author: HODGE, J.,

text:
    Blackshear v. Blackshear

      C.P. of Lawrence County,
    No. 10999 of 2013 CA

      Plaintiff, pro se.

      Deborah A. Shaw, for defendant.

      Joanne D. Nene, guardian ad litem.
    March 17, 2015
   HODGE, J.,

This case was before the court for a custody trial following the filing of defendant’s petition for special relief and modification of custody. The plaintiff, Aisha L. Blackshear (hereinafter, “mother”), and the defendant, Damon L. Blackshear (hereinafter, “father”) are the natural parents of the subject minor child, Aliya Blackshear, bom August 31,2002. Both mother and father desire primary physical custody of Aliya. Prior to reaching the merits of the parties’ requests, the court will provide the following summation of the relevant procedural and factual background.

Mother and father were married on October 18, 1996 and separated on August 1, 2013. Mother and father have four children together, an adult daughter, Latisha Blackshear; Miyah Blackshear, bom May 30, 1996; Damiane Blackshear, bom December 15,1999; and Aliya Blackshear, bom August 31,2002. The parties’ competing requests for primary physical custody only apply to the youngest child, Aliya. Following the parties’ separation, mother moved to Austintown, Ohio with Aliya while father remained in New Castle, Pennsylvania. Mother and father then entered into a custody agreement, whereby mother would enjoy primary physical custody of Aliya, and father would enjoy partial custody every other weekend. Father retained primary custody of Miyah and Damiane. The parties’ agreement permitted all of the minor children to be together with the custodial parent every weekend. This agreement was filed of record on October 11, 2013.

In February of 2014, mother informed father that Aliya wished to return to New Castle, Pennsylvania and live primarily with father. Father agreed to this arrangement and enrolled Aliya into the New Castle Area School District for the remainder of the academic year. From February 2014 through November 2014, father retained primary custody of Aliya. Mother exercised partial custody every other weekend. On November 23, 2014, following the Thanksgiving Holiday, mother refused to return the minor child to father’s custody.

On December 5,2014, father filed a petition for special relief and modification of custody order requesting that the court modify the October 11, 2013 consent custody order to reflect the current agreement entered into by the parties whereby father maintained primary custody of Aliya. After considering father’s petition, the court directed the parties to comply with the October 11, 2013 custody agreement pending a conference. Mother was directed to ensure that the minor child continue to attend school in the New Castle Area School District if mother chose to exercise primary custody. Following a custody conference, a temporary custody order was entered granting father primary custody and providing mother with partial custody every other weekend. Additionally, a custody trial was scheduled before this court on March 11, 2015. The parties’ competing requests for primary physical custody of Aliya are presently before the court for a determination.

In any custody proceeding, the court’s main concern is the most appropriate custody arrangements for the minor child. 23 Pa.C.S.A. §5327(a); K.B. v. C.B.F., 833 A.2d 767, 111 (Pa. Super. 2003). In a custody contest, such as the case now before the court, where the dispute arises between two parents, the burden of proof is shared equally between the parties, as the court will not presume that custody should be awarded to a particular parent. Id.

In making a determination, the court bases its findings on how the best interests of the child may be served. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). It is axiomatic that the paramount concern in a child custody case is the best interests of the child, and the court makes its determination based upon a consideration of all factors legitimately affecting the child’s physical, intellectual, moral and spiritual well being. Id.

At the time of the custody trial, mother appeared pro se. Mother failed to file a pre-trial statement, custody inquiry form or criminal report and abuse verification form, despite specific direction to do so from this court on December 22,2014. Father did comply with the December 22, 2014 order and filed the necessary forms prior to the custody trial.

Mother’s testimony to the court was limited, and it did not address many of the statutory factors considered by the court in a custody action. Mother testified to the following: when Aliya requested to live with father in February 2014, it was because Aliya was having a hard time adjusting in school. Mother expected to resume primary custody of Aliya prior to the 2014-2015 academic year. Mother stated that she tried to enroll Aliya in the Austintown Area School District, but then the December 5, 2014 order of court directed mother to transport the minor child to school at the New Castle Area School District. Mother stated that even if she is not awarded primary custody of Aliya, she would like to have additional time with Aliya on the weekends.

The court summarizes father’s testimony as follows: father is remarried. Father lives with his wife, her two children, and father’s three minor children. Father’s household accommodates his large family. Aliya is very close to father and her siblings and step-siblings. Aliya is also close with her step-mother. Aliya excels academically, and she is involved in several extra-curricular activities including volleyball and her youth group.

Father is presently unemployed. Father receives social security income and social security disability. Father is attempting to resume employment, and he is taking classes to obtain a job. Father is very active in his role as primary caregiver, and father desires to continue in this capacity. Father does not oppose providing mother with partial custody every other weekend, provided that she is responsible for transportation.

In addition to the testimony presented by the parties, in all custody proceedings, a court must consider the statutory factors set forth in 23 Pa.C.S.A. §5328(a); see also B.K.M. v. J.A.M., 50 A.3d 168 (Pa. Super. 2012)(holding that “best interests of the child” analysis requires consideration of all Section 5328(a) factors). The court will address each of these factors in the following discussion.

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

Father and mother both encourage and permit contact between the other party and the minor child. When mother has custody of the child, the child is permitted to contact father and vice versa. Additionally, in her report to the court, attorney Nene, the guardian ad litem, stated that neither parent speaks discouragingly about the other parent in the presence of the child.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

There has been no evidence regarding abuse committed by either party.

(3) The parental duties performed by each party on behalf of the child.

Both mother and father perform all the necessary tasks associated with raising the minor child when they are exercising custody. Mother and father both played a strong role in caring for the minor child during their marriage. Mother and father both demonstrate a willingness to continue to care for Aliya.

(4) The need for stability and continuity in the child’s education, family life and community life.

This is a very important factor in the court’s analysis. Aliya experienced a disruption in her household routine in December of 2014 following this court’s December 5, 2014 order of court. The court was unwilling to deviate from the current custody order prior to the parties appearing before the custody officer. To her credit, mother ensured that Aliya attended school daily, despite the commute to New Castle from Austintown.

The prior transfer of primary custody resulted from Aliya having a hard time adjusting to school in Austintown, and the testimony establishes that she is excelling both academically and socially at father’s residence. Consequently, this factor weighs in father’s favor because if he were awarded primary custody, the corresponding schedule would be more consistent with the status quo and common routine Aliya presently enjoys.

(5) The availability of extended family.

Father and stepmother have a large extended family in the New Castle area. The majority of mother’s extended family is also in the New Castle area.

(6) The child’s sibling relationships.

Aliya has three siblings and two step-siblings. All of Aliya’s siblings reside with father, with the exception of her oldest sister, Latisha, who also lives in the New Castle area. Father stated that Aliya is very close to all of her siblings, and consequently, a custody award in father’s favor would promote these relationships.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

The testimony offered by father and the report of the guardian ad litem indicate that Aliya desires to remain in her father’s household. Aliya maintains a strong connection to the New Castle community because she has friendships and various activities in the area.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

The testimony presented did not include evidence to support a finding regarding a party’s attempt to turn the child against the other parent. The court will not consider this factor in its determination.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

Both mother and father are able to provide the minor child with a loving and stable environment. Furthermore, the court is satisfied that both mother and father care for the minor child’s emotional needs while she is in their custody.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

Similar to the court’s determination under subsection nine, both mother and father are able to attend to the minor child’s daily needs. The testimony does establish, however, that Aliya has performed better in the New Castle Area School District, while residing with father, than she did while attending school at Austintown, while at mother’s residence.

(11) The proximity of the residences of the parties.

