author: VAN JURA, J.,

text:
    Luzerne Intermediate Unit No. 18 v. Luzerne Intermediate Unit Education Ass’n, PSEA/NEA

      December 29, 2010
    C.P. of Luzerne County,
    no. 10848 of 2010.

      John G. Audi, for plaintiff.

      Jeffrey Husisian, for defendant.
   VAN JURA, J.,

Before this court is the petition of the Luzerne Intermediate Unit No. 18 (“LIU”), to vacate the award of the arbitrator, John M. Skonier, Esquire, dated July 15, 2010, sustaining two grievances that were filed on behalf of two school nurses employed by the petitioner, Luzerne Intermediate Unit No. 18 (LIU), Kingston, Pa.

The facts, substantially as found by arbitrator, John M. Skonier, Esquire, are as follows: Grievants are employed by the LIU as school nurses. Ms. Donna Reino is the only school nurse assigned to work at the LIU’s Learning Center, a building facility for “at risk” students who do not function properly in normal school settings. Ms. Reino’s assigned student caseload is approximately 142 students. Ms. Geraldine Siracuse, is a nurse assigned to the Mattel Middle School, the REAL Academy, and Pittston Primary Center, and has an assigned student caseload of approximately 45 to 60 students. (Arbitration award, at 2-3, 7-8.)

Starting in October, 2008, the LIU instructed grievants, Reino and Siracuse, to “cover” the student caseloads of other nurses who were absent from work. Grievants, thus, were responsible for all of the needs of the other nurses’ caseloads. Further, because the other nurses worked at different buildings, grievants were required to leave their primarily assigned work locations and travel to other buildings. There is no dispute, finally, that when the grievants left their own work assignments to cover for the assignments or duties of absent nurses, the LIU never provided a substitute nurse to cover the grievants’ own student caseloads; nor did the LIU relieve the grievants of their own work assignments when the grievants left to tend to the other nurses’ caseloads. Thus, when the grievants were away and tending to the absent nurses’ caseloads, no one else was covering the demands of grievants’ own caseloads, and the grievants remained simultaneously responsible for their own assigned caseloads and, at the same time, for the absent nurses’ caseloads. Grievants, in short, were “on call” for two work assignments: their own caseloads and the caseloads of the absent nurses. In this way, the grievants simultaneously performed their own duties and the duties of another employee. (Arbitration award, at 4-5, 7-8, 9-10.)

The two grievants had a system for monitoring and handling their own caseloads while they were away and tending to the other nurses’ caseloads. Grievants “kept in touch” with their regularly assigned locations and were available via cell phone and could be reached, immediately and at any time, if an emergency or other situation occurred with their own student caseloads, while they were off their assigned site and simultaneously tending to the absent nurses’ caseloads. When contacted under these circumstances, grievants were expected to handle the situation immediately and make nursing decisions. Grievants could not wait or “postpone” the matter until they had finished tending to the other absent nurses’ caseloads and had returned to their own regular work location. Instead, the grievants needed to make nursing decisions while they were away from their own regularly assigned work locations. Depending on the circumstances, grievants would either return immediately to their own work locations to tend to the situation, or they would contact the student’s parents, “911”, or the school district nurse. (Arbitration award, at 7-8, 9-10.)

On the basis of these facts, arbitrator Skonier found that the grievants were entitled to compensatory time under the applicable collective bargaining agreement (CBA) between the petitioner, LIU, and the respondent, Luzerne Intermediate Unit Education Association PSEA/ NEA. Arbitrator Skonier noted that the language of the CBA (Article XVI Section J), awards compensatory time whenever an employee, “[i]n addition to performing their own duties/class assignments, is required to cover or teach a class or assume duties for a teacher who is absent.” (Arbitration award, at 9.) Arbitrator Skonier emphasized the fact that the grievants were never relieved of their own regularly assigned responsibilities and student caseloads when they were off their regularly assigned site and covering for the absent nurses; and that the grievants were “always able to be immediately contacted by whatever facility needed their service.” (Arbitration award, at 9-10.) Arbitrator Skonier concluded: “They [the grievants] were always responsible for their own students and, in addition, were responsible for the needs of the students of the absent nurses.” (Arbitration award, at 10.)

Arbitrator Skonier concluded:

“The heading for the language at issue is “absorbing other employee assignments.” The language reads, in per-tinent part, “[a]ny teacher, who in addition to performing their own duties/class assignments, is required to cover or teach a class or assume duties for a teacher who is absent...shall receive compensation time...” As previously stated, the parties agreed at the instant hearing that the language applies to all members of the bargaining unit, not just teachers. It is unrebutted that both Grievants were told by their supervisors to provide coverage for the duties of an absent nurse. While it is obvious that they could not perform their own physical duties and those of the other nurse at the same time, they were always able to be immediately contacted by whatever facility needed their services and, more importantly, they were never relieved of their regularly assigned responsibilities. There were always responsible for their own students and, in addition, were responsible for the needs of the students of the absent nurses. As such, I find that they qualify for compensatory time for the time they spent per-forming the physical functions of the absent nurses for whom they were providing coverage.
As the LIU violated the collective bargaining agreement when it denied compensatory time to the Grievants, the grievance must be sustained...”

In reviewing the legal sufficiency of the arbitration award, the court turns initially to the precise contract language in question.

The applicable language of the CBA at issue states, in pertinent part:

Article XVI - PROFESSIONAL PERSONNEL PROVISIONS
J. Absorbing Other Employee Assignments
Any teacher, who in addition to performing their own duties/class assignments, is required to cover or teach a class or assume duties for a teacher who is absent and when it is not possible, practical or feasible to provide a substitute teacher, shall receive compensation time, which when accumulated, will be taken in one-half (1/2) day or one (1) day(s) block(s) of time. The administration staff shall secure and maintain a list of volunteers who desire to assume this responsibility. However, in the event there are no volunteers available for covering the aforementioned assignments, the administrative staff shall then assign personnel to this responsibility. Every effort shall be made to rotate assigned personnel to this responsibility.

At the hearing, the parties stipulated that although the contract provision at issue references “teachers,” the provision is applicable to all members of the bargaining unit and thus, applies to the nurse grievants.

In Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 595 Pa. 648, 659, 939 A.2d 855, 862 (2007), our Supreme Court reaffirmed the “Essence Test,” as articulated in State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999), as the appropriate standard to be employed by courts in reviewing arbitration awards arising under the Pennsylvania Public Employee Relations Act (PERA) such as the award in question.

The “Essence Test” is a two prong test. First, a court reviewing an arbitration award shall determine if the issue before the court, as properly defined, is within the terms of the CBA and thus, properly before the arbitrator. Second, if the court finds that the issue is embraced by the CBA, and thus, appropriately before the arbitrator, the arbitrator’s award will be upheld if the arbitrator’s interpretations may be rationally derived from the CBA. “A court will only vacate an arbitrator’s award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the Collective Bargaining Agreement. Westmoreland, supra 939 A.2d at 863. (citations omitted)

The “Essence Test” requires great deference to the arbitrator’s award. A court cannot review the merits of the dispute, cannot make its own independent factual findings, and cannot impose its own interpretation of the CBA or vacate the award, even if the court would have decided the case differently. The award must be respected by the judiciary if the interpretation of the CBA can, in any rational way, be derived from the CBA when viewed in light of its language, its context and any other indicia of the parties intention. Community College of Beaver County v. Community College of Beaver County Society of Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977).

Our Supreme Court has made it clear that the reviewing court does not inquire into whether the arbitrator’s decision is reasonable or even manifestly unreasonable; rather, the question is whether the award may, in any way, be rationally derived from the agreement between the parties. State System of Higher Education v. State College University Professional Association (PSEA/NEA), 560 Pa. 135, 743 A.2d 405 (1999).

Thus, even if this court would have decided the underlying issues differently than the arbitrator, that can be of no moment in a judicial review of this arbitrator’s award.

Based on the narrow scope of review this court has in reviewing arbitration awards, upon the virtually undisputed facts of the case and the pertinent language of the CBA, this court is constrained to find that the issue, as properly defined, is within the terms of the CBA and that the arbitrator’s decision can be reasonably construed to logically flow from the collective bargaining agreement and does trigger the compensatory time provision in Article XVI, Section J of the CBA.

