author: MINORA, J.,

text:
    Pierre v. Keystone Insurance Co.
    C.P. of Lackawanna County,
    no. 93 CV 6368.

      Lawrence J. Moran and James J. O’Connor, for plaintiff.

      Timothy E. Foley, for defendant.

      January 4, 1999
   MINORA, J.,

This action arises from an automobile accident that occurred on June 14, 1989, and is before this court by way of the plaintiff’s motion for partial summary judgment. The plaintiff has alleged bad faith and related causes of action against the defendant, Keystone Insurance Company. The parties have briefed their respective positions, and this memorandum and order follows.

FACTS

On June 14, 1989, plaintiff’s decedent, Margaret Hughes, was riding as a passenger in a motor vehicle being operated by the plaintiff Jean Pierre. The vehicle was involved in a rear-end collision with a vehicle driven by Isaac Smith, an underinsured motorist. Hughes died on July 1, 1989, and a dispute between the parties arose as to what caused Hughes’s death. The plaintiff repeatedly refers to the accident at issue as the “fatal accident.” Conversely, the defendant contends that Hughes died from “apparently unrelated causes.” The exact cause of Hughes’s death is not pertinent to our resolution of the motion currently before this court and thus, it will not be addressed in this writing.

A claim was made on behalf of the estate of Hughes against Smith’s insurance carrier, Nationwide Insurance Company. A lawsuit was subsequently filed against Smith and this action was settled with Nationwide Insurance Company for the policy limit of $50,000, without the consent of the defendant in this action.

On December 18, 1996, an underinsured motorist arbitration was held pursuant to the terms of the insurance policies issued by the defendant to Pierre before a panel of three arbitrators. The arbitrators unanimously decided that the plaintiff was entitled to underinsured motorist benefits from the defendant, with two of the arbitrators molding their underinsured motorist award to the amount of $100,000.

At the December 18, 1996 arbitration, an issue arose pertaining to which insurance policy was in effect at the time of the accident at issue. The defendant maintained at the arbitration hearing that the policy in effect at the time of the accident was a 1986 policy which contains a provision that excludes underinsured motorist benefits coverage if a policyholder settles a bodily injury claim without the defendant’s consent. Therefore, the defendant asserted that the plaintiff’s failure to obtain the defendant’s consent before settling the bodily injury claim with Smith, the original tort-feasor, excluded Pierre from any recovery of underinsured motorist benefits under the terms of the 1986 insurance policy. Conversely, the plaintiff avers that the policy in effect at the time of the accident was in fact a 1984 policy that does not require the insured to obtain the defendant’s consent prior to settling personal injury claims, thus creating the issue of contention between the parties to this action.

The plaintiff contends that the arbitrators were aware of the existence of the issue of which insurance policy was in effect at the time of the June 14, 1989 accident and their decision demonstrated that they found the 1984 insurance policy to be in effect. Conversely, the defendant asserts that the 1984 policy discussed above was inapplicable at the time of the June 14,1989 accident and in fact, the 1986 policy applied.

DISCUSSION

The Pennsylvania Superior Court has held that the relevant elements necessary to permit summary judgment are as follows: “First, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, must demonstrate that there exists no genuine issue of fact. Second, the moving party must be entitled to judgment as a matter of law.” Janson v. Cozen and O’Connor, 450 Pa. Super. 415, 423, 676 A.2d 242, 246 (1996).

The court must also examine “the record in the light most favorable to the non-moving party” and resolve all doubts against the moving party. “Summary judgment is appropriate only in those cases which are free from doubt.” Pennsylvania State University v. University Orthopedics, 706 A.2d 863, 867 (Pa. Super. 1998).

Effective July 1, 1996, Rules of Civil Procedure 1035.1 through 1035.5 governing summary judgment replaced former Rule 1035. The essence of the revision set forth in Rule 1035.2 is that the motion for summary judgment now encompasses two concepts: first, the absence of a dispute as to any material fact set forth in Pennsylvania State University, supra, and second, the absence of evidence sufficient to permit a jury to find a fact essential to a cause of action or a defense. Rule 1035.2 is explicit in authorizing a motion based upon a record, which is insufficient to sustain a prima facie case, which in a jury trial would require the issues to be submitted to a jury.

Applying these Rules of Civil Procedure to the case at bar, we shall proceed to the plaintiff’s motion for partial summary judgment.

The plaintiff requests that the doctrine of collateral estoppel be utilized to preclude the defendants from denying that the 1984 insurance policy was in effect at the time of the accident at issue. The Pennsylvania Supreme Court defined collateral estoppel, or issue preclusion, as a doctrine which prevents re-litigation of an issue in a later action, despite the fact that it is based on a cause of action different from the one previously litigated. Balent v. City of Wilkes-Barre, 542 Pa. 555, 559, 669 A.2d 309, 313 (1995).

While addressing the issue of collateral estoppel the Pennsylvania Supreme Court outlined a five-part test to determine if collateral estoppel is applicable and an issue in dispute should be precluded.

“Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.” City of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989). See also, Roberts v. Estate of Pursley, 700 A.2d 475 (Pa. Super. 1997).

The defendant acknowledges the plaintiffs satisfaction of elements 2,3 and 4 discussed supra. Nonetheless, the defendant avers that the plaintiff has failed to satisfy elements 1 (the issue decided in the prior case is identical to the one presented in the later case) and 5 (the determination in the prior proceeding was essential to the judgment). Thus, the defendant argues that collateral estoppel is inapplicable and the plaintiff’s motion should be denied.

This court will now analyze whether the plaintiff has satisfied elements 1 and 5 as required for the application of collateral estoppel to preclude an issue from further litigation. Initially, we will examine element 5, which requires that the determination in the prior proceeding was essential to the judgment.

The arbitration award at issue states the following:

“Award

“The board of arbitrators, after due consideration of the evidence submitted in this case on December 18, 1996 and after taking into account any and all claims of the defendant, Keystone Insurance Company, for credits, deductions of offsets, hereby enter the following award:

“The undersigned arbitrators find in favor of the plaintiff, Jean Pierre, individually and as the executrix of the estate of Margaret Hughes, deceased, and against the defendant, Keystone Insurance Company, and mold their award to the amount of $100,000.”

Based on the language above, this court cannot say with certainty whether the arbitrators relied on the 1984 or 1986 insurance policy to render their decision. It is possible that they determined the 1984 policy was in effect, thus allowing the plaintiff to settle her third party claim with the original tort-feasor in this action and still collect underinsured motorist benefits. However, it is also possible that the arbitrators found the 1986 policy was in effect and similarly, the plaintiff would still be entitled to collect underinsured motorist benefits.

The defendant has advanced many plausible theories to illustrate that the arbitrators could have found the 1986 policy was in effect and still awarded the plaintiff underinsured motorist benefits. For example, the arbitrators could have concluded that the 1986 policy was applicable and that the defendant’s consent was necessary for the plaintiff to settle her claim and that under the facts of this case the defendant gave actual or implied consent to settle. The arbitrators could have also found that the defendant failed to demonstrate actual prejudice caused by the plaintiff settling her claim without the defendant’s consent and thus did not enforce the consent to settle clause. As clearly demonstrated above, there exists more than one possible explanation for the arbitrators’ award. Thus, we find the possibility of alternative explanations for the award at issue before this court creates an issue of material fact, which precludes the granting of partial summary judgment.

In light of this court’s determination that the plaintiff has failed to establish the fifth element necessary for collateral estoppel, we see no need to address whether the plaintiff has satisfied the first element, also in dispute between the parties. This court’s holding that the fifth element has not been met renders the issue of the first element moot.

Therefore, upon a thorough review of the pleadings and applicable case law, we find that the plaintiff’s motion for partial summary judgment must be denied. As we find there to be substantive issues of material fact and further find that the plaintiff is not entitled to judgment as a matter of law, thus the plaintiff’s motion for partial summary judgment is denied. The parties are to proceed in this case in a manner consistent with this opinion. An appropriate order follows.

ORDER

And now, to wit, January 4,1999, it is hereby ordered that the plaintiff’s motion for partial summary judgment is denied. The parties are to proceed in a manner consistent with this memorandum and order.


source: Caselaw Access Project

author: CALLAN, J.,

license: Public Domain

text:
    Commonwealth v. Rickabaugh

      C.P. of Blair County,
    no. 97 CR 272, 273.

      David Gorman, district attorney, and Jackie Bernard, assistant district attorney, for Commonwealth.

      John Siford, for defendant.
    January 26, 1998
   CALLAN, J.,

This matter comes before the court for disposition of the defendant’s motion for extraordinary relief, challenging the constitutionality of the “sexually violent predator” provisions of Pennsylvania’s Megan’s Law (42 Pa.C.S. §§9791-9799).

FINDINGS OF FACT

The defendant, Robert L. Rickabaugh, pled guilty pursuant to an agreement on August 25, 1997, to numerous sexual and related offenses for acts committed against two minor victims, his daughters. More specifically, the defendant pled guilty to the following offenses:

—at 97 CR 272 (Al) Count 2, rape; Count 4, aggravated indecent assault; Count 6, indecent assault; Count 7, involuntary deviate sexual intercourse; Count 9, incest; Count 10, corruption;

—at 97 CR 272 (A2) Count 1, rape; Count 5, aggravated indecent assault; Count 8, indecent assault; Count 9, incest; Count 10, corruption; Count 11, involuntary deviate sexual intercourse;

—at 97 CR 273 (Al) Count 2, aggravated indecent assault; Count 4, indecent assault; Count 5, corruption; and

—at 97 CR 273 (A2) Count 2, rape; Count 4, involuntary deviate sexual intercourse; Count 6, aggravated indecent assault; Count 8, indecent assault; Count 11, incest; Count 12, corruption.

