COMMONWEALTH OF PENNSYLVANIA v. SHAWN C. VAN AULEN
No. 1670 MDA 2007 2008 PA Super 140 Atlantic: n/a Filed: 6/30/2008
Appeal from the Judgment of Sentence of August 22, 2007, in the Court of Common Pleas of Lancaster County, Criminal Division at No. CP-36-CR-0004906-2006
Before: FORD ELLIOTT, P.J., SHOGAN and COLVILLE, JJ.
Opinion by: COLVILLE, J.
This is an appeal from the judgment of sentence imposed following Appellant’s convictions for manufacture of marijuana, possession of marijuana, and possession of drug paraphernalia. Appellant presents one issue for our review: whether the Legislature intended to include growing a small number of marijuana plants for personal use within the meaning of “manufacture” of a controlled substance under 35 P.S. § 780-113(a)(30). We affirm.
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Monday, June 30, 2008
Superior Court 6/30/08 - RAYMOND CHURCH v. STEPHEN TENTARELLI AND CARYN TENTARELLI
RAYMOND CHURCH v. STEPHEN TENTARELLI AND CARYN TENTARELLINo. 2727 EDA 2007 2008 PA Super 139 Atlantic: n/a Filed: 6/30/2008
Appeal from the Judgment entered in the Court of Common Pleas of Bucks County, Civil Division, No(s): 0407550-25-1
Before: BOWES, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Raymond Church appeals the aggregate judgment of $24,500 entered on October 19, 2007, in favor of appellees Stephen and Caryn Tentarelli after a jury found both Church and the Tentarellis in breach of contract.
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A timely notice of appeal followed and Church was directed to file a
Rule 1925(b) statement on October 24, 2007. See generally, Pa.R.A.P.
1925, Opinion in Support of Order. Church complied with the directive in
a timely fashion and, on November 8, 2007, the trial court issued a Rule
1925(a) Opinion. Church raises four verbosely worded issues on appeal. In
sequence, Church contends the trial court erred in denying his motion for
compulsory non-suit, his motion for a directed verdict, and his motion for
JNOV. The argument in support of these allegations is duplicative. With
respect to the final issue raised, Church contends the trial court erred in
molding the verdict by directing Keystone Nazareth Bank to release the
escrowed funds to the Tentarellis pending the outcome of this appeal
because, if Church should prove successful on appeal, he will be deprived of
access to a readily available source of funds to satisfy his judgment.
Appeal from the Judgment entered in the Court of Common Pleas of Bucks County, Civil Division, No(s): 0407550-25-1
Before: BOWES, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Raymond Church appeals the aggregate judgment of $24,500 entered on October 19, 2007, in favor of appellees Stephen and Caryn Tentarelli after a jury found both Church and the Tentarellis in breach of contract.
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A timely notice of appeal followed and Church was directed to file a
Rule 1925(b) statement on October 24, 2007. See generally, Pa.R.A.P.
1925, Opinion in Support of Order. Church complied with the directive in
a timely fashion and, on November 8, 2007, the trial court issued a Rule
1925(a) Opinion. Church raises four verbosely worded issues on appeal. In
sequence, Church contends the trial court erred in denying his motion for
compulsory non-suit, his motion for a directed verdict, and his motion for
JNOV. The argument in support of these allegations is duplicative. With
respect to the final issue raised, Church contends the trial court erred in
molding the verdict by directing Keystone Nazareth Bank to release the
escrowed funds to the Tentarellis pending the outcome of this appeal
because, if Church should prove successful on appeal, he will be deprived of
access to a readily available source of funds to satisfy his judgment.
Superior Court 6/30/08 - COMMONWEALTH OF PENNSYLVANIA v. THOMAS BROWN
COMMONWEALTH OF PENNSYLVANIA v. THOMAS BROWN
No. 967 EDA 2007 2008 PA Super 138 Atlantic: n/a Filed: 6/30/2008
Appeal from the Order entered March 14, 2007 In the Court of Common Pleas of Philadelphia County, Criminal, No. 0607-0973 1/1
Before: STEVENS, KLEIN and POPOVICH, JJ.
Opinion by: KLEIN, J.
The Commonwealth appeals from the order of the respected trial judge, the Honorable Harold M. Kane, granting a motion to suppress evidence. We affirm.
