, however, she faces a struggle common to a parent of a teenage child. In particular, Ethan resists and resents Mother’s questioning of him, considering her actions to be intrusive. To the extent the questions deal with what is happening in Father’s household, Ethan’s point is well taken. To the extent the questions deal with Ethan’s well-being, his schooling, his bedtime, his habits, and so forth, the questions are appropriate but will continue to frustrate Ethan when they are asked.

Both parties need to be able to trust each other’s parenting capacity and judgment. Both Dr. Tietbohl and this court noticed that Mother was guarded and defensive at times. As Dr. Tietbohl stated, she may be preparing for a battle that doesn’t exist. She must also be willing to meet Father halfway on matters. Her refusal to attend mediation was inappropriate.

This court recommends that Father have primary custody of Ethan, and Mother have partial custody on alternating weekends, on the same weekend she has Hali, with the times of the partial custody to partially mirror Father’s partial custody time with Hali, such that Mother will have Ethan on her weekend from Friday at 3 p.m. until Tuesday at 8 p.m., and on the alternate week from Monday at 3 p.m. until Tuesday at 8 p.m. Mother’s additional time in the evening is based on Father’s unavailability due to his work schedule.

This court believes that both parents, generally, have their minor children’s best interests in mind. They are both intelligent and hard-working individuals. As a result, there is no reason why they cannot cooperate better for their children’s sake. There were hard feelings prior to trial, and these hard feelings may have crystallized during the trial due to issues being raised and statements being made that could have burned bridges. It is important that the parties do not permit this to happen, but begin to trust each other’s parenting skills, which are substantial, and respect each other’s lifestyles and decisions.

We enter the following order:

ORDER

And now, August 11,2006, after trial held, custody of the parties’ minor children, Hali Sarah Bartzer, born August 25,1989, and Ethan Emerson Bartzer, born November 21, 1990, shall be as follows:

(1) The parties shall share legal custody.

(2) Plaintiff, Alene K. Bartzer (Mother), shall have primary physical custody of Hali.

(3) Defendant, Richard Bartzer (Father), shall have partial custody of Hali on alternate weekends from Friday at 3 p.m. until Tuesday at 3 p.m. On the alternate week, Father shall have partial custody of Hali from Monday at 3 p.m. until Tuesday at 3 p.m.

(4) Defendant, Richard Bartzer, shall have primary physical custody of Ethan.

(5) Mother shall have partial physical custody of Ethan on alternate weekends, on the same weekend she has Hali, from Friday at 3 p.m. until Tuesday at 8 p.m., and on the alternate week from Monday at 3 p.m. until Tuesday at 8 p.m.

(6) Recognizing Ethan’s maturity and his desire to spend time with both parents, this court directs that the parties shall allow Ethan some autonomy to deviate from the custody schedule to visit with the other parent when appropriate.

(7) The parties shall alternate the Christmas holiday with one parent having custody on December 24 at 1 p.m. until Christmas Day at 1 p.m., and the other party having custody from Christmas Day at 1 p.m. until 8 p.m. on December 26. Mother shall have custody on Christmas Eve in even-numbered years and Father shall have custody on Christmas Eve in odd-numbered years.

(8) The parties shall alternate custody of the Minor Children on Easter, Memorial Day, Independence Day, Labor Day and Thanksgiving. Custody times for said holidays shall be from 10 a.m. until 7 p.m. Father shall have custody for the Thanksgiving holiday in 2006 and the parties shall alternate the holidays thereafter.

(9) Father shall have custody of the Minor Children on Father’s Day and Mother shall have custody of the Minor Children on Mother’s Day. Custody times shall be from 10 a.m. until 6 p.m.

(10) The parties shall have the right to two non consecutive weeks of vacation each year with the Minor Children. The parties shall provide each other with at least 30 days advance notice of their choice of weeks under this paragraph. If the parties cannot agree, Mother’s choice of week shall take priority in even-numbered years and Father’s choice of weeks shall take priority in odd-numbered years.