It is unrebutted that each of the nurses/grievants was told by their supervisors to provide coverage for the duties of an absent nurse. While it is obvious that they could not perform their own physical duties and those of the absent nurses at the same time, it is also unrebutted that the nurses/grievants were never relieved of the duties of their regularly assigned caseloads. They were always able to be immediately contacted by whatever facility needed their services. They were always responsible for their own students, and in addition, were responsible for the needs of the students of the absent nurses.

As such, based upon a reading of the plain language of Article XVI, Section J, the issue of whether the nurses/ grievants are entitled to compensatory time must be found to be embraced by the provisions of the collective bargaining agreement. Danville Area Sch. Dist. v. Danville Area Education Association, PSEA/NEA, 754 A.2d at 1258-1259 (2000). The CBA provides compensatory time to bargaining unit employees who, in addition to performing their “own duties” also “assume duties” of another absent employee. The CBA plainly covers and contemplates this issue.

The second prong of the “Essence Test” is whether the award can be rationally derived from the CBA. See Westmoreland, supra, 939 A.2d at 863. Because the arbitrator’s award can reasonably be construed to logically flow from the express contractual provisions of the CBA, this court must find that the second prong of the test is met. The LIU required the nurses/grievants to cover both their additionally assigned student caseloads at the same time as covering their own caseloads. That, under the CBA, triggers compensatory time. As such, this court finds that the arbitrator’s award is rationally derived from the CBA.

With respect to three (3) specific arguments made by the respondent, LIU, the court notes as follows:

(1) The LIU argues that the award is contrary to the law in that it arguably limits the managerial prerogatives of the LIU pursuant to 43 P.S. Section 1101.702 of the Pennsylvania Public Employee Relations Act (PERA). In fact, correctly analyzed, the award does not serve to restrict managerial prerogatives. It simply recognizes that there can be compensatory time ramifications associated with the exercise of that managerial discretion, under certain circumstances as are set forth in the CBA.
(2) The LIU argues that the CBA does not award compensatory time unless an employee “doubles up” and performs his/her duties and the duties of another employee simultaneously. The facts of record suggest that this is what occurred in this matter.
(3) The LIU argues that the Grievants could not be in “two places at once.” The CBA provision in question makes no reference to physical location or the on-site or off-site performance of duties or the physical location of that performance, but only to the performance of a second set of duties in the stead of an absent bargaining unit employee.

For the foregoing reasons, the court enters the attached order.

ORDER

And now, December 29, 2010, it is hereby ordered and decreed that the petition to vacate arbitration award is herewith denied.

The prothonotary is directed to serve notice of the entry of this order pursuant to Pa.R.C.R 236.


source: Caselaw Access Project

author: BLASI, J.,

license: Public Domain

text:
    Quinn v. Dep’t of Transportation

      December 15, 2010

      David H. Conroy, for plaintiff.

      Marc A. Werlinsky, for Commonwealth.
   BLASI, J.,

Following an official notice of suspension of driving privileges from the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Ticensing (“PennDOT”), the petitioner, Daniel Quinn, appealed to this court which held a de novo hearing on August 18,2010. Thereafter, this court entered an order granting petitioner’s appeal of his operating privilege suspension and rescinded the order of PennDOT dated September 8,2009. PennDOT filed this timely appeal to the Commonwealth Court.

On appeal, PennDOT complains of the following matters:

1. The trial court erred in sustaining Quinn’s appeal where the department met its burden of proving a valid suspension pursuant to 75 Pa.C.S. § 1547 based upon his refusal to submit to chemical testing after being arrested by a police officer who had reasonable grounds to believe he violated 75 Pa. C.S. § 3802 and advised of the implied consent law, and where Quinn failed to present a valid defense.
2. The trial court erred in prohibiting the department’s police officer witness from testifying as to statements made to him by a witness who had observed Quinn operating his vehicle and leaving the scene, as such statements are admissible for the purpose of proving the officer’s state of mind in establishing the reasonableness of his belief that Quinn violated § 3802 and was not being offered to prove his truth. Spera v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d 1236 (Pa. Cmwlth.), appeal denied, 841 A.2d 534 (Pa. 2003); Duffy v. Department of Transportation, Bureau of Driver Licensing, 696 A.2d 6 (Pa. Cmwlth. 1997).
3. The department cannot be certain of any other reasoning used by the trial court in reaching its decision and respectfully requests that it be permitted to argue in its appellate brief any other issue that may be raised in the court’s opinion.
The standard of review in a license suspension case is to determine whether the factual findings of this court are supported by competent evidence and whether this court committed an error of law or an abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (Pa. 1997).

Section 1547 of the vehicle code entitled “chemical testing to determine amount of alcohol or controller substance,” provides in pertinent part:

(a) General Rule. - Any person who drives, operates or is in actual physical control of the movement of a vehicle in this commonwealth shall be deemed to have given consent to one or more chemical tests or breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle...(1) in violation of section...3802 (relating to driving under the influence of alcohol or controlled substance).
(b) Suspension for refusal. — (1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows...for a period of 12 months...(2) It shall be the duty of the police officer to inform the person that: (i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and...75 Pa. C.S. Section 1547 (a), (b).

It is well established that in order to sustain a suspension of operating privileges the licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (Pa. 1999). This court based its decision on prongs 1, 2 and 3 as listed above.

As was stated previously, PennDOT must as a threshold matter establish that the arresting police officer had reasonable grounds to believe that the petitioner operated or physically controlled the vehicle’s movement while under the influence of alcohol. This court must consider the totality of circumstances and determine as a matter of law whether a person in the position of the arresting officer could have reasonably reached this conclusion. Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1207 (Pa. 1999).

The testimony in the instant case on the issue of reasonable grounds began the with the testimony of Officer Soroka, who was the arresting officer. PennDOT on direct started its questioning as follows:

Q. Okay, I see. And were you on duty Thursday, August 20, 2009?
A. That’s correct.
Q. And in the early morning hours of that date, did you have occasion to encounter the petitioner, Mr. Quinn?
A. I did.
Q. And how did you come to encounter Mr. Quinn?
A. I received a radio call for an accident at 2nd and - South 2nd and Fitzgerald Street, at which time, I found vehicles that were damaged, and one of the vehicles that was damaged was blocking Fitzgerald Street out of the running lane of 2nd Street, and I had witnesses tell me that — (N.T. - @ 5-6).

At this point petitioner made an objection stating his reasons that what was to be stated by the officer was hearsay which the court “sustained.” PennDOT argues that what the officer would have testified to was admissible under “state of mind” exception to the hearsay rule.

It has long been held that “questions concerned with the admission or exclusion of evidence are within the sound discretion of the trial court.” Lewis v. Mellor, 393 A.2d 941 (Pa. Super. 1978). Further a court’s evidentiary rulings must be guided by well-established principle in this commonwealth that “nothing is more adamantly established in American trial procedure that no one may testify to what somebody else told him [/her].” Gunter v. Constitution State Service Company, 638 A.2d 233 (Pa. Super. 1994) allocator denied, 652 A.2d 1324 (1994). Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (Pa. 1987).

In McCullough v. Department of Transportation, Burear of Driver Licensing, 645 A.2d 378 (Pa. Cmwlth. 1994), the Commonwealth Court states as follows: “[T]he trial judge in these license suspension cases does not sit as an automaton required to accept as credible everything to which an arresting officer testifies on the stand. He is the fact-finder and is free to accept or reject testimony in whole or in part subject only to review by this court for an abuse of discretion.” 645 A.2d at 380, 381.

Furthermore, the testimony of Officer Soroka is that he did not observe petitioner in the vehicle at any time. After the officer ran the license plate through DMV he became aware of the car’s owner. The officer had to wait for additional officiers to arrive on the scene before he could proceed to the petitioner’s home. When the officer encountered the petitioner in his home he was cooperative and willingly accompanied the officer to the scene. It was further testified by the officer that he did not arrest the petitioner until they arrived back at 2nd and Fitzgerald Streets. PennDOT did not establish a timeframe between the time of the accident and the time when Officer Soroka determined that petitioner was intoxicated. In addition, there was no testimony that there was any identification as to the owner of the vehicle being the driver at the time of the accident. Officer Soroka simply ran the license plate and arrested the registered owner of the vehicle. This court felt that there was no collaboration at all that the owner of the vehicle was in fact driving.

