Restitution

CP-67-CR-3014-2011 and CP-67-CR-3015-2011

1. Defendant was charged with and pled guilty to Theft by Deception and Deceptive Business Practices.  The victims were entitled to reimbursement for the money they paid Defendant to cover services that he never completed.  However, they were not entitled to restitution in a criminal case for repairs to work Defendant had already completed.

1. A Restitution Hearing was held on November 22, 2011, at which time this Court heard testimony and argument from both parties.  At the conclusion of the Hearing, this Court took the matter under advisement.  After consideration of all evidence and after reviewing the transcript of the hearing, this Court has Ordered Defendant to pay Restitution on case 3014-2011 in the amount of $2,481.20 to Tamara Spence and on case 3015-2011 in the amount of $20,600.

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In the Court of Common Pleas of York County, Criminal Division; COMMONWEALTH v. CARLOS FUENTES, Defendant; Restitution

APPEARANCES:

JUSTIN F. KOBESKI, Esquire

For the Commonwealth

W. CREIGH MARTSON, Esquire

For the Defendant

OPINION IN SUPPORT OF ORDER

The Defendant pled guilty in two cases and was sentenced on October 19, 2011.  Restitution was ordered at that time to the victims of each case.  Defendant then requested a Restitution Hearing to address the amounts that were ordered.  A Restitution Hearing was held on November 22, 2011, at which time this Court heard testimony and argument from both parties.  At the conclusion of the Hearing, this Court took the matter under advisement.  After consideration of all evidence and after reviewing the transcript of the hearing, this Court has Ordered Defendant to pay Restitution on case 3014-2011 in the amount of $2,481.20 to Tamara Spence and on case 3015-2011 in the amount of $20,600, and it now issues this Opinion in support of that Order.

I.            Case 3014-2011

In case 3014-2011, the victims were Tamara Spence and Michael Napiorkowski.  They entered into a contract with Defendant to pay $960 for 4 windows, $7,606 for siding, and an amount for a roof.  The Commonwealth conceded that there was no basis to seek restitution for the roof, but it has asked for the full contract price of the windows and the siding, a total of $8,566.  Mr. Napiorkowski testified that while about 80% of the siding was done by Defendant, the wind blew it off and he had to pay Dallastown Roofing to redo the siding on the entire house.

Defendant was charged with and pled guilty to Theft by Deception and Deceptive Business Practices.  The victims are entitled to reimbursement for the money they paid Defendant to cover services that he never completed.  However, that they are not entitled to restitution in a criminal case for repairs to work Defendant had already completed.  Testimony indicated that the siding came off with the wind.  There was no testimony from any qualified professional that the siding would not have come off in that wind if it had been put on properly; there was no evidence offered of how strong the winds even were.  Defendant was charged with taking money for work that he never finished, not for doing work of poor quality.  If Defendant’s work was of poor quality, the victims can seek damages in a civil suit; the Court declines to address such damages as Restitution in a criminal case.

            Therefore, since none of the windows were completed, the victims are entitled to the full contract price for the windows—$960. Since 80% of the siding was completed, the victims are entitled to 20% of the contract price—$1,521.20.  Restitution is therefore awarded in the amount of $2,481.20.

II.            Case 3015-2011

In case 3015-2011, the victim was Kathleen Helfrich.  She entered into four separate contracts with Defendant, but only three are at issue.  She paid Defendant $7,400 for new siding, gutters, downspouts, etc.; $6,800 for a porch and sidewalk; and $27,000 for an addition to the house involving a living area, small kitchen, and work on an existing bathroom.  The testimony and argument presented in this case was even more convoluted than that presented in case 3014-2011.  Again, there was mention of work not being finished as well as work being done incorrectly, which led to Ms. Helfrich hiring Dallastown Roofing to fix some of the work that was already done as well as to complete all of the work specified in the contracts with Defendant.  Only Defendant himself offered testimony regarding actual price amounts for the work he had not finished.

Defendant put up the new siding but did not put up the shutters, gutters, or downspouts.  He estimated the remaining work to be worth approximately $2,200.  Defendant did the demolition work for the old porch and poured footers for the new one; he also completed part of the sidewalk.  He estimated the remaining work to be worth approximately $2,100.  With respect to the addition, it appeared that much of the work was done—demolition work, framing, wiring, insulating, installing new electrical panel, putting up dry wall, installing doors.  The lights were not installed, no shower or cabinets were put in, and other finishing things had obviously not been completed.  Defendant had agreed to reimburse Ms. Helfrich for $15,000-18,000 before she had Dallastown Roofing complete the work at a higher price.  He estimated the remaining work to be worth approximately $12,000.

As in the first case, it is only proper to order Restitution for work that was not completed but for which Defendant was paid.  Since he did complete a good deal of work in each contract, and since the Commonwealth did not provide evidence showing the cost of the remaining work (save to tell the Court what Ms. Helfrich ultimately paid Dallastown Roofing to complete the work), Defendant’s estimations are the best evidence of what Defendant was paid for work that was not completed, although the Court does acknowledge that his estimates may be a little on the low side for obvious reasons.  Based on the amount of work done, as stated in Ms. Helfrich’s own testimony, the Court orders restitution on half of each contract amount.

            Restitution is therefore awarded in the amount of $20,600.

III.            Conclusion

            For the reasons stated above, the Court hereby Orders Defendant to pay Restitution in the amount of $2,481.20 to Tamara Spence and in the amount of $20,600 to Kathleen Helfrich.

BY THE COURT,

_________________________________

DATED:  April ____ , 2012                                    MICHAEL E. BORTNER, JUDGE

Probable Cause – Search Warrant -Prima Facie Case

CP-67-CR-5636-2011

1. Defendant made two arguments in support of her Motion to Suppress.  First, that there was insufficient probable cause for a search warrant to issue for the residence.  Second, that the officers failed to satisfy the “knock and announce” requirement when executing the search warrant.

1. The Court denied the Motion to Suppress, finding that probable cause was established and that based on the circumstances of this case, police satisfied the “knock and announce” requirement when serving the warrant.

1. Defendant also argued that Counts 3 and 4 should be dismissed due to the Commonwealth’s failure to establish a prima facie case.

1. The Court denied the Defendant’s Motion to Dismiss holding that the Commonwealth had established a prima facie case with respect to both Counts 3 and 4.

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In the Court of Common Pleas of York County, Pennsylvania, Criminal Division; COMMONWEALTH v. ETIENE HAAS, Defendant; Probable Cause – Search Warrant -Prima Facie Case

APPEARANCES:

JOSHUA KLEIN, Esquire

Assistant District Attorney

RONALD JACKSON, Esquire

Counsel for the Defendant

Opinion In Support of Order

The Defendant filed an Omnibus Pre-Trial Motion to Suppress and a Motion to Dismiss Counts Three and Four; a Hearing was held before this Court on February 27, 2012, at which time the Court heard testimony and argument.  At the conclusion of the Hearing, the Court took the matter under advisement and allowed the parties a chance to file supporting memoranda.

I.            Motion to Suppress

Defendant makes two arguments in support of her Motion to Suppress.  First, that there was insufficient probable cause for a search warrant to issue for 1009 Hay Street.  Second, that the officers failed to satisfy the “knock and announce” requirement when executing the search warrant.

“For a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance,” and make this determination “on facts described within the four corners of the supporting affidavit, and closely related in time to the date of issuance of the warrant.”  Commonwealth v. Griffin, 24 A.3d 1037, 1043 (Pa. Super. Ct. 2011) (quoting Commonwealth v. Stamps, 427 A.2d 141, 143 (Pa. 1981)).  “It is equally well established that ‘a reviewing court [must] pay great deference to an issuing authority’s determination of probable cause for the issuance of a search warrant.’ ”  Id. (quoting Commonwealth v. Woods, 590 A.2d 1311, 1313 (Pa. Super. Ct. 1991), appeal denied, 598 A.2d 994 (1991)).

The facts and circumstances set forth in the Affidavit are as follows.  A Confidential Informant (CI) called the affiant and indicated he could make a controlled buy of cocaine; under the affiant’s direction, the CI called the dealer and set up a buy.  The affiant searched the CI and the CI’s car prior to the transaction and gave the CI official funds to use for the transaction.  The affiant followed the CI to the meeting location and observed a hand-to-hand transaction between the CI and a man later identified by J-NET photos as Jody Gordon.  The CI returned to the affiant with a sum of cocaine on his person.  A second Confidential Informant (CI2) called the affiant and indicated he could make a controlled buy of cocaine; under the affiant’s direction, CI2 called the dealer and set up the buy.  The affiant searched CI2 and CI2’s car and gave him official funds to make the purchase.  Police were conducting surveillance in the 100 block of Hay Street and observed Gordon exit 1009 Hay Street.  The affiant then followed CI2 to the meeting place where a hand-to-hand transaction was observed between CI2 and Gordon.  CI2 returned to the affiant with a sum of cocaine on his person.  CI2 set up another controlled buy.  The affiant again searched CI2 and CI2’s car and gave him official funds to make the purchase.  Police were conducting surveillance on 1009 Hay Street and saw Gordon exit the residence there.  They followed Gordon and affiant followed CI2 to the arranged meeting place where they all observed a hand-to-hand transaction.  CI2 then returned to the affiant with cocaine on his person and police followed Gordon directly back to 1009 Hay Street where he used a set of keys to unlock the door and enter the residence.  A check of law enforcement databases also verified that Gordon’s address of record is 1009 Hay Street in York City.

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing] that probable cause existed.’ ”  Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (quoting Commonwealth v. Gray, 503 A.2d 921, 925 (Pa. 1985)).  “A determination of probable cause based upon information received from a confidential informant depends upon the informant’s reliability and basis of knowledge viewed in a common sense, non-technical manner.  Thus, an informant’s tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity.”  Id. (citing Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999)).  Information received from an informant whose reliability has not been established is sufficient to create probable cause where the police can independently corroborate the informant’s information.  Id. (citing Commonwealth v. Sanchez, 907 A.2d 477, 488 (Pa. 2006)).

In this case, police observed Gordon leaving 1009 Hay Street and going directly to the location where a controlled buy with a confidential informant was observed; police then observed Gordon return directly to 1009 Hay Street.  Because police can independently corroborate the fact that Gordon made a sale of cocaine immediately after leaving his address and that he then returned to his residence immediately after the sale, the reliability of the confidential informant need not be set forth in the affidavit of probable cause.  Moreover, since police observed Gordon selling cocaine to confidential informants on three occasions, as well as coming from and going to his residence, there was probable cause to believe Gordon was housing drugs at 1009 Hay Street.

Defendant has argued that “probable cause to believe that a man has committed a crime on the street does not necessarily give rise to search his home.”  Def. Memorandum of Law, 3/9/12 (citing Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. Ct. 1975)).  While that is certainly true, it is not persuasive of Defendant’s position in this case.  The Affidavit showed that Gordon had not only made cocaine sales on the street but that he did so immediately after leaving his home and that he returned home immediately after the sales.  Defendant argues there has been no evidence that the drugs could not have been stored in Gordon’s vehicle.  Again, this is true but does not minimize the existence of probable cause.  A finding of probable cause that evidence of a crime will be found inside a residence does not require a certainty.  It is likely and probable that the drugs came from inside Defendant’s residence.

For these reasons, Defendant’s first argument fails.

Defendant next argues that the warrant was invalid because police executed it without satisfying the “knock and announce” requirement of Pennsylvania Rule of Criminal Procedure 207.  That rule requires an officer executing a search warrant to give notice of his identity, authority, and purpose and states that he shall await a response for a reasonable amount of time prior to making entry into the premises.  Pa. R. Crim. P. 207.

At the hearing, Trooper Wolfe testified that he was present when police executed the search warrant for the residence at 1009 Hay Street.  (Notes of Testimony, 2/27/12, at 16.)  As they “were approaching the door [they] were yelling, ‘Police, search warrant.’ ”  (N.T., 2/27/12, at 16.)  Trooper Wolfe also testified that the police arrived on scene and observed Mr. Gordon get into his vehicle.  (N.T., 2/27/12, at 27.)  The police then approached with the vehicle lights and sirens activated and exited the police car in full raid gear.  (N.T., 2/27/12, at 27.)  As they walked up to the porch, Trooper Wolfe was  yelling, “State Police, search warrant.”  (N.T., 2/27/12, at 27.)  The trooper estimated that the time from when Mr. Gordon exited the residence to when police made entry was “probably well over a minute.”  (N.T., 2/27/12, at 27.)

Trooper Wolfe clearly testified that he gave notice of his identity, authority, and purpose by shouting that the state police were outside the residence and that they had a search warrant.  He also stated that from the time they pulled up with lights and sirens activated until they gained entry to the residence was over a minute.  Given the nature of how they arrived on the scene, a lengthy wait at the door would be unnecessary to give notice of police presence to the occupants.  There are no set rules as to the time a police officer must wait before using force to enter a house to execute a search warrant; the answer will depend on the circumstances of each case. Commonwealth v. Walker, 874 A.2d 667, 673-74 (Pa. Super. Ct. 2005).

Based on the circumstances of this case, police satisfied the “knock and announce” requirement when serving the warrant.  Therefore, Defendant’s second argument fails.