The parties reside approximately forty minutes apart. They live in different states and different school districts. While the court does not believe the distance between mother’s residence and father’s residence creates a substantial impairment to either party’s ability to exercise custody, it does require that one party exercise primary custody, especially during the academic year.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

The court is satisfied that both parties are able to care for the minor child while she is in their custody. Father’s testimony establishes that father has a stronger support system and is more available for the minor child on a daily basis. The court believes that mother is conclusively able to care for the minor child, but mother’s testimony was void of any facts to establish her ability to make appropriate child care arrangements while she is at work. Mother’s testimony also failed to address how mother could accommodate additional weekend visitation with Aliya when mother works two weekends out of the month.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

Each party testified that there is a high level of conflict and poor communication between them. Mother and father resort to text messaging one another regarding custody exchanges and Aliya’s schedule. Encouragingly, however, the guardian ad litem report indicates that Aliya is removed from any conflict between the parties, and is therefore affected minimally by this factor.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

There was no evidence presented with respect to drug or alcohol abuse by either party. Therefore, this factor will not be included in the court’s determination.

(15) The mental and physical condition of a party or member of a party’s household.

Mother and father did not present any evidence to this court which questioned the mental and physical condition of the opposing party.

After considering the testimony presented by the parties, in addition to completing the statutory analysis as set forth above, the court determines that the best interests of the minor child will be served by father maintaining primary custody of Aliya. The court believes that it is crucial for Aliya to continue to attend school in the New Castle Area School District because she has flourished academically there. Additionally, the court finds that Aliya has established an appropriate social structure within her community while residing with father, and the court does not want to disrupt the positive lifestyle Aliya currently enjoys. For these reasons, the corresponding custody order shall award father primary custody, subject to the partial custody rights of mother.

ORDER OF COURT

And now, this 17th day of March, 2015, the above captioned case having been scheduled for a custody trial, with the plaintiff/mother Aisha L. Blackshear appearing pro se, the defendant/father Damon L. Blackshear appearing with his attorney Deborah A. Shaw, Esquire, and with Joanne Nene, Esquire, appearing as guardian ad litem, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. The mother and father shall have shared legal custody of the minor child, Aliya Eve Blackshear bom August 31, 2002. Legal custody is the legal right to make major decisions affecting the best interest of the child. Major decisions affecting the child include, but are not limited to, health, medical, dental, orthodontic, mental health treatment, counseling, education, and religious training and upbringing. Except in the case of emergencies, the custodial parent shall consult with and obtain consent from the non-custodial parent. Shared legal custody does not give one parent final authority to make a decision in the event of a dispute.

Neither parent shall enroll the child into curricular or extra-curricular activities without prior notice to and consent from the other parent. Each shall consult with the other parent and receive consent from the other parent prior to enrolling the child in said activity. Each parent shall keep the other informed of the child’s activities, schedule, school events, and medical appointments. Each parent shall keep the other notified of all important issues regarding the minor child.

Both parents shall have the right to obtain and review all records of the child, including, but not limited to, medical, dental, psychiatric, educational, and religious, in accordance with Title 23 Pa. C.S.A. §5336. The parents 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, mental health reports, counseling reports, insurance documents, and documents related to state, local, or federal authorities. This order shall serve as a release to any medical, mental health and counseling, educational or religious provider to release reports/information to both parents. Pursuant to Title 23 Pa. C.S.A. §5336, both parents have access to the child’s records and information.

2. The defendant/father, Damon L. Blackshear, is awarded primary physical custody of the minor child, Aliya Eve Blackshear, subject to the partial custody rights of the plaintiff, mother, Aisha L. Blackshear, as outlined below.

3. Mother shall have custody of the minor child every other weekend beginning after school on Friday until 6:00 p.m. Sunday. Mother’s periods of partial custody shall coincide with mother’s weekends off.

4. Unless otherwise agreed, custody on holidays shall be as specified in paragraphs 4, 5, 6, 7 and 8 in the prior order of court dated October 11, 2013.

5. The holiday custody schedules shall supersede all regular periods of partial custody/custody including summer partial custody and custody periods.

6. The parties shall share the responsibility of transporting the minor child for custody exchanges. The party receiving the child shall be responsible for transporting the child. Transportation may be provided by a family member or someone well known to the child. All parties and anyone else involved with 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. The primary purpose of the exchange is to exchange the child, and not to communicate regarding custody issues.

7. Plaintiff/mother shall immediately file a criminal report or abuse history verification form with the prothonotary of Lawrence County.

8. The parties may modify the terms of this custody order, as they both agree from time to time. One parent shall not modify any provision without the consent of the other.

9. 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 and to comply with all provisions contained in the order(s). All communications regarding custody issues shall take place directly between parents, never using their child as an intermediary.

10. While in the presence of the child, neither the father nor the mother shall make any remarks or do anything which can in any way be construed as derogatory or uncomplimentary to the other, and it shall be the duty of each parent to uphold the other parent as one whom the child should respect and love. To the extent possible, each party shall not permit any other person from making derogatory comments in the presence of the child. Each parental figure shall refer to the other by the appropriate role names such as mom, dad, your grandmother, etc.

11. Lawrence County retains jurisdiction of this custody case. Neither party shall remove the child from the jurisdiction of this court with the intent of changing the physical residence of the child without the written consent of the other party or approval of the court. No relocation, as defined in Title 23 Pa. C.S.A. § 5322, with the minor child shall occur without the consent of every person who has custodial rights to the minor child, or without approval of the court. Any person desiring to relocate with the minor child must comply with the obligations of Title 23 Pa. C.S.A. § 5337, including, but not limited to, providing the required sixty (60) day notice.

12. A review conference may be scheduled upon motion of either party.

13. The parties shall abide by the terms of the appendix attached hereto, incorporated herein, and made a part hereof. The parties shall read the appendix immediately and shall familiarize themselves with the provisions contained therein.

14. The parties are obligated to notify the prothonotary of Lawrence County of any change of address.

15. The prothonotary shall be responsible for properly serving a copy of this order upon all counsel of record, and unrepresented parties in this action, in accordance with Pa.R.C.P. No. 236, and Rule L 236.


source: Caselaw Access Project

author: ANDERSON, J.,

license: Public Domain

text:
    Fredericks v. Sagan

      C.P. of Lycoming County,
    No. 14-00,456
    March 12, 2015
   ANDERSON, J.,

OPINION AND VERDICT

Before the court is plaintiff’s request for a judgment for sums allegedly owed based on an oral loan agreement as memorialized in two writings in October 2013. A trial was held on March 12, 2015. The matter is now ripe for decision and the court enters the following:

FINDINGS OF FACT

1. Defendant owns a residence in Linden, Pennsylvania, and in October 2013, Char Fredericks, the daughter of plaintiff, resided in that residence with defendant. The children of Char Fredericks and defendant also lived in the residence.

2. In October 2013, defendant and Char Fredericks were in the process of renovating the residence and needed money to complete the renovations.

3. Char Fredericks had attempted to obtain the money through a bank but was unsuccessful so she asked her father for a loan of the money.

4. Plaintiff agreed to loan the money but asked for a writing to ensure that he was re-paid.

5. Char Fredericks drafted a written “Loan Agreement” dated October 1, 2013, in which defendant agrees to “repay the total loan amount of 15,500.00,” agrees to “make bi-weekly payments to Charles Fredericks in the amount agreeable to all parties,” and agrees to “take over full re-payment of the loan if at anytime (sic) their (sic) may be a separation between Char Fredericks and [Defendant] and she vacates the property.” Defendant signed this document on October 4,2013. Char Fredericks then had the document notarized.

6. Char Fredericks provided the October 4, 2013, document to plaintiff and he gave her $5,500.00 in cash. Char Fredericks deposited $ 1,300 of the cash in defendant’s separate account, $3,100 in the joint account she held with defendant, and the rest in her separate account.