(11) The holiday and vacation schedules shall take precedence over the regular custody schedule.

(12) Each parent shall ensure that the Minor Children attend their existing extracurricular activities and activities that the Minor Children have historically participated in while the Minor Children are in their custody. Any new activities shall be selected with the agreement of both parties and each party agrees not to unreasonably withhold their agreement.

(13) During periods of custody or partial physical custody, neither party shall criticize, ridicule or hold up for derision the other parent. Nor shall either parent permit, encourage or tolerate any such criticism, ridicule or derision in any way directed against the other parent by any third party in the presence of or at the residence in which the Minor Children or Minor Child, as the case may be, reside.

(14) Both parties acknowledge that the right of custody shall not include the right to enter the other party’s home unless specifically invited therein by the other party. Neither party shall use derogatory language or loud language when addressing the other party.

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

APPENDIX TO ORDER

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

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

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

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

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

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

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

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

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

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

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

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

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

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

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

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

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

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

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

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


source: Caselaw Access Project

author: FORADORA, P.J.,

license: Public Domain

text:
    Coleman v. Coleman

      C.P. of Jefferson County,
    no. 58-2001 CD.

      Kerith Strano Taylor, for plaintiff.

      Scott C. Allen, for defendant.
    February 7, 2007
   FORADORA, P.J.,

INTRODUCTION

Now before the court is a motion to change venue filed by the plaintiff, Sherri C. Coleman (now Miller), who asserts that jurisdiction over the continuing custody of Sarah Alexis Coleman properly belongs in the state of Washington. The court conducted a hearing on that question January 26, 2007. Miller, the defendant, Michael Lee Coleman, and the paternal grandmother, Barbara Coleman, testified.

FACTUAL FINDINGS

(1) Sherri Miller is the natural mother of Sarah Alexis Coleman.

(2) Miller lived in Jefferson County growing up and attended the Punxsutawney Area High School.

(3) Miller’s mother continues to live in Punxsutawney-

(4) Michael Coleman is Sarah’s natural father.

(5) Coleman has always lived in Jefferson County and currently resides in Brookville, Pennsylvania.

(6) Coleman’s parents also reside in Brookville, Pennsylvania.

(7) Coleman’s brothers reside in Punxsutawney and Summerville, respectively, both of which are in Jefferson County, and his sister resides in Clarion, Pennsylvania, which is approximately a 20-minute drive from Brookville.

(8) Sarah was bom at Punxsutawney Hospital in Jefferson County, Pennsylvania, on May 23, 1996.

(9) Miller and Coleman were married and divorced in Jefferson County in 1998 and 2001, respectively.

(10) Miller remarried approximately three years ago. Her current husband grew up in Jefferson County and has family here.

(11) On April 4, 2001, the court signed a stipulation and consent order concerning the custody of Sarah. Paragraph five of that order provides in part that “this court shall maintain continuing jurisdiction of this custody matter.”

(12) With Coleman’s knowledge, but without his specific consent, Miller moved to Connecticut with Sarah in July 2001. They lived there for approximately three years.

(13) Coleman occasionally traveled to Connecticut to visit Sarah.

(14) In June 2004, Sarah moved with Miller and her new husband to South Carolina, where her husband had the opportunity for a better job.

(15) Sarah moved with the Millers to the state of Washington in October 2005. There she also lives with her 13-year-old brother and 4-year-old sister. All are currently legal residents of that state.

(16) Sarah is in her second year at Sidney Glen Elementary School in Port Orchard, Washington. She is also in the Girl Scouts and is actively involved in ballet, for which she takes lessons three times per week and is currently practicing for a performance later this year.

(17) Since Miller and Sarah left Connecticut, Coleman has not visited his daughter but has sent her gift packages on seven or eight occasions, including approximately once a month for the last six or seven months.