II.            Motion to Dismiss Counts 3 and 4

Defendant also argues that Counts 3 and 4 should be dismissed due to the Commonwealth’s failure to establish a prima facie case. At the preliminary hearing, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it.  Commonwealth v. Phillips, 700 A.2d 1281 (Pa. Super. Ct. 1997); Commonwealth v. Oliver, 869 A.2d 1167 (Pa. Commw. Ct. 2005).  The prima facie standard requires evidence of the existence of every element of the crime(s) charged, but the Commonwealth need not prove the elements beyond a reasonable doubt.  Commonwealth v. Nieves, 876 A.2d 423 (Pa. Super. Ct. 2005); Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. Ct. 2001); Commonwealth v. Allbeck, 715 A.2d 1213 (Pa. Super. Ct. 1998).  In determining whether the Commonwealth has established a prima facie case, inferences reasonably drawn from the evidence of record which would support a guilty verdict are to be given effect and the evidence must be read in the light most favorable to the Commonwealth’s case.  Commonwealth v. Huggins, 836 A.2d 862 (Pa. 2003); Marti, 779 A.2d 1177.

“A person is guilty of conspiracy . . . to commit a crime if with the intent of promoting or facilitating its commission he . . . agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime.”  18 Pa. Cons. Stat. Ann. § 903(a)(1).  It is also a crime in the Commonwealth of Pennsylvania for any person “not registered under this act, or a practitioner not registered or licensed by the appropriate State board” to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.  35 P.S. § 780-113(a)(30).

At the Habeas Hearing, Trooper Wolfe testified that he was working with a Confidential Informant (CI) to set up a controlled buy of cocaine.  Once the call was placed, police observed Mr. Gordon and Defendant exit their residence.  (N.T., 2/27/12, at 6.)  Mr. Gordon threw Defendant a set of keys and she got into the driver’s seat of a vehicle while he walked around the corner and made the drug sale.  (N.T., 2/27/12, at 6-8.)  Defendant then pulled the vehicle around the corner and stopped directly behind where the transaction had occurred.  (N.T., 2/27/12, at 7-8.)  This evidence shows that there was probably an understanding between Mr. Gordon and Defendant that he was going to make a drug sale and that she was to pick him up.  When viewed in a light most favorable to the Commonwealth, the possibility that Defendant was engaged in a conspiracy to commit the delivery of cocaine is high enough to establish a prima facie case.

As stated above, it is illegal for a person to deliver a controlled substance.  35 P.S. § 780-113(a)(30).  A person is also guilty of an offense, however, if it is committed by the conduct of another person for which she is legally accountable.  18 Pa. Cons. Stat. Ann. § 306(a).  A person is legally accountable for the conduct of another person when she is an accomplice of the other person in the commission of the offense.  18 Pa. Cons. Stat. Ann. § 306(b)(3).  And a person is an accomplice of another in the commission of a crime if “with the intent of promoting or facilitating the commission of the offense he . . . solicits such other person to commit it; or . . . aids or agrees or attempts to aid such other person in planning or committing it.”  18 Pa. Cons. Stat. Ann. § 306(c)(1).

As discussed above with the Conspiracy Count, evidence was offered at the Hearing indicating that Mr. Gordon delivered cocaine and that Defendant was aiding him in committing that delivery by picking him up after the sale was completed.  (N.T., 2/27/12, at 6-8.)  The standard for a prima facie case is much lower than that of beyond a reasonable doubt, and we must view the evidence offered at the Hearing in a light most favorable to the Commonwealth.

Therefore, the Commonwealth has established a prima facie case with respect to both Counts 3 and 4 and Defendant’s argument fails.

III.            Conclusion

For the reasons set forth above, this Court hereby Denies the Defendant’s Pre-Trial Omnibus Motion to Suppress and Denies her Motion to Dismiss Counts Three and Four.

BY THE COURT:

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Dated: April _____, 2012 MICHAEL E. BORTNER, JUDGE

WRIGHTSVILLE STEAM FIRE ENGINE AND HOSE COMPANY #1, Appellant

v.

PENNSYLVANIA OFFICE OF OPEN RECORDS, Appellee and

TERRY CORNELIUS, Appellee

No. 2011-SU-3621-29

Right-to-Know Law – Local Agency

1. The Court accepted this Appeal of the Office of Open Records’ determination for final disposition on February 16, 2012.

1. The issue on appeal was whether the Wrightsville Steam Fire Engine Hose Company #1 is a ‘similar governmental entity’ pursuant to Section 67.102 of the Right-to-Know Law and, therefore, a ‘local agency’ subject to the Right-to-Know Law and the jurisdiction of the Pennsylvania Office of Open Records.

1. The Court held that the Company was not a ‘similar government agency’ and sustained the Company’s appeal.

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In the Court of Common Pleas of York County, Pennsylvania, Civil Division;

WRIGHTSVILLE STEAM FIRE ENGINE AND HOSE COMPANY #1, Appellant

v. PENNSYLVANIA OFFICE OF OPEN RECORDS, Appellee and TERRY

CORNELIUS, Appellee; Right-to-Know Law – Local Agency

APPEARANCES:

D. Michael Craley, Esq.

For the Appellant

Dena Lefkowitz, Esq.

For the Agency Appellee

Terry Cornelius, Pro Se

Individual Appellee

OPINION REVERSING THE DETERMINATION OF THE OFFICE OF OPEN

RECORDS AND SUSTAINING PETITIONER’S APPEAL

The Court accepted this Appeal for final disposition on February 16, 2012.  After a careful consideration of the pleadings in this case the Court will SUSTAIN

Hose Company #1 on September 22, 2011 is SUSTAINED and the Determination of the Office of Open Records issued on August 30, 2011 is REVERSED.

Copies of this Order and Opinion shall be forwarded to counsel of record and to Pro Se Appellee Terry Cornelius, 138 Hellam Street, Apartment #1, Wrightsville, PA 17368.

BY THE COURT,

________________________________

Stephen P. Linebaugh, President Judge

MARVIN ROWE and CHERYLLYN RIDLEY, Plaintiffs v. YORK CITY SCHOOL DISTRICT, Defendants

Injunction – School Code

No. 2012-SU-000686-44

1. This case involves an application for Preliminary Injunction filed by Plaintiffs against Defendant, involving application of 24 P.S.Section 1-111(e) (School Code) which restricts employment of an applicant who has been convicted of certain enumerated offenses.

1. The Court found that this section applies only to “applicants” and not current employees and therefore granted Plaintiffs’ application for a preliminary injunction.

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In the Court of Common Pleas of York County, Pennsylvania, Civil Division, MARVIN ROWE and CHERYLLYN RIDLEY, Plaintiffs v. YORK CITY SCHOOL DISTRICT, Defendants; Injunction – School Code

York, Pa., Monday, February 27, 2012

Before the Honorable JOHN W. THOMPSON, JR., Judge

APPEARANCES:

THOMAS W. SCOTT, Esquire For the Petitioners

MARC G. TARLOW, Esquire For the Defendant

HOWARD G. HOPKIRK, Esquire Office of the Attorney General

DECISION

We convened this hearing this morning to address a preliminary injunction sought by Marvin Rowe and Cheryllyn Ridley, employees of the York City School District.

Petitioners were terminated based on an amendment to the school code,

Particularly Section 1-111(e). Despite the School District’s concession regarding the injunction, we have independently considered the legal standard to obtain injunctive relief, and have concluded that the Petitioners have met the standard for an injunction primarily to maintain the status quo, and to avoid irreparable harm.

We note, as an aside, that harm would be visited upon the School District if the Petitioners ultimately prevailed and the School District had paid replacement employees for services the two Petitioners rendered to the District.

We’re not unmindful of the Solicitor’s statement that the School District has economic issues and to pay for services, and then to pay again, it does in fact harm the District. They’re not the Petitioners, but that is not an insignificant consideration.

We are persuaded that the Petitioners particularly would prevail on the merits, which brings us to an interpretation of the statute under which the two employees were terminated.

Let me say at the outset, I agree with the analysis of my learned colleague in Delaware County, Judge Kenney, in his analysis of the amendment in question. In sum, without reciting the Court’s analysis

67-07-1507

Irrevocable Will Agreement – Inter Vivos Transfers

1. Before the Court is a matter which originally arose before the Court as an objection to the First and Final Account of James L. Bankert, executor of his deceased mother’s estate, Charlotte M. Bankert.  After a civil suit was filed seeking the same relief, the parties agreed to present the dispute to the Court in the form of a request for declaratory judgment. An Opinion was issued by the Court on December 3, 2010, setting forth the burden of proof.

1. As stated in this Court’s 2010 December Opinion, Stepchildren bear the initial burden of proving by clear and convincing evidence that the inter vivos transfers made by Mrs. Bankert were made to “evade performance” of the Irrevocable Will Agreement and were “in fraud of” Mr. Bankert’s rights; the challenged inter vivos transfers were unreasonable in amount, or represented a “considerable part” of Mrs. Bankert’s existing estate, or were “substantial gifts” made to only some of the class of certain beneficiaries who were to receive equal shares under the will; the transfers were received gratuitously; and the transferees had notice of the contents of the Irrevocable Will Agreement.

1. The parties proceeded with a factual hearing on September 26, 2011.  At the conclusion of the hearing no motion was made by the Children that the Stepchildren had not met their burden of proof; however, the Court will make the inference that the Children conclude the Objectors have not met their burden.

1. The Court found that the Stepchildren have not met their burden by clear and convincing evidence.

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In the Court of Common Pleas of York County, Pennsylvania, Orphan’s Court Division; In re Estate of Charlotte M. Bankert, Deceased; Irrevocable Will Agreement – Inter Vivos Transfers

APPEARANCES:

LARRY W. WOLF, Esq.

For the Objectors/Stepchildren

PAUL W. MINNICH, Esq.

For the Executor and the Children

OPINION

Before the Court is a matter which originally arose before the Court as an objection to the First and Final Account of James L. Bankert, executor of his deceased mother’s estate, Charlotte M. Bankert.  After a civil suit was filed seeking the same relief, the parties agreed to present the dispute to the Court in the form of a request for declaratory judgment.[1] An Opinion was issued by the Court on December 3, 2010, setting forth the burden of proof.  As stated in this Court’s 2010 December Opinion, Stepchildren bear the initial burden of proving by clear and convincing evidence that the inter vivos transfers made by Mrs. Bankert were made to “evade performance” of the Irrevocable Will Agreement and were “in fraud of” Mr. Bankert’s rights; the challenged inter vivos transfers were unreasonable in amount, or represented a “considerable part” of Mrs. Bankert’s existing estate, or were “substantial gifts” made to only some of the class of certain beneficiaries who were to receive equal shares under the will; the transfers were received gratuitously; and the transferees had notice of the contents of the Irrevocable Will Agreement.

The parties proceeded with a factual hearing on September 26, 2011.  At the conclusion of the hearing no motion was made by the Children that the Stepchildren had not met their burden of proof; however, the Court will make the inference that the Children conclude the Objectors have not met their burden.  The Court finds that the Stepchildren have not met their burden by clear and convincing evidence.

Background

Charlotte M. Bankert and Laverne E. Bankert (“Bankerts”) were married until Mr. Bankert died in December 2002.  Mrs. Bankert died on October 19, 2007.  Mr. and Mrs. Bankert had five children together during their marriage: Peggy, Laverne, Jr., James, Cindy, and David (collectively “Children”).  Mr. Bankert had four children from a prior marriage: Helen, Gladys, Clair, and Melinda (collectively “Stepchildren” or “Objectors”).

On September 23, 2002, Mr. and Mrs. Bankert signed an Irrevocable Will Agreement (“Agreement”) and executed mutual wills.  The validity of these documents are not in dispute.  The dispute between the parties involves what effect should be given to one clause in the Agreement, which states:

Husband and Wife agree that at the death of the first spouse, the value of their joint estate shall be established. If, at the death of the survivor, the amount of the survivor’s estate does not exceed the amount of the combined estates at the time of the death of the first spouse, then the

estate of the surviving spouse shall pass under and pursuant to this Agreement and the Wills executed in accordance with this Agreement. Husband and Wife agree, however, that should either spouse, after the death of the first spouse acquire additional assets so that their estate, at the time of the death of the survivor, exceeds the amount of the joint assets at the time of the death of the first spouse, the surviving spouse may, by Last Will and Testament, provide for the disposition of the excess acquired after the death of the first spouse and may dispose of said excess by Last Will and Testament in a manner not in accordance with this Agreement and the Will executed in accordance with this Agreement.

(Irrevocable Will Agreement at ¶ 4) (emphasis added).

The other mutual promises in the Agreement include:  the Bankerts’ desire to make their mutual wills irrevocable to “preserve the rights” of the five “children” and four “stepchildren” and their issue; the Bankerts’ desire that the children and stepchildren shall be third-party beneficiaries” of the Agreement; the Bankerts’ declaration that their mutual wills shall not be revoked nor altered by them during their lifetime except by mutual consent; that upon the death of the first spouse, the survivor’s will shall become irrevocable and shall not be changed; that if either spouse remarries after the death of the first spouse, the surviving spouse shall obtain a premarital agreement prior to such marriage wherein the new spouse agrees to waive spousal election “to preserve the integrity of the agreement and specifically, to preserve the right to inherit of [sic] the children, stepchildren” and their issue from the  Bankerts’ present and prior marriages.

Mr. and Mrs. Bankert’s wills have been filed of record, and it is undisputed that the wills were signed contemporaneously with the Irrevocable Will Agreement.  Mr. Bankert’s will provided that if Mrs. Bankert survived him by thirty days, she would receive all of his personal property and all of his residuary estate.  Mrs. Bankert’s will provided for a number of specific bequests of personal property to her children, stepchildren, and others.  Her will left the rest and remainder of her estate to “my children . . . and my stepchildren . . . in equal shares to each of them.”

After Mr. Bankert’s death, the couple’s joint assets were identified and valued pursuant to the Agreement.  The valuation is undisputed and totaled $560,505.21 on December 24, 2002.  The assets listed included real estate, investment accounts, savings and checking accounts, and an individual retirement account.  According to the executor’s First and Final Account, the value of Mrs. Bankert’s probate estate at the time of her death in October 2007 was $220,989.92.