Despite the testimony of Officer Soroka and petitioner’s application to dismiss this matter, the court allowed PennDOT to proceed with its evidence of the petitioner’s alleged refusal. It did not preclude PennDOT from presenting said evidence.

Rather than calling the AID officer to testify about the warnings that was to be read to the petitioner, PennDOT called Officer Keo who transported petitioner to the AID. Officer Keo testified that “we were waiting. AID, at one point, read the warnings. I don’t know exactly what — which warning was read, but it was some type of warning —.” (N.T. @22-23). Additionally, when asked if the AID officer read from Exhibit C-1 the officer stated “I can’t recall which form was read. I know it was some type of warning read.” (N.T. @24) It is important to note that any reference to Exhibit C-1 and C-2 in the notes of testimony obviously were marked by someone, but were never entered into evidence by PennDOT. In fact, Officer Keo testified, when asked about Exhibit C-2, “I don’t recall this form.” (N.T. @24) This court is unaware what Exhibits C-l and C-2 contained since they were never offered or moved into evidence by PennDOT.

There also was no testimony from Officer Keo that petitioner was kept under observation by himself or the AID officer on duty for at least 20 consecutive minutes prior to administration of a breath test as required by the department’s regulation, 67 Pa. Code Section 77.24(a).

An officer’s sole duty is to inform motorists of the implied consent warnings. Once they have done so, they have satisfied their obligation. Department of Transportation, Bureau of Driver Licensing, v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). In Scott, the Supreme Court of Pennsylvania further held that “whenever a motorist has been requested to submit to chemical sobriety testing, the motorist must be provided O ’Connoll warnings regardless of whether Miranda warnings have been given....” 684 A.2d at 545, 546. This court is aware thsAMiranda warnings do not apply to chemical testing, but it cannot conjecture or surmise when an officer states that warnings were read to petitioner, which warnings were actually read. This court finds that PennDOT did not meet prongs two (2) and four (4) of Banner subject to the penalties provided in 75 Pa. C.S.A. § 3804(c) (relating to test) and did not meet its burden of proof.

This court also based its finding in favor of petitioner on the conclusion that PennDOT did not present credible evidence that petitioner was requested to submit to a breathalyzer and that he was informed of the consequences of refusing. Police officers are required by 75 Pa. C.S. § 1547(b)(2) to warn motorist who are arrested for DUI and who are requested to submit to chemical testing of the consequences of refusing to submit to such testing. Specifically, the police officer is required to warn the motorist that: (1) the operating privileges will be suspended if chemical testing is refused; and (2) that, upon conviction, plea or adjudication of delinquency for violating 75 Pa. C.S.A. § 3802 (a), the motorist will be subject to the penalties provided in 75 Pa. C.S.A. § 3804(c) (relating to penalties). 75 Pa. C.S. § 1547(i),(ii).

Therefore, the court did not commit an error of law or a manifest abuse of discretion when it determined the facts were supported by competent evidence and then properly applied the law. Accordingly, this court’s decision granting the petitioner’s appeal and rescinding the license suspension should be affirmed.


author: STALLONE, J.,

text:
    Commonwealth v. Pruitt
    C.P. of Berks County,
    no. CP-06-CR-0006003-2002.

      January 12, 2011

      Jonathan H. Kurland, assistant district attorney, for Commonwealth.

      Andrew J. Lovette, for Pennsylvania State Police.

      Michael J. Cammarano, P. David Maynard, Allan L. Sodomsky, Lara Glenn Hoffert, and David M. Osborne, for defendant.
   STALLONE, J.,

MEMORANDUM OPINION

On April 29, 2005, a jury found the appellee, Michael Pruitt, guilty on charges of first degree murder, robbery, burglary, rape and involuntary deviate sexual intercourse, all arising out of the strangulation death of Greta Gougler, age 69, which took place on September 28,2002 at her home located at 521 North 9th Street in the City of Reading.

Inasmuch as the commonwealth had previously provided written notice to the appellee of its intent to seek the death penalty under the Pennsylvania Sentencing Code upon a conviction for first degree murder, the hearing on the penalty phase was held before the same jury. The jury returned a verdict of death, which was molded by this court into a formal sentencing order that was placed into the official record on May 3, 2005.

We deferred sentencing on the other convictions so that the Pennsylvania State Sexual Offenders AssessmentBoard could conduct an assessment of the appellee as required by Pennsylvania’s “Megan’s Law statute,” resulting from his convictions. Following a thorough evaluation conducted by Dean Dickson, a licensed psychologist, which was placed into the form of a written report, the board preliminarily found the appellee to be a “sexually violent predator.” Upon further request by the appellee, he was independently evaluated by Dr. Robert Gill, a sex therapist, who also prepared a written report in which he reached the same conclusion as the board.

Following an evidential hearing held in accordance with the “Megan’s Law statute,” this court found the appellee to be a “sexually violent predator” as a matter of law. We then sentenced him on the remaining charges of robbery, burglary, rape and involuntary deviate sexual intercourse to a cumulative term of imprisonment of not less than forty years nor more than eighty years in a state correctional facility with credit for 937 days time served, to run concurrently with the death sentence imposed on May 3, 2005, for first degree murder. A timely appeal to the Supreme Court of Pennsylvania followed, at which time this court appointed Allan L. Sodomsky, Esquire and Lara Glenn Hoffert, Esquire as counsel for the appellee. The Supreme Court affirmed the judgment of sentence by opinion and order filed on July 23, 2008. The highly experienced Mr. Sodomsky proceeded to file an application for reargument on the appellee’s behalf, which was likewise denied by the Supreme Court.

On May 13, 2009, the appellee timely filed his first petition for relief under the post conviction relief act, setting forth multiple grounds for his request that his death sentence be vacated and that he be granted a new trial. David M. Osborne, Esquire, of the Federal Community Defender Office for the Eastern District of Pennsylvania, capital habeas corpus unit, entered his appearance for the appellee. Following the entry of his appearance, Mr. Osborne filed an amended first petition for relief on the appellee’s behalf, to which the commonwealth has filed an answer.

What now brings this matter back to the Supreme Court for its review is a motion for discovery filed by the appellee on July 9, 2010, pursuant to Pa. R. Crim. P. 902(E)(2). Pursuant to that motion, the appellee sought the production of certain documents and other information from both the commonwealth and the Pennsylvania State Police, in connection with this post-conviction proceeding. Upon reviewing the motion, and being satisfied that good cause had been shown for the discovery requests, this court granted the motion by order entered on July 19, 2010.

On July 28, 2010, the commonwealth and the Pennsylvania State Police each filed a motion for reconsideration, requesting, in the alternative, (1) that the court vacate its order and deny the appellee’s motion for discovery, (2) that the court vacate its order and schedule oral argument on the motion, or (3) that the court grant an extension of time for the commonwealth of Pennsylvania and the Pennsylvania State Police to comply with the order. Upon review, this court granted the extension of time requested by both the commonwealth and the Pennsylvania State Police, giving them until September 1, 2010 to provide the requested discovery to the appellee. This was done in the form of two separate orders, both entered on August, 2, 2010.

Instead of complying with that order, the commonwealth filed a petition for review and the Pennsylvania State Police filed a notice of appeal. As a result, we are filing this memorandum opinion for the purpose of addressing the merits, in support of our July 19, 2010 and subsequent August 2, 2010 orders.

At the outset, we begin with Pa. R. Crim. P. 902(E)(2), which provides that:

On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.