(18) Since leaving Pennsylvania in 2001, Miller has returned with Sarah for a total of three brief visits. On at least one of those occasions, they visited with Sarah’s paternal grandparents.

(19) Miller enjoys good relationships and continuing contact with Sarah’s paternal grandparents. She regularly sends photographs and other momentos that permit Mr. and Mrs. Coleman to keep track of their granddaughter’s physical and social development. Mr. and Mrs. Coleman frequently send Sarah gift packages, as well.

(20) Miller also enjoys a cordial relationship with Coleman’s sister. They exchange cards and small gifts on various occasions. Coleman’s sister once visited Miller and Sarah in South Carolina.

(21) Coleman likewise enjoys close relationships with his parents. He and Mr. Coleman have lunch together every afternoon, and he visits his mother regularly.

(22) Coleman also sees Miller’s mother and stepfather regularly and recently installed cabinets in their home.

(23) Miller’s contact with her mother is limited to approximately one telephone conversation each month, and she talks to her brother only about once a year — at Christmas time.

(24) Besides the fact that his daughter lives there, Coleman has no other contacts with the state of Washington.

(25) By letter dated November 13, 2006, Coleman, through his attorney, indicated his desire to see Sarah over the holiday period and proposed a visit that would comport with the existing custody order and have Sarah back to her mother for Christmas. Miller did not respond to that letter.

(26) Coleman filed a petition for special relief and petition for modification of partial custody order on November 22,2006, requesting partial physical custody over the Christmas holiday and thereafter during holidays and summer vacations.

(27) By order of that same date, the court scheduled a mediation conference and tentative custody hearing for January 26,2007.

(28) By orders dated December 7, 2006, the court vacated its November 22, 2006 orders and scheduled a hearing on the motion to change venue on January 26, 2007.

DISCUSSION

The initial custody order of April 4,2001 was entered by this court in compliance with both the Parental Kidnapping Protection Act (PKPA) — 28 U.S.C. §1738A— and Pennsylvania’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — 23 Pa.C.S. §5401 et seq. See also, O’Gwynn v. Hebert, 878 A.2d 119 (Pa. Super. 2005). The question now arises, however, whether this court can and should retain jurisdiction to modify that order.

Section 5422 of the UCCJEA governs the question of continuing jurisdiction, providing that

“[ejxcept as otherwise provided ... a court of this Commonwealth which has made a child custody determination consistent with section 5421 [governing initial child custody jurisdiction] has exclusive continuing jurisdiction over the determination until:

“ (1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child’s care, protection, training and personal relationships; or

“(2) a court of this Commonwealth or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this Commonwealth.”

When the April 4,2001 order was entered, Sarah was nearly 5 years of age and had lived with her natural parents in Jefferson County, Pennsylvania from the time she was bom. Pennsylvania was thus her home state. Her current home state, where she has constantly resided since October 2005, is Washington. Nonetheless, the court concludes that because this case fits the criteria established in section 5422(a)(1), jurisdiction properly remains here.

While Sarah does not currently reside in Pennsylvania, she did for the first half of her life. She was born at Punxsutawney Hospital to two parents who had grown up in the area and eventually married. She remained here until she was 5 and would thus have significant medical and other records in Pennsylvania. Moreover, besides her current nuclear family, all of Sarah’s relatives reside in Pennsylvania, including her father, both sets of grandparents, and aunts and uncles. Coleman remains close with most of these individuals, who would become a part of Sarah’s life while she was with her father. That being the case, because nearly all of them live in or near Jefferson County, this court would be in the best position to ensure Sarah’s safety while here, facilitate any home studies or other procedures deemed necessary to accomplish that goal, and investigate any allegations or concerns that may arise in the future regarding Sarah’s well-being during her stays in Pennsylvania.