Pursuant to his plea agreement, the defendant will serve a minimum of 15 years incarceration. The plea agreement provides for consecutive five-year sentences on each of the three rape charges and a two and one-half year concurrent sentence on the aggravated indecent assault.

The pleas entered to all the informations mandate Megan’s Law offender’s registration. The charges of rape and aggravated indecent assault at 272 Al, A2 and 273 A1 require assessment and a determination as to being a “sexually violent predator.”

At the time of the guilty plea, the defendant reserved his right to challenge the constitutionality of the “sexually violent predator” provision of Megan’s Law. The motion for extraordinary relief was filed on or about October 29, 1997. Oral arguments were heard on November 13, 1997. Briefs were filed thereafter.

The defendant raises seven constitutional issues:

(1) Procedural due process
(2) Substantive due process
(3) Vagueness
(4) Double jeopardy
(5) Bill of attainder
(6) Right to privacy
(7) Cruel and unusual punishment.

These constitutional issues are raised in the context of both the federal and the Commonwealth constitutions.

DISCUSSION

It is well settled that there is a strong presumption that legislative enactments do not violate the constitution and there is a heavy burden of persuasion upon one who challenges the constitutionality of a statute. Com monwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996). A statute will only be found unconstitutional if it clearly, palpably and plainly violates the constitution. Id. (citing Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983)).

In 1995, the General Assembly amended the Sentencing Code to add a subchapter H, registration of sexual offenders, 42 Pa.C.S. §§9791-9799, generally referred to as Megan’s Law. This subchapter was thereafter amended in 1996. At issue are the provisions of the statute which establish a procedure for adjudicating certain offenders as “sexually violent predators” and the consequences of that classification.

The procedure for adjudicating a person to be a “sexually violent predator” requires a post-conviction, presentence board assessment and a hearing before the court. The Act states:

“(b) Presumption. — An offender convicted of any offense set forth in section 9793(b) shall be presumed by the board and the court to be a sexually violent predator. This presumption may be rebutted by the offender by clear and convincing evidence at a hearing held in accordance with subsection (e).
“(e) Court review of findings. — Upon receipt of the board’s report, the court shall determine if the offender is a sexually violent predator. This determination shall be made based on evidence presented at a hearing held prior to sentencing and before the trial judge. The offender and district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the offender shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one. After a review of all evidence presented at this hearing, the court may determine whether the presumption arising under subsection (b) has been rebutted and shall set forth this determination of the sentencing order. A copy of the sentencing order containing the determination shall be submitted to the Pennsylvania Board of Probation and Parole and the Department of Corrections.” 42 Pa.C.S. §9774.

There are notification and registration requirements for a person determined to be a “sexually violent predator.” A person so found to be a “sexually violent predator” must be sentenced to a mandatory maximum sentence of life. 42 Pa.C.S. §9799.4(a). If, in the future, the so designated predator is convicted of another predicate offense while on parole for life, the predator must be sentenced to life imprisonment for that offense. 42 Pa.C.S. §9799.4(c).

The Commonwealth takes the position that the assessment and hearing procedures are merely sentencing procedures which enhance the potential sentence. The defendant’s due process rights are protected as he is afforded notice, the opportunity to be heard and counsel prior to the determination as to being a predator. The presumption that he is a “sexually violent predator” flows directly from conviction, where the burden was on the Commonwealth. If the defendant seeks a downward departure from the presumed maximum sentence, case law and statutes permit the defendant to maintain the burden.

The logic of these assertions is less than persuasive. If the determination of being a “sexually violent predator” flows from the conviction, why is a hearing necessary? Why extend any appearance of due process if the mitigation theory is followed? Has not the defendant under the prior Sentencing Code always had the right to offer or present mitigating evidence at the time of sentencing? The essence of the mitigation theory is that unless the defendant proves otherwise by clear and convincing evidence, he is a “sexually violent predator” on the basis of the conviction alone and no separate finding or determination is necessary. This is not what the clear language of the statute sets forth. There is no reason to interpret the statute. The procedures and the presumption are clearly set forth and need no interpretation.

If it is necessary to engage in legal or judicial contortions to find the contested sections of the statute constitutional, then there is something defective in that statute. That defect is that the contested sections of the statute cannot pass constitutional muster.

There can be no question that the imposition of a maximum life sentence is not a mere enhancement of the sentence. It is an expansion of the statutory maximum imposed for the predicate offenses. The 20-year maximum sentence of the most serious predicate offenses is extended to a maximum of life for a defendant found to be a “sexually violent predator.” The finding as to being a “sexually violent predator” extends or expands the maximum sentence beyond the maximum sentence for one not so designated as a “sexually violent predator.” The statute is punitive in nature.

Megan’s Law is more like the Sex Offenders Act in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209 (1967), than the mandatory sentencing statute in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1996). The United States Supreme Court in McMillan indicated that where proof of an additional fact at sentencing will enhance a sentence, the state need only establish that fact by a preponderance of the evidence. In that opinion, Justice Rehnquist stated that the mandatory sentencing statute “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of a visible possession of a firearm.” Id. at 87-88. The same theory has been applied by the Pennsylvania Supreme Court as to the determination of the minimum sentence without expanding the maximum sentence. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985).

The United States Supreme Court in Specht held the Colorado Sex Offenders Act to be unconstitutional. The court said:

“The Sex Offenders Act does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public or is an habitual offender and mentally ill. That is a new finding of fact . . ., that was not an ingredient of the offense charged. The punishment under the second Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm.” Specht v. Patterson, supra, 386 U.S. at 608-609. (citation omitted)

See also, Commonwealth v. Dooley, 209 Pa. Super. 519, 232 A.2d 45 (1967), alloc, denied (holding Barr-Walker Act unconstitutional).

The Barr-Walker Act was held to violate the defendant’s due process rights in Gerchman v. Maroney, 355 F.2d 302 (3d Cir. 1966). The reasoning in Gerchman was adopted in Specht. The Barr-Walker Act is more like Megan’s Law than it is different therefrom. The procedures and consequences are very similar. The Third Circuit Court held:

“The proceeding under the Barr-Walker Act is thus ... a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed ... A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial including the right to confront and cross-examine the witnesses against him.” Gerchman v. Maroney, supra, 355 F.2d at 312.

Based upon Gerchman, Specht, and Dooley, it is clear that Pennsylvania’s Megan’s Law is unconstitutional for failing to provide the full panoply of due process protections under the federal and Commonwealth constitutions in the procedures to determine a defendant to be a “sexually violent predator.”

This failure to provide for the necessary due process protections includes the presumption of being a “sexually violent predator” (42 Pa.C.S. §9794(b)). The burden is placed on the defendant to prove by clear and convincing evidence that he is not a “sexually violent predator.” The shifting of this burden is unconstitutional. In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970).

CONCLUSIONS OF LAW

(1) The court has jurisdiction in this matter.

(2) The objection and constitutional challenge to the “sexually violent predator” provisions of Megan’s Law were properly raised and preserved at the time of the defendant’s guilty plea.

(3) The imposition of life parole is punishment.

(4) The application of Megan’s Law as to a determination of being a “sexually violent predator” exposes the defendant to a magnified sentence beyond the defined statutory maximum of 20 years for the most serious offense.

(5) The adjudication as to being a “sexually violent predator” involves a new finding of fact that is not an ingredient of the offenses charged.

(6) The shifting of the burden as to the determination of being a “sexually violent predator” from the Commonwealth to the defendant is unconstitutional.

(7) The “sexually violent predator” provisions of Pennsylvania’s Megan’s Law (section 9794) are unconstitutional for failing to provide the full panoply of due process protections under the federal and Commonwealth constitutions.

(8) The registration provisions of Megan’s Law apply to the defendant as an offender but not the heightened requirements under the unconstitutional provisions as a “sexually violent predator.”

In light of the foregoing, the following order is deemed to be appropriate:

ORDER

And now, January 26, 1998, after a review of the pleadings, the arguments and in conformance with the cited case law, it is ordered, directed, and decreed that the defendant’s motion for extraordinary relief is granted in that the procedures contained in section 9794 violate the defendant’s right to due process under the constitutions of the United States and this Commonwealth.

The defendant’s sentencing in conformance with his plea agreement is to be scheduled by the court administrator.


author: LEWIS, J.,

text:
    Engle v. BT Industries AB

      C.P. of Dauphin County,
    no. 248 S 1998.

      Anthony Stefanon, for plaintiff Engle.

      Richard B. Wickersham Jr., for defendants BT Industries, BT Industries of America, BT Prime Mover.

      Jefferson Shipman, for defendant Lift Truck Services.

      Michael W. Casey, for defendant Fortna.