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It is not disputed that issues not in the 1925(b) statement are waived,
see Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998); however, the
J. A11020/08
- 3 -
Commonwealth states that this general rule does not apply where they filed a
statement on their own without a request by the Court. This is incorrect. We
held, in Commonwealth v. Nobles, 941 A.2d 50 (Pa. Super. 2008), that once
a party files a Rule 1925(b) statement the need for the court to request one is
moot.
To sustain the Commonwealth's objection would encourage “sand
bagging” by counsel if they are allowed to quickly file a Rule
1925(b) statement and then claim that nothing is waived because
the Rule 1925(b) statement was not in response to a formal
request. In Commonwealth v. Snyder, 870 A.2d 336 (Pa. Super.
2005) this Court explained:
It is of no moment that appellant was not ordered to
file a 1925(b) statement. Appellant filed his statement
contemporaneously with his notice of appeal.
Accordingly, there was no need for the trial court to
order him to file a 1925(b) statement. If we were to
find that because he was not ordered to file a 1925(b)
statement, he has not waived the issues he neglected
to raise in it, we would, in effect, be allowing appellant
to circumvent the requirements of the Rule. In so
holding, we are also mindful of the purpose of Rule
1925.
Id. at 52.
¶ 7 The Commonwealth also claims that the recently amended Rule 1925(b)
applies, which contains the language that subsidiary issues are contained,
allows them to present this issue on appeal.2 The appeal in this case was filed
on April 11, 2007, and the Commonwealth’s filed a Rule 1925(b) statement on
the same date, without an order to do so. The new 1925(b) rule did not go
2 See Pa.R.A.P. Rule 1925(b)(4)(v).
J. A11020/08
- 4 -
into effect until July 25, 2007. In this case, as both the appeal and the
1925(b) statement were filed while the old rule was in effect, the old rule
applies.3 “[A] statute is not regarded as operating retroactively because of the
mere fact that it relates to antecedent events, or draws upon antecedent facts
for its operation.” Bethea v. Philadelphia AFL-CIO Hosp. Ass'n, 871 A.2d
223, 226 (Pa. Super. 2005).
The issue then becomes whether someone who has not been proven to
be reliable says that someone is going to drive a car to a certain intersection
within a two-hour window of time is, with nothing else, enough to create
reasonable suspicion. The trial judge found it was not, and we agree.....
No. 967 EDA 2007 2008 PA Super 138 Atlantic: n/a Filed: 6/30/2008
Appeal from the Order entered March 14, 2007 In the Court of Common Pleas of Philadelphia County, Criminal, No. 0607-0973 1/1
Before: STEVENS, KLEIN and POPOVICH, JJ.
Opinion by: KLEIN, J.
The Commonwealth appeals from the order of the respected trial judge, the Honorable Harold M. Kane, granting a motion to suppress evidence. We affirm.
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It is not disputed that issues not in the 1925(b) statement are waived,
see Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998); however, the
J. A11020/08
- 3 -
Commonwealth states that this general rule does not apply where they filed a
statement on their own without a request by the Court. This is incorrect. We
held, in Commonwealth v. Nobles, 941 A.2d 50 (Pa. Super. 2008), that once
a party files a Rule 1925(b) statement the need for the court to request one is
moot.
To sustain the Commonwealth's objection would encourage “sand
bagging” by counsel if they are allowed to quickly file a Rule
1925(b) statement and then claim that nothing is waived because
the Rule 1925(b) statement was not in response to a formal
request. In Commonwealth v. Snyder, 870 A.2d 336 (Pa. Super.
2005) this Court explained:
It is of no moment that appellant was not ordered to
file a 1925(b) statement. Appellant filed his statement
contemporaneously with his notice of appeal.
Accordingly, there was no need for the trial court to
order him to file a 1925(b) statement. If we were to
find that because he was not ordered to file a 1925(b)
statement, he has not waived the issues he neglected
to raise in it, we would, in effect, be allowing appellant
to circumvent the requirements of the Rule. In so
holding, we are also mindful of the purpose of Rule
1925.
Id. at 52.
¶ 7 The Commonwealth also claims that the recently amended Rule 1925(b)
applies, which contains the language that subsidiary issues are contained,
allows them to present this issue on appeal.2 The appeal in this case was filed
on April 11, 2007, and the Commonwealth’s filed a Rule 1925(b) statement on
the same date, without an order to do so. The new 1925(b) rule did not go
2 See Pa.R.A.P. Rule 1925(b)(4)(v).
J. A11020/08
- 4 -
into effect until July 25, 2007. In this case, as both the appeal and the
1925(b) statement were filed while the old rule was in effect, the old rule
applies.3 “[A] statute is not regarded as operating retroactively because of the
mere fact that it relates to antecedent events, or draws upon antecedent facts
for its operation.” Bethea v. Philadelphia AFL-CIO Hosp. Ass'n, 871 A.2d
223, 226 (Pa. Super. 2005).