Significantly, all Coleman seeks is partial physical custody of Sarah — essentially a reasonable visitation schedule that would afford him time with his daughter during summers and holidays. He is not requesting a custody arrangement that would require him to enroll Sarah in school or acquire a primary physician to meet her health needs. Any information concerning such matters as the condition and appropriateness of Coleman’s residence, i.e., evidence concerning Sarah’s care, protection, training, and personal relations while with her father, can best be acquired and monitored in Jefferson County by Jefferson County personnel.

Skomo v. Skomo, 844 A.2d 1256 (Pa. Super. 2004), is instructive. There mother and father were married and minor child was bom in the state of Kansas. Id. at 1257. In 2001, mother and child relocated to Pennsylvania, where they lived for all but three months between then and the date of decision. Id. With a custody order from Kansas already in place, mother filed a custody complaint in Pennsylvania. Id. The trial court subsequently ruled that it did not have jurisdiction. Id. at 1258. Superior Court, acknowledging that Pennsylvania had become the minor child’s home state, nonetheless affinned the trial court’s ruling. Reviewing the PKPA, the Skomo court observed that custody remained in a deciding jurisdiction if its initial custody decree complied with the PKPA; it maintained jurisdiction over the decree under its own law; and at least one of the parties to the existing action resided within the jurisdiction. Id. at 1260-61. See also, In re Adoption of N.M.B., 564 Pa. 117, 128-29, 764 A.2d 1042, 1048 (2000) (same). All three criteria are satisfied here.

As discussed above, the April 4,2001 stipulation and consent order satisfied the PKPA’s requirements, and the order itself specified that this court would retain jurisdiction over the matter. Moreover, Coleman has lived in Pennsylvania, and specifically in Jefferson County, at all relevant times, including when he filed his petition for modification. Additionally, Coleman’s presence and the fact that Sarah still has a significant connection with the Commonwealth indicate that continuing jurisdiction is proper here.

For the above reasons, the court declines to relinquish jurisdiction over this custody matter.

ORDER

And now, February 7, 2007, for the reasons articulated in the preceding opinion, it is hereby ordered and decreed that plaintiff’s motion to change venue is denied. This court shall retain jurisdiction over the instant custody matter.

      . In another factually similar case, Wagner v. Wagner, 887 A.2d 282 (Pa. Super. 2005), the court declined continuing jurisdiction even though the initial custody order was properly entered in Pennsylvania. Id. at 282-83. Decisive there, however, was that the child, neither of the child’s parents, nor a person acting as a parent of the child still resided in Pennsylvania. Id. at 288.


author: COX, J,

text:
    Gibson v. Lawrence County Tax Claim Bureau

      C.P. of Lawrence County,
    no. 70076BB-2006.

      Larry J. Puntureri, for plaintiff.

      Thomas W. Leslie, for defendant.
    January 11, 2007
   COX, J,

Before this court for disposition is plaintiff Grant K. Gibson’s petition to set aside tax sale and uphold the objections/exceptions to delinquent tax sale. For the reasons set forth in this opinion, this court grants plaintiff’s petition and sustains the objections/exceptions to the delinquent tax sale.

FACTUALBACKGROUND

Lorraine M. Reeder and Michael Reeder, sister and brother-in-law of the plaintiff, were the owners of property situated at 2123 Portersville Road, Portersville, Lawrence County, Pennsylvania. The Reeders obtained the property in 2001. Subsequently, the Reeders failed to pay their 2004 real estate taxes and the property was subject to a tax upset sale, as the Lawrence County Tax Claim Bureau held their taxes as delinquent for that year. In January of 2006, prior to sending notice of the pending tax sale, the bureau performed a final update of their records of ownership. However, on February 9, 2006, the Reeders executed a deed to Grant K. Gibson, the plaintiff, which was recorded in Lawrence County Record Book Volume 1622, page 434 on February 16, 2006. On July 24, 2006, the bureau sent notice, in accordance with 72 P.S. §5860.602, to the Reeders, whom it believed to be the registered owners of the property. The property was also advertised in the newspapers and the Lawrence County Law Journal under the Reeders’ name. Additionally, the bureau posted notice of the tax sale on the property on September 6, 2006, as required by statute. Again, however, the posting listed the Reeders as the property owner. No notice was given from the bureau to the plaintiff and the record lacks any suggestion he ever received actual notice of the tax sale.