In November 2008, the Department of Revenue issued its REV-1547 Notice of Inheritance Tax Appraisement valuing Mrs. Bankert’s total assets at $447,232.73.  This included real estate ($141,000), Stocks and Bonds ($20,855.28), Cash/Bank Deposits/Misc. Personal Property ($58,140.36), Jointly-owned Property ($121.50), and Inter-vivos Transfers & Misc. Non-Probate Property on Schedule G of the tax return ($227,115.59). Included on Schedule G transfers were $60,000 in “cash distributions” to Mrs. Bankert’s five children made in “July and August 2007,” each in the amount of $12,000. Other items on Schedule G included $178,182.34 to the Children from an individual retirement account and $3,601.82 to daughter Cindy from a separate individual retirement account.

The money in dispute includes checks paid from Mrs. Bankert’s credit union, Wachovia Securities, and investment accounts.  Six checks admitted into evidence were made out to Cindy in the amounts of $10,000, $2,000, $11,000, $11,000, $12,000, and $10,000; however, one check in the amount of $10,000 is not at issue, as it came from Mr. Bankert’s life insurance and is not part of the estate.  The five checks at issue were dated: February 20, 2004, February 7, 2005, February 20, 2006, and two dated July 9, 2007.  Each check was issued to Cindy and was written by either Cindy or Bradley Shearer and signed by Mrs. Bankert.  Bradley was Cindy’s husband at the time the checks were written; Bradley and Cindy are no longer married.  Similar checks were gifted by Mrs. Bankert to the other four children as well.[2] On each check, the word “gift” was written on the memo line.  Additionally, Mrs. Bankert gave a wedding gift in the amount of $11,000 to her son, David.

After Mr. Bankert’s death, Mrs. Bankert sought financial advice from Bradley and relied on him to file her tax returns each year.  Mrs. Bankert had only a second grade education level and was unable to read or write.  Given the evidence, Mrs. Bankert appeared to be under the assumption, based on Bradley’s financial advice, that she was able to give her children inter vivos gifts, as Bradley advised Mrs. Bankert of the tax benefits of gifting during her lifetime rather than through inheritance.

Four Stepchildren/Objectors’ Arguments

The executor’s Account states that each child and stepchild’s 1/9 Residuary Interest should be $718.59. The Account states that a check for $718.59 was issued to each of the Stepchildren but was returned by their legal counsel to the executor.

The four Stepchildren complain that Mrs. Bankert breached the terms of the Irrevocable Will Agreement resulting in a loss to their 4/9 share of Mrs. Bankert’s residuary estate. They argue that shortly before her death, Mrs. Bankert made inter vivos transfers to her own children and that those transfers were “contrary to the intent of both the Will Agreement and the Will by depletion of her residual estate in order to favor her children.”

During the status conference held, counsel for the Stepchildren summarized his position that the Agreement manifests the Bankerts’ intent to provide a minimum distribution to each of the four stepchildren. He stated that the will agreement says that his clients—the Stepchildren—each receive 1/9 of $560,505.21 regardless of “subsequent facts, the transfers, [or] the diminution due to market values.”[3]

In their subsequently filed brief, the Stepchildren appear to have refined their position stating that their 1/9 net distribution of the residuary estate (after inheritance tax contributions) should be $30,991.02. They reach this sum simply by subtracting $268,443.17 (total value of specifically bequeathed property based on the estate account and estate deductions pursuant to account and inheritance tax returns) from $560,505.21 (12/4/2002 listing of joint assets pursuant to Will Agreement) and then dividing the remaining sum ($292,062.04) into nine equal shares.[4]

At the hearing, counsel for the Stepchildren argued that the burden of clear and convincing evidence has been met proving that Mrs. Bankert evaded performance of the Agreement.  Counsel stated that Mrs. Bankert wanted to intentionally diminish the estate so the Stepchildren would not get anything from the residual estate through inheritance.  Additionally, counsel argued that Paragraph 4 of the Agreement would essentially be pointless if there would be an unlimited ability for the surviving spouse to deplete the estate.  The Stepchildren ultimately request that approximately $230,000.00, the amount paid to the five children during Mrs. Bankert’s lifetime, be divided among the nine children.

Five Children’s Arguments

The five children of Mr. and Mrs. Bankert respond with several arguments. They argue that the Irrevocable Will Agreement does not prohibit the surviving spouse from making inter vivos transfers. The Children point out that despite language in the Agreement specifically considering the possibility that the surviving spouse would die with fewer assets than the couple jointly owned at the time of the first spouse’s death, “the parties made no attempt to restrict the surviving spouse from depleting the assets of the joint estate following the death of the first spouse.” The Children also maintain that Mrs. Bankert did not violate any of the duties imposed on her in the Agreement since she did not alter her will, remove beneficiaries, or remarry.

The Children reason that Mrs. Bankert’s estate should be valued and administered based on her estate’s value at the time of her death, and not on the value of the joint assets at the time Mr. Bankert died five years earlier. Their position is that the “Agreement does not require the value of the surviving spouse’s estate to meet or exceed the value of the ‘joint estate;’ likewise, the Agreement does not provide that the ‘joint estate’ value should be used to determine a beneficiary’s share of the ‘survivor’s estate.’”[5] The Children point out that the Agreement specifically distinguishes between the terms “joint estate” and “survivor’s estate” and that neither the Agreement nor the Will mandates that the values of those estates be equivalent. The Children argue that adopting the Stepchildren’s argument “would essentially read into the Agreement and Will a requirement that the surviving spouse preserve the value of the estate from the moment of the first spouse’s death.” In summary, the Children believe the joint estate valuation upon the first spouse’s death is a “ceiling” valuation for distribution purposes, not a “floor.”[6]

At the estate hearing, counsel for the Children contended that the Stepchildren did not meet their burden of proof by clear and convincing evidence, and that it was the intent of the testators to allow inter vivos gifts.  Counsel argued that Attorney Rebert’s testimony clearly indicated that what the Bankert’s intended was clearly carried out.  He stated that when Mrs. Bankert gifted money, she did so, not to evade performance of the Agreement, but to benefit from the tax advantages and to see her children enjoy the money during her lifetime.

Issue Presented

The issue before the Court is this: Does a surviving spouse with a mutual will have the right to dispose of property during her lifetime when the mutual will was executed in conjunction with the Irrevocable Will Agreement which contains no express prohibition on the use or transfer of assets by the surviving spouse, but together with the mutual wills anticipates the outright distribution of all property to the surviving spouse upon the death of the first spouse and the distribution of the surviving spouse’s residuary estate to named beneficiaries in equal shares?

Based on the testimony and evidence provided by each party at the Estate Hearing, the Court finds that the surviving spouse had the right to dispose of property during her lifetime where the express language of the Agreement and the intention of the parties manifested no intent to limit the survivor’s right to transfer property during her lifetime.

Discussion

I.  Defendant’s Burden Pursuant to December 3, 2010 Opinion

In Pennsylvania, an agreement to make a will or to devise one’s property to a particular person or for a particular purpose is binding and irrevocable when supported by valid consideration. “Such agreements are not testamentary in nature but are rather contracts with part performance postponed until the death of one of the parties.” Zimnisky v. Zimnisky, 231 A.2d 904, 906 (Pa.Super. 1967).

Contracts for the execution of mutual wills, which are to be irrevocable, are valid and enforceable, and when such a contract has been proved, “the will becomes a writing containing the terms of the agreement, and satisfies the statute of frauds.” In re Swenk’s Estate, 108 A.2d 825, 827 (Pa. 1954). “The execution of such a contract creates an affirmative obligation on the promisor which may not be violated during his lifetime without a resulting breach.” Zimnisky, 231 A.2d at 906. The well-established rule that every contract imposes upon each party the duty of good faith and fair dealing in the performance and enforcement of the terms and conditions therein also applies to will agreements.

“Generally such agreements when they are for the benefit of third persons may be enforced as third party beneficiary contracts.” Zimnisky, 231 A.2d at 906-07.  However, “the rights of a donee beneficiary who obtains rights as a third-party beneficiary of a contract may arise no higher than the rights of the promisor to the contract” since the third party beneficiary is “subject to the same limitations which may be asserted between the promisor and promissee.” In re Estate of Blumenthal, 812 A.2d 1279, 1289 (Pa.Super. 2002).

Chapter 27 of the PEF Code addresses contractual arrangements relating to succession and states:

(a) Establishment of contract.–A contract to die intestate or to make or not to revoke a will or testamentary provision or an obligation dischargeable only at or after death can be established in support of a claim against the estate of a decedent only by:

(1) provisions of a will of the decedent stating material provisions of the contract;

(2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or

(3) a writing signed by the decedent evidencing the contract.

20 Pa.C.S. § 2701. Here, there is no dispute that the Irrevocable Will Agreement supplied to the Court is a writing signed by the Bankerts, and therefore a will contract as a basis for the Stepchildren’s objection has been established pursuant to 20 Pa.C.S.A. § 2701(a)(3).

In Kolb Estate, Judge Endy held that the petitioner, as a third-party beneficiary to the will agreement, had standing to sue and could recover “against any grantee who took from the testator with knowledge of the contract to will and without giving value. Kolb Estate, 17 Fiduc. Rep.2d 391, 393-394 (O.C. Div. Chester 1997); see In Re: Vanston Estate, 26 D. & C. 2d 555, 12 Fiduc. Rep. 246 (O.C. Lakawana 1961).”

As support for his conclusion, Judge Endy’s opinion in Kolb Estate cited chapter ten (Contracts to Make Wills) of the classic treatise Page on the Law of Wills. The section “Conveyance by promisor to third person” of that chapter states:

If testator enters into a contract to devise or bequeath specific property, his conveyance of such property to a third person is a breach.

A general covenant to devise, which does not refer to specific property, does not prevent the promisor from making conveyances during his lifetime. Such a covenant has been held not to prevent him from making gifts during his lifetime, if reasonable in amount and not made to evade performance. If the contract provides for devising or bequeathing all that the promisor owns at his death, he may convey his property during his lifetime if such conveyance is not in fraud of the rights of the promisee. A contract to devise all of the property of which the promisor should die possessed was held not to reserve to the promisor the right to convey any considerable part or the property gratuitously. . . .

A contract to bequeath equal shares to certain beneficiaries is broken by a substantial gift in testator’s life to one of such beneficiaries. . . .

If property is conveyed by the promisor, in violation of the contract, to one who takes for value and without notice of the contract, no relief can be had against the grantee. . . . If the property is conveyed by the promisor, in violation of the contract, to one who does not take for value, the prospective devisees may recover such property from such grantee.

1 Page on the Law of Wills § 10.23 (2010) (emphasis added). In the absence of any Pennsylvania appellate authority on the instant issue, this Court now adopts the summary of the law in section 10.23 of Page on the Law of Wills, as quoted above.

Recently, the Alabama Supreme Court held “the transfer of the assets of [the surviving spouse’s] estate into the revocable trust, which was created for the purpose of circumventing the terms of her will,[7] constitutes a breach of the agreement not to change or revoke her will.” Self v. Slaughter, 16 So.3d 781, 788 (Ala. 2008). The Court reasoned:

[C]ontracts not to revoke a will or devise are enforceable under Alabama law and inter vivos transfers-whether to individuals or trusts-cannot be used to circumvent such contracts. Indeed, “ ‘such gifts must be reasonable, absolute, bona fide, not testamentary in effect, and not made for the purpose of defeating the contract to devise, nor having such effect.’ Skinner v. Rasche, 165 Ky. 108, [112,] 176 S.W. 942, 944 [(1915)].” Humphries, 565 So.2d at 100 (emphasis added).

Self v. Slaughter, 16 So.3d at 788 (bold emphasis added).  In summary, the Stepchildren bore the initial burden of proving, by clear and convincing evidence, that (1) the inter vivos transfers were made to “evade performance” of the Irrevocable Will Agreement and were made “in fraud” of Mr. Bankert’s rights,[8] (2) the challenged inter vivos transfers were unreasonable in amount, or represented a “considerable part” of Mrs. Bankert’s existing estate, or were “substantial gifts” made to only some of the class of certain beneficiaries who were to receive equal shares under the will,[9] (3) the transfers were received gratuitously,[10] and (4) the transferees had notice of the contents of the Irrevocable Will Agreement.[11] All elements are disputed by the Children and the Stepchildren except for element three, that the transfers were received gratuitously.  All parties agreed the money given by Mrs. Bankert after the death of Mr. Bankert was given gratuitously; with no return benefit, consideration, or compensation.  The parties testified that the money was given as a gift and out of “love” from Mrs. Bankert.[12]

A. Transfers Made to “Evade Performance” or “In Fraud”

We have determined that in order to resolve whether performance was evaded in the instant case, it is important to determine what “performance” means.  Mrs. Bankert was prohibited from evading performance of the Agreement.  It is in dispute whether performance includes or excludes the distribution of inter vivos gifts during Mrs. Bankert’s lifetime. In this case, it appears from the testimony and evidence provided, performance of the Agreement did not exclude inter vivos transfers, and therefore, performance was not evaded.  The Agreement did not expressly prohibit such transfers, and further, the Bankert’s consciously decided to omit an express prohibition on inter vivos gifts from their estate planning.  Moreover, it is the Court’s belief that based on Bradley Shearer’s testimony, Mrs. Bankert relied upon Bradley’s financial advice in telling her that she could gift.[13] Mrs. Bankert, pursuant to the express terms of the Agreement, did not change her will, did not change any of the beneficiaries of her will, and did not remarry without a prenuptial agreement.