The issue then becomes whether someone who has not been proven to
be reliable says that someone is going to drive a car to a certain intersection
within a two-hour window of time is, with nothing else, enough to create
reasonable suspicion. The trial judge found it was not, and we agree.....
Superior Court 6/30/08 - COMMONWEALTH OF PENNSYLVANIA v. LARRY HOLIDAY a/k/a LARRY MITCHELL
COMMONWEALTH OF PENNSYLVANIA v. LARRY HOLIDAY a/k/a LARRY MITCHELL
No. 815 WDA 2006 2008 PA Super 141 Atlantic: n/a Filed: 6/30/2008
Appeal from the Judgment of Sentence Entered March 16, 2006 In the Court of Common Pleas of Allegheny County Criminal at No(s): CC 200112950,200104938,20011
Before: LALLY-GREEN, PANELLA, and TAMILIA, JJ.
Opinion by: PANELLA, J.
Appellant, Larry Holiday a/k/a Larry Mitchell, appeals from the judgment of sentence entered on March 16, 2006, by the Honorable Donna Jo McDaniel, Court of Common Pleas of Allegheny County. After careful review, we affirm.
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On appeal, Holiday presents the following issues for our review:
1. Did the lower court err and/or abuse its discretion when it
refused to adhere to the mandate of the Superior Court at
resentencing, failed to impose a sentence within the guidelines,
and instead imposed the same sentence on Mr. Holiday that this
Court had previously found on two separate occasions to be
excessive and an abuse of discretion?
2. Did the lower court abuse its discretion in imposing a manifestly
harsh and unreasonable sentence which is contrary to the
dictates of the sentencing code, in that the sentence imposed
was well above the aggravated range of the sentencing
guidelines, in fact was the maximum possible sentence under the
statute, and there is no reason to conclude that this crime was
more [heinous] than the “normal” or “typical” case of this sort?
No. 815 WDA 2006 2008 PA Super 141 Atlantic: n/a Filed: 6/30/2008
Appeal from the Judgment of Sentence Entered March 16, 2006 In the Court of Common Pleas of Allegheny County Criminal at No(s): CC 200112950,200104938,20011
Before: LALLY-GREEN, PANELLA, and TAMILIA, JJ.
Opinion by: PANELLA, J.
Appellant, Larry Holiday a/k/a Larry Mitchell, appeals from the judgment of sentence entered on March 16, 2006, by the Honorable Donna Jo McDaniel, Court of Common Pleas of Allegheny County. After careful review, we affirm.
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On appeal, Holiday presents the following issues for our review:
1. Did the lower court err and/or abuse its discretion when it
refused to adhere to the mandate of the Superior Court at
resentencing, failed to impose a sentence within the guidelines,
and instead imposed the same sentence on Mr. Holiday that this
Court had previously found on two separate occasions to be
excessive and an abuse of discretion?
2. Did the lower court abuse its discretion in imposing a manifestly
harsh and unreasonable sentence which is contrary to the
dictates of the sentencing code, in that the sentence imposed
was well above the aggravated range of the sentencing
guidelines, in fact was the maximum possible sentence under the
statute, and there is no reason to conclude that this crime was
more [heinous] than the “normal” or “typical” case of this sort?
Thursday, June 26, 2008
Superior Court 6/26/08 - JOHN AND SUSAN HAAS, H/W v. FOUR SEASONS CAMPGROUND, INC.
JOHN AND SUSAN HAAS, H/W v. FOUR SEASONS CAMPGROUND, INC.
No. 2543 EDA 2007 2008 PA Super 136 Atlantic: n/a Filed: 6/26/2008
Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No(s): May Term, 2006 No. 00483
Before: BOWES, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
John and Susan Haas appeal from the September 14, 2007, Order dismissing their complaint and sustaining Four Seasons Campground’s preliminary objections. The following facts relevant to our disposition and adduced by the trial court are as follows.
Appellants’ sole issue on appeal is as follows:
Did the trial court commit an error of law by
determining, through use of outdated precedent,
that appellee has not established sufficient contacts
with Pennsylvania to allow Pennsylvania Courts to
exercise jurisdiction?