LEGAL ANALYSIS

Before commencing with a tax sale, the Due Process Clause of the Fourteenth Amendment requires that the tax claim bureau provide reasonable notice to apprise all interested parties of the pending action, thereby allowing them an opportunity to present their objections. See Rice v. Compro Distributing Inc., 901 A.2d 570 (Pa. Commw. 2006). To ensure that this requirement is fulfilled, 72 P.S. §5860.602 demands that the tax claim bureau provide three different types of notice before commencing with a tax upset sale: (1) publication in two separate newspapers and once in the legal journal, (2) posting of notice on the property to be sold, and (3) mailing notice to the owners of the property. Additionally, the burden is placed upon the bureau to show full compliance with the statute. Michener v. Montgomery County Tax Claim Bureau, 27 D.&C.4th 269, 271-72 (Montg. Cty. 1994). (citations omitted)

In the case at hand, evidence provided to the court indicated that the bureau posted notice on the subject property within the statutory time period. Additionally, both counsel acknowledged notice was published in two separate newspapers and the Lawrence County Law Journal. Furthermore, it was stipulated that the Reeders received notice of the pending sale via postal delivery. However, the central issues of this case are (1) whether the bureau had the duty to discover plaintiff was the owner of the property and (2) whether the bureau’s failure to provide the current owner’s information in its publications and posting, plus its failure to notify plaintiff via certified mail resulted in non-compliance with 72 P.S. §5860.602.

Under 72 P.S. §5860.102, “owner” is defined as:

“The person in whose name the property is last registered, if registered according to law, or, if not registered according to law, the person whose name last appears as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording and in all other cases means any person in open, peaceable and notorious possession of the property, as apparent owner or owners thereof, or the reputed owner or owners thereof, in the neighborhood of such property; as to property having been turned over to the bureau under article VII by any county, ‘owner’ shall mean the county.”

Under this definition, plaintiff is clearly the owner of the property. The facts demonstrate plaintiff duly recorded his deed in the Lawrence County Recorder of Deeds Office and, therefore, was the person in whose name the property was last registered according to the law. Defendant insists this information should not be attributable to its office because the bureau was last provided with an update on records of ownership in January of 2006. Defendant highlights the fact that the transfer of the subject property occurred subsequent to this latest update and, therefore, the bureau should not be required to discover this knowledge. Defendant contends that to require otherwise would be unduly burdensome on the bureau, given the fact that the office is understaffed and the time to research all properties subject to an upset sale and provide the owners with notice is quite extensive.

Although the court understands the constraints faced by the defendant, the argument must fail based upon established precedent. In In re Tax Claim Bureau, German Township, 64 Pa. Commw. 374, 379, 439 A.2d 1349, 1352 (1982), the court held, “While it is not incumbent upon the bureau to make an exhaustive search of current landowners, knowledge of the tax collector or of the county assessment office is chargeable to the bureau.” (citations omitted) Here, the tax assessment office would have had notice of the transfer of ownership due to the recording of the deed. Further, it is the county that gives such information, including new ownership of property, to the local tax collectors. Additionally, on July 13,2006, the Perry Township taxes and Ellwood City School District taxes were issued in the plaintiff’s name. In light of these facts, this court opines that the bureau could have updated its records through various sources before sending notice. Accordingly, this court finds the bureau’s contention that it is unduly burdensome to update records before sending notice of the pending tax sale contrasts the facts of the case as well as established precedent. Thus, knowledge of the property transfer is chargeable to the bureau.