7. Plaintiff requested a further document to ensure not only that he would be re-paid but that any personal property he had given to Char Fredericks would be returned to him if the relationship between Char Fredericks and defendant ended.

8. Char Fredericks drafted a second written “Loan Agreement” which is undated but was notarized on October 17, 2013, in which defendant acknowledges “receiv[ing] a total loan amount of $15,500.00 from [Charles Fredericks]” and that the loan was in order to “finish renovations of [defendant’s] home.” He also agrees to “repay the total loan amount on a bi-weekly payment schedule at a rate agreed upon by the lender and borrowers,” and that “[i]n the event that Char and Eric shall separate, Eric promises to continue to repay the loan to Charles Fredericks as promised.” The document also provides that “Eric promises that he will allow Char to regain control of all articles in the home that are rightfully hers without conflict.”

9. The second document was taken by Char Fredericks to the notary without defendant’s signature. Char Fredericks told the notary defendant had said she could sign it on his behalf. The notary called defendant and asked if he had given Char Fredericks permission to sign the document on his behalf and defendant acknowledged that he had. Char Fredericks then signed the document on defendant’s behalf and it was notarized.

10. Char Fredericks provided the second document to plaintiff and he then gave her $10,000.00 in cash. Char Fredericks deposited the $10,000.00 in the joint account on October 17, 2013.

11. Defendant told plaintiff they (he and Char Fredericks) would make sure the loan was re-paid, at a family Halloween (2013) party.

12. Char Fredericks separated from defendant and she and the children left the residence in mid-December 2013.

13. The $15,500 was used to finish the renovations on defendant’s home.

14. No payments were made to plaintiff by either defendant or Char Fredericks from October 17, 2013, through the date of separation.

15. No payments were made to plaintiff by defendant since the separation in December 2013.

DISCUSSION

Considering all the evidence, it is clear that plaintiff made a loan of $15,500 to his daughter and defendant and the parties had an oral agreement that the amount loaned would be re-paid, albeit under rather loose terms. It is also clear that the monies were used to renovate defendant’s home.

Defendant argues that because the two written documents were not properly notarized, he is somehow no longer responsible for re-paying the loan. Even if the notarization affected the document’s enforceability, which the court does not believe to be the case, defendant’s obligation rests in his oral agreement, and not on the documents. The documents simply memorialize the oral agreement.

Defendant also argues that he had no negotiations with plaintiff about the loan, but that, too, is not necessary. Char Fredericks, acting on behalf of both herself and defendant, negotiated with plaintiff for the loan, and defendant’s acquiescence in that process, and subsequent agreement with the outcome, makes him as liable to re-pay the loan as if he had himself negotiated such.

Even if defendant is correct and no enforceable contract has been expressed or can be implied, defendant is nevertheless liable to plaintiff under the theory of unjust enrichment. The elements of unjust enrichment are (1) a benefit conferred on a defendant by a plaintiff, (2) appreciation of such benefit by the defendant, and (3) acceptance and retention of such benefit under such circumstances that it would be inequitable for the defendant to retain the benefit without payment of value. Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., 933 A.2d 664 (Pa. Super. 2007). These elements are all clearly present in this case. Defendant has had the value of his home improved by the investment of the funds given to him by plaintiff, defendant is retaining his home and thus the improvements, and defendant knew the money was being given as a loan which was expected to be repaid by him. It would thus be inequitable for defendant to retain the improvements to his home without paying the money invested to plaintiff.

Finally, the court notes that defendant argued that not all of the monies loaned went into the renovations. Defendant offered no evidence whatsoever, however, to justify any finding that a particular amount was spent on something that did not benefit defendant. Therefore, the court will accept Char Frederick’s testimony that all of the money was used for the renovations.

The only remaining issue is the remedy to be provided. Had defendant made any sort of regular payments to plaintiff, the court might be able to infer an agreement as to the amounts which were to have been paid and fashion the award based on those payments. In light of defendant’s complete breach of the agreement, however, and further, under a theory of unjust enrichment, the court will enter an award for the entire loan proceeds.

Accordingly, the Court draws the following:

CONCLUSIONS OF LAW

1. Defendant breached an oral agreement with plaintiff for the re-payment of $15,500 loaned to him and Char Fredericks.

2. Alternatively, defendant has been unjustly enriched by accepting and retaining the $15,500 loaned to him and Char Fredericks by plaintiff, without re-payment to plaintiff.

VERDICT

And now, this day of March 2015, for the foregoing reasons, the court finds in favor of plaintiff and against defendant. Judgment in the amount of $15,500.00 is hereby entered in plaintiff’s favor and against defendant.

      . The notary is Char Frederick’s aunt.

      . Notarization was not even necessary.


author: WILLIAMSON, J.,

text:
    Guardibascio v. Guardibascio

      C.P. of Monroe County,
    Nos. 6657 CV 2012, 1366 DR2010

      Pro se plaintiff.

      Pro se defendant.
    Oct. 23, 2014
   WILLIAMSON, J.,

This matter comes before the court on the petition for contempt filed by Joseph Guardabascio, Jr. (father) filed June 17, 2014. Father’s petition alleged that Robin Guardabascio (mother) refused to allow the parties’ then 15 year old daughter, Olivia, to have a scheduled visitation pursuant to the existing court order, on Father’s Day, June 15, 2014. Father also alleged mother allowed Olivia to obtain a job without consulting him as her father. Father also requested modification of the prior custody order filed by a separate petition on June 17, 2014.

Both matters were scheduled and heard by the custody conciliator on July 3, 2014. Following a conference with both parties, the custody conciliator made a recommendation that was adopted as an order of this court on July 18, 2014 addressing the requested modification. The court order set father’s physical custody periods as every other weekend from Friday at 6:30 p.m. until Sunday at 6:00 p.m., beginning July 11, 2014. As an apparent accommodation to the parties, due to Olivia’s work schedule, father’s period of partial physical custody of Olivia in July and August 2014 consisted of the August 22, 2014 weekend only. The matters giving rise to the contempt petition could not be resolved and a hearing was scheduled before this court on October 14, 2014,

At the time of the contempt hearing, both parties were present. Father testified that in addition to the matters raised in his contempt petition, mother had also refused to exchange the children for his scheduled weekend of September 5, 2014. Mother testified this was due to a church activity the children wanted to participate in on Sunday, September 7, 2014.

The parties reside more than two (2) hours apart. Father lives in Tannersville, Pennsylvania and mother lives in Toms River, New Jersey. Father testified that when he became aware that Olivia was working at a resort job for the summer, that may entail working on weekends, he tried to confirm in advance she would still visit the weekend of June 13,14 and 15. That weekend was father’s weekend for custody as well as Father’s Day on June 15, 2014. Additional testimony was that Olivia did not want to miss work, and she had chosen her schedule months in advance to be Thursday through Sunday. The parties then discussed Olivia getting off on Father’s Day (Sunday June 15, 2014) to go to father’s house. However, father and mother could not reach an agreement as to the times, because father suggested a three (3) hour timeframe and Olivia did not want to incur the travel distance involved for such a short period of custody. As a result, Olivia did not go to father’s house for Father’s Day or for the rest of that weekend.

In reviewing father’s claims, we note that the September incident is not before the court by petition. However, we will address it upon the oral motion of father because it fits the overall problems mother and father are having in their lack of communication and failure to work together to resolve issues that invariably come up in any custody situation. Rather than discuss and resolve, both parents point to some other reason or excuse to justify actions.