Additionally, the transfers were not made “in fraud” of Mr. Bankert’s rights because Mr. Bankert made an informed decision to allow such inter vivos transfers.  Attorney Rebert, the scrivener of the mutual wills and the Agreement, testified credibly and unequivocally that she discussed Mr. Bankert’s options and his rights with him during the initial consultation in order to adequately execute their estate planning documents.[14] During this meeting, Attorney Rebert disclosed the possibility that gifts could be transferred after the death of one spouse if the Bankerts’ did not expressly prohibit them.  She discussed the idea of putting a provision in the Agreement with the Bankerts’; however, the Bankerts’ decided against placing a limitation in the Agreement after hearing all of their options. Therefore, Mrs. Bankert was not acting “in fraud” of Mr. Bankert’s rights because he knowingly and consciously elected to withhold an express prohibition on inter vivos transfers in the Agreement.

B. Unreasonable in Amount or “Substantial Gifts” Made Only to Some

The Stepchildren were required to prove that the inter vivos gifts were unreasonable in amount, represented a considerable part of the estate, or were substantial gifts made to only some of the class of certain beneficiaries who were to receive equal shares under the will.  After Mr. Bankert’s death, Mrs. Bankert dispersed checks to each of her five children, totaling approximately $230,000 in inter vivos gifts.  No gifts were given to any of the four stepchildren.  The alleged share of each of the nine Children and Stepchildren should have been $25,555.56, but instead, the amount each Child and Stepchild received from the estate was $718.59.  This Court finds that this amount is a substantial amount of money gifted to only some of the beneficiaries and not others who were entitled to receive equal shares under the will.  The depletion of the estate between Mr. Bankert’s death and Mrs. Bankert’s death was significant and represented a considerable part of the estate.

C.  Notice of the Agreement

The Stepchildren failed to prove, by clear and convincing evidence, that each of the Children had notice of the Agreement at the time of receiving the inter vivos gifts from Mrs. Bankert.  A letter dated April 8, 2003, was admitted into evidence sent by Attorney Rebert to Melinda, informing her of the Irrevocable Will Agreement and including a copy of such.  James and Cindy testified that they each received a similar letter along with a copy of the Agreement.[15] Clair testified that he received notice of the Agreement within two months, either before or after the death of Mr. Bankert.[16] In Melinda’s testimony, she indicated that she thinks she received a copy of the Agreement after the death of Mrs. Bankert.[17] Out of the five children of Mrs. Bankert, the evidence only specified a vague time period in which the Children received a copy of the Agreement.  Although the testimony of the Children indicated that they each received a copy of the Agreement, there was no clear suggestion of exactly when it was received or whether it was received before or after the gifts were made and accepted.

II.  Terms of the Agreement in Accordance with PA Contract Law

In Pennsylvania, when dealing with contract law generally and when determining the terms of a will or a contract, the intent of the parties prevails over the four corners of the contract when the written text is ambiguous.

The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties. Felte v. White, 302 A.2d 347, 351 (Pa. 1973). The intent of the parties to a written agreement is to be regarded as being embodied in the writing itself. Steuart v. McChesney, 444 A.2d 659, 661 (Pa. 1982). The whole instrument must be taken together in arriving at contractual intent. Felte, 302 A.2d at 351. Courts do not assume that a contract’s language was chosen carelessly, nor do they assume that the parties were ignorant of the meaning of the language they employed. Steuart, 444 A.2d at 662. “ ‘When a writing is clear and unequivocal, its meaning must be determined by its contents alone.’ ” Felte, 302 A.2d at 351 (quoting East Crossroads Ctr. Inc. v. Mellon Stuart Co., 205 A.2d 865, 866 (Pa. 1965)). Only where a contract’s language is ambiguous may extrinsic or parol evidence be considered to determine the intent of the parties. Hutchison v. Sunbeam Coal Co., 519 A.2d 385, 390 (Pa. 1986). A contract contains an ambiguity “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Id. This question, however, is not resolved in a vacuum. Instead, “contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999).
Murphy v. Duquesne Univ. Of The Holy Ghost, 777 A.2d 418, 429 (2001).  Additionally, the Pennsylvania Supreme Court has held that “[t]he court in interpreting a will or a contract can always consider the surrounding circumstances in order to ascertain the intention and the meaning of the parties.[18] Moreover, where an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or collateral circumstances.” In re Herr’s Estate, 161 A.2d 32, 34 (Pa. 1960) (emphasis added).

In the case of the Estate of Charlotte Bankert, the language of the Agreement can reasonably be read as ambiguous, or to have more than one meaning, because it does not expressly allow or prohibit inter vivos gifts by the surviving spouse.   Additionally, having an irrevocable will agreement executed along with mutual wills may warrant the assumption that large gifts should not be given during the surviving spouse’s lifetime, as it would contravene what seems to be the purpose of an irrevocable will agreement, which would be to prevent an unfair change in the distribution of the estate.  Since the language of the Agreement is ambiguous, extrinsic evidence along with the Agreement can be considered to determine the true intent of the parties.  However, it appears that the terms of the agreement and the intent of the parties generate the same answer: the parties, i.e. Mr. and Mrs. Bankert, agreed that inter vivos gifts were not prohibited.

First, the Irrevocable Will Agreement makes no reference to gifts; it neither prohibits nor allows them.  Paragraph 4 of the Agreement is argued by the Stepchildren to provide a minimum distribution to each of the four stepchildren; however, it is also alleged by the Children that the Agreement contemplated the possibility that the surviving spouse would die with fewer assets than the couple jointly owned and the parties made no attempt to restrict the surviving spouse from depleting the assets.  Since the Agreement could have prohibited inter vivos gifts but did not, the language of the Agreement suggests they are not prohibited.  Additionally, the scrivener of the wills and the Agreement, Attorney Rebert, testified that Paragraph 4 of the Agreement was not meant to be a minimum amount for distribution.

Second, even if the Agreement’s express terms and language do not clarify whether inter vivos gifts were permissible during Mrs. Bankert’s lifetime, the extrinsic evidence and testimony indicates it was the intention of the parties to allow such gifts.  Attorney Rebert, a disinterested witness, testified that both Mr. and Mrs. Bankert knew of the option to expressly prohibit gifting after the death of one spouse.[19] Both parties were also aware of the option to distribute a portion of the estate to the Stepchildren immediately at the death of Mr. Bankert to avoid a situation like this.[20] Attorney Rebert credibly testified that she informed the Bankert’s of these various options in the consultation, and they subsequently refused to use any of them.  Therefore, the Bankert’s made a voluntary and informed decision to allow inter vivos gifts even if it would result in the diminution of the estate.

Alternatively, it is difficult to understand why the Bankert’s executed an irrevocable will agreement along with their mutual wills if they did not want to prevent a situation where some of Mr. Bankert’s children are treated unfavorably and receive a much smaller sum of money.  Nevertheless, if they consulted an attorney, the attorney gave them a detailed explanation of their options, and the parties consciously chose to allow inter vivos gifts, then it is not reasonable to assume otherwise.

Conclusion

The Court holds that Mrs. Bankert had an unqualified right to dispose of her property through inter vivos gifts because it did not evade performance, and it was the intent of the parties not to limit such actions.  The lack of any express provisions in the Agreement that clearly and unambiguously manifest an intent to limit the surviving spouse’s right to freely transfer the property during her lifetime, along with the testimony that clearly shows it was the intent of Mr. Bankert to exclude such a provision in the Agreement, the Court must find that Mrs. Bankert was not acting in fraud, against the Agreement, or against the wishes of Mr. Bankert.

The Court will issue an Order consistent with this Opinion.

BY THE COURT,

______________________________

October 20, 2011                                                                PENNY L. BLACKWELL, Judge
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA

ORPHANS’ COURT DIVISION

In re Estate of Charlotte M. Bankert,            :                        67-07-1507

Deceased                                                            :

:

LARRY W. WOLF, Esq.                                                :

For the Objectors/Stepchildren                        :

:

PAUL W. MINNICH, Esq.                                                :

For the Executor and the Children                        :

ORDER

AND NOW, this 20^th day of October 2011, pursuant to the reasons set forth in the Court’s accompanying Opinion in this matter, the Court DENIES the Stepchildren’s objection to the First and Final Account of James L. Bankert and enters the declaratory judgment in favor of the Defendants.  The Court will enter an Adjudication confirming the First and Final Account of Executor James L. Bankert.

Copies of this Order shall be sent to counsel of record who shall provide copies to the respective clients.

BY THE COURT,

_____________________________

PENNY L. BLACKWELL, Judge

No. 2003-SU-003590-01

Related Cases:

No. 2003-SU-003496-01

No. 2003-SU-003062-01

No. 2003-SU-003747-01

Summary Judgment – Negligence

1. This case arises out of a two-vehicle crash that occurred on Aug. 12, 2001, on Route 30 in York County, Pennsylvania.

1. Plaintiff David Wallace claims that the occurrence of the accident was caused “directly and proximately by the negligence of Defendant, Department of Transportation” because it failed to (1) prevent foreseeable crossover accidents such as the one which occurred in this case; (2) install proper barricades to prevent foreseeable crossover accidents; and (3) warn motorists of the danger presented by the lack of a median barrier between opposing lanes of traffic.

1. On Aug. 26, 2011, PennDOT filed a Motion for Summary Judgment  asking this Court to dismiss all of Plaintiffs’ claims against it because the Sovereign Immunity Act waives liability for claims based on the agency’s failure to install, maintain, or repair guiderails and median barriers.

1. The Court granted PennDOT’s Motion for Summary Judgment.

____________________________________________________________________________

In the Court of Common Pleas of York County, Pennsylvania, Civil Division; david wallace and janice Wallace, Plaintiffs v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendant and MARY RYNIER, Administratrix of the Estate of SCOTT J. SHOFFSTALL, Deceased, & CAROL RODRIGUEZ, Administratrix of the Estate of AURELIO RODRIGUEZ, Deceased, Additional Defendants; Summary Judgment – Negligence

APPEARANCES:

MARY RYNIER, ESQUIRE

For Estate of Scott J. Shoffstall, Deceased

KEVIN D. GILLESPIE, ESQUIRE and

DANIEL R. GOODEMOTE, ESQUIRE

For PennDOT

BRIGID Q. ALFORD, ESQUIRE and

DAVID H. ROSENBERG, ESQUIRE

For David Wallace

LAURIE J. DEBARR, ESQUIRE

For Janice Wallace

OPINION

Presently before the Court is the Motion for Summary Judgment filed by the Commonwealth of Pennsylvania, Department of Transportation (hereinafter “PennDOT”), one of several defendants in this case, in response to a Complaint filed by David Wallace and Janice Wallace (hereinafter “Plaitniffs”) on Aug. 4, 2003. For the reasons that follow, the Court will GRANT PennDOT’s Motion.

FACTS AND PROCEDURAL HISTORY

This case arises out of a two-vehicle crash that occurred on Aug. 12, 2001, on Route 30[1] in York County, Pennsylvania. Based on the reconstruction report written by Trooper Gary Mainzer with the Pennsylvania State Police, early that day, at approximately 1:50 a.m., Scott J. Shostall was driving a 1997 Hyundai Accent eastbound on Route 30 when he lost control of his vehicle, crossed the grass median into the westbound lane, and crashed head-on into a vehicle (a 1996 Eagle Talon) driven by Aurelio Rodriguez. Shostall, Midyn Lugo (a passenger in Shostall’s vehicle), Rodriguez, and Andrew R. Zimmerman (a passenger in Rodriguez’s vehicle), were pronounced dead at the scene of the accident. Plaintiff David Wallace, a passenger in Rodriguez’s vehicle, survived the accident but was seriously injured.

Plaintiffs filed a lawsuit against PennDOT on Aug. 4, 2003. The agency filed a Praecipe to join additional defendants (in this case Mary Rynier, Administratrix of the Estate of Scott J. Shoffstall and Carol Rodriguez, Administratrix of the Estate of Aurelio Rodriguez) on Aug. 21, 2003. The estate of Rodriguez, Zimmerman and Lugo also filed lawsuits against the estate of Shoffstall and against PennDOT.

Plaintiffs in this case claim that PennDOT  “had notice that vehicles traveling along Route 30 at the place where this accident took place might lose control and enter and cross the grassy median strip, posing a sever danger to vehicles traveling on the other side.” See, Complaint ¶ 10. Plaintiff David Wallace claims that the occurrence of the accident was caused “directly and proximately by the negligence of Defendant, Department of Transportation” because it failed to (1) prevent foreseeable crossover accidents such as the one which occurred in this case; (2) install proper barricades to prevent foreseeable crossover accidents; and (3) warn motorists of the danger presented by the lack of a median barrier between opposing lanes of traffic. Id. at 12. As a result of Defendant PennDOT’s alleged negligence, Plaintiff David Wallace claims that he sustained serious personal injuries, cannot perform his daily duties and chores, and has suffered physical pain, discomfort, and mental anguish, among other claims. Id. at 13-18. Plaintiff Janice Wallace is claiming loss of consortium.

As a result of the lawsuit, PennDOT filed an Answer and New Matter on Sept. 5, 2003. Plaintiffs filed a timely response on Sept. 10, 2003. On Dec. 17, 2009, Plaintiffs filed a Statement of Intention to Proceed. Finally, on Aug. 26, 2011, PennDOT filed a Motion for Summary Judgment[2] asking this Court to dismiss all of Plaintiffs’ claims against it because the Sovereign Immunity Act waives liability for claims based on the agency’s failure to install, maintain, or repair guiderails and median barriers. Plaintiffs filed a response and a brief opposing PennDOT’s Motion on Sept. 15, 2011. On Oct. 5, 2011 this matter was listed for one judge disposition and 20 days later, it was assigned to Judge Thomas H. Kelley, VI.