Next, it must be determined whether defendant had the duty to provide plaintiff with notice of the upset sale. The court finds that the facts of Wells Fargo Bank of Minnesota v. Tax Claim Bureau of Monroe County, 817 A.2d 1196 (Pa. Commw. 2003), closely resemble the facts presented in the case at bar and, therefore, most effectively provides guidance on the issues presented. In that case, Wells Fargo Bank of Minnesota became the owner of the subject property on May 17, 2001. However, a deed to the property was not executed in favor of Wells Fargo until July 13, 2001. Additionally, the deed was not recorded until July 24, 2001.

On July 11, 2001, which was subsequent to the sale of the property to Wells Fargo but prior to the recordation of the deed, the Monroe County Tax Claim Bureau sent notice to the previous owner, Ms. Catherine A. Colarco, that the subject property would be sold at a tax sale on September 28, 2001 due to arrearages of taxes. Subsequently, Ms. Colarco executed a return receipt for the certified mail. Additionally, in accordance with 72 P.S. §5860.602, the Monroe County Tax Claim Bureau published the tax sale in the local newspapers and posted notice of the sale on the property, all indicating the owner of the property to be Ms. Colarco. On September 28,2001, the Monroe County Tax Claim Bureau sold the property. Then, on October 5,2001, the Monroe County Tax Claim Bureau sent notice to Wells Fargo that the property had been sold.

In response, Wells Fargo filed a petition to set aside the tax sale on the basis that (1) Monroe County Tax Claim Bureau failed to identify the proper owner in its publications and posting, (2) Monroe County Tax Claim Bureau failed to serve notice on the record owner, and (3) Monroe County Tax Claim Bureau failed to provide notice of the sale to Wells Fargo as required under section 602. Upon appeal of the trial court’s decision denying Wells Fargo’s petition to set aside the sale, the Commonwealth Court agreed with Wells Fargo and held that the Monroe County Tax Claim Bureau failed to comply with the notice requirements under 72 P.S. §5860.602. The court found that the published notice in the newspapers, as well as the posting on the property, were fatal because they incorrectly identified Ms. Colarco as the owner. The court acknowledged that the notice requirements of 72 P.S. §5860.602 need not be met when the taxpayer has actual notice, either implied or expressed, of the tax delinquency and scheduled sale. However, the court found that there was no evidence of actual notice on behalf of Wells Fargo, and therefore required strict compliance with 72 P.S. §5860.602. The court held that the Monroe County Tax Claim Bureau’s failure to identify Wells Fargo as the owner of the property in any of its publications and postings, as well as its failure to provide notice of the sale to Wells Fargo resulted in noncompliance with 72 P.S. §5860.602. Consequently, the court set aside the tax sale.

Similarly, in the case at hand, the bureau failed to identify the proper owner in any of its publications or posting. Additionally, the bureau failed to provide plaintiff, the owner of the property, with notice of the sale through certified mail. Moreover, there was no evidence that plaintiff had actual notice, either implied or expressed, of the tax delinquency or pending sale. Therefore, in light of Wells Fargo, supra, this court finds that the tax sale must be set aside.

In conclusion, this court finds that the tax sale must be set aside on the grounds that the bureau failed to comply with 72 P.S. §5860.602. This court holds that (1) knowledge of plaintiff’s ownership is attributable to the bureau and (2) the bureau’s failure to strictly comply with the notice requirements is fatal to the sale. Therefore, plaintiff’s petition to set aside tax sale is granted and the objections/exceptions to delinquent tax sale are sustained.

ORDER

Now January 11,2007, this case being before the court on January 2, 2007, for a hearing on the petition to set aside tax sale and objections/exceptions to delinquent tax sale filed by the plaintiff, with both parties appearing, the plaintiff, Grant K. Gibson, represented by counsel, Larry J. Puntureri, Esquire and the defendant, Lawrence County Tax Claim Bureau, represented by counsel, Thomas W. Leslie, Esquire and after a hearing held, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the petition to set aside tax sale is hereby granted and the objections/exceptions to delinquent tax sale are sustained.