For example, father has an issue with mother regarding Olivia’s choice to work rather than see him on an allotted weekend that included Father’s Day. However, father seems to understand his daughter’s wish to work, her weekend schedule due to the type of work, the commitment she has made, and he attempted to accommodate with a visit on Father’s Day only. Unfortunately, the issue of making that visit a reality centered more with father and Olivia’s preferences for the timing of the visit, and less to do with father and mother disagreeing with each other. Father also took issue in his petition with mother’s failure to consult him on Olivia’s decision to work, despite appearing unaware she worked there last year as well.

Mother reacts similarly to father. For example, she minimized the fact she did not send the kids to father for his weekend in September, because father had not taken the children for all of his allotted time in the past. Also, the event was a church event on a Sunday only, but mother and father could not find a compromise for the rest of the weekend. It does not appear that mother considered or asked father to simply return the children early to attend the church function.

There is no dispute the children did not go to father’s on his weekend of custody in September, nor did Olivia go on father’s weekend, including Father’s Day, in June 2014. We agree that father did not get his time of custody pursuant to the court order. We agree with the recommendation of the custody conciliator, and ordered by the court, to try and resolve the issue of Olivia working, with only a visit in August. But these two (2) instances are the type of matters that should be resolved by the parties, with some give and take by both. They are not matters, unless taken in a different context, or in a repeat manner, that the court need take action or be involved.

For instance, Olivia (age 16) is at a time in her life where she is going to be involved in many things and with different priorities in her mind. The parents will need to encourage and foster the positive things in her life that are important to her, including working. The court understands father’s desire to see his daughter over the summer per the court order. However, we also understand a summer job for a teenager can be important, both to them, and for the responsibilities it bestows. One of the problems present here is the distance mother and children live from father. It prevents making up the time when the kids have other things to do. This prevents frequent contact and quality custodial time for both parents. It is also noted that Olivia, a teenager close to becoming an adult, is likely less inclined to cooperate in doing things she does not want to do. It is not an excuse; but, it is a reality with which parents have to reconcile. On the one hand, a father will want to spend time with a teenage child, but on the other, faces potential alienation if preventing the teen from doing things, like working.

This is the same for the children’s church activity in September 2014. In a perfect situation, the children would have the activity on mother’s weekend of custody, or father would live close enough to take them himself during his custodial time. As that was not possible in these two (2) instances the parties need to work together to make concessions for the benefit of each parent as well as the children. No custody order can address every circumstance that will arise. To remain absolutely rigid in following an order, will result in either important events missed by children, or contempt petitions, or both. There has to be flexibility by both parties to serve both the best interests of the children and to avoid conflict.

We find that mother is in contempt of the plain language of the custody order for the missed weekend in September 2014. We decline to find mother in contempt for failure of Olivia to go to father’s weekend and Father’s Day in June 2014, or for failing to consult father before Olivia obtained employment. We will grant father one additional weekend of custody in November or December 2014 of his choice as a result.

It also was apparent to the court that the parties are unable to communicate with each other. We believe both parties can try harder and make attempts to communicate for the benefit of their children. However, we will also order that the parties participate in the Our Family Wizard program to communicate and document their communication attempts with each other.

ORDER

And now, this 23rd day of October, 2014, following a contempt hearing, the court hereby finds the defendant, Robin Guardabascio to be in contempt of court. It is the order of this court as follows:

1. Plaintiff, Joseph Guardabascio, Jr., shall have one additional weekend of custody of his choice in either the months of November 2014 or December 2014 that would have been a weekend of custody of the defendant, Robin Guardabascio, under the current custody order;

2. The parties shall within ten (10) days hereafter, engage the services of Our Family Wizard for communicating and scheduling custody. The parties should take note of the ability to request and consider changes to the current custody schedule and trading dates/ times as necessary. The parties shall utilize this program, but are encouraged, in addition to the program, to have further communication in attempts to accommodate their children’s schedules as well as their own. The court administrator shall immediately send the information on Our Family Wizard to both parties.


text:
    Hortsman v. Hortsman

      C.P. of Monroe County,
    No. 8391 CIVIL 2014
    Feb. 5, 2015
   WILLIAMSON, J.,

This matter comes before us on preliminary objections filed by Richard Horstman (hereafter “defendant”) to the complaint filed by Graceann Horstman (hereafter “plaintiff”). Plaintiff filed the underlying complaint on November 13, 2014. Defendant filed preliminary objections to plaintiff’s complaint on December 9, 2014 alleging legal insufficiency of the claim and lack of subject matter jurisdiction. On December 16, 2014, plaintiff filed a petition for examination of defendant. Defendant filed a brief in support of preliminary objections on January 26, 2015. Plaintiff filed a brief in opposition of preliminary objections on January 20, 2015.

BACKGROUND

The defendant in this case is plaintiff’s father in-law and plaintiff is married to defendant’s son Michael. Plaintiff alleges that, on July 16, 2014, after the filing of a protection from abuse order against Michael, plaintiff returned to her home to recover her personal property. Plaintiff then discovered defendant at the home carrying out items from the home which she claims are her personal property.

Plaintiff attached as an exhibit to the complaint, a list of the items which she alleges defendant carried out of the home. One of the items was an Apple computer which was a gift from Michael for plaintiff’s birthday, along with photography software and pictures. The other items on the list include a variety of clothing items, a suitcase, jewelry, cosmetic items, and a professional Nail Tech bag with supplies.

Plaintiff filed the underlying complaint seeking replevin and damages for the items which she alleges defendant is in wrongful possession of at this time. Defendant states that he is not in possession of the items. He also argues that his son is also an owner of the property in question and it is marital property to be distributed in a divorce action.

DISCUSSION

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. Haun v. Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011). Moreover, “preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Id. Finally, “if any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.” Id.

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Pennsylvania has chosen a “dual classification” system of equitable distribution, in which the court must distinguish between property that is marital and that which is separate before the court equitably divides the marital property. The line at times can blur, such as when separate property is shared or mixed with marital assets, and must often be settled on a case-by-case basis when there is some dispute. Drake v. Drake, 555 Pa. 481, 491, 725 A.2d 717, 721-22 (1999).

Marital property is defined as all property acquired by either party during the marriage and the increase in value of any non-marital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.l). However, marital property does not include: property acquired prior to marriage or property acquired in exchange for property acquired; and, property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property. 23 Pa. Cons. Stat. Ann. § 3501.

Replevin is a legal form of action ordinarily employed only to recover possession or value of specific personal property unlawfully withheld from the plaintiff, plus damages for its detention. Replevin is primarily a possessory action in which issues ordinarily are limited to plaintiff’s title or right to possession of goods. Brandt v. Hershey, 198 Pa. Super. 539, 182 A.2d 219 (1962). Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants. Pa.R.C.P. No. 2227(a); 12 PS. Appendix; Brandt v. Hershey, supra.

Here, plaintiff admits in the complaint that the Apple computer was a gift from her husband. PI. Compl. Ex. A. Since the Apple computer is admittedly a gift from plaintiff’s husband, this would be marital property not subject to an exception. Id. Given the holding in Brandt, plaintiff would need to j oin her husband as a plaintiff in an action seeking replevin for the Apple computer because they both have a joint interest in the marital property.

However, accepting plaintiff’s well-plead facts from the complaint as true, she states that the rest of the listed items are her own personal property. PI. Compl. Ex. A. Making a determination of whether these items are personal or marital property is not proper for this court at this stage in the proceedings. Using the standard for preliminary objections, this court must assume that the facts in plaintiff’s complaint are true. Thus, plaintiff has stated that the items taken by defendant, besides the Apple computer, are her own personal property, and therefore it is not necessary at this time to join her husband as a plaintiff in an action for replevin. Id. If it is later discovered that any of these other items besides the Apple computer are indeed marital property, plaintiff would have to join her husband as a plaintiff in the claim for replevin or begin the process of an equitable distribution pursuant to the divorce code.