¶ 5 The Pennsylvania long-arm statute permits the exercise of jurisdiction
“to the fullest extent allowed under the Constitution of the United States and
may be based on the most minimum contact with this Commonwealth
allowed under the Constitution of the United States,” Fourteenth
Amendment’s Due Process Clause. 42 Pa.C.S.A. § 5322(b), Bases of
personal jurisdiction over persons outside this Commonwealth, (b)
Exercise of full constitutional power over nonresidents; See
Nutrition Management Services Co. v. Hinchcliff, 926 A.2d 531, 537
(Pa.Super. 2007). In order to determine whether appellee has garnered
sufficient contacts with the Commonwealth of Pennsylvania such that specific
personal jurisdiction could be established, we have to ascertain the “nature
and quality of commercial activity that an entity conducts over the Internet.”
Efford v. Jockey Club, 796 A.2d 370, 374 (Pa.Super. 2002).
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No. 2543 EDA 2007 2008 PA Super 136 Atlantic: n/a Filed: 6/26/2008
Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No(s): May Term, 2006 No. 00483
Before: BOWES, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
John and Susan Haas appeal from the September 14, 2007, Order dismissing their complaint and sustaining Four Seasons Campground’s preliminary objections. The following facts relevant to our disposition and adduced by the trial court are as follows.
Appellants’ sole issue on appeal is as follows:
Did the trial court commit an error of law by
determining, through use of outdated precedent,
that appellee has not established sufficient contacts
with Pennsylvania to allow Pennsylvania Courts to
exercise jurisdiction?
¶ 5 The Pennsylvania long-arm statute permits the exercise of jurisdiction
“to the fullest extent allowed under the Constitution of the United States and
may be based on the most minimum contact with this Commonwealth
allowed under the Constitution of the United States,” Fourteenth
Amendment’s Due Process Clause. 42 Pa.C.S.A. § 5322(b), Bases of
personal jurisdiction over persons outside this Commonwealth, (b)
Exercise of full constitutional power over nonresidents; See
Nutrition Management Services Co. v. Hinchcliff, 926 A.2d 531, 537
(Pa.Super. 2007). In order to determine whether appellee has garnered
sufficient contacts with the Commonwealth of Pennsylvania such that specific
personal jurisdiction could be established, we have to ascertain the “nature
and quality of commercial activity that an entity conducts over the Internet.”
Efford v. Jockey Club, 796 A.2d 370, 374 (Pa.Super. 2002).
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Superior Court 6/26/08 - COMMONWEALTH OF PENNSYLVANIA v. MICHAEL S. ZAMPIER
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL S. ZAMPIER
No. 1209 MDA 2007 2008 PA Super 137 Atlantic: n/a Filed: 6/26/2008
Appeal from the Judgment of Sentence, July 3, 2007, in the Court of Common Pleas of Bradford County Criminal Division at No. CP-08-CR-0000684-2006
Before: FORD ELLIOTT, P.J., SHOGAN AND COLVILLE,* JJ.
Opinion by: FORD ELLIOT, P.J.
Michael S. Zampier appeals from the judgment of sentence dated July 2, 2007, and entered July 3, 2007, in the Court of Common Pleas of Bradford County. The sole issue presented on appeal is whether the trial court correctly determined that the instant offense was appellant’s second driving under the influence (“DUI”) violation for gradation and sentencing purposes in accordance with 75 Pa.C.S.A. § 3806. We affirm.
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No. 1209 MDA 2007 2008 PA Super 137 Atlantic: n/a Filed: 6/26/2008
Appeal from the Judgment of Sentence, July 3, 2007, in the Court of Common Pleas of Bradford County Criminal Division at No. CP-08-CR-0000684-2006
Before: FORD ELLIOTT, P.J., SHOGAN AND COLVILLE,* JJ.
Opinion by: FORD ELLIOT, P.J.
Michael S. Zampier appeals from the judgment of sentence dated July 2, 2007, and entered July 3, 2007, in the Court of Common Pleas of Bradford County. The sole issue presented on appeal is whether the trial court correctly determined that the instant offense was appellant’s second driving under the influence (“DUI”) violation for gradation and sentencing purposes in accordance with 75 Pa.C.S.A. § 3806. We affirm.