(2) The tax sale for property formerly owned by Michael Reeder and Lorraine M. Reeder, husband and wife, now owned by Grant K. Gibson, situate at 2123 Porters-ville Road, Portersville, Lawrence County, Pennsylvania is hereby set aside and rendered null and void.

(3) Any deed transferring the property situate at 2123 Portersville Road, Portersville, Lawrence County, Pennsylvania as the result of said tax sale is hereby rendered a nullity.

(4) The Lawrence County Tax Claim Bureau shall return any monies paid to said bureau as the result of the tax sale directly to the attempted purchaser.

(5) The prothonotary shall serve a copy of this order of court upon counsel of record, Larry J. Puntureri, Esquire and Thomas W. Leslie, Esquire.

      .72 P.S. §5860.602(a).

      . 72 P.S. §5860.602(e)(3).

      . 72 P.S. §5860.602(e)(l). (emphasis in text added)

      .72 P.S. §5860.602(e)(3) requires that “[e]ach property scheduled for sale shall be posted at least 10 days prior to the sale.” The facts of this case show the posting occurred on September 6, 2006 and the delinquent tax sale was held on September 22, 2006 and, therefore, satisfying the 10-day requirement.

      . However, the newspaper and journal publications identified the owners as the Reeders and not the plaintiff.

      . Wells Fargo purchased the property at a United States Marshal’s sale, held to satisfy a default judgment in a mortgage foreclosure action brought by the bank against Catherine A. Colarco.

      . The facts of the case state that Monroe County Tax Claim Bureau’s records reflect that this was the first time Wells Fargo had been provided notice of the sale.


author: ZULICK, J,

text:
    Dewitsky v. Pittston Lumber and Manufacturing Co.

      C.P. of Monroe County,
    no. 5169 Civil 2006.

      John L. Dewitsky, for plaintiffs.

      Timothy E. Foley, for defendants.
    January 17, 2007
   ZULICK, J,

This matter is before the court on defendants Pittston Lumber and Manufacturing Co., Joseph N. Chairge Jr., and William E. Vinsko’s preliminary objections to the complaint of Mark B. and Michelle B. Dewitsky. Defendants allege that the Dewitsky s’ claims for punitive damages are legally insufficient and so request a demurrer be entered as to punitive damages only under Pa.R.C.P. 1028(a)(4).

The case originally arose as a result of vehicles colliding on State Road 940 in Tobyhanna Township, Monroe County, on August 2, 2004. That morning, Mr. Dewitsky was driving westbound in the westbound lane when Mario Calovi, an employee of Pittston Lumber and Manufacturing Co., was driving eastbound in the opposing lane. The Dewitskys allege that Mr. Calovi was under the influence of cocaine at the time, to a degree which “impaired his ability to safely and properly operate a motor vehicle.” Complaint, paragraph 18. Plaintiffs allege that this impairment led to his crossing into the westbound lane of travel and colliding head-on with the Dewitsky vehicle. Mr. Calovi died of his resulting injuries.

The Dewitskys filed suit for compensatory and punitive damages against Mr. Calovi’s employer, Pittston Lumber; Mr. Chairge, whom they allege to have operated as Pittston Lumber; and Mr. Vinsko, as the representative of Mr. Calovi’s estate. Defendants have filed a demurrer to the plaintiffs’ request for punitive damages, alleging that a “simple negligence” claim does not support that relief. For the reasons enumerated below, their objection is denied.