In Pennsylvania, a showing of “good cause” requires more than j ust a generic demand for potentially exculpatory evidence, in the form of a “fishing” Commonwealth v. Carson, 590 Pa. 501, 571, 913 A.2d 220, 261 (2006); Commonwealth v. Chambers, 570 Pa. 3, 31, 807 A.2d 872, 889 (2002). As a result, a general request for discovery by the appellee is insufficient to establish “good cause,” particularly where it is not clear as to why the petitioner’s counsel cannot obtain the requested documents or information from trial counsel. Commonwealth v. Collins, 598 Pa. 397, 455, 957 A.2d 237, 272 (2008); Commonwealth v. Williams 557 Pa. 207, 222, 732 A.2d 1167, 1175 (1999). And finally, a showing of “good cause” cannot be made where the appellee has not shown that the requested documents or information in fact exist. Commonwealth v. Bridges, 584 Pa. 589, 595, 886 A.2d 1127, 1131 (2005).

In our opinion, the appellee’s motion for discovery is not simply a generic demand for potentially exculpatory evidence, such that he is merely attempting to engage in a “fishing expedition.” On the contrary, each of the appellee’s discovery requests is narrowly tailored to the specific factual allegations set forth in his counseled, 395-paragraph amended first petition for relief. Moreover, not only has the appellee sufficiently attempted to identify specific documents that he claims were not produced either during pretrial proceedings or at trial, he has likewise satisfactorily explained, where necessary, why certain documents or information that he is requesting could not be obtained from trial counsel. And although the commonwealth has raised the spectre of attorney “work product” privilege as a legal basis for denying the motion for discovery, this is nothing more than, in our opinion, a “red herring,” since the commonwealth has failed to provide this court with any factual basis for that claim.

We also believe that our decision to give both the commonwealth and the Pennsylvania State Police an extension of time to provide the requested discovery was certainly reasonable under the circumstances, given the fact that it was one of the three alternatives specifically proposed by both the commonwealth and the Pennsylvania State Police, in their respective motions for reconsideration.

And so, for these two reasons, we respectfully request that the July 19, 2010 and August 2, 2010 orders of this court be affirmed.

      . Title 18, 18 Pa.C.S.A. section 2502(a) (Supp. 2011).

      . Title 18, 18 Pa.C.S.A. section 3502(a) (Supp. 2011)

      . Title 18, 18 Pa.C.S.A. section 3701 (a)(1)(i) (Supp. 2011).

      . Title 18, 18 Pa.C.S.A. section (3121)(Supp. 2011).

      . Title 18, 18 Pa.C.S.A. section 3123(a)(1) (Supp. 2011).

      . The commonwealth withdrew additional charges of criminal trespass, aggravated assault (manifesting extreme indifference to the value of human life), theft by unlawful taking or disposition and receiving stolen property prior to the submission of the guilt phase of the case to the jury.

      . Title 42, 42 Pa.C.S.A. section 9711(d) (Supp. 2011).

      . Title 42, 42 Pa.C.S.A. section 9791 et sea. (Supp. 2011).

      . Mr. Dickson testified at the “Megan’s Law” hearing later held before this court. His report was marked and admitted into evidence as Exhibit 2 at the hearing.

      . Dr. Gill testified at the “Megan’s Law” hearing subsequently held before this court and his report was marked and admitted into evidence at that hearing as Exhibit 3.

      . The order entered at the conclusion of the “Megan’s Law” hearing was filed on January 10, 2006.

      . We imposed a sentence of ten to twenty years for each of these offenses, with the sentences for burglary, rape, and involuntary deviate sexual intercourse to run consecutively to the sentence for robbery.

      . Title 42, 42 Pa. C.S.A. § 9541 et seq. (Supp. 2011).

      . All scripted or otherwise highlighted language appearing in this memorandum opinion is for emphasis only.

      . The text of our order reads as follows:
      And now, this 19th day of July, 2010, petitioner’s motion for discovery is hereby GRANTED. It is hereby ordered as follows:
      1. The Berks County District Attorney’s Office and the Reading Police Department shall produce to petitioner’s counsel within fourteen days of the date of service of this order the following:
      a. All correspondence, memoranda, notes, reports, records, recordings and/or any other documents concerning Sean Peterson;
      b. All correspondence, memoranda, notes, reports, records, recordings and/or any other documents concerning Ariel Cortez;
      c. All correspondence, memoranda, notes, reports, records, recordings and/or any other documents concerning interviews or statements of any and all individuals called to testify at trial;
      d. All material information in the possession of the commonwealth that has not been previously disclosed;
      e. All correspondence, memoranda, notes, reports, records, recordings and/or any other documents concerning the interrogation of and statement given by petitioner to the Reading Police Department;
      f. All correspondence between the Berks County District Attorney’s Office or the Reading Police Department and the Pennsylvania State Police Laboratory Division concerning errors discovered or suspected in the work of the Laboratory Division on this case; and 2. The Pennsylvania State Police shall produce to petitioner’s counsel within fourteen days of the date of service of this order the following:
      a. All editions and versions of the Pennsylvania State Police Laboratory Division’s quality control procedures dating back to 200;
      b. All documents describing the sample handling and testing procedures of the Pennsylvania State Police DNA Laboratory and Serology Laboratory dating back to 2000;
      c. All audit reports relating to the operations of the Laboratory Division dating back to 2000;
      d. All reviews or audits relating to the Laboratory Division’s quality control system dating back to 2000;
      e. All copies of the Laboratory Division’s testimony review policy dating back to 2000;
      f. All editions and versions of the Laboratory Division’s proficiency testing policy and procedures dating back to 2000;
      g. The professional personnel files of Ranae Houtz, Lisa Mihalacki, Michael Brincat, Kenneth Mayberry and Christine Tomsey, including but not limited to the results of any proficiency testing, any documents regarding the technical review of their work, any information regarding their professional training; and

        All documents related to the audit of Ms. Houtz’s work and her remedial training in or about 2002-2003.
      The record indicates that the commonwealth was formally served with a certified copy of this order on July 21, 2010. The record further indicates that the Pennsylvania State Police was informally served with a copy ofthis order by counsel for the appellee on July 21,2010, followed by formal service of a certified copy of the order by the Berks County Clerk of court s on July 28, 2010.

      . The commonwealth also proposed a fourth alternative, that being the denial of its motion for reconsideration. The Pennsylvania State Police did not provide for such alternative.

      . We also note that the appellee’s amended first petition for relief is accompanied by a two-volume Appendix containing fifty separate documents relating to these allegations.


author: SIBUM, J.,

text:
    Shay v. Manda

      December 7, 2010
    C.P. of Monroe County,
    no. 3824 CV 2003.

      Joan D. Gallagher, for plaintiff.

      Joanne Kelhart, for defendants.
   SIBUM, J.,

This matter comes before the court on defendants’ motion for summary judgment. Plaintiff commenced this action seeking damages for injuries sustained as a result of falling in a hole on defendants’ property. Plaintiff claims defendants were negligent in allowing a dangerous hole to remain on their property and for failing to warn plaintiff of the hazardous condition. Plaintiff filed a complaint on May 29, 2003. On July 24, 2003, defendants filed an answer and new matter, and plaintiff responded by filing an answer to new matter on August 6, 2003. Defendants then filed a motion for summary judgment on September 28, 2010. Both parties have submitted briefs, and oral arguments were scheduled for November 1, 2010. Counsel for defendant appeared at argument, but plaintiff’s counsel did not. We are now prepared to decide this matter.

DISCUSSION

Pennsylvania Rule of Civil Procedure §1035.2 permits the trial court to dismiss an action after the close of pleadings where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment may only be entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Brecker v. Cutler, 578 A.2d 481 (Pa. Super. 1990).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 369, 562 A.2d 279, 280 (Pa. 1989). Only when the facts are so clear that reasonable minds cannot differ may a trial court properly enter summary judgment. Basile v. H&R Block, 563 Pa. 359, 761 A.2d 1115 (2000). The trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The moving party bears the burden of proving that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Failure to allege such specific facts will result in summary judgment, if appropriate, against the non-moving party. Pa.R.C.P. 1035.3; Overly v. Kass, 554 A.2d 970 (Pa. Super. 1989). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982). The court must ignore contested facts contained in the pleadings and restrict its view to allegations in the pleadings that are uncontroverted and to material filed in support of and in opposition to a motion for summary judgment. Nationwide Mutual Ins. Co. v. Nixon, 682 A.2d 1310, 1313 (Pa. Super. 1996), allocator denied, 693 A.2d 589 (Pa. 1997) (citation omitted).