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Wednesday, June 25, 2008
Superior Court 6/25/08 - 1313466 ONTARIO, INC. v. JEFFREY N. CARR
1313466 ONTARIO, INC. v. JEFFREY N. CARRAPPEAL OF: U.S. NATIONAL ASSOCIATION, TRUSTEE AS THE ASSIGNEE OF ARGENT MORTGAGE COMPANY
No. 1684 and 1686 WDA 2007 2008 PA Super 135 Atlantic: n/a Filed: 6/25/2008
Appeal from the Order Dated September 11, 2007In the Court of Common Pleas of Cambria CountyCivil Division at No. 2006-5314 and 2006-5315
Before: ORIE MELVIN, BENDER and ALLEN, JJ.
Opinion by: BENDER, J.
U.S. Bank National Association (U.S. Bank), Appellant, appeals from a trial court order denying its petition for intervention. The underlying action is a judgment mortgage foreclosure, filed by 1313466 Ontario, Inc. (Ontario), Appellee, against real property owned by Jeffrey N. Carr (Carr). For the reasons that follow, we quash this appeal.
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No. 1684 and 1686 WDA 2007 2008 PA Super 135 Atlantic: n/a Filed: 6/25/2008
Appeal from the Order Dated September 11, 2007In the Court of Common Pleas of Cambria CountyCivil Division at No. 2006-5314 and 2006-5315
Before: ORIE MELVIN, BENDER and ALLEN, JJ.
Opinion by: BENDER, J.
U.S. Bank National Association (U.S. Bank), Appellant, appeals from a trial court order denying its petition for intervention. The underlying action is a judgment mortgage foreclosure, filed by 1313466 Ontario, Inc. (Ontario), Appellee, against real property owned by Jeffrey N. Carr (Carr). For the reasons that follow, we quash this appeal.
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Tuesday, June 24, 2008
Superior Court 6/24/08 - ANNETTE SIRIO, Appellant at 1179 v. CARL A. SIRIO, Appellant at 1068
ANNETTE SIRIO, Appellant at 1179 v. CARL A. SIRIO, Appellant at 1068
No. 1068 & 1179 WDA 2007 2008 PA Super 133 Atlantic: n/a Filed: 6/24/2008
Appeals from the Order entered May 18, 2007, in the Court of Common Pleas of Allegheny County, Family Court, at No. FD 00-008000-008.
Before: ORIE MELVIN, BENDER and ALLEN, JJ.
Opinion by: ALLEN, J.
In these appeals, the parties challenge the trial court’s award of child support and attorney fees. We affirm in part, reverse in part, and remand with instructions.
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Father raises the following issues:
A. Did the trial court commit an error of law by entering a confiscatory and anomalous child support award that relieved Mother of any financial responsibility for the children’s reasonable needs, bore no relationship to the Guideline amount for child support or to the prior child
support order, and effectively compelled Father’s current wife to contribute more than Mother?
B. Did the trial court abuse its discretion by adopting the Hearing Officer’s miscalculation of Father’s budget, thereby leading the court to conclude that the children’s needs were greater than reasonably necessary?
C. Did the trial court abuse its discretion in failing to find that Mother’s budget for the children was excessive and unreasonable where it included (a) capital and nonrecurring expenses (including her legal fees); (b) projected, duplicative and aspirational expenditures; and
(c) household expenses that were not properly allocated among the members of Mother’s household?
D. Did the trial court abuse its discretion by awarding counsel fees to Mother both (a) as an element of Mother’s budget for the children in her household and (b) as an award of legal fees, where there was insufficient proof of the requisite elements for Mother’s legal fee claim?
Mother raises the following issues in her cross-appeal:
E. Whether the Trial Court abused its discretion in failing to Order [sic] that the increase in child support should be retroactive to 2003.
F. Whether the Trial Court abused its discretion in failing to award counsel fees to Mother pursuant to 23 Pa.C.S.A. §4351(a) under the circumstances.
G. Whether the Trial Court abused its discretion by failing to apply the law in the calculation of Father’s income and expenses.
.....
In sum, we affirm in part and reverse in part, and remand the case for a reconsideration of the children’s monthly reasonable expenses when in Mother’s care, in accordance with Bulgarelli, supra, and reconsideration of Mother’s claim for counsel fees pursuant to 23 Pa.C.S.A. § 4351, in a manner consistent with this memorandum.
No. 1068 & 1179 WDA 2007 2008 PA Super 133 Atlantic: n/a Filed: 6/24/2008
Appeals from the Order entered May 18, 2007, in the Court of Common Pleas of Allegheny County, Family Court, at No. FD 00-008000-008.