DISCUSSION

Under Pennsylvania law, a demurrer is a disfavored remedy except in circumstances where the absence of a legal remedy is certain:

“For the purpose of testing the legal sufficiency of the pleading, the demurrer admits all properly pleaded material facts, but not conclusions of law.... The court must be able to say with certainty that upon the facts averred, the law will not permit recovery; surmise and conjecture can play no part in the decision. . . . Any doubt should be resolved in favor of overruling a demurrer.” In re Estate of Luongo, 823 A.2d 942, 961 (Pa. Super. 2003). (citations omitted)

In evaluating defendants’ motion for a demurrer, I derive the salient facts solely from the allegations in the complaint and “accept as true all material facts as set forth in the complaint, as well as all inferences reasonably deducible therefrom.” R. W. v. Manzek, 585 Pa. 335, 339, 888 A.2d 740, 742 (2005), citing Bilt-Rite Contractors Inc. v. The Architectural Studio, 581 Pa. 454, 457, 866 A.2d 270, 272 (2005); and Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 343, 733 A.2d 623, 624 n.1 (1999).

Punitive damages are appropriate where a defendant’s conduct is “outrageous” or “recklessly indifferent” towards a plaintiff’s rights. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). With those principles in mind, I evaluate defendants’ objection as it applies to the Dewitskys’ claims against each of them in turn.

William Vinsko as Representative of the Estate ofMario Calovi

Mr. Vinsko is the personal representative for the estate of Mario F. Calovi Jr. The complaint alleges that, at the time of the collision in question, Mr. Calovi was under the influence of cocaine and/or benzoylecgonine. Complaint at 16,17. It is further alleged in the complaint that Mr. Calovi had used enough cocaine to impair his driving, causing him to enter the wrong lane and crash headfirst into Mr. Dewitsky. Id. at 21,22. Where a defendant was driving under the influence at the time of a collision to a degree which renders him incapable of safe driving, his impairment is per se sufficient to permit a plaintiff to bring a claim for punitive damages. Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970);Nunezv. Meckes, 43 D.&C.4th 557 (Monroe Cty. 1999) (Cheslock, J.). Mr. Dewitsky’s allegations of outrageous conduct are itemized at complaint, para. 22(a)-(r).

Count Two of the complaint sets forth a claim for vicarious liability against Pittston Lumber and Manufacturing Co. Where an employee is liable for punitive damages, an employer is also vicariously liable under Pennsylvania law if the employee’s tort occurred within the scope of his employment. Lake Shore & Michigan Southern Ry. Co. v. Rosenzweig, 113 Pa. 519, 6 A. 545 (1886); Dean Witter Reynolds Inc. v. Genteel, 346 Pa. Super. 336, 348, 499 A.2d 637, 643 (1985). Just as the allegations in the complaint were sufficient to support a claim for punitive damages against Mr. Calovi, they are sufficient to support such a claim against Pittston Lumber where it is alleged that the employee was acting within the scope of his employment at the time. In Count Three, negligence, the complaint alleges, inter alia, that Pittston Lumber (presumably through its agents) knew or should have known that Mr. Calovi was under the influence of drugs on the day of the collision. Complaint at 72(a)-(b), (i). If these allegations were proven at trial, a reasonable jury could find that allowing a driver to take a company vehicle out on the road while visibly high on cocaine demonstrates reckless indifference.

Joseph Chairge

The complaint alleges in Count Four, vicarious liability, that Mr. Chairge “does business as Pittston Lumber.” Id. at 3. Consequently, he may be vicariously liable as Mr. Calovi’s employer just as Pittston is. In Count Five, negligence, plaintiffs’ complaint alleged the same facts about Mr. Chairge that it alleged about Pittston lumber: that he knew or should have known Mr. Calovi was under the influence of drugs on the day of the collision. Complaint at 118.

Plaintiffs have raised factual allegations which, if established at trial, would be sufficient to support recovery for punitive damages for outrageous or recklessly indifferent conduct against Pittston Lumber, Joseph N. Chairge, and William E. Vinsko Their objections are therefore denied.

ORDER

And now, January 17, 2007, it is ordered that defendants’ preliminary objections to plaintiffs’ complaint are denied. Defendants are directed to file an answer to plaintiffs’ complaint within 20 days.