In the case now before the court, plaintiff contends that defendants were negligent in failing to maintain their premises in a reasonably safe condition. Defendants, on the other hand, filed a motion for summary judgment claiming that the condition encountered by the plaintiff was a natural condition of the wooded area and not an artificial condition on the land created by defendants.

Furthermore, defendants aver that plaintiff voluntarily encountered the natural condition of the property during the course of his employment and therefore assumed the risk of injury. As such, defendants contend that there are no genuine issues of material fact regarding liability in this case and they are entitled to summary judgment.

In order to render our decision on defendants’ motion for summary judgment, we must review the facts in the light most favorable to the non-moving party. In doing so, the record reveals the following. On August 27, 2001, plaintiff, an employee of Ehrlich Pest Control Co., was in the process of spraying defendants’ property for insects and general pest control. [Complaint, ¶4; answer, ¶4; MSJ ¶3.] While spraying the property, plaintiff claims he suddenly fell due to a dangerous condition. Id. Plaintiff testified during a deposition that he was walking on wet, leaf-covered ground down a sloped, dirt area around the perimeter of the home when he felt the ground give way, and he believed his leg fell into a hole. [MSJ, ¶3, 4; Exhibit B, pg. 35-38.] Plaintiff further testified he had serviced defendants’ property several times before as their regular technician and that the property was located in a wooded area with areas of the property that were not level. [MSJ, ¶3,4; Exhibit B, pg. 22.] During the course of his employment, plaintiff had treated other properties in the Pocono area similar to defendants’ but did not take any precautions besides being observant when servicing a home in a wooded area. [MSJ, Exhibit B, pg. 39-40.]

Plaintiff avers that notwithstanding its duty, defendants carelessly, recklessly and/or negligently permitted their property, and specifically the area where plaintiff was spraying for general pest control, to be and remain in a dangerous condition for travel thereon. [Complaint, ¶8.] Plaintiff further avers that defendants were on notice that the area where the incident occurred would be utilized as a path of travel by plaintiff. Id. at 9.

Defendants, in their motion for summary judgment, claim that plaintiff, as part of his employment, was required to walk in wooded areas to conduct pest control, and that plaintiff was also walking on sloped ground and fell in a natural condition of the wooded area. [MSJ, ¶4, 7,10.] Defendant Noreen Manda testified during her deposition that she had no knowledge of that particular hole but was aware of groundhogs on her property. [MSJ, Exhibit B, pg. 19.] Defendants further aver that they had no notice of any dangerous condition of the premises and therefore, had no obligation to protect the plaintiff. Accordingly, defendants argue that there is no genuine issue of material fact as to liability and their motion for summary judgment should be granted. We agree.

Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances. Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (Pa. 1998), citing Lanni v. Pennsylvania R. Co., 371 Pa. 106, 88 A.2d 887 (Pa. 1952). To recover under a claim for negligence, the plaintiff must prove the following elements: “that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.” Martin, 711 A.2d 458 at 502. The mere occurrence of an accident does not establish negligent conduct; rather, the plaintiff carries the burden of establishing that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances. Id.

Under the negligence standard, we must first determine whether defendants owed a duty of care to plaintiff at the time the incident occurred. In the instant case, defendants would essentially owe a duty to plaintiff as an invitee. The status of invitee is defined as follows:

(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land. Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998).

To have status as a “business visitor,” one must enter another’s premises for the mutual benefit of himself and the occupant and the purpose of his entry must be one connected with business dealings between them. Parsons v. Drake, 347 Pa. 247, 249, 32 A.2d 27, 29 (Pa. 1943). A worker entering defendants’ property for the purpose of spraying for insects and pest control, as a benefit to defendants for service and plaintiff for payment, meets this definition.

The duty of care owed to a business invitee is the highest duty owed to any entrant upon land. Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 63 (Pa. Super. 2006). “The landowner must protect an invitee not only against known dangers, but also against those which might be discovered with reasonable care.” Id. A possessor of land owes an invitee the duty to protect the invitee from foreseeable harm. Banks v. Trustees of Univ. of Pennsylvania, 666 A.2d 329, 331 (Pa. Super. 1995). Pennsylvania case law sets forth the duty that a possessor of land owes to business invitees as follows:

A possessor of land is liable for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) Fails to exercise reasonable care to protect them against the danger. Chenot, 895 A.2d at 63 (citing Restatement (Second) of Torts, §341).

Further, the law does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee. Banks, 666 A.2d at 332.

Here, plaintiff claims to have fallen while he was walking on wet, leaf-covered ground down a sloped, dirt area around the perimeter of defendants’ home. As he walked, he felt the ground give way, and he believed his leg fell into a hole. We do not find that the wet, leaf-covered, sloped land upon which plaintiff fell constitutes a dangerous condition that involves unreasonable risk of harm to plaintiff. Nor do we find that a hole such as that described in this case is a dangerous condition which presents an unreasonable risk of harm. Further, the record is devoid of any evidence which would have placed defendants on notice that the ground in question would “give-way” when walked on by plaintiff or that the alleged hole was visible or even discoverable by defendants.

In addition, defendants had no reason to expect that plaintiff would not realize the alleged danger that he claims caused his fall or that plaintiff would fail to protect himself from such danger. Defendants and plaintiff acknowledged that defendants lived in a wooded area. Plaintiff further acknowledged that he had worked at defendants’ property as their pest control technician on several occasions prior to the incident. He also stated he was familiar with the layout of defendants’ property and the conditions of the area such as the sloping of the ground and the nature of the surrounding perimeter. Defendants had no reason to expect that plaintiff would not take the proper precautions to protect himself from falling while walking on their property.

In addition, defendants’ home is located in a wooded area of a largely rural county. It is not uncommon for animals such as ground hogs, moles, voles, and skunks to create holes in residential properties and yards. We are loathe to create a duty upon all property owners to discover and warn others of such conditions in order to avoid liability caused by these natural activities.

Finally, plaintiff is unable to set forth the cause of his injury with any degree of certainty. It is well-established that a cause of action cannot be premised upon mere speculation or conjecture. Orner v. Mallick, 639 A.2d 491, 492 (Pa. Super. 1994). Here, plaintiff admits that he does not know what caused him to fall.

While he speculates that he fell in a hole, plaintiff’s own deposition testimony indicates that he did not see what caused him to fall. Plaintiff testified as follows:

Q. Now, it is still a little rainy, and you are pulling this thing, then you encounter the hole. Can you tell me while you were walking, did you ever see this hole before you fell in it?
A. Never.
Q. Can you describe for me how it happened?
A. I was dragging the hose off of the reel from the sprayer. I was leaning forward walking at a fast pace. And the next I know, my leg is in the hole. I fell forward and did a split.
Q. Do you recall telling your employer or any of the physicians that you slipped and went into a hole?
A. No.
Q. It is your contention that you stepped in the hole?
A. When I stepped there, my leg went in the ground.
Q. Do you recall as you were stepping down feeling nothing under you?
A. Yes. When I stepped there where the hole was, my leg went into the ground.
Q. As you are walking, sir?
A. Yes.
Q. Do you recall seeing any area at all that looked like there was a hole there?
A. No.
Q. Let me show you this answer. You had to give us some answers to some questions. Basically number three D what was asked was for a full and complete description of any change in the appearance of any such defect, condition, et cetera, et cetera. Your answer here was when I stepped forward, my left foot, the earth gave way and I realized the ground beneath me was hollow. Is that the explanation that you gave your lawyer?
A. If it is, it was put down wrong. [MSJ, Exhibit B, pg. 37,38, 43.]

Given the weather and ground conditions, plaintiff’s fall could have been caused by any number or combination of factors. Because plaintiff was unable to satisfy the elements of either duty or causation, defendants’ motion for summary judgment will be granted.

Accordingly, we enter the following order.

ORDER

And now, December 7, 2010, defendants’ motion for summary judgment is granted.