Defendant’s preliminary objection of legal insufficiency is granted as to the replevin claim for the Apple computer which is admittedly marital property. Defendant’s preliminary objection of legal insufficiency of the replevin claim is denied as to all other items listed in Exhibit A of plaintiff’s complaint as plaintiff states that they are her personal property, subject to a factual determination.

In reviewing this case, if indeed the facts plaintiff has alleged are ultimately true, it is troubling that items may have been removed from the house while a P.F.A. was in effect. This is especially so in light of attorney Anders’ acknowledgement at oral argument, that most of the alleged missing items are the plaintiff’s clothes and undergarments.

ORDER

And now, this 5th day of February, 2015, upon consideration of the preliminary objections by defendant, Richard Horstman, to plaintiff’s complaint, defendant’s preliminary objections as to legal insufficiency, it is ordered and decreed as follows:

1. The preliminary objection as to the legal insufficiency of the replevin claim for the Apple computer is sustained and the claim in replevin as to the Apple computer is dismissed without prejudice.
2. The preliminary objection as to the legal insufficiency of the replevin claim for all other items listed in the complaint is overruled.


text:
    Navarra v. Navarra

      C.P. of Lawrence County,
    No. 10282 of 2013 CA

      Frank G. Verterano, for plaintiff.

      Jonathan Solomon, for defendant.
    March 17, 2015
   HODGE, J.,

Before the court for disposition is a motion for judgment on the pleadings filed on behalf of the plaintiff, Chrystie Clarke as Agent under a durable power of attorney for her mother, Sandra Navarra (hereinafter, “plaintiff”)- Defendant, Richard E. Navarra, is the step-sibling of plaintiff. Defendant, Paula R. Navarra, is Richard E. Navarra’s wife, and Navarra Insurance Associates, Incorporated is an insurance agency owned by Richard and Paula jointly.

The instant action commenced on March 20, 2013 when plaintiff filed a civil complaint against defendants, Richard Navarra and Paula Navarra, setting forth claims for contribution and breach of an implied-in-law contract. Plaintiff also set forth claims against Navarra Insurance Associates, Incorporated alleging breach of an implied-in-law contract, unjust enrichment and breach of an implied-in-fact contract.

According to the facts alleged in plaintiff’s complaint, on October 31,2002, PaulaNavarra, as president ofNavarra Insurance Associates, Incorporated (hereinafter, “Navarra Insurance”) obtained a loan from First Commonwealth Bank on behalf of the corporation. The principle amount of the loan equaled $550,000.00. The loan was guaranteed by Richard’s father and step-mother, Fred Navarra and Sandra Navarra, in addition to Richard Navarra and Paula Navarra.

On May 11,2010, First Commonwealth Bank demanded full payment of the outstanding loan balance. At that time, Fred Navarra and Sandra Navarra owned a certificate of deposit worth $200,000.00, which deposit was held at First Commonwealth Bank. When full payment of the loan balance was not received by First Commonwealth Bank, the bank applied the certificate of deposit against the balance and then obtained a judgment in the amount of $86,093.14 against Fred Navarra and Sandra Navarra on May 20, 2010. The $86,093.14 judgment was comprised of the loan’s remaining balance after application of the certificate of deposit, equaling $64,432.05, plus interests and costs, equaling $21,661.07. Thereafter, First Commonwealth Bank agreed to accept $55,000.00 in satisfaction of the judgment entered against Fred Navarra and Sandra Navarra. Fred Navarra paid $55,000.00 to First Commonwealth Bank using funds held by Fred Navarra and Sandra Navarra as tenants by the entireties.

On April 19, 2013, the defendants filed an answer and new matter to plaintiff’s complaint, as well as a complaint against Chrystie Clarke (“Clarke”) as an additional defendant. Chrystie Clarke filed preliminary objections to defendants’ complaint and new matter on May 13, 2013. Following oral argument, this court sustained the preliminary objections, and granted the defendants leave to file a more specific complaint against Chrystie Clarke individually within twenty days. The defendants were also directed to attach the applicable written agreements pertaining to the facts alleged in their amended answer to plaintiff’s original complaint, which also was to be filed within twenty days. On March 10, 2014, the twenty-day time period elapsed without the defendant having filed an amended complaint against Chrystie Clarke individually, or having attached the applicable written agreements to an amended answer. Chrystie Clarke was subsequently dismissed from the instant actions as an additional defendant.

On June 10, 2014, plaintiff presented a motion to strike defendant’s answer and new matter premised on their failure to file an amended pleading within the time requirements prescribed by this court’s February 18,2014 order. The court granted plaintiff’s motion that same date. On June 23, 2014, plaintiff filed the instant motion for judgment on the pleadings. Instead of filing a response as directed, the defendants filed an answer to plaintiff’s motion to strike defendants’ answer and new matter. In their answer [], defendants requested the court re-open the pleadings and provide defendants with an opportunity to amend the complaint against Chrystie Clarke, which was previously dismissed by the court. F olio wing oral argument on this issue, the court denied defendants’ request to reopen the pleadings, and defendants’ new matter filed on July 10, 2014 was stricken from the record. Presently, the only issue pending before the court is plaintiff’s motion for judgment on the pleadings.

In deciding a motion for judgment on the pleadings, the court may consider only the pleadings and any documents properly attached thereto. Pa.R.C.P. 1034; Bata v. Central-Penn National Bank of Philadelphia, 224 A.2d 174, 179 (Pa. 1966). Pleadings include: “(1) a complaint and an answer thereto, (2) a reply if the answer contains new matter, a counterclaim or cross-claim, (3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter, (4) a preliminary objection and a response thereto.” Pa. R.C.P. 1017. The moving party must “admit the truth of all the allegations of his adversary and the untruth of any of his own allegations that have been denied by the opposing party. Pfister v. City of Philadelphia, 963 A.2d 593, 597 (Pa.Commw.Ct. 2009) (internal citation omitted). “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hill v. Ofalt, 2014 Pa. Super. 17, 85 A.3d 540, 547 (2014) (citing Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009)). Only where there are unknown or disputed issues of fact after review of the pleadings should the court not grant a motion. See Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 176, 437 A.2d 1262, 1263 (1981).

Plaintiff correctly argues that the only pleading pending before this court is plaintiff’s complaint. Although defendants did file an answer and new matter on April 19, 2013, the same was stricken from the record following defendants’ failure to amend their pleadings as directed by this court on February 18, 2014. Thus, this court is bound to accept as true all material facts contained in plaintiff’s complaint, as well as all inferences reasonably deducible therefrom. In her brief to the court, plaintiff succinctly outlines the facts pled as follows:

1. The plaintiff is Sandra Navarra, an adult individual currently residing at 2250 Shenango Freeway, Hermitage, PA, 16148 (“Sandra”).

2. Sandra was married to Fred Navarra (“Fred”), an adult individual who, prior to his death, resided at 877 Phillips School Road, New Wilmington, PA, 16142, (“the Marital Residence”).

3. Fred died on July 24,2012.

4. Chrystie Clarke is the natural daughter of Sandra and her agent under a durable power of attorney, a true and correct copy of which is attached and identified as Exhibit “A”.

5. The defendants, Richard E. Navarra (“Richard”) and Paula R. Navarra (“Paula”), husband and wife, are adult individuals residing at 711 Trillium court, Wexford, PA, 15090.

6. The defendant Navarra Insurance Associates, Inc. is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal place of business formerly located at 16055 Perry Highway, Wexford, PA, 15090, and now located at 711 Trillium court, Wexford, PA, 15090 (“Navarra Insurance”).