Before: ORIE MELVIN, BENDER and ALLEN, JJ.
Opinion by: ALLEN, J.
In these appeals, the parties challenge the trial court’s award of child support and attorney fees. We affirm in part, reverse in part, and remand with instructions.
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Father raises the following issues:
A. Did the trial court commit an error of law by entering a confiscatory and anomalous child support award that relieved Mother of any financial responsibility for the children’s reasonable needs, bore no relationship to the Guideline amount for child support or to the prior child
support order, and effectively compelled Father’s current wife to contribute more than Mother?
B. Did the trial court abuse its discretion by adopting the Hearing Officer’s miscalculation of Father’s budget, thereby leading the court to conclude that the children’s needs were greater than reasonably necessary?
C. Did the trial court abuse its discretion in failing to find that Mother’s budget for the children was excessive and unreasonable where it included (a) capital and nonrecurring expenses (including her legal fees); (b) projected, duplicative and aspirational expenditures; and
(c) household expenses that were not properly allocated among the members of Mother’s household?
D. Did the trial court abuse its discretion by awarding counsel fees to Mother both (a) as an element of Mother’s budget for the children in her household and (b) as an award of legal fees, where there was insufficient proof of the requisite elements for Mother’s legal fee claim?
Mother raises the following issues in her cross-appeal:
E. Whether the Trial Court abused its discretion in failing to Order [sic] that the increase in child support should be retroactive to 2003.
F. Whether the Trial Court abused its discretion in failing to award counsel fees to Mother pursuant to 23 Pa.C.S.A. §4351(a) under the circumstances.
G. Whether the Trial Court abused its discretion by failing to apply the law in the calculation of Father’s income and expenses.
.....
In sum, we affirm in part and reverse in part, and remand the case for a reconsideration of the children’s monthly reasonable expenses when in Mother’s care, in accordance with Bulgarelli, supra, and reconsideration of Mother’s claim for counsel fees pursuant to 23 Pa.C.S.A. § 4351, in a manner consistent with this memorandum.
Superior Court 6/24/08 - STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. WARE’S VAN STORAGE AND WILSON RODRIGUEZ
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. WARE’S VAN STORAGE AND WILSON RODRIGUEZ
No. 1515 WDA 2007 2008 PA Super 134 Atlantic: n/a Filed: 6/24/2008
Appeal from the Order entered in the Court of Common Pleas of Allegheny County, Civil Division, No(s): AR-07-004837
Before: BENDER, GANTMAN and TAMILIA, JJ.
Opinion by: BENDER, J.
State Farm Mutual Automobile Insurance Company (State Farm) appeals from the trial court’s order sustaining preliminary objections in the nature of a demurrer filed by Ware’s Van Storage (Ware’s) and Wilson Rodriguez. State Farm contends that the trial court erred in concluding that commencement of a prior personal injury action by State Farm’s insured improperly split the applicable cause of action and mandated waiver of State Farms subrogated property damage claim pursuant to Pa.R.C.P. 1020(d). We conclude that waiver pursuant to Rule 1020(d) properly cannot be imposed under the circumstances of this case. Accordingly, we reverse the trial court’s order granting Ware’s demurrer and reinstate State Farm’s complaint.
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No. 1515 WDA 2007 2008 PA Super 134 Atlantic: n/a Filed: 6/24/2008
Appeal from the Order entered in the Court of Common Pleas of Allegheny County, Civil Division, No(s): AR-07-004837
Before: BENDER, GANTMAN and TAMILIA, JJ.
Opinion by: BENDER, J.
State Farm Mutual Automobile Insurance Company (State Farm) appeals from the trial court’s order sustaining preliminary objections in the nature of a demurrer filed by Ware’s Van Storage (Ware’s) and Wilson Rodriguez. State Farm contends that the trial court erred in concluding that commencement of a prior personal injury action by State Farm’s insured improperly split the applicable cause of action and mandated waiver of State Farms subrogated property damage claim pursuant to Pa.R.C.P. 1020(d). We conclude that waiver pursuant to Rule 1020(d) properly cannot be imposed under the circumstances of this case. Accordingly, we reverse the trial court’s order granting Ware’s demurrer and reinstate State Farm’s complaint.