DISCUSSION

1. Summary Judgment

The Purpose of Summary Judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial.”  Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 176 (1981). The Pennsylvania Rule of Civil Procedure 1035.2 governs summary judgment, and states in pertinent part:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P.1035.2.

“The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Pa. R.C.P. 1035.3(a).

It is important to note that when considering whether summary judgment is proper, the record must be examined in the light most favorable to the non-moving party. Demmler v. SmithKline Beecham Corp., 671 A.2d 1151, 1153 (Pa. Super. Ct. 1996).  All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.  Pennsylvania State University v. County of Centre, 615 A.2d 303, 304 (1992). Summary Judgment may be entered only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999).

1. Sovereign Immunity Act

Pursuant to the Sovereign Immunity Act, a Commonwealth agency is immune from liability for damages arising out of a negligent act unless (1) the damages would be recoverable under the common law or under a statute if the injury were caused by a person not having available the defense of sovereign immunity and (2) the alleged negligence falls within one of the nine exceptions to sovereign immunity. See, 1 Pa.C.S.A. § 2310; 42 Pa.C.S.A. 8522(a).

One of the nine exceptions is the real estate exception, which states that a Commonwealth agency may be liable for damages caused by “[a] dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).” 42 Pa.C.S.A. § 8522 (b)(4).

As stated earlier, PennDOT argues that Plaintiffs’ Complaint should be dismissed because the agency is immune from liability since none of the nine exceptions to sovereign immunity apply. On the other hand, Plaintiffs argue that their cause of action falls within the real estate exception of the Sovereign Immunity Act because PennDOT’s failure to erect a median barrier constituted a “dangerous condition of a highway […] under Section 8522(b)(4).”

The determination of whether an action is barred by sovereign immunity is entirely a matter of law. Cowell v. PennDOT, 883 A.2d 705, 708 (Pa. Commw. Ct. 2005). However, whether a dangerous condition of a highway exists under 8522(b)(4), is a question for the jury alone. Hall v. Acme Markets, Inc., 532 A.2d 894, 895 (Pa. Commw. Ct. 1990). Thus, the Court must first determine whether Plaintiffs’ Complaint falls within one of the nine exceptions to Sovereign Immunity. If it does, a jury must then determine whether a condition is dangerous.

In order to understand when the real estate exception applies, a chronological study of how higher courts have interpreted this statute in cases with similar fact patterns as the case at hand, is necessary.

In 1989 our Supreme Court, addressing the real estate exception, stated that the Commonwealth has a duty to ensure that its property is “safe for activities for which it is regularly used, intended to be used or reasonably foreseen to be used.” Snyder v. Harmon, 522 Pa. 424, 435, 562 A.2d 307, 312 (1989). The Supreme Court added that the real estate exception applies to situations where the dangerous condition derives, originates from, or has as its source, the Commonwealth realty. Id. at 433; 511.

Three years later, the Commonwealth court decided Underwriters at Lloyds London v. Com Dept. of Transp. This case involved a cross-over collision where a tractor-trailer, westbound on Route 22 in Lehigh County, entered the eastbound lanes and struck a pick-up truck, killing all of its occupants. Plaintiff sued PennDOT claiming that it had failed to place adequate medial barriers to retain passenger cars and other vehicles under typical impact conditions. The lower court granted PennDOT’s Motion for Summary Judgment and Plaintiff appealed. On appeal, the Commonwealth Court overturned the lower court’s decision on the basis that its “negligence creating a dangerous condition of a highway under its jurisdiction… if proved, could render DOT liable under the exceptions to sovereign immunity enumerated in the Judicial Code.” Underwriters at Lloyds London, 145 Pa. Commw. 268, 272, 603 A.2d 241, 243 (1992).

In 1998, the Supreme Court affirmed a jury verdict against PennDOT, and in favor of the estate of a driver whose vehicle crossed the opposing lane, hit a guardrail and came to rest against a bridge abutment. Von der Heide v. Commonwealth Department of Transportation, 553 Pa. 120, 718 A.2d 286 (1998). In this case the estate alleged defective conditions of the roadway and guardrail and PennDOT contended that the driver fell asleep and failed to control his car. The Supreme Court found no error in the trial court’s failure to give a jury instruction on superseding cause.

In 2000, Pennsylvania’s Supreme Court decided Dean v. Department of Transportation, a seminal case that explained and clarified the real estate exception in cases where a Plaintiff claimed that the lack of a safeguard – such as a guardrail – in a state highway resulted in PennDOT’s  liability under the real estate exception. In this case, the passenger/plaintiff was in a vehicle that fishtailed on a snow covered road, traveled off the road over a steep embankment, overturned, and caused the passenger/plaintiff serious injuries. The plaintiff in Dean sued PennDOT alleging that her damages would have been prevented or mitigated had there been a guardrail along that portion of the road. The Supreme Court held that PennDOT did not have a duty to erect guardrails on its roads, and therefore, the agency’s failure to install guardrails on its highways is not encompassed by the real estate exception to sovereign immunity. Dean, 561 Pa. 503, 511, 751 A.2d. 1130, 1134 (2000). The Supreme Court noted that “the duty of care a Commonwealth agency owes to those using its real estate, is such as to require that the condition of the property is safe for the activities for which it is regularly used, intended to be used, or reasonably foreseen to be used.” Id. at 510; 1133-1134. The Supreme Court added that the absence of a guardrail cannot be said to be a dangerous condition of the real estate that resulted in a reasonably foreseeable injury. Stated differently, the lack of a guardrail does not render the highway unsafe for the purpose for which it was intended, i.e. travel on the roadway.” Id. The Supreme Court added that “it is irrelevant whether the guardrail is found to be part of the state-owned highway” and found that “the legislature did not intend to impose liability upon the government whenever a plaintiff alleged that his or her injuries could have been avoided or minimized had the government installed a guardrail along the side of the roadway.” Id. 511-512; 1134.

Although the Supreme Court did not overturn Von der Heide or Underwriters at Lloyds London, when deciding Dean, the Supreme Court clearly showed its unwillingness to apply the real estate exception whenever a Plaintiff claimed that PennDOT was negligent for failing to install a safeguard that could have either prevented an accident or minimized its effects.

Four years after Dean was decided, the Commonwealth Court decided Svege v. Interstate Safety Service, Inc. In this case, members of plaintiff’s family were injured and killed when a tractor trailer crashed through a concrete median barrier separating the eastbound and westbound turnpike traffic. Svege v. Interstate Safety Service, Inc., 862 A.2d 752, 753 (Pa.Cmwlth.2004).  The complaint alleged that the turnpike commission was negligent in the design, construction, and maintenance of the turnpike. Plaintiff contended that the Commission’s sovereign immunity was waived, arguing that the median barrier was a dangerous condition within the meaning of the real estate exception. Specifically, plaintiff argued that the median barrier, which allowed the cross-over, was defective and inadequate. The trial court held that plaintiff’s claim against the Commission was barred by sovereign immunity and the Commonwealth Court affirmed. The Commonwealth Court held that the real estate exception does not apply where a plaintiff alleges that his injuries were caused by the Commonwealth’s failure to install larger, more stable concrete median barriers. Id. at 754. “In Dean, the absence of any barrier was held not to render a highway unsafe for its intended purpose of travel [… ] accordingly, Appellant’s claim that a hypothetical barrier of greater dimensions and stability could have minimized or eliminated their injuries was inadequate as a matter of law.” As a result, the Commonwealth Court denied Plaintiff’s argument that the commission was liable under the real estate exception. Id. 755. It is important to note that in this case, the court did not make a distinction between a barrier within the left, right or center of the road. In sum, the Commonwealth Court extended Dean to a situation where a plaintiff is allegedly injured as a result of the Commonwealth’s failure to erect a higher median barrier within a portion of Commonwealth-owned real estate or highway. The fact that the safety barrier was not a guardrail – as in Dean – was of no consequence.

In 2008 the Commonwealth Court decided Fagan v. PennDOT. In this case, the plaintiffs struck a guardrail before leaving the roadway and hitting a pole. Plaintiffs claimed that a guardrail must be designed and maintained to be crashworthy. The trial court granted PennDOT’s motion for summary judgment. On appeal, the Commonwealth Court rejected plaintiffs’ arguments and affirmed the grant of summary judgment based on sovereign immunity regarding the design and maintenance of the guardrail. The court held that pursuant to Pennsylvania law, where a guardrail existed, the failure to design it differently, or the failure to maintain it, were not dangerous conditions of the roadways for which immunity was waived. Fagan v. PennDOT, 946 A.2d 1123, 1127 (Pa.Commwlth. 2008).

Two years later, the Commonwealth Court decided Lambert v. Katz where it held that PennDOT does not have a duty to replace outdated guard cable systems and too-narrow berms with wider berms and a more modern guardrail system as would be required under current standards if [the agency] were building the highway today. See, Lambert v. Katz, 8 A.3d 409

(Pa.Cmwlth. 2010).

Last year, the Commonwealth Court decided Brown v. Comm. Dept. of Transp., 11 A.3d 1054 (Pa. Cmwlth. 2011) where a passenger brought a lawsuit against PennDOT for injuries sustained when the driver of the vehicle veered off the highway. Plaintiff argued that PennDOT was negligent in failing to implement rumble strips along this curved portion of the road. The trial court denied PennDOT’s two motions for summary judgment. However, on appeal, the Commonwealth Court reversed the trial court’s denials stating that PennDOT did not have a duty to install rumble strips along the highway, and as a result, the case did not fall under the real estate exception to sovereign immunity.

Although the state’s Supreme Court has not directly addressed whether PennDOT’s failure to build a median barrier falls within the real estate exception of sovereign immunity, the Commonwealth Court, in 2007, affirmed a trial court’s decision to grant PennDOT’s motion for summary judgment in a case with an extremely similar fact pattern as the case at hand. In Schwartzberg v. PennDOT, No. 00-08199 (Montgomery CCP, Sept. 14, 2006)(aff’d by memorandum opinion No. 1109 C.D. 2006 (Pa.Commw. Ct. June, 18, 2007), plaintiff’s decedent lost control of her vehicle and crossed a grassy median into the opposing lanes of traffic. The trial court granted summary judgment in favor of PennDOT based on the sovereign immunity defense. In this case, Plaintiff argued that PennDOT was negligent in failing to erect appropriate median barriers to prevent crossover accidents. However, the trial court, citing Dean, stated that “the fact that the highway might have been safer if a median barrier were in place does not render the highway dangerous without one.” The trial court stated “it follows therefore, that consistent with the Supreme Court’s analysis in Dean and the decision of the Superior Court [sic.] in Svege, PennDOT cannot, as a matter of law, be found liable for failing to either erect median barriers or redesign the median itself in such a way that might have minimized or prevented the injuries sustained by [plaintiff’s decedent].” Plaintiff appealed the trial court’s decision and the Commonwealth Court affirmed the lower court’s decision in 2007 in a non-precedential opinion.

1. Analysis

Based on the decisions of the state’s Supreme Court and Commonwealth Court dealing with the real estate exception of the Sovereign Immunity Act, the following is clear:

PennDOT does not have a duty to build safety barriers: In Dean, the Supreme Court and the Commonwealth Court clearly stated that the absence of a of a safety barrier in a highway controlled by a state agency does not render that highway unsafe for the purpose for which it was intended – to travel on the roadway.  See, Dean; Brown. As a result, the Commonwealth is not liable when a plaintiff alleges that his or her injuries were caused by the Commonwealth’s failure to install a safety barrier. Id; Svege. The same argument applies when the plaintiff claims that his injuries could have been prevented had an already installed safety barrier had been bigger, had been designed differently or had met current standards. See, Svege, Fagan, and Lambert. Furthermore, the courts have been unwilling to change their analysis depending on the type of safety barrier involved. See, Schwartzberg.

Plaintiffs oppose PennDOT’s Motion for Summary Judgment and argue that the real estate exception to immunity applies to the case at hand based primarily on two cases Underwriters at Lloyds London and Von Der Heide, which were decided prior to the Supreme Court’s seminal case Dean v.  Commw., Dept. of Transp. Although it is true that the Supreme Court has not overruled Underwriters at Lloyds London or Von Der Heide, after Dean, state courts have been unwilling to apply the real estate exception in cases where a plaintiff claims that PennDOT is liable for failing to install safety barriers. Furthermore, the fact that the Supreme Court in Dean focused on the lack of a guardrail and the case at hand focuses on a median barrier is irrelevant. Both are safety barriers and in the past, the Supreme Court and the Commonwealth Court have been unwilling to treat safety barriers differently: in Svege the Commonwealth Court applied the same arguments presented in Dean in a case dealing with a concrete median barrier; Brown dealt with PennDOT’s failure to implement rumble strips along a curved portion of a state road; and in Schwartzberg, the Commonwealth Court affirmed a trial court’s decision to grant PennDOT’s summary judgment in a case dealing with the agency’s failure to build a median barrier.

Plaintiff’s argument that the accident could have been prevented had Defendant abided by its own standards on placing median barriers as outlined in PennDOT’s Design Manual is irrelevant as well. PennDOT does not a have a duty to replace outdated safety barriers even if it does not meet current standards. See, Lambert. Furthermore, where a safety barrier exists, PennDOT’s failure to design it differently to make it safer does not render the road unsafe for its purpose: to travel on the highway. See, Fagan at 1127. For these same reasons, Plaintiffs’ arguments that PennDOT was negligent by failing to build a wider median or to install a warning sign, fail.