      Timothy I. Mark, for defendant Lift Truck Service Inc.
    February 16, 1999
   LEWIS, J.,

Before this court are the preliminary objections of defendants BT Industries AB (BT Sweden), BT Industries of America, BT Prime Mover Company Inc., Fortna Inc., Local Industrial Fork Truck Inc. and Lift Truck Service Inc. to plaintiff’s complaint. The facts and procedural history of this case are as follows:

This action was commenced by a writ of summons on January 20, 1998. Plaintiff filed her complaint on April 7, 1998, alleging negligence, breach of warranty and strict liability against several defendants. Plaintiff seeks recovery for injuries she sustained in a work-related forklift accident on January 21,1996. The forklift that plaintiff was operating was designed, engineered, manufactured, sold and placed into the stream of commerce by defendants BT Sweden, BT Industries of America Inc. arid BT Prime Mover Company Inc. (BT defendants). Defendant Fortna Inc. sold the truck to plaintiff’s employer. Defendants Lift Truck Service Inc. and Local Industrial Fork Truck Inc. a/k/a Lift Inc. were hired by plaintiff’s employer to provide service, maintenance and repair for the forklift. All named defendants have filed preliminary objections.

I. DUTY TO RECALL/RETROFIT AND/OR WARN

BT defendants’ first preliminary objection is in the nature of a demurrer to certain paragraphs of the plaintiff’s complaint. Specifically, defendants’ preliminary objections address plaintiff’s allegations of a duty to recall and/or retrofit as outlined in paragraphs 37 and 38 of the complaint sounding in negligence as well as paragraphs 31 and 32 of the complaint sounding in strict liability. Defendants argue that these paragraphs should be stricken because Pennsylvania does not recognize any post-sale duty on the part of a manufacturer/distributor to warn or recall/retrofit allegedly defective products. For the reasons outlined below, this court agrees that no such duty exists under Pennsylvania law.

In support of this position, defendants rely on Lynch v. McStome & Lincoln Plaza Associates, 378 Pa. Super. 430, 548 A.2d ,1276 (1988), wherein a similar issue was addressed by our Superior Court. The court was asked to determine whether certain evidence offered by plaintiff was properly found inadmissible. In Lynch, the plaintiff had suffered severe injuries after falling from an escalator. The plaintiff sued the manufacturer of the escalator, claiming that the escalator’s brake system was unreasonably dangerous and that the manufacturer had a duty to refit the escalator with a safer brake system. The evidence that the plaintiff sought to admit consisted of reports of similar accidents on other escalators and the manufacturer’s present use of the safer brake system. The court began its analysis by addressing the plaintiff’s contention that the manufacturer should be held to the highest degree of care because it is a common carrier. The court disagreed with this notion and held that the escalator manufacturer is not a common carrier and is therefore governed by the ordinary standard of reasonable care. The analysis continued in a discussion of whether the exercise of reasonable care includes a post-sale warning or retrofitting. Under the circumstances of that particular case, the court held that such a duty did not exist. The court stated:

“Given the posture of this case, therefore, the precise question presented for decision is this — in a negligence product liability case, where the defendant manufacturer exercises reasonable care in producing a product which functions properly until the time of the accident in question and does not retain any post-sale responsibility for or control over its product, but where it is proven that at the time of the accident the manufacturer knew or should have known of an alternative design, which may be safer, is the manufacturer negligent if it does not retrofit its already sold products, or at least notify the owners of the product of the new design?

“We are unaware of any Pennsylvania precedent that imposes such a broad duty on a manufacturer, nor do we think that the imposition of such a duty would be appropriate under established principles of negligence liability.” Lynch, 378 Pa. Super, at 440, 548 A.2d at 1281.

Plaintiffs counter this argument claiming that the Pennsylvania Supreme Court recognizes a manufacturer’s obligation to recall or retrofit its product. In Walton v. Avco Corporation, 530 Pa. 568, 610 A.2d 454 (1992), the court was asked to determine whether a seller of a product could be held liable for physical harm to the user. In Walton, the survivors of a pilot killed in a helicopter accident sued the owner of the helicopter as well as the seller manufacturer, the manufacturar of the engine installed in the helicopter and the company responsible for its service and maintenance. Avco, the manufacturer of the engine, discovered a defect in the engine and sent a notice to Hughes, the helicopter manufacturer and seller. The notice explained the defect and contained service instructions on how to fix it. However, Hughes never forwarded this notice to the owner or to the service company.

The Walton court indicated that the helicopter manufacturer could be held strictly liable for the defect when it failed to warn of the faulty engine design which was discovered and publicized after the sale of the helicopter. The court indicated:

“Hughes’ liability stems not only from having incorporated a defective part into its helicopter, but also from its subsequent, undisputed knowledge of the defect

“Having been informed of this defect, Hughes was required to warn its service centers and, more importantly, those who purchased the affected helicopters . . . .” Walton, 530 Pa. at 577, 610 A.2d at 459.

While it is true that liability may arise from a manufacturer’s failure to warn of a known defect in a product, and from further responsibility to take reasonable steps to remedy the deficiency, what is reasonable depends on the circumstances of the case. Even the Superior Court’s opinion in Walton, 383 Pa. Super. 518, 557 A.2d 372 (1989), was quick to point out that it was not endorsing an “absolute continuing duty, year after year,” for all manufacturers to warn of defective products. Walton, 383 Pa. Super, at 531, 557 A.2d at 379. The court recognized that a helicopter is not a household good commonly found in almost any home in the country such as a lawn mower or even a snow blower. Rather, it is a specialized, unique and costly product for a highly select market. Id. Walton went on to indicate:

“Many issues regarding a manufacturer’s post-sale duty to warn are not implicated ... by our decision here. We leave for future cases the task of formulating the boundaries of a product manufacturer’s post-sale legal obligations. We are convinced, however, that boundaries must indeed be recognized.” Walton, 383 Pa. Super, at. 532, 557 A.2d at 380.

In the instant case, the allegedly defective product is a forklift, a product not as unique as a helicopter nor as prevalent as a lawn mower. In that regard, this court is persuaded by the learned U.S. District Court Judge Sylvia Rambo’s cogent and expansive discussion of this very issue in Habecker v. Clark Equipment Company, 797 F. Supp. 381 (M.D. Pa. 1992). In that case, John Habecker, a civilian employee of the New Cumberland Army Depot, was killed in a forklift accident. His estate filed suit against the manufacturer and distributor of the forklift, claiming negligence, breach of warranty and strict liability.

A key issue in the litigation was whether plaintiff should be permitted to pursue the theory that the forklift was defective due to the lack of post-sale warnings. Examining Walton, supra, as well as Lynch, supra, Chief Judge Rambo declined to allow such a cause of action, stating four separate reasons. First, Judge Rambo found that such a cause of action would be counter to our Superior Court’s holding in Lynch which indicated that there is no continuing duty to warn purchasers of new developments affecting safety. Second, Judge Rambo reasoned that there is a “qualitative difference” between a defect such as the absence of a safety device as in the instant case versus a latent defect such as the helicopter engine in Walton. Habecker, 797 F. Supp. at 381. Additionally, Habecker pointed out that the plaintiff could only produce the Walton case to support their position and, fourth, that Walton contained a caveat placing “boundaries” on a manufacturer’s post-sale legal duties. Id.

Habecker continued, warning that a “desire to compensate persons who have been injured by defective products” should not lead to the imposition of legal duties that are “unreasonable and therefore, effectively unobtainable.” Id. at 387-88 (quoting Walton v. Avco Corporation, supra at 383 Pa. Super. 518, 557 A.2d 372). Recognizing the abundant presence of forklifts in industry, Judge Rambo opined:

“Nearly any business which has a loading dock or a warehouse has a forklift, and it does not stretch the boundaries of imagination to envision frequent inter business transfers of this type of equipment. Accordingly, with the Walton panel’s own warning in mind, this court is not willing to extend that doctrine to common business appliances such as forklifts.” Habecker, 797 F. Supp. at 388.

Additionally, in Gillyard v. Eastern Lift Truck Company Inc., 1992 U.S. Dist. Lexis 1577 (E.D. Pa. 1992), cited in defendant’s brief, the plaintiff argued that the manufacturer of a forklift had a “duty to warn customers and/or to take measures to correct alleged product defects” following sale. The court rejected plaintiff’s argument, finding no such duty.

II. BREACH OF WARRANTY

BT defendants next argue that Count III of the plaintiff’s complaint should be stricken pursuant to Pa.R.C.P 1028(a)(2). First, defendants contend that plaintiff alleges an express warranty exists; however, plaintiff failed to attach the necessary writing pursuant to Pa.R.C.P. 1019(h). Therefore, defendants claim this count should be stricken. Plaintiff concedes that the express warranty relied upon in paragraph 41 of the complaint was not attached as required by Pa.R.C.P. 1019(h). However, plaintiff points out that she does not have access to contract documents between her employer and the defendants at this time and that formal discovery is necessary in order to obtain such documents.

Second, defendants assert that this count should be stricken because plaintiff has failed to properly plead the facts which support a breach of implied warranty claim. However, plaintiff maintains that the breach of warranty claim is sufficiently pled.

The Rules of Civil Procedure require that the material facts upon which a cause of action or defense is based be stated in a concise and summary form. Pa.R.C.P. 1019(a); Schofield v. Griffin, 117 Dauphin Rep. 338, 339 (1997). “Pleadings serve the function of defining issues and giving notice to the opposing party of what the pleader intends to prove at trial so that the opposition may, in turn, prepare to meet such proof with its own evidence.” Laursen v. General Hospital of Monroe County, 259 Pa. Super. 150, 160, 393 A.2d 761, 766 (1978) (citations omitted), rev’d on other grounds, 494 Pa. 238, 431 A.2d 237 (1981). This rule requires the plaintiff to give the defendant notice of specific facts on which the claim is based and which would then allow the defendant to prepare a defense. When reading the complaint as a whole, it clearly and reasonably informs defendants that it must defend against a breach of warranty claim based upon their involvement in manufacturing and selling the forklift in the defective conditions described. Therefore, defendants’ motion on this point will be denied.