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Monday, June 23, 2008
Superior Court 6/23/08 - JESSE STANTON and BENJAMIN STANTON and ELAINE STANTON, H/W, v. LACKAWANNA ENERGY, LTD. and PENNSYLVANIA POWER & LIGHT COMPANY
JESSE STANTON and BENJAMIN STANTON and ELAINE STANTON, H/W, v. LACKAWANNA ENERGY, LTD. and PENNSYLVANIA POWER & LIGHT COMPANY
No. 1248 MDA 2007 2008 PA Super 132 Atlantic: n/a Filed: 6/23/2008
Appeal from the Order of June 13, 2007, in the Court of Common Pleas of Lackawanna County, Civil Division at No. 96 CIV 2640
Before: LALLY-GREEN, SHOGAN and COLVILLE*, JJ.
Opinion by: COLVILLE, J.
Jesse, Benjamin and Elaine Stanton (“the Stantons”) appeal the order granting summary judgment for Pennsylvania Power & Light Company (“PP & L”) based on PP & L’s statutory immunity under the Recreational Use of Land and Water Act (“the RULWA” or “the Act”). The RULWA provides immunity from negligence liability for owners of undeveloped land who open that land without charge for recreational use by members of the public. 68 P.S. §§ 477-1 – 477-8. The issue in this appeal is whether the trial court committed an abuse of discretion or error of law in determining that a gate erected by PP & L constitutes land for purposes of the RULWA, thus entitling PP & L to immunity under the Act.
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No. 1248 MDA 2007 2008 PA Super 132 Atlantic: n/a Filed: 6/23/2008
Appeal from the Order of June 13, 2007, in the Court of Common Pleas of Lackawanna County, Civil Division at No. 96 CIV 2640
Before: LALLY-GREEN, SHOGAN and COLVILLE*, JJ.
Opinion by: COLVILLE, J.
Jesse, Benjamin and Elaine Stanton (“the Stantons”) appeal the order granting summary judgment for Pennsylvania Power & Light Company (“PP & L”) based on PP & L’s statutory immunity under the Recreational Use of Land and Water Act (“the RULWA” or “the Act”). The RULWA provides immunity from negligence liability for owners of undeveloped land who open that land without charge for recreational use by members of the public. 68 P.S. §§ 477-1 – 477-8. The issue in this appeal is whether the trial court committed an abuse of discretion or error of law in determining that a gate erected by PP & L constitutes land for purposes of the RULWA, thus entitling PP & L to immunity under the Act.
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Friday, June 20, 2008
Superior Court 6/20/08 - IN RE: ADOPTION OF W.J.R., A MINOR
IN RE: ADOPTION OF W.J.R., A MINORAPPEAL OF: W.A.R., NATURAL FATHER
No. 1228 WDA 2007 2008 PA Super 131 Atlantic: n/a Filed: 6/20/2008
Appeal from the Order May 29, 2007In the Court of Common Pleas of Allegheny CountyCriminal at No(s): NO CYS 109 OF 2004
Before: STEVENS, BOWES, JJ., and McEWEN, P.J.E.
Opinion by: STEVENS, J.
W.A.R. (Father) appeals from the order of the Allegheny County Court of Common Pleas terminating his parental rights to his child, W.J.R. We affirm.
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No. 1228 WDA 2007 2008 PA Super 131 Atlantic: n/a Filed: 6/20/2008
Appeal from the Order May 29, 2007In the Court of Common Pleas of Allegheny CountyCriminal at No(s): NO CYS 109 OF 2004
Before: STEVENS, BOWES, JJ., and McEWEN, P.J.E.
Opinion by: STEVENS, J.
W.A.R. (Father) appeals from the order of the Allegheny County Court of Common Pleas terminating his parental rights to his child, W.J.R. We affirm.
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Tuesday, June 17, 2008
Superior Court 6/17/08 - COMMONWEALTH OF PENNSYLVANIA v. CLARENCE HUNTER
COMMONWEALTH OF PENNSYLVANIA v. CLARENCE HUNTER
No. 2040 EDA 2007 2008 PA Super 129 Atlantic: n/a Filed: 6/17/2008
Appeal from the Judgment of Sentence of May 31, 2007, in the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. CP-51-CR-0206571-2006 and CP-51-CR-1208021-2005
Before: ORIE MELVIN, COLVILLE* and FITZGERALD**, JJ.
Opinion by: COLVILLE, J.
This case is a direct appeal from judgment of sentence. Appellant claims the court erred in denying his presentence motion to withdraw his guilty plea and in imposing an excessive sentence. We quash.