CONCLUSION

In sum, having reviewed the record in the context of PennDOT’s Motion for Summary Judgment and resolving all doubts in favor of the Plaintiffs, we find that because PennDOT does not have a duty – one of the elements in a negligence action – to build a median barrier, Plaintiffs’ negligence claim cannot move forward. Based on the Court’s analysis, it has been determined that Plaintiffs’ action is barred by the Sovereign Immunity Act and that the real estate exception to immunity does not apply. As a result, there are no genuine issues of material fact. For these reasons, PennDOT’s Motion for Summary Judgment is GRANTED.  Having so concluded, the appropriate order follows.

ORDER

And now to wit this ________ day of January, 2012, upon consideration of PennDOT’s Motion for Summary Judgment, it is hereby ORDERED that the Motion be GRANTED.

The Prothonotary is directed to serve copies of this order upon counsel, as required by law.

BY THE COURT:

____________________________________

Date:  THOMAS H. KELLEY, VI, Judge

No. 6711-1798

Preliminary Objections – Indispensable Party

1. A complaint was filed on November 1, 2011, in the name of Friendship Baptist Church (“Plaintiffs”) against seven individuals, the “Defendants”. Two preliminary objections were raised by Defendants on December 12, 2012.

1. The first objection concerned Lewis Peaco, argued to be an indispensable party that Plaintiffs failed to join as a defendant. As a result of this objection, Lewis Peaco was subsequently listed as a defendant in the Plaintiff’s Amended Complaint filed on January 3, 2012.

1. The second preliminary objection raised by Defendants was not resolved by the filing of the Amended Complaint.  The objection which still stands is: The individual members of a non-profit corporation lack the capacity to initiate legal action on behalf of the corporation when they are not officers or directors possessing authority to take such action.

1. The Court agreed that the Plaintiffs cannot bring suit under the corporate name and must instead challenge corporate action in their individual capacity.

_______________________________________________________________________

In the Court of Common Pleas of York County, Pennsylvania, Civil Division; FRIENDSHIP BAPTIST CHURCH OF YORK, Plaintiff v. C. Kim Bracey, Robert Roland, Geri Hartzog, Ira Avery, Jr., Benjamin washington, Carl Jimerson, and Lewis Peaco, Defendants;

Preliminary Objections – Indispensable Party

APPEARANCES:

BARBARA REIST DILLON, Esquire and C. EDWARD BROWN, Esquire

For Plaintiffs

WILLIAM F. HOFFMEYER, Esquire and ROBERT L. BUZZENDORE, Esquire,

For Defendants

OPINION

A complaint was filed on November 1, 2011, in the name of Friendship Baptist Church (“Plaintiffs”) against seven individuals, C. Kim Bracey, Robert Roland, Geri Hartzog, Ira Avery, Jr., Benjamin Washington, Carl Jimerson, and Mark Scott (“Defendants”). Two preliminary objections were raised by Defendants on December 12, 2012.  The first objection concerned Lewis Peaco, argued to be an indispensable party that Plaintiffs failed to join as a defendant.  As a result of this objection, Lewis Peaco was subsequently listed as a defendant in the Plaintiff’s Amended Complaint filed on January 3, 2012.

The second preliminary objection raised by Defendants was not resolved by the filing of the Amended Complaint.  The objection which still stands is: The individual members of a non-profit corporation lack the capacity to initiate legal action on behalf of the corporation when they are not officers or directors possessing authority to take such action.  The Defendants argued that the Plaintiffs were required to file as individuals instead of filing the complaint using the name of the church, Friendship Baptist Church.  The second objection required oral argument, which took place on January 31, 2011.  As this is a complicated area of the law and an issue with little case law as precedent, the Court appreciated well-reasoned arguments by both parties to this action.

Defendants argued that Pennsylvania law requires Plaintiffs to bring the suit in their individual capacity and not in the name of the church because of the general rule stated in the Nonprofit Corporation Law.  The law states that “[u]pon petition of any person whose status as, or whose rights or duties as, a member, director, member of an other body, officer or otherwise of a nonprofit corporation are or may be affected by any corporate action, the court may hear and determine the validity of such corporate action.”[1] Because the Nonprofit Corporation Law does not define person, the Defendants argue that “person” would mean individual.  Defendants state that they are not arguing that the individual members may not file legal action to challenge the corporate action; however, the statute does not confer authority upon them to claim they are the corporate entity itself.[2]

Plaintiffs argue that the suit was properly brought using the name of the church.  The concentration of Plaintiff’s argument relies on the following facts contained in the Amended Complaint. On September 30, 2011, the Board of Deacons called a special business meeting as argued is required by the Church’s Constitution.[3] The stated purpose in the Deacon’s Notice of Special Meeting was to, among many things, “conduct a vote of the membership of Friendship Baptist Church of York to retain services of Nikolaus & Hohenadel, LLP . . . to counsel the Church in matters of non-profit corporate governance and, if needed, pursue legal action against the . . . Trustees as a result of certain unauthorized actions taken by them.”[4] At this meeting held on October 10, 2011, the members present voted fifty-eight (58) to thirteen (13) to “retain the services of Nikolaus and Hohenadel . . . to counsel the Church in matters of non-profit corporate governance and to pursue legal action.”[5] There is no indication in the minutes as to the total number of adult members present at the meeting; however, the minutes indicate that seventy-one (71) members contributed to the vote to hire a law firm.  Plaintiffs argue that the church operates with special meetings, and by calling a special meeting, the congregation voted to institute this lawsuit and can sue using the corporate name.

After a full review of Friendship Baptist Church’s Articles of Incorporation and Constitution, the Court finds that the documents are very vague on many matters and are specifically ambiguous on the issue of who can bring an action on behalf of the church.  Further, there is no clear delineation stated on how the church itself can take action.  Given that two factions of the church are at odds, one could draw the inference that either side is “the church” and has the capacity to sue using the corporate name.  As counsel for both parties pointed out in oral argument, there is little case law to indicate who has the capacity to file suit on behalf of a church when the church bylaws are silent on the issue, and there is no case that quite fits this factual scenario.[6] Therefore, the Court turns to the default rules provided in Pennsylvania’s Nonprofit Corporation Law to answer Defendants’ preliminary objection.

First, the Court reviewed the pleadings, as well as the testimony by both parties, to determine which members, if any, made up a board of directors for Friendship Baptist.  Under the Nonprofit Corporation Law, unless the Church has bylaws providing otherwise, all general powers of the corporation, found in section 5502, “shall be exercised by or under the authority of . . . a board of directors.”[7] Section 5502 specifically refers to the power to sue and be sued and provides that, if the bylaws are silent on the issue, the board of directors has the power to “complain and defend and participate as a party or otherwise in any juridical . . . proceeding in its corporate name.”[8]

Unfortunately, the Court does not have enough information to determine which members of the church constitute the board of directors in this case.  The Articles of Incorporation for Friendship Baptist Church (“Articles”) refer to original individuals to act as directors until the election of successors.  The Constitution is silent on the matter of the board of directors, and neither the Constitution nor the Articles provide a process for electing successor directors for the church.  The Defendants refer to themselves as the “Joint Board of Ministry” and allege that they have been acting on behalf of the church since its inception in 1959.  The Plaintiffs argue that the Joint Board of Ministry is not mentioned in the Articles or the Constitution; therefore, they may not act on behalf of the church.[9] Considering the facts and documentation provided to the Court, there is not adequate information to determine which members of the church are on the board of directors that can sue using the corporate name referred to in the Nonprofit Corporation Law.

Second, the Court considered Plaintiff’s argument that a special meeting was held by the congregation to determine whether the church should bring this suit.  Although the Court found the Plaintiffs argument very compelling, the documents provided were too ambiguous for the Court to rule in their favor.

Under Pennsylvania Nonprofit Corporation Law, unless otherwise adopted by the members, “the acts of a duly organized meeting of members present entitled to cast at least a majority of the votes which all members present and voting are entitled to cast shall be the acts of the members.”[10] However, a “meeting of members of a nonprofit corporation duly called shall not be organized for the transaction of business unless a quorum is present.”[11] A quorum exists if the “presence of members entitled to cast at least a majority of the votes which all members are entitled to cast on the matters to be acted upon” are present at the meeting.[12] The Friendship Baptist Church’s Articles and Constitution are silent on the issue of how many members need to be present at a meeting to vote on matters for the church, therefore, the Court must follow the Nonprofit Corporation Law.

In the instant case, the minutes of the October 10, 2011, meeting are not clear as to how many members of the church were present; however, the minutes list how many members voted on each matter discussed.  In one matter, the minutes indicate “68 yeas by a standing vote and 6 nays” and in another matter, the minutes specify that a motion was carried with “58 yeas by standing vote and 13 nays.”[13] Therefore, based on the information provided, the Court can only find that seventy-four (74) members were present for the meeting.  In Plaintiff’s Amended Complaint, the congregation is alleged to contain approximately 162 adult members.  The seventy-four (74) members that voted at the Special Meeting do not make up a quorum under the Nonprofit Corporation Law.  Thus, the matters voted on at the meeting are not considered the acts of the corporation.

Additionally, the statements made in the Notice for the Special Meeting and the Minutes from the Special Meeting are too vague to determine that the voting members knew precisely what legal action they were supporting or opposing.   At this meeting held on October 10, 2011, the members present voted to “retain the services of Nikolaus and Hohenadel . . . to counsel the Church in matters of non-profit corporate governance and to pursue legal action.”[14] The Minutes did not specify what legal action was being taken and which members the action was targeting.  The Court finds it ambiguous what “legal action” specifically means in this case and how much detail and discussion of this matter took place at the meeting. The Court also notes that even if the members voting knew exactly what legal action was contemplated at this time, a quorum was still not present to effectuate the decision.

In conclusion, based on the reasons stated above, the Court agrees that the Plaintiffs cannot bring suit under the corporate name and must instead challenge corporate action in their individual capacity.

BY THE COURT:

___________________________

PENNY L. BLACKWELL, Judge

February 1, 2012

IN THE COURT OF COMMON PLEAS, YORK COUNTY, PENNSYLVANIA

ORPHANS’ COURT DIVISION

FRIENDSHIP BAPTIST                        :                        No. 6711-1798

CHURCH OF            YORK,                        :

Plaintiff,                        :

v.                                                :

:

C. Kim Bracey, Robert             :

Roland, Geri Hartzog,             :

Ira Avery, Jr., Benjamin            :

Washinton, Carl Jimerson,            :

Mark Scott and Lewis                         :

Peaco                                                :

Defendants

ORDER

AND NOW, this 1^st day of February, for the reasons set forth in the accompanying Opinion in this matter, the Court GRANTS the Defendant’s preliminary objection and ORDERS the Dismissal of the Complaint without prejudice to Plaintiffs to file an Amended Complaint.

BY THE COURT:

___________________________

PENNY L. BLACKWELL, Judge

February 1, 2012

Petition to Intervene – Mortgage Foreclosure

No. 2010-SU-1062-06

1. This case involves a Petition to Intervene filed in a mortgage foreclosure action, in which the Interveners claimed to have a legally enforceable right to a property, a portion of which was subject to the foreclosure action.

1. Pennsylvania Rule of Civil Procedure 2327 provides that a person not a party to an action at any time while the action is pending “shall be permitted to intervene” if “the determination of such action may affect any legally enforceable interest of such person whether or not such a person may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4).

1. The Court held that, since Respondents have not shown cause why the Petition should not be granted, i.e. have not shown that Petitioner does not have a legally enforceable interest that may be affected by the determination of the mortgage foreclosure proceeding, the Petition to Intervene will be granted.

________________________________________________________________

In the Court of Common Pleas of York County, Pennsylvania, Civil Division; JP MORGAN CHASE BANK NATIONAL ASSOCIATION, Plaintiff v. JAMES P. MILLER and SUSAN D. MILLER, Defendants;

Petition to Intervene – Mortgage Foreclosure

APPEARANCES:

NEIL A. SLENKER, Esq.

JEFFREY C. BRIGHT, Esq.

For the Petitioner

BLAIR H. GRANGER, Esq.

CARRIE J. LOSINGER, Esq.

For the Defendant

OPINION GRANTING PETITION TO INTERVENE

On September 27, 2011, the Court held a hearing on the Petition to Intervene in the above captioned matter filed by Lisa A. Fitz, Executrix of the Estate of Donald A. Swartz.  The Petition will be granted.

Facts and Procedural History

On June 27, 2011, Lisa A. Fitz filed a Petition to Intervene in the JP Morgan Bank v. Miller mortgage foreclosure action.  Petitioner Fitz is the Executrix of the Estate of Donald A. Swartz, which holds a mortgage on property subject to the underlying foreclosure action.  The Court issued a Rule to Show Cause why Petitioner was not entitled to intervene in the action and scheduled a hearing for August 25, 2011.  The hearing was continued to September 27, 2011, on which date the Court heard testimony and accepted certain exhibits which have been reviewed.  The Court permitted the Parties to submit supplemental Briefs, which have also been reviewed.

JPMorgan Chase Bank, National Association, (“Bank”) filed the underlying Complaint in Mortgage Foreclosure action against Defendants James P. Miller and Susan D. Miller on March 8, 2010.  The property subject to the action is located at 1282 Klines Road, Wrightsville, Pennsylvania, 17368.  Petitioner also holds a mortgage on that property.  The Bank’s mortgage was granted and recorded in 2003, prior to the mortgage held by the Decedent’s Estate. Nevertheless, the mortgage held by the Bank is secured by only a portion of the tract of land at issue, approximately 8.2742 acres of the 18.1542 acres that comprise the tract of land at issue.  Petitioners argue that in 1998 the 8.2742 acres of property subject to the Bank’s mortgage were formally joined with an additional 9.88 acres of land pursuant to a Lot-Addition Plan.[1] Respondent believes that the two parcels of land remain separate, as evidenced by their being identified by different identification numbers in the Lot-Addition Plan.  The Court finds that the Lot-Addition Plan clearly joins the two tracts of land and prohibits their being separated “unless all applicable zoning and subdivision and land development regulations are satisfied.” (Pet. Exh. 1).