      . Reference to defendants’ motion for summary judgment will be cited as [MSJ, ¶_.]

      . Plaintiff testified that it had rained before he came to defendants’ residence and that it was still raining very lightly while he was treating the property. [MSJ, Exhibit B, pg. 36-37.]


author: ZULICK, J.,

text:
    L&W Supply Corp. v. Amin

      November 16, 2010
    C.P. of Monroe County,
    no. 4733 CV 2010.

      Larry L. Miller, for plaintiff.

      Lisa A. Dougherty, for defendant.
   ZULICK, J.,

case arises from a commercial construction project (“project”) at 7191 State Route 611, Stroud Township, Monroe County, Pennsylvania 18360. Dr. Atul K. Amin, M.D. (“Dr. Amin”) entered into a construction agreement with CMG of Easton, Inc. (“CMG”) for CMG to act as genera1 contractor for the project. CMG then allegedly contracted with Vegas East Construction, LLC (“Vegas”) to install dry wall at the project as a subcontractor. Petitioner L&W Supply Corporation (“L&W”) alleges that it supplied drywall and other building materials to the project on December 17, 2009, pursuant to an agreement with Vegas.

L&W complains that it has not received payment from Vegas for the materials L&W supplied to the project. L&W served Dr. Amin with notice of its intention to file a mechanics’ lien by first class and certified mail on April 8, 2010. Notice was delivered to Dr. Amin on April 12, 2010. L&W filed a mechanics’ lien claim against Dr. Amin on May 21, 2010 but failed to include in its claim the date of service on Dr. Amin. Dr. Amin filed preliminary objections on September 22, 2010 to which L&W responded with an answer and petition for leave to amend its mechanics’ lien claim on October 6, 2010. Both parties submitted briefs. On October 7, 2010 I ordered Dr. Amin to show cause why L&W’s petition should not be granted, returnable for answer on or before October 27, 2010. Dr. Amin filed an answer to the petition on October 27, 2010 and the matter was argued on November 1, 2010.

DISCUSSION

In considering 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). Facts appearing in documents appended to and made a part of the complaint may be considered by the court in determining the sufficiency of the complaint or claim. Pleet v. Valley Greene Associates, 538 A.2d 567, 569 (Pa. Super. 1988). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cm with. 1995). The “lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (Pa. 1963). Preliminary objections in the nature of demurrers should be sustained where facts averred in a pleading are clearly insufficient to establish the pleader’s right to relief. See HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 397, 652 A.2d 1278, 1279 (Pa. 1995).

The plaintiff must state the material facts of a complaint “in a concise and summary form.” Pa.R.C.P. 1019(a). The allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim.” Estate of Swift v. Ne. Hosp. of Philadelphia, 690 A.3d 719 (Pa. Super. 1996), appeal denied, 701 A.2d 557 (Pa. 1997). Finally, “[i]f an issue of fact is raised, the court shall consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2).

Dr. Amin filed two preliminary objections to strike and dismiss L&W’s claim for failure to comply with the Mechanic’s Lien Law, 49 P.S. §§ 1501 (b. 1) (requiring service of formal notice of intention to file mechanics’ lien claim at least 30 days prior to filing the claim) and 1503(4) (requiring within claim inclusion of the date on which formal notice was given). Dr. Amin also filed a demurrer pursuant to Pa.R.C.P. 1028(a)(4).

I. Failure to Comply With Notice Requirements (Preliminary Objections I and II)

Title 49 of the Pennsylvania Code governs mechanics’ liens. Section 1503(4) of Title 49 provides that a subcontractor must state in its claim, inter alia, the date on which formal notice of its intention to file a claim was given. The Mechanics’ Lien Law defines “subcontractor” as:

...one who, by contract with the contractor, or pursuant to a contract with a subcontractor in direct privity of a contract with a contractor, express or implied, erects, constructs, alters or repairs an improvement or any part thereof; or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as superintendent, builder or materialman. The term does not include an architect or engineer who contracts with a contractor or subcontractor, or a person who contracts with a materialman or a person who contracts with a subcontractor not in direct privity of a contract with a contractor. 49 P.S. § 1201(5).

Section 1501(b.1) of Title 49 requires a subcontractor to provide formal notice of its intention to file a claim at least thirty days prior to filing the claim. The courts have consistently held that strict compliance with the Mechanics’ Lien Law is necessary in order to effect a valid claim. Castle Pre-Cast Superior Walls of Delaware, Inc. v. Strauss-Hammer, 610 A.2d 503, 504 (Pa. Super. 1992); Flick Const, Inc. v. Dyke, 584 A.2d 1033, 1034 (Pa. Super. 1991); Giansante v. Pascuzzo, 206 A.2d 340, 342 (Pa.Super. 1965). “Service requirements under Pennsylvania’s Mechanics’ Lien law are strictly construed such that a complaint will be stricken if the statutory service requirements are not met....”

However, “while notice requirements under the Mechanics’ Lien Law will be strictly construed to the extent that if no notice is given the lien will be stricken, the doctrine of substantial compliance will temper this strict construction as to the Form of the notice.” Tesauro v. Baird, 335 A.2d 792, 796 (Pa. Super. 1975). Substantial compliance is found

wherever enough appears on the face of the statement, to point the way to successful inquiry. Adherence with the terms of the statute is indispensable, but the rule must not be pushed into such niceties as serve but to perplex and embarrass a remedy intended to be simple and summary... Certainty to a common intent has, therefore, always been held to suffice.

Am. Car & Foundry Co. v. Alexandria Water Co., 64 A. 683, 686 (Pa. 1906). Certainty to a common intent “is satisfied if those interested may ascertain the period during which delivery of the materials was effected, or the work was done, so as to individuate the transaction.” Regency Investments, Inc. v. Inlander, Ltd., 855 A.2d 75, 77 note 1 (Pa. Super. 2004) (citing Calhoun and Lyon v. Mahon, 14 Pa. 56, 58 (1850)).

In Zeigler Lumber and Supply Co. v. Golden Triangle Dev. Co., 326 A.2d 524 (Pa. Super. 1974), a plaintiff filed a mechanics’ lien claim just 21 days after the date it alleged it had given notice to the defendant. The court held that while the claim failed to comply with the statute, the trial court abused its discretion in not allowing the plaintiff to amend its claim. The court reasoned that Section 504 of the Mechanics’ Lien Law of 1963 (49 P.S. § 1504), on amendment of claims, did not preclude an attempt to aver an earlier date when notice of its intention to file a claim was actually given to the defendant. Id. at 525.

The facts of this case and those of Zeigler are analogous. Where the plaintiff in Zeigler petitioned the court to amend its claim to in order to aver an earlier, compliant date, L&W petitions this court in order to aver a date it originally omitted — mistakenly — from the claim. Like Zeigler, L&W seeks to cure what is a minor defect in its claim. 49 P.S. § 1504 provides:

A claim may be amended from time to time without prejudice to intervening rights by agreement of the parties or by leave of court, except that no amendment shall be permitted after the time for filing a claim has expired which undertakes to:
(1) substitute a different property than that described in the claim; or
(2) substitute a different party with whom the claimant contracted; or
(3) increase the aggregate amount of the claim.

Here, L&W does not seek to change the parties or property or change the amount of the claim. Instead, it seeks only to aver a date of notice it neglected to include in the earlier claim, a change to only the form of the complaint. This in no way prejudices Dr. Amin.

II. Demurrer

Dr. Amin has filed a demurrer to the complaint, contending that Vegas’ waivers of liens bar L&W’s claim. Waivers of lien in non-residential construction are addressed in the Mechanic’s Lien Law, 49 P.S. § 1401(b), which provides in part:

(b) Nonresidential Buildings.
(2) Except as provided in subsection (a) [omitted], a waiver by a subcontractor of lien rights is against public policy, unlawful and void, unless given in consideration for payment for the work, services, materials or equipment provided and only to the extent that such payment is actually received, or unless the contractor has posted a bond guaranteeing payment for labor and materials provided by subcontractors.