8. On or about October 31,2002, Paula, in her capacity as President of Navarra Insurance, made, executed and delivered to First Commonwealth Bank (“the Bank”) in Lawrence County, Pennsylvania, a certain note in the principal amount of $550,000 (“Note”). Atrae and correct copy of the note is attached and marked as Exhibit “B”.

9. On or about October 31, 2002, Fred, Sandra, Richard and Paula executed and delivered to the Bank, an Unconditional Guaranty (“Guaranty”), pursuant to which Fred, Sandra, Richard and Paula unconditionally agreed to guarantee payment of the note to the bank. A true and correct copy of the guaranty is attached and marked as Exhibit “C”.

10. Navarra Insurance defaulted under the terms of the Note, having failed to make payments when due.

11. On May 11, 2010, the bank demanded under the Guaranty of Fred, Sandra, Richard and Paula payment of all amounts due.

12. Fred, Sandra, Richard and Navarra failed to make payment as required by the Guaranty and on May 20, 2010, the Bank confessed judgment against Fred and Sandra in the amount of $86,093.14 at No. 10754 of 2010, C. A. in the court of Common Pleas of Lawrence County, Pennsylvania.

13. Fred and Sandra maintained a tenancy by the entirety certificate at the Bank in Lawrence County, Pennsylvania, No. 01113000001912 (“the bank account”), in which there was deposited $200,000.

14. On or about May 10, 2010, the Bank in Lawrence County, Pennsylvania, set off $200,000 from the bank account and applied it to the note.

15. The principal balance due on the note after application of the $200,000 set off against the bank account was $64,432.05 together with interest and costs of $21,661.07 (“Note Balance”).

16. The Bank in Lawrence County agreed to accept $55,000 in full payment of the balance on the Note.

17. Prior to his death, Fred obtained $100,000 from tenancy by the entireties certificates of deposit in Huntington Bank, Lawrence County, Pennsylvania. Copies of the two certificates of deposit are attached hereto marked as Exhibits “D” and “E”.

18. Those funds were used to purchase two (2) annuities (“Annuities”), copies of which are not in the possession of the plaintiff.

19. When Fred died, the annuities, pursuant to order of court, were paid in trust to David Acker, Esquire, an attorney whose office is located in New Castle, Lawrence County, Pennsylvania.

20. $55,000 of the annuities were applied to the Bank’s accepted offer of settlement to extinguish the line of credit and paid to the Bank in Lawrence County, Pennsylvania.

24. Fred and Sandra paid a total sum of $255,000 ($200,000 set off against the bank account and $55,000 from the Annuity) on the Note as guarantors and as payment in full to the Bank.

25. Richard and Paula paid nothing.

32. Navarra Insurance was the beneficiary of the proceeds of the Loan.

33. Navarra Insurance was the beneficiary of the payment of the Note Balance.

34. Navarra Insurance and the plaintiff agreed that the guaranty obligation would be incurred but that Navarra Insurance would pay the loan.

35. The plaintiff and Navarra Insurance intended that plaintiff would not pay any part of the loan.

36. The plaintiff signed the Guaranty as a condition of the loan, not with the intent that it would be paid with tenancy by the entirety funds and without repayment from Navarra Insurance.

39. The plaintiff did not agree that tenancy by the entirety funds would be used to pay the entire amount required to pay off the loan.

42. Navarra Insurance benefitted from the payment of the funds from the tenancy by the entirety bank account and the annuity.

43. Navarra Insurance made no effort to and has not repaid any part of the funds paid for its benefit as set forth above.

Plaintiff’s Claim for Contribution (Count I)

Plaintiff’s claim for contribution is based on the allegation that Richard Navarra and Paula Navarra failed to pay one-half of the balance owed on the loan from First Commonwealth Bank. Plaintiff claims that, as co-guarantors of the loan, Richard Navarra and Paula Navarra were responsible for their proportionate share. Instead, Sandra and Fred Navarra paid the entire sum required to liquidate the loan upon Navarra Insurance’s default. Contribution permits such recovery when “[a] guarantor who has paid the full amount of a debt which also was guaranteed by another may obtain from the co-guarantor an amount sufficient to make the payment of both on the debt equal. In re Brueckner, 147 B.R. 685, 687 (Bankr.W.D. 1992) (citing Hoff v. Kauffman, 282 Pa. 471, 475-476, 128 A. 120, 121 (1925)).

As previously stated, the loan in question was guaranteed by Fred and Sandra Navarra, as husband and wife, and Richard and Paula Navarra, as husband and wife, in the event of a default by Navarra Insurance. Thus, each couple’s proportionate share of the loan was fifty percent.

Plaintiff’s Claims for Contract Implied-In-Law and Unjust Enrichment (Counts 2, 4 and 5)

A plaintiff may establish the existence of a contract implied-in-law or “quasi contract” by showing that (i) benefits were conferred on the defendant by plaintiff, (ii) there was an appreciation of such benefits by the defendant, and (iii) there was an acceptance and retention of such benefits which, under the circumstances, would be inequitable for the defendant to retain the benefit without payment of value. Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616, 622 (Pa. Super. 1999). “A quasi-contract imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement, when one party is unjustly enriched at the expense of another. An action based on a party being unjustly enriched is one sounding in quasi-contract (or a contract implied-in-law). Sevast v. Kakouras, 591 Pa. 44, 915 A.2d 1147, 1153, n. 7 (2007).

Unless specifically precluded by the written guaranty, the promise to answer for the debt of another is one of suretyship. 8 P.S.§1. The fundamental difference between a guarantor and a surety is the timing of when performance is required by the obligee. A surety is liable immediately upon default of the principal obligor, but a guarantor’s duty does not arise until reasonable efforts have been made by the creditor to collect the guaranteed debt from the principal. Keystone Bank v. Flooring Specialists, Inc., 518 A.2d 1179, 1184 (Pa. 1986). Furthermore, the legal implication which results from the existence of a suretyship is the implied promise of the surety to pay to the other that portion of the surety’s proportionate share paid by his co-guarantor or principal. Id. The implied promise rises to the level of a contract implied-in-law and is enforceable as such. Id.

The applicability of the doctrine of unjust enrichment is contingent upon the unique facts of the case. Discover Bank v. Stucka, 33 A.3d 82, 88 (Pa.Super. 2011) (quoting Stoeckinger v. Presidential Fin. Corp. of Delaware Valley, 948 A.2d 828, 833 (Pa. Super. 2008)). The question is not focused on the intention of the parties, but instead is whether or not the defendant has been unjustly enriched. Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa.Super. 1995). The recipient is unjustly enriched whenever the benefits received “have been obtained under circumstances where reason, common sense and justice dictate that payment should be made. Colish v. Goldstein, 73 A.2d 749, 750 (Pa. 1961) (internal citations omitted). Thus, a principal debtor is deemed unjustly enriched if he avoids the obligation to reimburse a guarantor-surety of his underlying debt. Upon the finding of unjust enrichment, the law implies a contract requiring the defendant to pay the equivalent value of the benefit conferred. Schenck, 666 A.2d at 327.

In the instant case, count two and count five of plaintiff’s complaint pertain to Navarra Insurance. Plaintiff asserts that the funds used by Fred Navarra and Sandra Navarra satisfied Navarra Insurance’s obligations under the loan with First Commonwealth Bank. Plaintiff further contends that Navarra Insurance was the sole beneficiary of this transaction. This arrangement permitted Navarra Insurance to benefit from the payments rendered by Fred Navarra and Sandra Navarra, without fulfilling the expectation that Navarra Insurance would ultimately repay the debt to Fred Navarra and Sandra Navarra. Thus, Navarra Insurance breached an implied contract and became unjustly enriched.