III. PUNITIVE DAMAGES

Next, defendants moved to strike paragraphs 11-19, 30-33 and 71-74 from the complaint because they do not specifically state the facts necessary to support a claim for punitive damages. Punitive damages are awarded to punish a defendant for conduct that is so outrageous in nature that it demonstrates intentional, willful, wanton or reckless conduct. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991). An outrageous act is one done with a bad motive or with a reckless indifference to the interests of others. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980). To determine whether one has acted with “reckless indifference to the rights of others,” the allegations in the complaint must establish that the actor actually knew or had a reason to know of facts which created a high risk of physical harm to the plaintiff. Field v. Philadelphia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170 (1989). The plaintiff must plead facts so as to put the defendants on notice of what conduct is being alleged as outrageous. Id. Whether actions rise to the level of outrageousness lies within the sound discretion of the fact-finder. SHV Coal, 526 Pa. at 495, 587 A.2d at 705.

Defendants contend that the plaintiff has failed to plead facts demonstrating that defendants’ conduct was malicious, wanton, reckless, willful or oppressive, as mandated to establish an entitlement to punitive damages. On the contrary, plaintiff has alleged that the defendants introduced a defective product into the stream of commerce with the knowledge of defects and the possible harm that they would cause. Such conduct, if proven, may well be interpreted as exhibiting the type of reckless indifference that may trigger punitive damages.

Further, this court concludes that punitive damages are merely an incident to a cause of action and need not be stated in a separate count. Daley v. John Wanamaker Inc., 317 Pa. Super. 348, 464 A.2d 355 (1983). See also, Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 555 A.2d 800 (1989).

IV. JURISDICTION

Defendant BT Industries AB (BT Sweden) filed a late supplemental preliminary objection claiming a lack of personal jurisdiction. BT Sweden claims that the plaintiff cannot establish the necessary contacts between the Commonwealth of Pennsylvania and BT Sweden to permit this court to exercise jurisdiction over it. Defendant further claims that in order to establish personal jurisdiction, the plaintiff is required to show that the defendant has enough minimum contact with the forum state so that the action does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Further, defendant claims that the plaintiff has the burden of establishing with reasonable particularity sufficient contact between BT Sweden and the Commonwealth of Pennsylvania to support jurisdiction. Gahling v. Saint Georges School of Medicine Ltd., 773 F.2d 539 (Third Circuit 1989).

Plaintiff counters that BT Sweden has waived the jurisdictional issue not only by its failure to file preliminary objections challenging jurisdiction in a timely manner, but also by filing its initial preliminary objections challenging the merits of the case.

In the instant case, plaintiff filed her initial writ of summons naming BT Sweden as one of six defendants. A complaint followed on April 7, 1998, again naming BT Sweden. Preliminary objections were filed on behalf of BT Industries of America dated May 18, 1998. The complaint was reinstated on praecipe filed by plaintiff on July 2,1998 and service was made upon BT Sweden pursuant to the Hague Convention on August 4, 1998. The same counsel representing BT Industries of America filed an appearance on behalf of BT Sweden dated August 13, 1998. BT Sweden filed preliminary objections that same date incorporating by reference the preliminary objections previously filed on behalf of the remaining BT entities as discussed earlier in this opinion. BT Sweden did not file objections challenging jurisdiction at that time.

The preliminary objections of all defendants were appropriately filed and briefed. On September 18,1998, plaintiff listed the preliminary objections of all the BT defendants as well as Fortna Inc. for the December 1998 session of argument court. BT Sweden then filed supplemental preliminary objections raising the issue of personal jurisdiction together with a brief dated October 22, 1998.

The Pennsylvania Rules of Criminal Procedure are quite explicit and use the imperative in requiring: “All preliminary objections shall be raised at one time.” Pa.R.C.P. 1028(b). (emphasis added) Pennsylvania law is clear that questions of personal jurisdiction must be raised by preliminary objection or they will be deemed waived. See Tops Apparel Manufacturing Company Inc. v. Rothman, 430 Pa. 583, 244 A.2d 436 (1968); In re Estate of Morell, 426 Pa. 528, 233 A.2d 522 (1967); Roskwitalski v. Reiss, 338 Pa. Super. 85, 487 A.2d 864 (1985), appeal denied, 513 Pa. 642, 521 A.2d 933 (1987).

Plaintiff further contends that defendant waived this issue by filing its original preliminary objections on the merits. In O’Barto v. Glossers Stores Inc., 228 Pa. Super. 201, 324 A.2d 474 (1974), the Superior Court held that a written appearance did not constitute the waiver of a right to raise jurisdictional questions. “However, when a party takes ‘some other and further action to the merits’ of a case, a waiver may be found.” Id. at 205, 324 A.2d at 476. Again in Yentzer v. Taylor Wine Company Inc., 409 Pa. 338, 186 A.2d 396 (1962), in a case with striking similarities to the instant matter, our Supreme Court held that when a defendant filed preliminary objections which did not raise a jurisdictional question, such activity constituted a general appearance in the action and a waiver of any question of jurisdiction over the person. Yentzer at 343, 186 A.2d at 398. The Yentzer court elaborated:

“The defendant then filed preliminary objections to the complaint in the nature of a demurrer and a motion for more specific statement. Subsequently . . . without leave of court or consent of the plaintiff, the defendant filed additional preliminary objections to the complaint, alleging that the facts pleaded clearly indicate that the court lacked jurisdiction over the person of the defendant and requesting dismissal of the action. Up to this point, no decision had been rendered by the court upon the merits of the preliminary objections originally filed.

“The basic question for decision is the timeliness of defendant’s raising of the jurisdictional question in the court below.

“Pa.R.C.P. 1028(b) provides that all preliminary objections shall be raised at one time. Further, Rule 1032, provides that a party waives all defenses and objections not raised by these preliminary objections except certain specified defenses which are preserved, none of which are relevant here. . . .:

“When the defendant filed the original preliminary objections in this case, which objected only to the substance and form of the complaint, and none of which raised a jurisdictional question, this constituted a general appearance in the action. ... It is fundamental that where a defendant enters a general appearance, he waives his right to assert thereafter any possible objection that may exist to jurisdiction over his person.” Yentzer, 409 Pa. at 340-43, 186 A.2d at 397-99. (citations omitted) (footnotes omitted)

Defendant counters the waiver argument citing Vant v. Gish, 412 Pa. 359, 194 A.2d 522 (1963) and Bowman v. Meadow Ridge Inc., 419 Pa. Super. 511, 615 A.2d 755 (1992). In Vant, the defendant filed preliminary objections attacking jurisdiction as well as a demurrer, a motion to strike off a pleading, and assertion of lack of capacity to sue, among other matters. Defendant was deemed not to have entered a general appearance submitting himself to the jurisdiction of the court since he was required to join all preliminary objections in one pleading. In the instant case, however, the defendant first raised preliminary objections attacking the complaint. Several months thereafter, following the filing of briefs and an argument court listing, defendant lodged his challenge to jurisdiction.

Bowman is also inapposite to the case sub judice. It did not involve a jurisdiction issue but rather an amended preliminary objection to include a motion for a more specific pleading which was filed prior to argument or briefing on the preliminary objections. Therefore, this court finds that defendant BT Sweden has waived the issue of jurisdiction.

Accordingly, the following is entered:

ORDER

And now, February 16, 1999, having heard the arguments of the plaintiff and defendants, and having reviewed the briefs filed by them, it is hereby ordered as follows:

(1) BT Industries AB, BT Industries of America and BT Prime-Mover Company Inc.’s preliminary objections in the nature of a demurrer to paragraphs 31 and 32 and paragraphs 37 and 38 of the plaintiff’s complaint are granted consistent with the attached opinion.
(2) BT defendants’ motion to strike Count III of the plaintiff’s complaint is denied.
(3) BT defendants and defendants Fortna Inc., Lift Truck Service Inc. and Local Industrial Fork Truck Inc.’s motion to strike paragraphs dealing with punitive damages are denied.
(4) BT Industries AB (BT Sweden’s) supplemental preliminary objection on the question of jurisdiction is denied.


author: SCHULTZ,

text:
    In re Anonymous No. 68 D.B. 97

      Disciplinary Board Docket no. 68 D.B. 97.
    August 5, 1998
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SCHULTZ,

Member, Pursuant to Rule 208(d) (2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

A petition for discipline was filed on May 21, 1997 by Office of Disciplinary Counsel against respondent, [ ], Esquire. The petition charged respondent with violations of Rules of Professional Conduct 1.8(f), 3.3(a)(1), 3.3(a)(4), 8.4(c) and 8.4(d). Respondent filed an answer on June 30, 1997.

A disciplinary hearing was held on August 29, 1997 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire. The committee filed areporton January7,1998. The majority recommended a public censure. The dissenting member recommended a private reprimand. No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of March 4, 1998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom on December 10, 1948, was admitted to practice law in the Commonwealth on October 18, 1973, maintains his office at [ ] and is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Between 1992 and 1993, the [A] Funeral Home and [B] Family Services were involved in a series of lawsuits in the Court of Common Pleas of [ ] County.