Here, Vegas entered into two “Partial Subcontractor Lien Waivers and Release[s]” with Dr. Amin on April 8, 2010, and May 20, 2010, respectively. See preliminary objections, Exhibit 4. Dr. Amin argues that Vegas’ partial waivers operate to waive L&W’s rights under the contract as well.

This conclusion is incorrect. Vegas’ actions, as a subcontractor, were not binding on L&W because Vegas did not have authority to sign a lien waiver covering its supplier. See 49 P.S. § 1402(a). Instead, each individual subcontractor must sign a release in exchange for payment. See 49 P.S. § 1401(b)(2). Even if the partial waivers had been signed by the general contractor, CMG, they would only defeat L&W’s claim if properly indexed. 49 P.S. § 1402(b).

CONCLUSION

L&W asserts an actionable claim. Furthermore, allowing L&W to amend its mechanics’ lien claim despite the error related to date of notice contained in the claim does not prejudice Dr. Amin. Accordingly, I will grant L&W leave to amend its claim.

ORDER

And now, November 16, 2010, upon consideration of plaintiff’s petition and the parties’ arguments, it is hereby ordered as follows:

1. Plaintiff’s petition for leave to amend mechanics’ lien claim is granted.
2. Plaintiff may file an amended claim within twenty (20) days to address the issues raised by defendant’s preliminary objections.
3. Defendant’s preliminary objections are denied.


author: LASH, J.,

text:
    Hallock v. Fatzinger

      C.P. of Berks County,
    no. 07-13733, I.D. #3.

      January 10, 2011

      Danashari A. Rohlsen, for plaintiff.

      Eric C. Diggan, for defendant.
   LASH, J.,

The within matter is a child custody dispute. Plaintiff, Heather M. Hallock (hereinafter “mother”), seeks primary physical custody, with defendant, Corey W. Fatzinger (hereinafter “father”), to have limited supervised visitation. Father seeks partial physical custody. Trial was held on January 4, 2011. The court makes the following findings of fact:

I.FINDINGS OF FACT
1. Plaintiff, Heather M. Hallock, is an adult individual who currently resides at 137 Douglas Road, Kutztown, Berks County, Pennsylvania 19530.
2. Defendant, Corey W. Fatzinger, is an adult individual who currently resides at 9159 Briar Edge Road, New Tripoli, Lehigh County, Pennsylvania 18066.
3. The parties are the natural parents of a minor child, Hailey Fatzinger, bom April 21, 2008 (hereinafter “minor child”).
4. Mother resides in the Kutztown Area School District and father resides in the Northwestern Lehigh School District.
5. At the time of the minor child’s birth, the parties resided together, eventually separating on March 29,2010, when mother obtained a temporary protection from abuse order against father, evicting him from the home.
6. On or about April 7, 2010, father agreed, without admission to the entry of a final protection from abuse order, with a duration of three (3) years. Within the order, custody provisions were set forth granting primary physical custody to mother, with father to have visitation supervised by father’s cousin, Sarah Bologna. The supervision would take place in the home of father’s aunt, Susan Burnhardt, in 3103 West Washington Street, Allentown, Lehigh County, Pennsylvania 18104. No specific times were set for the visits, which were to be arranged through Ms. Bologna.
7. Through Ms. Bologna and with mother’s agreement, father began receiving supervised visits every other Thursday from 4:00 p.m. to 8:00 p.m. After father requested additional time, mother agreed to expand his time, initially to every Thursday, then to Mondays and Thursdays from 4:00 p.m. to 8:30 p.m.
8. On October 7,2010, this court entered a temporary custody order providing, among other things, that father’s supervised visits with the minor child would expand to alternate weekends from 9:00 a.m. to 6:00 p.m. on Saturday and 9:00 a.m. to 6:00 p.m. on Sunday. The visits would now be supervised by the paternal grandfather, at the home of the paternal grandparents, where father resides.
9. The incident giving rise to mother’s protection from abuse petition also resulted in criminal charges being lodged against father, namely, harassment, terroristic threats, and criminal mischief. On September 21, 2010, father pleaded guilty to the terroristic threat charge. Father was sentenced to probation for eighteen (18) months, after Lehigh County court ordered a mental health and drug and alcohol evaluation.
10. The minor child has never been enrolled in daycare. When mother is unavailable, the minor child is watched by the maternal grandmother, Virginia Hallock, or Sarah Bologna.
11. Mother is currently employed as a server at Texas Roadhouse, 6268 Hamilton Boulevard, Allentown, Lehigh County, Pennsylvania 18106, working thirty-five (35) to forty (40) hours per week, five (5) to six (6) days a week, generally from 4:00 p.m. to 11:00 p.m.
12. Father is currently employed full time, Mondays through Fridays from 7:00 a.m. to 4:00 p.m. at RHS Trucking.
13. Mother currently resides with the minor child’s maternal grandparents, Virginia Hallock and William Hallock, as well as the minor child.
14. Father currently resides with the minor child’s paternal grandparents, Alden and Ruth Fatzinger. The house has a separate bedroom for the minor child.
15. Father has attended Valley Counseling Group, LLC, in Bethlehem on a weekly basis, recently graduating, for issues involving anger management and domestic violence. The counseling also discussed parenting concepts within the therapeutic context.
16.The parties stipulate that mother shall retain primary physical custody and the parties will share legal custody.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, the intermediary and father’s cousin, Sarah Bologna, friends of the parties, Adam Frey, and his fiancee, Elizabeth Everett, father’s former girlfriend, Gretchen Duke, a friend of father’s, Roy Grube, Jr., the maternal grandmother, the paternal grandparents, and the exhibits submitted into evidence.

Mother seeks to restrict father’s access to the minor child with appropriate supervision, citing three (3) predominate reasons. First, mother is concerned about father’s temper, that he may have a capacity to lash out at the minor child when she is misbehaving or having a tantrum. Second, mother is afraid that father will take the minor child from her and move to some undisclosed location, based upon threats that he had made. Third, she believes that father does not have the capacity to properly care for the minor child.

Regarding her first concern, mother alleged that father maintained a pattern of emotional abuse toward her, making threats and acting in a controlling and demeaning manner. This culminated in the incident on March 29, 2010, which resulted in her obtaining a protection from abuse order. At that time, mother alleged that father, while intoxicated, threatened to kill her on several occasions, made specific and dire threats regarding killing her three-(3) year-old nephew, grabbed her by her neck, dragged her through the rooms of the house, and destroyed property, including her car radio and the bathroom door. While this may have been the most extreme incident, father, according to mother, during the course of their relationship, would get angry with her, threaten to kill her, curse at her and call her disparaging names. He would occasionally place his rifle nearby, or hand her a bullet, to menace her. He would withhold her cell phone so that she could not contact others and would watch her wherever she would go, resulting in her deciding to leave the house only to go to work or to the store. On one occasion, during an argument, father pointed a gun, which mother described as a rifle, toward his face or mouth and told her that they were going to play “truth or dare.” He would ask her questions and stated that if he did not like her answers, he was going to pull the trigger, impliedly stating he would kill himself. Friends who were present for the get-together leading up to the incident then intervened. Mother testified that she was also menaced by a “shrine” father constructed when he returned to the house to obtain his clothing soon after the protection from abuse order was lodged. The shrine included photographs of the parties and memorabilia of good times they had together.

Mother stated that father, on several occasions during the course of an argument, threatened to take the minor child and leave. On one occasion, while mother was still breastfeeding the minor child, father stated he was moving to Florida. Mother believed these threats to be credible.

Mother also believes that father is incapable of properly tending to the daily needs of the minor child. While the parties resided together, mother provided all the daily care. Although father was not employed, he nevertheless preferred to leave the house and spend time with his friends, rather than help with the caretaking of the minor child. Mother was forced to use babysitters during her work hours. Father did not participate in the minor child’s medical checkups. Further, mother believed that father had no interest in the caretaking responsibilities, actually preferring to allow a third person to watch the minor child when mother was at work. His lack of interest also surfaced during the scheduled supervised visits, as mother stated that father would consistently be an hour or more late for a four-(4) hour visit.