On August 11, 2006, the Decedent lent the Defendants $100,000 pursuant to a Promissory Note secured by a mortgage on the total 18.1542 acres of the property at issue.  Unlike the Bank’s mortgage, the mortgage of the Estate covers the entirety of the Defendant’s property located at 128 Klines Road.  Based on her belief that a legally enforceable interest of the Estate might be affected by the disposition of the mortgage foreclosure action, the Petitioner filed this Petition to Intervene.

The Petition to Intervene will be granted.

Discussion

Pennsylvania Rule of Civil Procedure 2327 provides that a person not a party to an action at any time while the action is pending “shall be permitted to intervene” if “the determination of such action may affect any legally enforceable interest of such person whether or not such a person may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4).  The Court notes that both Parties in their filings and during the September 17, 2011, hearing argued about the legality of the Bank’s mortgage.  In its post-hearing Supplemental Brief, the Estate directs the Court to focus on the question of whether the Estate has a legally enforceable interest and should be allowed to intervene pursuant to Pa. R. Civ. P. No. 2327(4).  Respondents argue that the legality of its mortgage was relied on by the Estate as a basis for intervention and that the question of the legality of the mortgage should be determined by the Court at this time.  The Court will not determine the legality of the Bank’s mortgage because the question of intervention can be decided without making such a determination.

The Court finds that the Petitioner does have a legally enforceable interest that may be affected by the determination of the mortgage foreclosure action filed by the Bank.  As to the portion of the property subject to the Bank’s mortgage, the Estate is a junior lienholder.  Priority among similar instruments, i.e. mortgages, is determined with reference to first come first serve principles. See 42 Pa.C.S.A. §8141.  It would be incorrect to say that any junior lienholder has an interest that allows it to intervene, as the law clearly intends junior lienholders to stand outside the foreclosure proceedings of a senior lienholder.  The rights of a junior lienholder are divested by a senior lienholder’s sale of the property subject to the mortgages at a sheriff’s sale. See 42 Pa. C.S.A. §8152; Irwin Union Nat. Bank and Trust Co. v. Famous, 4 A.3d 1099 (Super. 2010).  To the extent that the purchase price received from the foreclosure sale exceeds the value of the lien held by the primary lienholder, the excess (after costs of sale, etc.) are distributed to junior lienholders in order of their priority.  See Pa. R. Civ. P. No. 3136; State Street Bank v. Petrey, 819 A.2d 581 (Super. 2003).  The primary means of enforcing an “interest” in real property after a junior mortgage is extinguished by judicial sale is to file exceptions to the schedule of distribution of proceeds.  The preceding would be the Estate’s only recourse as a junior lienholder if the Estate’s mortgage was secured by property identical to that securing the Bank’s mortgage, but the unique facts of this specific case do permit the Estate to intervene.  The Estate will be affected by the foreclosure in a way greater than junior lienholders generally: the property subject to its mortgage will be split.

First, the Bank’s mortgage is secured by only a portion of the total property which secures the Estate’s mortgage; therefore, the mortgage held by the Estate will be divested to the extent of the Bank’s interest once the Bank’s mortgage is foreclosed upon.  Second, the foreclosure of the portion of land subject to the Bank’s mortgage will result in the remaining portion of the land in which the Estate continues to have a mortgage becoming land-locked without road access.  Third, the result of the foreclosure will be an illegal subdivision of the previous whole tract of land pursuant to the local zoning ordinances.

As discussed above, the Court will not rule on the legality of the mortgage at this time.  Nonetheless, the Court has reviewed the case law identified by the Parties concerning illegal subdivisions, specifically Guido v. Township of Sandy, 584 Pa. 93, 880 A.2d 1220 (2005), as well as other relevant case law.  Both Parties have argued that Guido supports their position on the legality of the Bank’s mortgage.  The Court does not believe the opinion in Guido actually provides any such clear directives as those argued by the Parties.  In Guido, the Supreme Court held that the exercise of an option to buy a portion of a tract of land worked as a division-in-fact and effectuated a transfer of the property to the option holder relating back to the date that the agreement containing the option to buy was entered, despite the fact that Township Planning Commission had not at that time approved the subdivision as required by local ordinances.  Guido, 584 Pa. at 103-106.  Note that, unlike the present case, the Planning Commission did eventually approve the subdivision.  Nevertheless, the Supreme Court could not say whether “an interested governmental body may view a particular division-in-fact as illegal” because of non-compliance with local ordinances governing subdivisions of land. Id. at 105.  The Court held “that division-in-fact in no way impels governmentally sanctioned Subdivision.” Id. at 107-108.  The essential aspect of the Court’s determination is that while a court can determine when division-in-fact occurred it cannot enter an Order approving an application to subdivide property pursuant to local ordinances.  Concluding the opinion, the Supreme Court stated that the Court was leaving “the parties with the opportunity to seek further relief pursuant to the modification procedure established by the MPC and Sandy Township and/or to complete the underlying litigation seeking specific performance, consistently with this decision.” Id. at 108.  Whether the Supreme Court believed that the underlying litigation regarding specific performance would be successful or unsuccessful based on the opinion is not apparent.  Accordingly, whether a finding of a division-in-fact renders a contract that would otherwise be illegal legal is unclear.

Without addressing the legality of the mortgage, if, for example, Respondents are found to have caused a division-in-fact by virtue of executing the mortgage on a portion of Defendant’s property, the Petitioner’s mortgage on an undivided tract of land may become by virtue of that decision a mortgage on two separate tracts of land.  Further, if a division-in-fact is found, the Township may decide that there was an illegal subdivision and Petitioner may be therefore limited in the exercise of its rights in the now illegally subdivided portion of land in which it continues to have a mortgage.  Pennsylvania Rule of Civil Procedure 2327(4) requires the Court to permit a person to intervene if the determination of the underlying action “may” affect a legally enforceable interest of the Petitioner.  As Respondents have not shown cause why the Petition should not be granted, i.e. have not shown that Petitioner does not have a legally enforceable interest that may be affected by the determination of the mortgage foreclosure proceeding, the Petition to Intervene will be granted.

Conclusion

In conclusion, the Court will GRANT the Petition to Intervene filed on June 27, 2011.  An Order consistent with this Opinion will be entered.

BY THE COURT,

____________________________________

Stephen P. Linebaugh, Judge

Dated: _________________________

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA

JP MORGAN CHASE BANK,                        :

NATIONAL ASSOCIATION                         : No. 2010-SU-1062-06

Plaintiff                        :

:

vs.                                                :

: CIVIL ACTION – LAW

JAMES P. MILLER                                                :

AND SUSAN D. MILLER                                    :

Defendants                        :

ORDER GRANTING PETITION TO INTERVENE

AND NOW, this _______ day of ______________ 2011, in accordance with the attached Opinion, the Petition to Intervene filed by Lisa A. Fitz, Executrix of the Estate of Donald A. Swartz, in GRANTED.

Copies of this Order and Opinion shall be forwarded to counsel of record.

BY THE COURT,

____________________________________

Stephen P. Linebaugh, Judge

Election – Write-in Votes – Recount

No. 2011-MI-000174-55

1. Michael Helfrich, a successful “write in” candidate in the election, won the position on the York City Council by 6 votes; Mr. Helfrich received 1,003 votes and Ms. Smith received 997 votes.  A recount of the election was held on December 12, 2011; the same results were reported.  Mr. Helfrich filed a Petition to Intervene in this case on December 14, 2011, which this Court granted by Order dated December 16, 2011.

1. Petitioners Antoinetta (Toni) Smith, a candidate in the election at issue, Tracy Landis and Joanne Borders filed a Petition to Recanvass, Recount and Redress York City Council Elections on December 1, 2011.  The Department of Elections and Voter Registration and York County Board of Elections filed an Answer on December 5, 2011.

1. Petitioner Smith sought to have certain write-in votes disregarded while Mr. Helfrich sought to have certain write-in votes that were not counted included.

1. On December 16, 2011, after hearing testimony on the issue of whether certain write-in votes should or should not have been counted in the totals for Mr. Helfrich , the Court held that it would not discard any of the votes counted for Mr. Helfrich and would add one vote to the Mr. Helfrich’s total.

­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________

In the Court of Common Pleas of York County, Pennsylvania, Civil Division; ANTOINETTA SMITH, TRACY LANDIS, AND JOANNE BORDERS, Plaintiffs v. YORK COUNTY DEPARTMENT OF ELECTIONS, Defendant;

Election – Write-in Votes – Recount.

APPEARANCES:

MARISA G. BUTTON, Esquire

For Petitioners

MICHAEL W. FLANNELLY, Esquire

For Defendant York County Department of Elections

CHARLES J. HOBBS, Esquire

For Michael Helfrich, Intervener

OPINION IN SUPPORT OF ORDER CERTIFYING

YORK CITY COUNCIL ELECTION RESULTS

Facts and Procedural History

Petitioners Antoinetta (Toni) Smith, a candidate in the election at issue, Tracy Landis and Joanne Borders filed a Petition to Recanvass, Recount and Redress York City Council Elections on December 1, 2011.  The Department of Elections and Voter Registration and York County Board of Elections filed an Answer on December 5, 2011.

Michael Helfrich, a successful “write in” candidate in the election, won the position on the City Council by 6 votes; Mr. Helfrich received 1,003 votes and Ms. Smith received 997 votes.  A recount of the election was held on December 12, 2011; the same results were reported.  Mr. Helfrich filed a Petition to Intervene in this case on December 14, 2011, which this Court granted by Order dated December 16, 2011.

This Court heard testimony on the issue of whether certain write-in votes should or should not have been counted in the totals for Mr. Helfrich on December 16, 2011.  Petitioner Smith seeks to have certain write-in votes disregarded while Mr. Helfrich seeks to have certain write-in votes that were not counted included.  The Court will not discard any of the votes counted for Mr. Helfrich and will add one vote to the Mr. Helfrich’s total.

Issue Presented

Whether Certain Write-In Votes Counted or Discarded by the Board of Elections Should be Discarded or Counted in the Tallying of the Number of Votes for Candidate Michael Helfrich.

Discussion

In determining whether the write-in votes counted or discarded by the Board of Elections were properly tallied, this Court must consider above all the intent of the voter.  At issue in this case are the write-in ballots for write-in candidate Michael Helfrich.  It should be noted at the outset that this case is unique among the case law discussed below as the write-in votes were accomplished by electronic means.  Essentially, a voter “typed-in” their write-in vote on a computer voting machine using a touchscreen “QWERTY” keyboard.  There are no Pennsylvania cases dealing with computerized electronic voting machines.  All of the existing case law in Pennsylvania deals exclusively with handwritten write-in votes.

The Court notes that there are specific issues that arise when one types in a vote: typographical errors, failing to make a space between first and last names,[1] misspelling of names, using only the last name,[2] missing letters, accidently hitting the key adjacent to the intended letter,[3] and citizens (especially older citizens) lacking familiarity with computer typing.[4]

At the hearing before this Court on December 16, 2011, each vote counted for Michael Helfrich which Petitioners believe should not have been counted were meticulously reviewed.  Upon questioning, the York City Bureau of Elections and Voter Registration Acting Director testified that in deciding to include or not include a vote, the “standard” used was whether the intent of the voter was clear.  This Court is tasked with the same inquiry and must determine whether the names contained in the ballots counted as votes for Mr. Helfrich did actually reflect the intent of the voter to vote for Mr. Helfrich.

While 25 P.S. §3031.12(b)(3) allows a voter to write-in a candidate on a ballot, the statute does not provide a standard for determining whether the name written incorrectly or incompletely serves as a vote for a specific candidate.  Whether an incorrect or incomplete name is counted for a candidate is governed by case law.

In Appeal of McCracken, 370 Pa. 562, 566 (1952), the Supreme Court stated that:

where the voter’s intent is found, it should not be defeated by the fact that the name of the candidate is misspelled, the wrong initials employed or some other or slightly different name of like or similar pronunciation has been written instead of that of the candidate actualy [sic.] intended to be voted for…A ballot may be counted which contains a candidate’s surname only although there are other persons in the borough having the same surname, it being shown that there was no other person of such name who was a candidate for the same or any other office; and so also if only the middle name of the candidate is wrong or if the first name is abbreviated or if the wrong initials are used.

Id. at 567 (citing 9 Ruling Cas Law, page 1144).  The Supreme Court has further stated in numerous cases that the policy of the Commonwealth is “to protect the elective franchise,” Petition of Cioppa, 533 Pa. 564, 568, 626 A.2d 146, 148 (1993), that election laws “‘will be construed liberally in favor of the right to vote,’” Appeal of James, 377 Pa. 405, 408 (1954) (quoting 29 C.J.S., Elections, § 7, p. 27), and that “‘[m]arking a ballot in voting is not a matter of precision engineering but of an unmistakable registration of the voter’s will in substantial conformity to the statutory requirements.’” Shambach v. Bickhart, 845 A.2d 793, 798-99 (2004) (citing Appeal of Gallagher, 41 A.2d 630, 632 (1945)).  The Supreme Court stated in Appeal of James that the power to discard a ballot for an irregularity “’must be exercised very sparingly and with the idea in mind that either an individual voter or a group of voters are not to be disfranchised at an election except for compelling reasons.’” 377 Pa. at 409-410 (citing Case of Bauman Election Contest, 351 Pa. 451, 454-455).  The manifest intention of the voter determines to whom the vote is attributed, not the number of mistakes made by a voter in transcribing the name of the candidate.