Count Four of plaintiff’s complaint applies to Richard Navarra and Paula Navarra. Richard and Paula Navarra are sureties to the original loan, and are therefore obligated to repay their proportionate share of the principle, which was originally paid by Fred Navarra and Sandra Navarra. Because the law permits recovery under the theory of an implied contract, plaintiff is entitled to relief.

Plaintiff’s Claim for Contract Implied-In-Fact (Count 3)

Lastly, plaintiff makes a claim for contract implied-in-fact against Navarra Insurance. The necessary elements of a contract implied-in-fact are the same as an express agreement. Matter of Penn Cent. Transp. Co., 831 F.2d 1221, 1228 (3d Cir. 1987) (citing 1 S. Williston on Contracts § 3 (3d ed. 1957)). A contract implied-in-fact exists where the parties agree upon duties or obligations incumbent upon each, irrespective of a written agreement, as their intentions are expressed by their acts in light of the surrounding circumstances. Rissi v. Cappella, 918 A.2d 131, 140 (Pa. Super. 2007); Tyco Electronics Corp. v. Davis, 895 A.2d 638, 640 (Pa. Super. 2006). The test for determining whether a contract implied-in-fact is enforceable is that both parties must “have manifested an intention to be bound by its terms and . . . the terms are sufficiently definite to be specifically enforced.” ATACS Corp. v. Trans World Communications, Inc., 155 F.3d 659, 665 (3d Cir. 1998) (internal citations and quotations omitted).

Navarra Insurance was the beneficiary of the funds borrowed from the First Commonwealth Bank, as well as the funds expended by Fred Navarra and Sandra Navarra to satisfy the loan. Fred Navarra and Sandra Navarra executed a guarantee for the loan, but maintained the expectation that Navarra Insurance would pay First Commonwealth Bank under the terms of the loan. Thus, plaintiff sufficiently alleges a contract implied-in-fact.

Based upon the foregoing analysis, the court will enter the attached order of court granting plaintiff’s motion for judgment on the pleadings.

And now, this 17th day of March, 2015, with this matter being before the court for argument on plaintiff’s motion for judgment on the pleadings, with Frank G. Verterano, Esq., appearing on behalf of the plaintiff, and with Jonathan Solomon, Esq., appearing on behalf of the defendants, and with the court considering the arguments contained in plaintiff’s brief, as well as completing a thorough review of the record in the above captioned case, the court hereby orders and decrees as follows:

1. Plaintiff’s motion for judgment on the pleading is granted.

2. Judgment is hereby entered in plaintiff’s favor against the defendants, Richard Navarra and Paula Navarra and Navarra Insurance Associates, Incorporated, in the amount of $255,000.00.

3. Defendants shall be joint and severely liable for payment of the judgment entered pursuant to paragraph two of this order of court.

4. Plaintiff shall be entitled to interest at the legal rate accruing from March 20,2013.

5. The Prothonotary shall properly serve notice of this order of court upon counsel of record for the parties.

      . The facts alleged are numbered by the court in the same manner as in plaintiff’s Complaint.


author: BELTRAMI, J.,

text:
    Roma v. Finney

      C.P. of Northampton County,
    No. C-48-CV-2014-8557

      Marc I. Simon, for plaintiff.

      Joseph G. McHale, for defendant.
    Feb. 23, 2015
   BELTRAMI, J.,

OPINION OF THE COURT

This matter is before the court on defendant’s preliminary objections to plaintiff’s complaint, which was filed on September 11, 2014. On October 24, 2014, the instant preliminary objections and an accompanying brief were filed by defendant. Plaintiff’s counsel did not file a brief, violating Northampton County Rule of Civil Procedure N211(c) and waiving any right to raise legal arguments in opposition to the preliminary objections. The matter is now ready for disposition.

The complaint alleges that on April 9, 2013, at or near the intersection of South Nulton Road and Stones Crossing Road, in Palmer Township, Pennsylvania, defendant’s vehicle rear-ended plaintiff’s vehicle, causing plaintiff to suffer bodily injury. (Compl. ¶¶ 3-5, 8-9(a).) Plaintiff alleges that defendant’s negligence and/or recklessness caused the accident and plaintiff’s injuries. (Id. ¶¶ 6, 9.) Plaintiff does not request punitive damages in her complaint.

Defendant objects to plaintiff’s use of the terms “recklessly,” “recklessness,” and “reckless” in the complaint, arguing that there are no facts pleaded in the complaint to support such language. Defendant’s preliminary objections are in the nature of a motion to strike impertinent matter, pursuant to Pa.R.C.P. No. 1028(a)(2). To be impertinent, “the allegations must be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pa. v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).

The complaint states a single claim for negligence.

Generally, “[njegligence is defined as the absence of care under the circumstances[.]” Brusis v. Henkels, 376 Pa. 226, 230, 102 A.2d 146, 148 (1954) (citations omitted). “The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act[.]” Id. (citations omitted). “It is axiomatic that the elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss.” Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003) (quoting Campo v. St. Luke’s Hosp., 755 A.2d 20, 23-24 (Pa. Super. 2000)).

Charlie v. Erie Ins. Exch., 100 A.3d 244, 250 (Pa. Super. 2014).

In a motor vehicle accident case, motorists are held to the same standard of reasonable care that applies to defendants generally across the law of negligence. See Fredericks v. Castora, 360 A.2d 696, 698 (Pa. Super. 1976). Recklessness, on the other hand, “is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1200 (Pa. 2012.)

[Tjhere is a distinction between negligence and punitive damages claims, with a plaintiff being required to meet a far lesser burden to establish a negligence claim than that which is imposed in connection with a punitive damages claim. This distinction is an important one. Damages awarded in a negligence action compensate a plaintiff for his or her losses. Punitive damages, in contrast, are not awarded to compensate the plaintiff for her damages but rather to heap an additional punishment on a defendant who is found to have acted in a fashion which is particularly egregious. Such a punishment should not be meted out to every defendant who is found to have acted negligently; rather, it should be reserved for those cases in which the defendant has acted in a particularly outrageous fashion.

Phillips v. Cricket Lighters, 883 A.2d 439, 446 (Pa. 2005) (citation omitted).

Here, plaintiff brings a negligence claim arising from a motor vehicle accident and does not request punitive damages. Therefore, to prevail, plaintiff need only show that defendant is responsible for the accident and resulting damages due to his breach of a negligence-based standard of care. As such, plaintiff’s claim does not require a showing of defendant’s recklessness, making allegations thereof immaterial to the proof of plaintiff’s cause of action. Accordingly, defendant’s preliminary objections will be sustained, and all allegations of recklessness will be stricken from the complaint.

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 23rd day of February, 2015, “defendant, Scott Finney’s preliminary objections to plaintiff’s complaint,” filed on October 24, 2014, are hereby sustained. The terms “recklessly,” “recklessness,” and/or “reckless” are hereby stricken from paragraphs 6, 7, 9,10, 12, and 13 of plaintiff’s complaint. Defendant shall file an answer to plaintiff’s complaint within twenty (20) days of the date of this order.

      . Defendant’s preliminary objections are endorsed with a notice to plead; however, plaintiff was not required to file a response because defendant’s preliminary objections raise issues that may be determined from facts of record. See Pa. R.C.P. No. 1028(c) note; Local Rule N 1028(c).


author: YATRON, P.J.,

text:
    Commonwealth v. Romanski

      C.P. of Berks County,
    No. CP-06-CR-0005156-2014

      Colleen Dugan, for Commonwealth.

      Jay M. Nigrini, for defendant.
    Feb. 25, 2015
   YATRON, P.J.,

Janet Lynn Romanski (“defendant”) stands before the court subject to a four count information charging two counts of possession of a controlled substance and two counts of conspiracy to commit that offense. Defendant filed a timely Omnibus Pretrial Motion on November 25, 2014, in the nature of a motion to suppress physical evidence seized from defendant’s purse after a vehicle stop. The parties agreed that the validity of the vehicle stop was not at issue.