Upon cross-examination, mother conceded that she believes father loves the minor child and would not do anything to harm her. Accordingly, her apprehension that father would overreact to the minor child misbehaving may have been overblown. She remains steadfast, however, about her concern that father may leave with the minor child and that father lacks the requisite parenting skills.

Father states he has a great love and affection for the minor child and wants to see her “as much as possible.” He has recently begun working full time, resulting in him being available for weekends. However, once his schedule is set, if he has available weekdays, he would like to have weeknights with the minor child as well.

Father argues that he should not be required to have his visits supervised by his father or any third party. He admits to some of the allegations testified to by mother, but also states that he has made strides to change his behavior. He testified that he spent a short time in jail after being arrested on charges stemming from the March 29 incident. During his stay in jail, he had time to reflect, and decided that it was time for him to make some changes. Upon his release, he made inquiries to his attorney about anger management counseling. His attorney referred him to the Valley Counseling Group, LLC, where he received anger management and domestic violence counseling. He attended about seven (7) sessions with some additional follow-up. The counselors instructed him on the damage his destructive behavior can cause for himself and his family. They provided him with methods to alleviate stress and address his anger. His testimony was specific and informed, establishing that he has embraced the lifestyle changes presented to him by the counselors.

Father also testified that some of mother’s allegations were exaggerated. Regarding the March 29 incident, he admits that he was intoxicated, that he was involved in a heated argument with mother, and that he intentionally damaged her car radio and the bathroom door. He denies making any threats to kill her or her nephew. He admits to pleading guilty to terroristic threats, but stated he had to do so because if he went to trial, his attorney advised him he would likely be convicted and could face additional jail time.

Father urged that he has never and would never harm the minor child in any way. He admits making a statement on one (1) occasion that he was going to flee to Florida with the minor child, but he never intended to do this, making the statement in the heat of the moment. He denies any physical abuse, and also denies using his gun as a menace, stating that he always kept the gun unloaded and secure. While it was in plain view for a period of time, he agreed, at mother’s suggestion, to place it in a closet. Regarding the “truth or dare” incident, father states he was merely playing around. He agrees that his actions were inappropriate, but he never intended to harm himself nor anyone else. Further, he insists that the gun involved was a pellet gun, not his rifle.

Father states that he wanted to have more involvement with the minor child, but mother made this difficult. In particular, after the parties’ separation, father consistently requested additional time, but mother was very reluctant, always requiring supervision.

Father argues that mother was a very active participant in the arguments between the two (2), often being intoxicated as well. He said her personality was like “Jekyll and Hyde,” that sometimes she would be very easy to live with, but other times she acted out, causing him to want to leave the house. Further, while he states that mother is a good mother in many respects, he questions some of her parenting methods.

The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 666 A.2d 1096, 1098 (Pa. Super. 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, 659 A.2d 1040, 1042 (Pa. Super. 1995).

We also note the longstanding law that states that an award of partial custody should generally not contain any restrictions. However, restrictions may be imposed when the party requesting the restrictions shows that without it, partial custody will have a detrimental impact on the child. Even so, restrictions must be phrased in the least intrusive language reasonably needed to safeguard the child. Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. 1985).

It is apparent that both parties attempted to present themselves in the most favorable light possible, substantially downplaying their level of fault in the acrimony between them. Both parties exhibit a substantial level of immaturity.

In day-to-day situations, each tended to react or respond to their own concerns, without empathy for the other person.

Father has exhibited a lack of discipline, resulting in him being unable to make strong commitments to work, to a relationship, or to providing proper parenting. It appears that he would rather relax, spend time with his friends, and only work when necessary, rather than do the heavy lifting required of a responsible adult and parent. He exhibited certain personality inadequacies, which manifested in a bullying nature toward mother. He also exhibited a need to “talk big,” a technique he employed to attempt to “control” mother’s actions.

That being said, there has been progress. This court believes father when he states that his arrest and the ramifications that went with it were a watershed moment. He faced a loss of freedom. He has been limited in seeing his minor child since that incident. His seeking counseling appears to have been in earnest and has borne fruit. While some of the negative aspects of his character remain, it appears he is moving in the right direction. If he loves his child as much as he says, his commitment to positive growth for his own sake and for the minor child will have to continue. This would mean maintaining consistent employment, hopefully with the same company, paying taxes, recognizing mother and other women as equals, continuing to abstain from alcohol and controlled substances, and incorporating proper parenting methods into his relationship with his minor child.

Regarding mother, her presentation and allegations against father initially makes one question why she would have continued in this relationship for any length of time, much less attempt to start a family. However, ultimately, it appears that mother’s experience was not quite as horrific as it first sounded. For one, mother admitted positive experiences in the relationship. Further, mother has a capacity for the dramatic. It also appears she was an active participant in the altercations, sometimes being the catalyst.

On the other hand, mother made every attempt to provide a suitable home for the minor child. She was both the homemaker, providing the daily needs for the minor child, and the breadwinner, working full time while father remained unemployed. Fortunately, mother had relatives who were willing to pitch in and help care for the minor child while mother was working and father had other plans.

This court is satisfied that the evidence does not support the conclusion that father would cause any harm to the minor child. It is also unlikely that he would relocate from the jurisdiction; however, in an abundance of caution, this court shall include in its order a writ of ne exeat restricting father from leaving Pennsylvania with the minor child without the agreement of mother or further order of court. Regarding his parenting capacity, due to mother’s mistrust of him and his own recalcitrance, he has no track record. While, as stated, he has matured and, apparently learned from his mistakes, he is nevertheless a work in progress. His skills will need to develop. The presence of his parents can assist in this regard.

Accordingly, we find that the level of supervision previously insisted upon by mother, that father cannot be alone with the minor child, is not warranted. However, a lower level of supervision, whereby the paternal grandparents continue to be available to assist him in the caretaking responsibilities, until father can satisfactorily establish himself, would be appropriate. As long as father resides with the paternal grandparents, the oversight should be satisfactory. We enter the following order:

ORDER

And now, January 10, 2011, after trial held, custody of the parties’ minor child, Hailey Fatzinger, born April 21, 2008, (hereinafter “minor child”), shall be as follows:

1. The parties shall share legal custody of the minor child.
2. Plaintiff, Heather M. Hallock (hereinafter “mother”), shall have primary physical custody of the minor child.
3. Defendant, Corey W. Fatzinger (hereinafter “father”), shall have partial custody of the minor child on alternate weekends from Saturday at 9:00 a.m. to Sunday at 6:00 p.m., provided that father continues to reside in the home of the paternal grandparents. If father decides to relocate, this order may remain in place if agreed to by the parties. Otherwise, the matter may be scheduled for a review by the court.
4. Father may have partial custody at such other times as the parties may agree.
5. The parties shall each have the right of first refusal. If the custodial parent is unavailable to care for the minor child for a period of more than two (2) hours, the custodial parent shall contact the other parent to determine whether the non-custodial parent wants to watch the minor child in the custodial parent’s absence.
6. Mother shall have mother’s day each year and father shall have father’s day each year from 9:00 a.m. to 6:00 p.m.
7. The parties shall alternate the following named holidays, with mother to have the first holiday after the date of this order, from 9:00 a.m. to 6:00 p.m.: Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving.
8. Regarding the Christmas holiday, the parties shall alternate the schedule, such that in odd-numbered years, mother shall have custody from Christmas Eve at 1:00 p.m. to Christmas Day at 1:00 p.m., then father shall have Christmas Day at 1:00 p.m. to December 26 at 1:00 p.m., with the schedule to reverse on even-numbered years.
9. The holiday schedule shall take precedence over the regular custody schedule.
10. Father shall not be permitted to remove the minor child from the Commonwealth of Pennsylvania without written agreement of mother or further order of court.
11. The attached appendix shall be made a part of the within order.
12. This order shall be considered a final order finally resolving the issues raised in the complaint filed by mother.

APPENDIX TO ORDER

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

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

A. The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.
B. The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and
C. The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

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

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

4. Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three (3) days.

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

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

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

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

9. Weekend and evening visitation shall be subject to:

A. Arrangements will be worked out before hand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.
B. Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.
C. If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.
D. The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.
E. If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.
F. If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

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