(4) In 1992 and early 1993, [C], proprietor of [B] Family Services and the [D] Funeral Homes, became involved in discussions with a number of individuals who had pre-need agreements (pre-paid funeral arrangements) with his competitor, the [A] Funeral Home. These clients were [E], [F], [G] and [H]. [C] agreed to assist these individuals in recovering funds they had paid to [A] under pre-need agreements.

(5) In February 1993, [C] sought counsel to represent the pre-need clients. [C] was referred to respondent by his own counsel, [I] and [J]. On February 4, 1993, he met with respondent and entered into an oral agreement with respondent to advance costs of litigation, including respondent’s fees at an hourly rate for services provided to the pre-need clients, with the expectation he would be reimbursed if the litigation was successful. On March 5, 1993, respondent drafted a letter to [C], stating an understanding that [C] would pay respondent’s firm on an hourly basis up to a maximum of $15,000, and be reimbursed from any amount recovered under a contingent fee agreement with the pre-need clients. This letter was never sent to [C] but reflected respondent’s understanding of their fee arrangement.

(6) [C] arranged a meeting between respondent and the pre-need clients at his funeral home on March 12, 1993. During the meeting, respondent reviewed with the clients a complaint which he had already drafted. There was a brief discussion of fees and costs during which time [C] indicated he would be able to provide financial assistance. Respondent and [C] discussed fee arrangements on a contingent fee basis, but no agreements were signed at the meeting, and neither respondent nor [C] disclosed that [C] would be advancing fees to respondent. The pre-need clients did not sign a contingent fee agreement at that meeting.

(7) On April 30,1993, respondent filed a class action suit against [A] Funeral Home.

(8) Between May 1993 and December 1994, respondent sent billing statements for costs and services on an hourly basis. In all, [C] paid fees and costs in a total amount of $9,003 to respondent’s firm. Respondent also sent copies of correspondence and pleadings to [C].

(9) By letter of February 3, 1994, [E] discharged respondent from representation and requested return of her file.

(10) On March 15, 1994, defendants filed a pleading entitled petition for summary judgment and asserted that the suit against [A] Funeral Home should be dismissed based upon champerty and barratry, as the suit was solicited by, financed by, and maintained by [C] and not the named plaintiffs.

(11) On March 21 and 22, 1994, respondent met with the pre-need clients for the first time since March 12, 1993, for the purpose of preparing affidavits in response to the petition for summary judgment. The clients also signed contingent fee agreements at these meetings.

(12) The affidavits stated that the full nature of [C’s] involvement was disclosed to the clients, that [C] had offered to assist with costs if such became a problem, but he was not currently involved with the lawsuit.

(13) On March 30, 1994, respondent filed an answer opposing defendants’ petition for summary judgment and a brief in opposition to the petition for summary judgment. The brief and answer were supported by the statements contained in the affidavits.

(14) Respondent did not explain his agreement with [C], who at the time was expending his own money to finance the litigation.

(15) On August 17,1994, an argument on the petition for summary judgment was held before Judge [K].

“(a) In response to the court’s inquiry, ‘What do you have to say with regard to this issue?,’ respondent stated, ‘I said that I would advance the costs, and as I pointed it out, it is in the contingent fee agreement that the costs are the responsibility of the individuals.’ [C] said, ‘Well if they get to be a problem, and obviously they are not a problem at this point because the only costs have been filing costs, there haven’t been any depositions so we don’t really have any problem of concern. At this point it hasn’t occurred yet.’ (N.T. p. 21.) Respondent indicated to the court that [C’s] remark was an ‘off-handed, friendly remark.’ (Exhibit no. 27, p. 21.)

“(b) In response to the court’s inquiry about ‘What about [C]?,’ respondent stated, ‘Certainly I’ve run into him on social occasions. I haven’t done anything, you know, out with him or anything like that, but I haven’t run into him so I know him and I saw no problem with sending him a copy of a letter that says I am not going to agree to depositions. I think it is a justifiable concern on his part as to whether or not he has to appear at a deposition, and I also sent one to his counsel. I don’t see anything wrong with that.’ (N.T. p. 23.)

“(c) In response to the court’s inquiry about what facts were in dispute, respondent replied, ‘There is no party involved. [C] is not involved. The fact that someone may be friendly to or even facilitating getting parties and counsel together doesn’t make that person involved. ’ (N.T. p. 30.) Respondent further stated that, ‘There is no evidence that [C] has expended any money in this suit.’ (N.T. p. 30.)”

(16) On October 24, 1994, Judge [K] issued an order denying defendants’ petition for summary judgment. The judge quoted respondent’s statements and oral argument as support for the proposition that [C] had not agreed to finance litigation. Ahearing on the certification of the matter as a class action was scheduled for December 29, 1994.

(17) Prior to the hearing of December 29,1994, counsel for defendants served respondent with a subpoena to testify at the hearing and produce records regarding payment of fees by [C].

(18) Shortly before the hearing, respondent’s law firm turned over extensive records on the contractual arrangements with the pre-need clients and with [C].

(19) The hearing was held on December 29, 1994. Respondent did not appear. [L], Esquire, a member of respondent’s firm, represented the plaintiffs at the hearing.

(20) At the hearing, [C] testified to payments he made to respondent.

(21) At the hearing, [F] and [H] testified that they were not aware that [C] had paid respondent’s fees.

(22) On September 21, 1995, Judge [K] entered an opinion and order granting defendants’ motion to dismiss based on champerty and barratry.

(23) Judge [K’s] decision was upheld by the Superior Court on November 25, 1996.

(24) Respondent has no prior record of discipline.

III. CONCLUSIONS OF LAW

Respondent, by his conduct as set forth above, has violated the following Rules of Professional Conduct:

(1) R.P.C. 1.8(f) — A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after full disclosure for the circumstances and consultation.

(2) R.P.C. 3.3(a)(1) — A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

(3) R.P.C. 3.3(a)(4) — A lawyer shall not knowingly offer evidence that the lawyer knows to be false.

(4) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(5) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the board upon a petition for discipline filed against respondent charging him with violations of Rules of Professional Conduct 1.8(f), 3.3(a)(1), 3.3(a)(4), 8.4(c) and 8.4(d). The record reveals that in 1992 and 1993, the [A] Funeral Home and [B] Family Services were business competitors in funeral services in [ ] County and were opposing parties in numerous lawsuits filed in the [ ] County Court of Common Pleas. In early 1993, several individuals who had pre-need contracts for funeral services with [A] Funeral Home attempted to terminate these contracts and recover their money. These individuals were unsuccessful in their attempts to obtain recourse with [A], and contacted [C], the proprietor of [B] Family Services. [C] agreed to help recover the funds. In February 1993, [C] contacted respondent and apprised him of the situation and discussed respondent’s representation of the pre-need clients. [C] was willing to advance the litigation costs, including respondent’s fees to a certain amount. Respondent met with the pre-need clients in March 1993. At the meeting, there was a brief discussion of fees and costs at which time [C] indicated he would provide financial assistance to support litigation, if such became necessary. Respondent stated he would represent the clients on a contingent fee basis, but such agreements were not executed until March 1994.

Respondent filed a class action lawsuit against [A] Funeral Home on April 30, 1993. Between May 1993 and December 1994, respondent billed [C] for costs and services on an hourly basis for a total of $9,003. Respondent provided [C] with copies of correspondence and pleadings and consulted him on the case. In March 1994, [A] filed a petition for summary judgment asserting that the suit should be dismissed based on champerty and barratry. [A] alleged that the suit was solicited, financed, and maintained by [C], and not the plaintiffs named in the complaint. On March 21 and 22, 1994, respondent met with his clients for the preparation of affidavits in response to the motion for summary judgment. This was the first time since March 1993 that respondent met with the clients. Affidavits were prepared by respondent and signed by the clients. These affidavits indicated that as to the issue of costs, [C] made a remark about assisting in the payment of costs, and this remark was an off-handed, friendly remark. This constituted the clients’ understanding of [C’s] involvement in the suit. The clients then signed a contingent fee agreement. Respondent filed an answer on March 30, 1994 and denied that the suit was solicited by [C], Respondent filed a brief in opposition to the summary judgment on the same date and argued, among other things, that the full nature of [C’s] involvement was disclosed to the plaintiffs, [C] had no involvement, and [C] only offered to assist plaintiffs with costs if costs became a problem, and the respondent’s compensation was by contingent fee agreement.

An argument on the petition for summary judgment was held in August 1994 before Judge [K]. Respondent represented to the judge that he accepted the case on a contingent fee basis, and that [C] had not expended any money to finance the suit. Respondent did not reveal that he was billing [C] for his services. He did not reveal that [C] had been consulted on pleadings and received copies of correspondence and pleadings. Based on respondent’s statements, Judge [K] denied the petition for summary judgment. In December 1994, counsel for [A] served respondent a subpoena to produce records regarding the payment of fees by [C]. Respondent’s firm turned over extensive records on the contractual arrangements with the pre-need clients and with [C]. At the December 29, 1994 hearing, it came to light that respondent was billing [C], and [C] had actively participated in all matters relative to litigation from its inception. Judge [K] dismissed the action based on champerty and barratry. This decision was affirmed by the Superior Court in November 1996.