In reviewing this case law the Court recognizes the imperative that no standard should be enforced that would result in the disenfranchisement of the citizens of Pennsylvania.  For reasons further discussed below, the Court finds that the intent of the voters responsible for the ballots questioned by Petitioners was to vote for Michael Helfrich and to discard those votes for spelling errors or other mistakes and omissions would serve to disenfranchise those voters.

The Court also finds that a vote[5] not counted by the Board of Elections clearly evinces the intent of the voter to cast a vote for Michael Helfrich and the Court will thereby order that the vote be counted for Mr. Helfrich in the final certified election totals.

In reaching the above findings the Court considered various facts presented by this case.  First, there was no other candidate for city council with the name Michael Helfrich, or even with the last name Helfrich or some near variant.[6] Second, only seven registered voters in York have the last name of “Helfrich,” there are no other “Michael Helfrichs,” and no “Helfricks” are registered to vote.  Third, Mr. Helfrich actively campaigned, sending out thousands of mailers, personally handing out flyers, making robo-calls, and campaigning door-to-door.

Petitioners argue that, despite these facts, the mistakes, omissions, and flaws in the names typed in by some voters were egregious enough to warrant the discarding of those votes.  Among the mistakes commonly pointed to by Petitioners was the inversion of letters or the first and last name, the absence of a space between the first and last name, misspellings of “Michael” and/or “Helfrich,” and misspellings that, when spoken aloud, did not phonetically sound identical to “Michael Helfrich.”

In Dayhoff v. Weaver, 808 A.2d 1002 (2002), the Commonwealth Court found that the trial court had erred in declining to count write-in ballots for Candidate Dayhoff where voters had either misspelled his name or omitted his first name.  The Commonwealth Court found that the facts of the case supported the factual finding that the voters had intended to vote for Dayhoff. Id. at 1011.  In the case, only two registered voters had a last name of “Dayhoff,” the candidate and his wife.  And, as to the misspelled “Dehoff,” only 5 registered voters had that name.  Candidate Dayhoff testified that people commonly believe that Dehoff is the proper spelling of his name based on pronunciation.  In this case, Mr. Helfrich similarly testified about his oft misspelled first and last names, often the phonetically identical “Micheal” and “Helfrick.”  The Commonwealth Court also addressed the misspelling of the candidate’s name or the use of only his last name.  Citing Appeal of McCracken, the Commonwealth Court stated that “[t]he fact that there were other persons with the last name ‘Dayhoff’ or ‘Dehoff’ does not undermine a finding of voter intent.” Id.  Since there was no evidence that Mrs. Dayhoff or any Dehoff was also running for the same elected position, the Court determined that the voters evinced the intent to vote for Candidate Dayhoff and that those misspelled or last name only votes should be counted.  The Commonwealth Court further counseled that “not to count these votes gives too much weight to a ‘technicality’ against which result our Supreme Court warned in Appeal of James.” Id. at 1012.

The Court would also like to note that the Elections Board did closely and manually review the write-in votes for Mr. Helfrich.  This review resulted in the rejection of several write-in votes that, had they been counted, would almost certainly been attributed to Mr. Helfrich.  For example, votes for CHAEHHELFRICH,[7] HELFRIGHT,[8] and MATT HELFRICH[9] were discarded.

Based on a review of the relevant case law, taking into consideration the unique concerns posed by write-in ballots that are typed into electronic voting machines, this Court finds that all the write-in votes counted for Mr. Helfrich were appropriately attributed to him and that one additional vote not counted clearly evinces that voters intent to vote for Mr. Helfrich and will therefore be counted in order to avoid disenfranchising those votes.

Conclusion

In conclusion, the Court will Order the Certification of the Results of the York County City Council Elections as counted during the December 12, 2011 recount with the addition of the vote for ”MCHEL HELFRICK” (45535 MRHMH

York city 11-0 331) to the total votes for Michael Helfrich.  An Order consistent

with this Opinion will be entered.

BY THE COURT,

__________________________________

Stephen P. Linebaugh, President Judge

Dated: __________________

ORDER CERTIFYING ELECTION RESULTS

AND NOW, this 19th day of December 2011, in accordance with the attached Opinion, IT IS ORDERED that:

The results for the York City Council election shall be CERTIFIED by the York County Board of Elections in accordance with the Opinion filed of even date with and as counted during the December 12, 2011 recount with the addition of the vote for ”MCHEL HELFRICK” (45535 MRHMH York city 11-0 331) be added to the total votes for Michael Helfrich.  .

Copies of this Order and Opinion shall be forwarded to counsel of record.

BY THE COURT,

__________________________________

Stephen P. Linebaugh, President Judge

Child Support – Personal Jurisdiction – Retroactivity

No. 1135 SA 2011

1. This case involves the appropriateness of enforcement of arrears in a child support order entered in Massachusetts, served on a Defendant in Germany.

1. The Defendant filed a contest of a registration pursuant to Title 23 Pa.C.S. 7607, indicating that he had a defense under sub-section A1, that the issuing tribunal lacked personal jurisdiction over him, and perhaps under sub-section 2 that the Order was obtained by fraud.  The matter was originally heard before the Court on a regular De Novo Review on September 16, 2011 at which time, the Defendant, Mr. James, advised the Court that contrary to the documents that were presented to the Court regarding the validity of the Order of Germany, he was never served with the same.

1. Rule 1910.17 of the Pennsylvania Rules of Civil Procedure provides, in relevant part, “[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” Pa.R.C.P., Rule 1910.17(a), 42 Pa.C.S.A.“There is a sound policy favoring retroactivity in most cases.” Sutliff v. Sutliff, 489 A.2d 764, 781 (1985), aff’d 528 A.2d 1318 (Pa. 1987).  Retroactive support is intended to “alleviate hardship on a party who is entitled to support but who is required to proceed through the often slow moving judicial process.” Crawford v. Crawford, 633 A.2d 155, 162 (Pa.Super.1993).

1. The Court found that Plaintiff filed the UIFSA request for registration of the German support order in 2007 in Massachusetts.  Although it did not agree that Germany had personal jurisdiction over Defendant because of lack of service, Mother’s registration of the German order was proper.  The delay in Defendant’s notification was Massachusetts’ fault, not Plaintiff’s.  Accordingly, the Court found that she should be penalized for the delay in notice to Defendant and it is proper and fair to calculate support from the date of Plaintiff’s registration filing in 2007.  The matter was remanded to the Office of Domestic Relations for a hearing calculate support consistent with this opinion.

__________________________________________________________________

In the Court of Common Pleas of York County, Pennsylvania, Domestic Relations Section; JUTTA I. GRENIER, Plaintiff v. ROBERT P. JAMES, Defendant; Child Support – Personal Jurisdiction – Retroactivity

APPEARANCES:

JEFF MARSHALL, ESQUIRE, of YCDRO

Attorney for Plaintiff

ROBERT P. JAMES, Defendant

Pro Se

OPINION

BACKGROUND OF CASE

On May 16, 2011, the York County Domestic Relations Office received a UIFSA from the state of Massachusetts requesting registration of a November 22, 1994 Court Order from Boblingen, Germany, for enforcement only and collection of arrears.  There were two children subject to the Order, Tatjana Irene James, born December 1, 1991, and Joseph Forest James, born June 28, 1993, both of whom are over the age of eighteen.  The Order amount was $170.00 per month for child support.  Massachusetts stated that the Defendant never made a payment and as of March 31, 2011, the arrears total as set forth in the Petition from Massachusetts was $12,036.00.  The Ordered amount by the York County Office of Domestic Relations was $177.00 per month consistent with the previous Order.

The Defendant filed a contest of a registration pursuant to Title 23 Pa.C.S. 7607, indicating that he had a defense under sub-section A1, that the issuing tribunal lacked personal jurisdiction over him, and perhaps under sub-section 2 that the Order was obtained by fraud.  The matter was originally heard before the Court on a regular De Novo Review on September 16, 2011 at which time, the Defendant, Mr. James, advised the Court that contrary to the documents that were presented to the Court regarding the validity of the Order of Germany, he was never served with the same.  An Affidavit of Service was attached to the documents reflecting that the Defendant had been served according to the affiant, in a hotel on November 29, 1994, personally by the Court bailiff, Sidel, of the Boblingen Local Court.   This service took place in the Hotel Monig and although the document was not signed by the person who alleges that they made service, it was signed by one Volkmer, the Court Clerk.  Because the issue of whether or not the Defendant had been served gives rise to the issue of personal jurisdiction, a rule to show cause was issued on Plaintiff, Jutta Grenier, to show cause why this matter should not be dismissed.

Accordingly, the matter was rescheduled before the undersigned on October 18, 2011, at which time both Plaintiff and Defendant testified.  Several exhibits were introduced relative to the underlying cause, but it became readily apparent to the Court that the Affidavit of Service, dated November 29, 1994, has absolutely nothing to do with the issue of personal jurisdiction.  Mrs. Grenier testified that they met in Germany while the Defendant was in the United States Army and that when he left the military and moved to the United States in October of 1989, she returned to America with him.  They were married in 1990 and resided in various addresses in Maryland, specifically the DC area.  Their first child, Tatjana, was born in DC in 1991, and the son was born in Maryland in 1993.  Within four months she returned to Germany and took both children with her.  She testified that Father undertook efforts to take custody and when in fact he obtained legal custody, he sought enforcement under the Hague convention, but was never successful.  Father urges this Court to consider the fact that his children were stolen from him and he’s lost the opportunity to be a part of their childhood.  While this Court certainly empathizes, this issue is in the determination of whether the Defendant was lawfully served.

Plaintiff indicated that she initiated a divorce action in 1993 when she moved to Germany and that her hearing on this matter, regarding her divorce, support, etc., was held in Germany in June 1994.  She presented no documents confirming service of the underlying proceeding, and has not been able to prove that the Defendant was served prior to the proceedings in Germany.  She did testify that she returned to America early in 1994 in an effort to reconcile, without success, and that she saw the paperwork from Germany while she in the house.  All of the documents that she presented to us are in German with subsequent translations.  There was no testimony that the documents she saw were translated for the Defendant.

Plaintiff’s position is that because Defendant was served in Germany in November approximately five months after the proceeding, and that he took no steps to set it aside, this somehow this creates good service.  This Court cannot envision any circumstance in which you can unscramble the egg by subsequent service and successfully argue that this meets any of the requirements of due process, at least not in the mind of an American Judge.

This situation is somewhat complicated by the fact that the Defendant appeared in Court and not only testified that he never received the complaint prior to the hearing in June of 1994, but he never received notice of the proceedings after those, per the affidavit in November of 1994.   His claim is significantly bolstered by the fact that he presented the Court with his passport that was issued in September 1994.  This issue date is two months prior to the date he was alleged to be served in Germany.  The Court has had the opportunity to review the entire passport and it clearly shows that Defendant only entered Ireland on April 14, 2000, while serving again in the Armed Forces, and left from Frankfurt, Germany, September 1, 2001, seven years later after he was allegedly served in Germany.   Defendant testified that was the only time that he was in Germany during the time period at issue.

Mother went on to testify that she initiated another proceeding in Germany in 2003 and that the Defendant was served those documents some eighteen months after the hearing date, while he was in Maryland.  Defendant testified and provided documentation to the Court that he could not have been served during that period of time because he was serving in Iraq.  If German justice allows one party to tell another party of a proceeding afterwards and that constitutes due process, so be it.  However, this Court does not believe that any notice was provided to Defendant in advance and accordingly, Germany had no jurisdiction over him.  Having had no jurisdiction, the arrears that are claimed under the enforcement order based upon the German Order are invalid and Defendant’s contest is successful.

In the alternative, Plaintiff requests that the UIFSA request for registration originally filed in Massachusetts in 2007 be converted to a Petition to establish a support order.  Plaintiff asserts through counsel that although she initiated this registration process in the state of Massachusetts in 2007, it took Massachusetts until 2011 to get serious about their investigation, register the same in Pennsylvania and give notice to Defendant.  As such, she should not be penalized for Massachusetts’ failure to act in a timely fashion, and a support hearing should be held to calculate what the appropriate amount of support should have been effective from the filing date in 2007 until the emancipation first of the daughter and then finally of the son.  We agree.

Rule 1910.17 of the Pennsylvania Rules of Civil Procedure provides, in relevant part, “[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” Pa.R.C.P., Rule 1910.17(a), 42 Pa.C.S.A.   “There is a sound policy favoring retroactivity in most cases.” Sutliff v. Sutliff, 489 A.2d 764, 781 (1985), aff’d 528 A.2d 1318 (Pa. 1987).  Retroactive support is intended to “alleviate hardship on a party who is entitled to support but who is required to proceed through the often slow moving judicial process.” Crawford v. Crawford, 633 A.2d 155, 162 (Pa.Super.1993).

Here, Plaintiff filed the UIFSA request for registration of the German support order in 2007 in Massachusetts.  Although we do not agree that Germany had personal jurisdiction over Defendant because of lack of service, Mother’s registration of the German order was proper.  The delay in Defendant’s notification was Massachusetts’ fault, not Plaintiff’s.  Accordingly, we do not believe that she should be penalized for the delay in notice to Defendant and it is proper and fair to calculate support from the date of Plaintiff’s registration filing in 2007.  This matter is remanded to the Office of Domestic Relations for a hearing calculate support consistent with this opinion.

BY THE COURT,

____________________________

HARRY M. NESS, JUDGE