Hearing was held on December 30, 2014, at which time we heard testimony from Officer Zachary Martz of the Reading City Police Department. After the hearing, we ordered the transcription of the notes of testimony and gave counsel two weeks from the lodging of the notes during which time briefs or memoranda of law could be submitted.

The notes of testimony were lodged on January 2, 2015. Neither counsel availed himself of the opportunity to file briefs of argument or authorities in support of their respective positions.

The matter is thus ripe for adjudication. What follows are our findings of fact and conclusions of law in disposition of defendant’s Omnibus Pretrial Motion.

FINDINGS OF FACT

1. On or about May 5,2014, at approximately 9:41 p.m., Officer Zachary Martz, a two and one-half year veteran of the police force of the City of Reading, conducted a traffic stop in the 900 block of Cotton Street in the City of Reading and County of Berks.

2. The vehicle stopped was a 2011 black Hyundai Elantra automobile operated by defendant Janet Lynn Romanski and in which one Angel Viera was traveling in the front passenger seat.

3. Upon approaching the driver’s side of the vehicle, Officer Martz noticed that defendant appeared “quite nervous.”

4. Officer Martz requested a backup officer and Sergeant Liggett responded to the scene.

5. When Officer Martz, having ascertained the identities of the individuals riding in the vehicle, returned to his patrol car in order to check for outstanding warrants, he saw Sergeant Liggett remove the passenger, Angel Viera, from the vehicle.

6. Upon approaching the passenger side of the vehicle, Sergeant Liggett informed Officer Martz that he detected an odor of marijuana coming from inside the vehicle.

7. Officer Martz confirmed Sergeant Liggett’s observation, also detecting an odor of marijuana.

8. Prior to any search of the vehicle, the passenger Viera informed the officers that there was a “K-2 roach” in the ashtray in the back of the vehicle and that there was additional K-2 in a package in the vehicle.

9. The officers then began to search the vehicle, finding the partially smoked synthetic marijuana cigar in the rear of the vehicle as Viera had predicted.

10. Officer Martz observed a purse lying on the floor on the passenger side of the vehicle, at which time he asked defendant if the purse belonged to her.

11. No Miranda warnings were given to defendant prior to Officer Martz’s inquiring about the purse’s ownership.

12. After a hesitation of some ten to fifteen seconds, defendant responded that the purse was hers, and that everything in the purse belonged to her “except anything illegal.”

13. Officer Martz then commenced searching the purse.

14. Officer Martz could not recall whether the purse was open or zipped closed when he first began to search it.

15. Defendant was neither asked for nor gave her consent for the search of her purse.

16. Upon looking inside the purse, Officer Martz observed an inside pocket which also had a zipper.

17. Upon looking inside the interior compartment, he observed a foil packet, which, when unfolded, contained two rectangular pills which turned out to be Alprazolam.

18. As with the purse itself, Officer Martz could not recall if the interior pocket was zipped closed.

19. Also found inside the purse was a wallet, which Officer Martz opened and searched which contained seven hundred forty-six ($746.00) dollars in United States currency.

20. The currency was found after the two foil wrapped pills were found.

21. In a search of the center console of the car, Officer Martz found drug paraphernalia in the form of a hyperdermic needle and glass smoking pipe.

22. Officer Martz could not recall whether he found the items in the center console before or after he searched defendant’s purse.

CONCLUSIONS OF LAW

Defendant’s omnibus pretrial motion contends that evidence of drug possession recovered from her purse must be suppressed because it was obtained in violation of the Fourth Amendment to the Constitution of the United States and Article I, Section 8 of the Pennsylvania Constitution. We disagree with defendant that the evidence must be suppressed.

“As a general rule, for a search to be reasonable under the Fourth Amendment or Article I, Section 8, police must obtain a warrant, supported by probable cause and issued by an independent judicial officer, prior to conducting the search. This general rule is subject to only a few delineated exceptions[.]” Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014) (citations omitted). The United States Supreme Court has recognized an automobile exception to the warrant requirement, which permits the warrantless search of a motor vehicle if it is supported by probable cause. The Pennsylvania Supreme Court recently adopted the federal automobile exception, holding that the Pennsylvania Constitution “affords no greater protection than the Fourth Amendment to the United States Constitution.” Id. at 104. Prior to Gary, Pennsylvania case law had required both probable cause and a separate finding of exigency. Id. at 111.

The plurality decision in Gary provides an exhaustive history of how the automobile exception has been treated by federal, Pennsylvania, and other state courts. The court ultimately concluded:

In sum, our review reveals no compelling reason to interpret Article I, Section 8 of the Pennsylvania Constitution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. Therefore, we hold that, in this Commonwealth, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required. The consistent and firm requirement for probable cause is a strong and sufficient safeguard against illegal searches of motor vehicles, whose inherent mobility and the endless factual circumstances that such mobility engenders constitute a per se exigency allowing police officers to make the determination of probable cause in the first instance in the field.

Id. at 138. This holding recognizes the “diminished expectation of privacy in motor vehicles as compared to a residence, office, or person.” Id. at 128.

Accordingly, our inquiry is limited to whether Officer Martz had probable cause to conduct a warrantless search of defendant’s purse. The applicable probable cause standard is the “totality of the circumstances” test:

It is well-settled that the level of probable cause necessary to justify a warrantless search of an automobile is the same as that required to obtain a search warrant. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the person has committed the offense. Further, we must focus on the circumstances as seen through the eyes of a trained police officer, and remember that in dealing with questions of probable cause, we are not dealing with certainties, but the practical and factual considerations of every day life on which reasonable and prudent men act.

Commonwealth v. Casanova,748 A.2d207,211 (Pa. Super. 2000) (citations and internal quotation marks omitted); see also Commonwealth v. Burns, 700 A.2d 517, 520 (Pa. Super. 1997) (clarifying that Pennsylvania’s probable cause standard is the “totality of the circumstances” test formulated by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983)).

Additionally, “an officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants.” Burns, 700 A.2d at 519 (citations omitted).

Here, the police had probable cause to believe that defendant was in possession of a controlled substance. Sergeant Liggett observed an odor of marijuana emanating from the vehicle. “ [Detection of the odor of marijuana is sufficient to establish probable cause.” Commonwealth v. Copeland, 955 A.2d 396, 401 (Pa. Super. 2008) (citations omitted). Additionally, the passenger, Viera, admitted that the vehicle contained K-2, a type of synthetic marijuana. Defendant specified that there was a K-2 “roach” in the ashtray and a separate package containing additional K-2. The police therefore had probable cause to believe the vehicle contained a controlled substance, and they acted properly by commencing a search for the contraband.

The scope of the search was also proper. Defendant had a privacy interest with regard to her purse, but “an individual’s expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband.” United States v. Ross, 456 U.S. 798, 823 (1982). Further, “[t]he scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Id. at 824. Here, Viera admitted that there was a K-2 roach and a package containing K-2 within the vehicle. Only the former had been recovered at the time the purse was examined. The officers justifiably believed that the purse may have contained contraband, especially given defendant’s incriminating statement that she owned the purse and its contents, “except anything illegal.” The officers were not obligated to gamer defendant’s consent to the search of her purse; the search was justified by ample probable cause.

Based upon the findings of fact and conclusions of law contained herein, we believe that the Commonwealth has successfully demonstrated that the challenged evidence is admissible. Therefore, defendant’s motion for suppression of evidence is denied.

      .35P.S. § 780-113(a)(16).

      . 18 Pa.C.S.A. § 903(a)(1), 35 P.S. § 780-113(a)(16).