The board’s responsibility in this matter is to determine whether respondent violated the charged Rules of Professional Conduct and, if so, the appropriate sanction in response to the violations. Respondent is charged with accepting compensation from one other than his client without full disclosure to the client and without consent. He is charged with making false statements of fact in writing in his answer opposing petition for summary judgment and in his brief in opposition to petition for summary judgment. Respondent is charged with making false statements of fact to the court in an argument. Finally, respondent is charged with engaging in conduct involving dishonesty and misrepresentation, and conduct which caused prejudice to the administration of justice. Respondent admitted that he violated R.RC. 1.8(f) by accepting compensation from [C], who was not his client. Respondent billed [C] at an hourly rate and received in total $9,003 for fees and costs. Respondent did not inform his pre-need clients, the parties to the lawsuit, that he had such an arrangement with [C], nor did respondent seek his clients’ consent to this arrangement.

In the answer opposing defendants’ petition for summary judgment, filed by respondent, he denied that the suit was solicited by [C] and that he was retained by [C]. Respondent knew this was not true. In the brief in opposition to defendants’ petition for summary judgment, respondent made specific factual statements and argued factual conclusions that respondent knew were false. These statements referred to and relied on the affidavits drafted by respondent. Respondent created a record which created a false impression, and then based his arguments in his brief on the misleading record. Respondent continued to make misleading statements based on this record in his argument on the summary judgment petition in court. Respondent told the court that [C] said he would pay for costs if such became a problem, but that had not happened. In reality, respondent had already billed [C] for costs and fees. Respondent told the court that he saw [C] on social occasions and sent him a copy of one letter concerning a deposition. In fact, respondent consulted with [C] on different aspects of the lawsuit and sent [C] copies of correspondence and pleadings. Respondent told the court there was no evidence that [C] expended any money in the suit, when in fact he knew there was evidence but did not reveal it to the court. Respondent stated that he took the case on a contingent fee basis, which was a partial truth, but he failed to tell the court of his arrangement with [C]. It is evident from the record that respondent violated Rules 3.3(a)(1), 3.3(a)(4), 8.4(c) and 8.4(d).

Respondent’s lack of candor in this matter is troubling. He created a record to support his answer and brief opposing a motion for summary judgment that was based on his clients’ ignorance of his fee agreement with [C]. He then carefully argued his case within the confines of this record, failing to apprise the court of his arrangement with [C]. By these actions, respondent went beyond the ethical limits of skillful advocacy. Respondent misled the court and compromised the truth-seeking function of the judicial process. The board recommends that a public censure be imposed.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], receive a public censure from the Supreme Court of Pennsylvania.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Chair Rudnitsky recused herself.

Board Member Caroselli did not participate in the March 4, 1998 adjudication.

ORDER

And now, August 5, 1998, upon consideration of the report and recommendations of the Disciplinary Board dated June 4, 1998, it is hereby ordered that [respondent] be subjected to public censure by the Supreme Court.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: KENNEDY,

text:
    Gorham v. Springettsbury Township
    C.P. of York County,
    no 97-SU-04076-01.

      Gilbert G. Malone, for plaintiffs.

      Lee E. Uliman and Donald H. Yost, for defendants.
    January 23, 1998
   KENNEDY,

This matter is before the court on the preliminary objections in the nature of a motion to strike and in the alternative, a motion for a more specific pleading, filed by the defendants in response to the plaintiffs’ complaint. For the following reasons, we will overrule in part and sustain in part the defendants’ preliminary objections.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Cheryl Writer is the owner of improved property located at 920 Erlen Drive, Springettsbury Township, York, Pennsylvania and resides at such location with her husband, plaintiff Paul Gorham. Defendant Springettsbury Township operates a sanitary sewer system in the township that receives sewage affluent from within the township and other municipalities in York County. Defendant Springettsbury Township Sewer Authority constructed the said sanitary sewer system. Persons owning property in Springettsbury Township that have access to the sewer are compelled to hook up and pay service charges for the service provided by the system. Writer’s property is connected to the above system.

In January of 1978, Writer’s property was inundated by 12 to 18 inches of raw sewage. On July 4, 1995, a sewage back-up occurred on Writer’s property, causing little or no damage. On January 23, 1996, four feet of raw sewage again flowed into Writer’s dwelling through the commode and sewer drains, causing damage to her basement and property owned by her and her husband Paul Gorham.

The plaintiffs filed a complaint against the defendants on September 9, 1997 for personal property damage. The defendants filed preliminary objections on September 16, 1997 and submitted its brief in support thereof on September 26, 1997. The brief in opposition to the defendants’ preliminary objections was filed by the plaintiffs on October 3, 1997. This case is presently before this court for one-judge disposition pursuant to local Rule 6030.

ANALYSIS

The defendants have filed two preliminary objections to the plaintiffs’ complaint. First, the defendants filed a motion to strike paragraph 15 of the plaintiffs’ complaint on the basis that the damages sought by the plaintiffs are not recoverable under Pennsylvania law. In the alternative, the defendants filed a motion for a more specific pleading as to paragraph 15 of the plaintiffs’ complaint that sets forth the damages claimed. Each objection will be addressed in turn below.

First, the defendants’ preliminary objections in the nature of a motion to strike paragraph 15 of the plaintiffs’ complaint is improper. In reviewing preliminary objections, only facts that are well-pleaded, material, and relevant will be considered as true, together with such reasonable inferences that may be drawn from those facts, and preliminary objections will be sustained only if they are clear and free from doubt. Santiago v. Pennsylvania National Mutual Casualty Insurance Co., 418 Pa. Super. 178, 613 A.2d 1235 (1992).

The defendants contend that paragraph 15 of the plaintiffs ’ complaint should be stricken “for failure to conform to law as authorized by Pa.R.C.P. 1028(a)(2) in that plaintiffs seek to recover damages of a sentimental or personal attachment value and such damages are not recoverable under Pennsylvania law.” Defendants’ motion to strike, paragraph l.(a).

The plaintiffs are able to seek damages for the loss of their personal belongings and personal effects. In Pennsylvania, damages for the injury to or destruction of property by the tortious conduct of another are awarded to compensate the injured party for the actual loss suffered. Daughen v. Fox, 372 Pa. Super. 405, 418, 539 A.2d 858, 864 (1988) (citing PennDOT v. Crea Estate, 92 Pa. Commw. 242,483 A.2d 996 (1977)).

Additionally, the replacement cost as the measure of damages has been the long-established exception to the general rule of using the market value of property when determining the value of damaged property which is of a personal nature. Lynch v. Bridges & Co. Inc., 451 Pa. Super. 92, 95, 678 A.2d 414, 415 (1996). In support of its contention the court found that:

“Many of the goods for which compensation is here asked were of such a character that their market value could not compensate for their loss, as, for instance clothing and other personal belongings. It cannot be said that they had no value in the open market, since at public auction they would most likely have brought something, but manifestly the price they would have there commanded would not represent their value to the owner . . . Where this is the case the just rule of damages is the actual value of the thing destroyed to him who owns it, taking into account its cost, the practicality and expense of replacing it, and such other consideration as in the particular case affect its value to the owner.” Id. (citing Lloyd v. Haugh & Kleenan Storage and Transfer Co., 223 Pa. 148, 156-57, 72 A 516, 518 (1909).

Further, allowing for the recovery of the actual value of damaged property is embodied in the Pennsylvania standard jury charge as it relates to property damage. The standard charge in Pennsylvania relating to the entitlement of damages is as follows:

“6.01J (Civ) Property Damage

“The plaintiff is entitled to be compensated for the harm done to his (her) property. If you find that the property was a total loss, damages are to be measured by either its market value or its special value to the plaintiff, whichever is greater. . . .” Pa. SSJI (Civ) 6.01J.

Presently, the plaintiffs seek recovery for the damage to their personal effects, such belongings being: photographs of their family, scrapbooks, autographs, baby clothes, various memorabilia representing times in their lives. The value of these items is not the market value; the value is the actual value to the plaintiffs, “taking into account its cost, the practicality and expense of replacing it, and such other consideration as in the particular case affect its value to the owner.” Lloyd, supra at 157, 72 A. at 518. Because the plaintiffs are legally entitled to recover for the special value placed upon their damaged property, the defendants’ motion to strike is overruled.

Second, the plaintiffs should plead with greater specificity the value placed on the damaged articles of property in paragraph 15 of their complaint. The form in which damages are pled is governed by Pa.R.C.P 1019. Particularly, Rule 1019 reads:

“(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. . . .
“(f) Averments of time, place and items of special damage shall be specifically stated.” Pa.R.C.P 1019(a) and (f).

Although greater specificity is required when pleading special damages, Pa.R.C.P. 1019(f), “[ajverments of damages may also be scrutinized under the. specificity requirements of Rule 1019(a).” PennDOT v. Shipley Humble Oil Company, 29 Pa. Commw. 171, 175, 370 A.2d 438, 441 (1977) (citing Rosenblum v. United Natural Gas Co., 14 D.&C.2d 239 (1958). (A complaint alleging just a total amount for losses to various items damaged in a fire was insufficiently itemized and should be amended to show the amount of damage to each of the articles listed.)

In sustaining the defendants’ preliminary objections in the form of a more specific pleading, the Shipley court found that the defendants were entitled to an itemization of the alleged damages claimed by the plaintiffs consisting of the cost of repair of each type of property damaged. Further, the court reasoned that the “itemization requested by Mason in this case would impose no undue difficulty upon the plaintiff and would not render the complaint prolix.” Id. at 176, 370 A.2d at 441.

Presently, the plaintiffs have placed a “value to them in excess of $10,000” on the items damaged. Although the plaintiffs have provided an exhaustive list of damaged personal effects, we are of the belief that there would be no undue difficulty imposed upon the plaintiffs, Shipley, supra, by having them itemize the amount claimed for each damaged article of personal property. Therefore, the defendants are entitled to greater specificity in the amount of damages claimed, and their motion for a more specific pleading is hereby sustained.

CONCLUSION

The defendants’ motion to strike paragraph 15 of the plaintiffs’ complaint on the basis that the damages claimed are not recoverable by law is incorrect and will be overruled. Next, the plaintiffs must state with more specificity the amount attributable to each item allegedly damaged by the defendants. Therefore, the defendants’ motion for a more specific pleading will be sustained.

ORDER

The defendants’ preliminary objections are hereby overruled in part and sustained in part.

Plaintiffs shall have 20 days from the date of entry of this order in which to file an amended complaint.

The prothonotary of York County shall provide notice of the entry of this opinion as is required by law.


author: MOTTO, J.,

text:
    Tucker v. Tucker

      C.P. of Lawrence County,
    no. 10058 of 1996, C.A.

      Allen L. Palmer, for plaintiff.

      Jean K. Perkins, for defendant.
    February 3, 1998
   MOTTO, J.,

Before the court for disposition are the competing claims of the parties for custody of their minor children, Haldis Tucker III, age 9, and John D. Tucker, age 6.

Mr. and Mrs. Tucker married on July 28, 1984, and separated in March of 1995. The two children who are the subject of these proceedings were the only children bom to the marriage. Neither party has any other children.

Prior to separation, Mrs. Tucker was the primary caregiver of the children. Although both parties were employed during the marriage on a full-time basis, Mrs. Tucker worked a night turn shift which allowed her to be with the children during the day and in the evening hours. Both parties are now employed on a full-time basis and work day turn shifts.

Shortly after the initiation of this proceeding, the parties entered into an agreement at a conciliation conference held on July 31, 1995. That agreement resulted in a consent order dated October 13, 1995, by which Mrs. Tucker was awarded primary physical custody of the children, with Mr. Tucker to have partial custody each week from Sunday at 1 p.m. until Tuesday at 6 p.m.

On February 12, 1996, Mr. Tucker filed a motion to modify the October 13, 1995 custody order.

On May 31, 1996, Mrs. Tucker filed a petition to restrict visitation, alleging sexual abuse of the minor children by Mr. Tucker. Mrs. Tucker’s petition was dismissed by order dated June 28,1996, whereby President Judge Glenn McCracken Jr. found insufficient proof under the least of burdens of proof that Mr. Tucker did anything to support the petition to restrict visitation. A temporary order dated May 31, 1996, temporarily restricting visitation, was vacated by the June 28, 1996 order and the parties were directed to continue to abide by the terms of the October 13, 1995 custody order.

The parties have, in fact, continued to abide by the terms of the October 13, 1995 order to the present, with some modification for summer visitation relative to the summer of 1997.

Because of difficulties that the oldest child, Haldis, was experiencing in the third grade, including difficulty concentrating and focusing on schoolwork and written testing procedures, the principal of the school recommended that Haldis be tested for Attention Deficit Hyperactivity Disorder. Mr. Tucker was resistant to having Haldis tested for ADHD. The court, at the request of Mrs. Tucker, ordered Haldis to be tested for ADHD by psychologist Michael Stem Ph.D. Dr. Stern diagnosed Haldis as having ADHD and recommended a course of treatment. Mr. Tucker has strongly opposed Haldis being treated in any fashion for ADHD. However, such treatment has been recommended by school officials, Dr. Michael Stem and psychologist Cathy Clover, who had been appointed to prepare a psychological/custody evaluation for the court relative to these proceedings, Children’s Hospital of Pittsburgh and Tod Children’s Hospital of Youngstown, Ohio.

Haldis’ best interests would be served by engaging in a course of treatment for ADHD. Haldis has a range of intelligence from very bright to superior; however, he has great difficulty focusing on his schoolwork. He is easily distracted and often does not complete or take seriously written tests or assignments. Haldis has also engaged in disruptive behavior in school.

Upon evaluation by Children’s Hospital of Pittsburgh and Tod Children’s Hospital of Youngstown, Ohio, counseling was recommended to address ADHD. Mrs. Tucker has filed a motion to compel compliance with the medical recommendations made by Dr. Stem. Dr. Stern’s recommendations include a combination of counseling and stimulant medication to be administered with the support of both parents. Counseling of the children was occurring at Daystar Counseling from June 1995 to February 1997, but was terminated by court order due to conflicts that occurred between Mr. Tucker and Daystar which resulted in Daystar electing to withdraw from the case.

The relationship between Mr. and Mrs. Tucker since separation has remained extremely hostile. Mrs. Tucker consistently maintained a conviction in her mind that Mr. Tucker sexually abused one or both of the children. However, there exists no proof of any sexual abuse by Mr. Tucker. The opinion of the court-appointed psychologist, Cathy Clover, was that Mr. Tucker did not sexually abuse either child. Neither parent is supportive of the relationship of the children to the other parent. Mr. and Mrs. Tucker have a complete inability to communicate with each other relative to the needs and welfare of the children.

Putting aside the dispute between the parties relative to the need for treatment for ADHD, both parents exhibit appropriate love and concern for the children. The children in turn exhibit an appropriate degree of love for each parent and are firmly bonded to each parent. Both parents display an active interest in the children’s schoolwork and extracurricular activities.

The younger child, John, suffers from hydrencephalus, having spastic dysplasia in one leg, which limits his strength. He displays an obvious disability, which requires intense therapy. Both parents have followed the therapy regime in each of their respective households. Accordingly, the court concludes that both parents demonstrate an equal concern for health issues affecting the children, except for Mr. Tucker’s refusal to acknowledge the need of the child Haldis for treatment for ADHD.

Mrs. Tucker lives with her mother in a sizable home where there are adequate living accommodations for herself, her mother and the children. Mr. Tucker resides in what was the marital home with a paramour.

The central issue in a custody contest between parents is whether the best interests of the children lie in granting custody to one parent or the other. The best interests of the children are the paramount consideration. Commonwealth ex rel. Robinson by Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). The best interests of the children for custody purposes when two parents are involved are evaluated on a scale initially weighted equally as to each parent; when the scale is tipped in favor of one of the parents, the other must come forward with evidence to reverse the balance. Sawko v. Sawko, 425 Pa. Super. 450, 625 A.2d 692 (1993). See also, Boylan v. Boylan, 395 Pa. Super. 280, 577 A.2d 218 (1990), appeal denied, 527 Pa. Super. 627, 592 A.2d 1295 (1991).

The court here concludes that the best interests of the children require that primary physical custody be awarded to Mrs. Tucker.

Mrs. Tucker had been the primary caretaker of the children prior to separation. Since separation, she has continued to be the primary caretaker, with primary physical custody having been awarded to her by agreement of the parties made at the July 31,1995 conciliation conference as that agreement was specifically set forth in the consent order dated October 13, 1995. Although Mrs. Tucker’s conviction that Mr. Tucker engaged in sexual abuse of the children has been a concern, it appears to the court that she has accepted the fact that there is no substantiation of her belief by any expert and has not recently pursued any allegation that Mr. Tucker was guilty of sexual abuse in the custody hearings held on Mr. Tucker’s motion to modify. The court-appointed psychologist, Cathy Clover, recommended that primary physical custody be awarded to Mr. Tucker based primarily on a concern for Mrs. Tucker’s conviction that Mr. Tucker was guilty of sexual abuse and that Mrs. Tucker would therefore continue to undermine the relationship between the children and Mr. Tucker. However, the facts found by the court as a result of the custody hearing do not indicate that Mrs. Tucker is presently engaging in any conduct that would undermine the relationship between the children and Mr. Tucker and, therefore, the factual basis for the conclusion of the court-appointed evaluator does not currently exist. To the extent that Mrs. Tucker may continue to harbor ill feelings towards Mr. Tucker, the court cannot accept such fact as a basis for awarding primary physical custody to Mr. Tucker, as both parties have expressed ill feelings toward the other. Acrimony between the parties exists in each parent in his and her attitude toward the other. Considering the difficulties the children have had in dealing with parents who each express hostility toward the other, and with Haldis having ADHD and John having a serious physical disability, Mrs. Tucker has done an acceptable job of providing for the needs and welfare of the children. Mrs. Tucker has shown herself to be attentive to the welfare of the children, provides a suitable home for them, is concerned about their schoolwork, stays in contact with the school and monitors the progress of the children, and ensures their participation in extracurricular activities and religious upbringing.

In Wiskoski v. Wiskoski, 427 Pa. Super. 531, 629 A.2d 996 (1993), the Superior Court held that where both parents are otherwise fit, one parent’s role as the child’s primary caretaker may be given weight as a determining factor in a custody determination. See also, Gerber v. Gerber, 337 Pa. Super. 580, 487 A.2d 413 (1985); Gonzalez v. Gonzalez, 337 Pa. Super. 1, 486 A.2d 449 (1984); Hartman v. Hartman, 328 Pa. Super. 154, 476 A.2d 938 (1984).

Considering the level of acrimony between the parties, the ADHD that is experienced by the child Haldis and the serious physical disability experienced by the child John, the children have done well in difficult circumstances. Haldis has been able to achieve A’s and B’s, despite being diagnosed with ADHD, and John’s medical needs have been adequately met.

The need of the child Haldis for treatment for ADHD has been neglected. Mr. Tucker is responsible for this neglect as Mrs. Tucker has actively attempted to secure this treatment for Haldis. The need for treatment for ADHD has been specifically recommended or suggested by the school officials, Dr. Michael Stern, psychologist Cathy Clover, Daystar psychologists, Tod Children’s Hospital of Youngstown, Ohio, and Children’s Hospital of Pittsburgh, Pennsylvania. Mr. Tucker’s refusal to accept the recommendations of the professionals in this regard is unreasonable, especially since he has never allowed any treatment to be attempted, which would indicate whether or not treatment would produce desired results.

It is well-settled that the best interests doctrine encompasses the physical well-being of the child. See generally, Warren v. Rickabaugh, 410 Pa. Super. 431, 600 A.2d 218 (1991); McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992); Andrews v. Andrews, 411 Pa. Super. 286, 601 A.2d 352 (1991). It is clear that if primary physical custody were awarded to Mr. Tucker, Haldis could never successfully receive treatment for ADHD. Since Mr. Tucker does not accept the fact that Haldis needs such treatment, he cannot be counted upon to render medication or to be supportive in counseling efforts. On the other hand, if primary physical custody were left with Mrs. Tucker, with the authority to pursue treatment, then all indications are that Haldis will receive the treatment that he needs. Thus, the best interests of Haldis will be served by awarding physical custody of him to Mrs. Tucker so that his physical and intellectual needs may be met and enable him to receive the treatment for ADHD through the efforts of Mrs. Tucker.

Although both parents have been attentive to the physical needs of John, primary physical custody of John should be awarded to Mrs. Tucker because of her consistent role of primary caretaker of the children since their birth and because of the desirability of keeping siblings together. The strong policy of law is that, unless compelling reasons indicate otherwise, siblings should be raised together. Cardamom v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575 (1995).

Neither party has advanced any argument that the existing partial custody schedule should be changed if Mrs. Tucker were to be awarded primary physical custody. Therefore, the court having concluded that Mrs. Tucker should be awarded primary physical custody, the court will not consider modifying the existing partial custody schedule of Mr. Tucker, except upon motion of a party. This opinion shall be accompanied by a comprehensive custody order setting forth the custody and partial custody rights of the parties.

ORDER

And now, February 3,1998, following the completion of hearings held on the defendant’s motion to modify the custody order of August 13, 1995, it is ordered and decreed as follows:

(1) The plaintiff-Mother and the defendant-Father shall have shared legal custody of the children, Haldis Tucker III and John D. Tucker, provided, however, that Mother shall have the sole and exclusive authority to authorize any recommended treatment of Haldis Tucker III for Attention Deficit Hyperactivity Disorder, including medical treatment and counseling, psychological evaluation related thereto and to otherwise do any and all acts recommended by any health care professional secured by Mother to address the ADHD diagnosis relative to Haldis. Father shall fully cooperate relative to any treatment program recommended for Haldis by any health care professional secured by Mother.

(2) Mother shall have primary physical custody of the children. Father shall have partial custody of the children each week beginning on Sunday at 1 p.m. until the following Tuesday at 6 p.m. Father shall transport the children to their schools on a timely basis and shall make appropriate arrangements for their transportation from their schools on a timely basis at the end of the school day on the Mondays and Tuesdays for which Father has partial custody rights.

(3) During the summer months when school is not in session, the partial custody rights set forth in the foregoing paragraph shall be suspended and, in lieu thereof, the custody of the children shall be shared, on a two-week rotating basis, with Father to have the first two weeks, commencing with the first Friday after the conclusion of the school term, and the parties alternating physical custody every two weeks thereafter until the commencement of the next school term, at which time the regular partial custody schedule shall resume.

(4) Father shall have custody of the children each Father’s Day and Mother shall have custody of the children each Mother’s Day, notwithstanding any other provision of this order.

(5) The parties shall share holidays in the following manner:

(A) Mother shall have custody of the children from 5 p.m. Christmas Eve until 1 p.m. Christmas Day.

(B) Father shall have custody of the children from 1 p.m. Christmas Day until 6 p.m. December 27.

(C) Mother shall have custody of the children each New Year’s Day.

(D) In all odd-numbered years, Father shall have custody of the children for Independence Day and Thanksgiving Day, and Mother shall have custody of the children for Memorial Day and Labor Day. In all even-numbered years, Father shall have custody of the children for Memorial Day and Labor Day, and Mother shall have custody of the children for Independence Day and Thanksgiving Day.

(6) Holiday partial custody shall take precedence over any other provisions of this order for custody/partial custody. Unless otherwise set forth in this order, a holiday custody/partial custody period shall be from 9 a.m. until 6 p.m.

(7) Transportation of the children shall be divided between the parties, with the party surrendering custody to provide transportation to the home of the other.

(8) No party may remove the children from the jurisdiction of this court with the intent of changing the physical residence of either child without the written consent of the other party or an order of court.

(9) The terms and provisions of the appendix to custody order attached hereto are incorporated herein and the parties are directed to comply with said provisions.

(10) The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and any other outstanding orders. Failure to do so may result in sanctions being imposed by the court upon the parties, including suspension of custody or partial custody and payment of attorney’s fees.

(11) The prothonotary shall serve notice of this order on counsel of record by regular mail or personal service.

APPENDIX TO CUSTODY ORDER

Certain rules of conduct generally applicable in custody matters are set forth below and are binding on all parties. The breach of any rule may subject the breaching party to contempt of court proceedings or form a basis to modify the custody order. If these general rules conflict with any specific provision of the custody order, the order shall prevail.

RULE 1. The custody or visitation provisions of the foregoing custody order are to be considered as the minimum requirements. However, the parties are free to expand the provisions by mutual agreement. No party can unilaterally, i.e., as he or she pleases, increase or decrease periods of custody or visitation.

RULE 2. The parties shall not undertake or permit the influencing of the mind of the child(ren) against any party. Any communication or statement which is in any manner derogatory to the other party, obscene, or profane shall not be made to or in the presence of the children).

RULE 3. The parties shall not argue or engage in heated discussion in the presence of the child(ren) or when the parties are exercising their communication rights with the child(ren).

RULE 4. The parties shall not question the child(ren) as to the personal behavior of the other party, except as necessary to insure the personal safety and welfare of the child(ren). No child shall be used as an informant or carrier of tales by either party.

RULE 5. The parties may not make extravagant promises to the child(ren) for the purpose of influencing the child(ren)’s loyalty at the expense of the other party. Any promise made to the child(ren) by either party should be made only with the full intention and expectation of fulfilling the promise.

RULE 6. The parties should always consider the child(ren)’s best interest and should act accordingly. A child involved in a custody dispute needs positive assurance from his or her parents that he or she is loved and that it is not his or her fault that any differences exist between the parents.

RULE 7. The parties are reminded that children learn from what they see or experience at the hands of their parents or other relatives. If children are to be taught proper moral, spiritual and ethical conduct, it cannot be effectively accomplished if the parties themselves indulge in questionable conduct.

RULE 8. When exercising custody or visitation rights with the child(ren), the parties must assure that the child(ren) continues to attend school, church and other activities considered beneficial to the child(ren)’s overall growth and development.

RULE 9. Custody or visitation rights should be exercised on a regular, reasonable and acceptable basis. If it is impossible to exercise a period of custody or visitation, the other party should be immediately notified so that the disappointment or anxiety to the child(ren) that would result from a failed visit is reduced.

RULE 10. The party who has physical custody of the child(ren) should encourage, prepare and have the child(ren) available at the designated times and places so that visitations occur smoothly. Likewise, the party exercising partial custody or visitation rights should encourage, prepare, and return the child(ren) promptly at the designated times and places.

RULE 11. If occasions arise with either party which cause conflicts with the custody or visitation schedule, the parties should be flexible and agree upon make-up time.

RULE 12. A party or the person responsible for transporting the child(ren) from and to the custodial residence must refrain from the use of alcohol and possess a valid driver’s license with current operating privileges. Any party or designee who arrives to pick up the children) and has used alcohol excessively, is intoxicated or does not possess a valid driver’s license automatically forfeits that custody or visitation period. Any party or designee who returns the child(ren) and has been drinking alcoholic beverages excessively, is intoxicated or does not possess a valid driver’s license automatically forfeits the next scheduled custody or visitation period. Chronic violations of this rule may result in a suspension of custody or visitation.

RULE 13. Each party must notify the other party if an emergency or illness requiring a physician’s attention should occur to the child(ren) while in their physical custody.

RULE 14. Each party should encourage telephone and other communication between the child(ren) and the other party. Telephone calls should occur at reasonable intervals and reasonable hours, such as between 5:30 p.m. and 8:30 p.m., except for emergencies.

RULE 15. The party who has physical custody of the child(ren) must exercise the daily parental responsibilities. However, unless otherwise ordered, both parents should consult with one another on major decisions affecting the child(ren) such as education, religious training and medical treatment.

RULE 16. Each party must notify the other party of any change in their residence or phone number within 72 hours after any such change.