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No. 2040 EDA 2007 2008 PA Super 129 Atlantic: n/a Filed: 6/17/2008
Appeal from the Judgment of Sentence of May 31, 2007, in the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. CP-51-CR-0206571-2006 and CP-51-CR-1208021-2005
Before: ORIE MELVIN, COLVILLE* and FITZGERALD**, JJ.
Opinion by: COLVILLE, J.
This case is a direct appeal from judgment of sentence. Appellant claims the court erred in denying his presentence motion to withdraw his guilty plea and in imposing an excessive sentence. We quash.
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Superior Court 6/17/08 - COMMONWEALTH OF PENNSYLVANIA v. A.W.C., A MINOR
OMMONWEALTH OF PENNSYLVANIA v. A.W.C., A MINOR
No. 986 MDA 2007 2008 PA Super 130 Atlantic: n/a Filed: 6/17/2008
Appeal from the Order May 7, 2007 In the Court of Common Pleas of Lancaster County Criminal at No(s): CP-36-JV-0001113-2006
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the dispositional order entered in the Court of Common Pleas of Lancaster County following Appellant’s adjudication of delinquency on the charge of statutory sexual assault. We conclude the trial court erred in adjudicating Appellant delinquent, and therefore, we vacate the dispositional order entered in this matter.
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No. 986 MDA 2007 2008 PA Super 130 Atlantic: n/a Filed: 6/17/2008
Appeal from the Order May 7, 2007 In the Court of Common Pleas of Lancaster County Criminal at No(s): CP-36-JV-0001113-2006
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the dispositional order entered in the Court of Common Pleas of Lancaster County following Appellant’s adjudication of delinquency on the charge of statutory sexual assault. We conclude the trial court erred in adjudicating Appellant delinquent, and therefore, we vacate the dispositional order entered in this matter.
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Wednesday, June 11, 2008
Superior Court 6/11/08 - COMMONWEALTH OF PENNSYLVANIA v. THOMAS JOHN LEONARD
COMMONWEALTH OF PENNSYLVANIA v. THOMAS JOHN LEONARD
No. 960 MDA 2007 2008 PA Super 127 Atlantic: n/a Filed: 6/11/2008
Appeal from the Judgment of Sentence May 2, 2007 In the Court of Common Pleas of Lycoming County Criminal at No(s): CP-41-CR-0000448-2006
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lycoming County, which presided over Appellant’s bench trial and convicted him of DUI-Highest rate of alcohol, 75 Pa.C.S.A. § 3802 (C), DUI-General impairment, 75 Pa.C.S.A. § 3802(A)(1), Obedience to authorized persons directing traffic, 75 Pa.C.S.A. § 3102, and Public drunkenness and similar misconduct, 18 Pa.C.S.A. § 5505. Sentenced to three years’ placement in the Intermediate Punishment Program, the first ninety days of which involve incarceration at the Lycoming County Prison/Prerelease Center, Appellant has filed the present appeal in which he argues suppression of DUI evidence was required as the product of an investigative detention unsupported by reasonable suspicion. We affirm.
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No. 960 MDA 2007 2008 PA Super 127 Atlantic: n/a Filed: 6/11/2008
Appeal from the Judgment of Sentence May 2, 2007 In the Court of Common Pleas of Lycoming County Criminal at No(s): CP-41-CR-0000448-2006
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lycoming County, which presided over Appellant’s bench trial and convicted him of DUI-Highest rate of alcohol, 75 Pa.C.S.A. § 3802 (C), DUI-General impairment, 75 Pa.C.S.A. § 3802(A)(1), Obedience to authorized persons directing traffic, 75 Pa.C.S.A. § 3102, and Public drunkenness and similar misconduct, 18 Pa.C.S.A. § 5505. Sentenced to three years’ placement in the Intermediate Punishment Program, the first ninety days of which involve incarceration at the Lycoming County Prison/Prerelease Center, Appellant has filed the present appeal in which he argues suppression of DUI evidence was required as the product of an investigative detention unsupported by reasonable suspicion. We affirm.
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Superior Court 6/11/2008 - COMMONWEALTH OF PENNSYLVANIA v. DESMOND MARKEL HAMMOND
COMMONWEALTH OF PENNSYLVANIA v. DESMOND MARKEL HAMMOND
No. 1282 MDA 2007 2008 PA Super 128 Atlantic: n/a Filed: 6/11/2008
Appeal from the Order entered June 28, 2007 In the Court of Common Pleas of Schuylkill County Criminal at No(s): CP-54-CR-0000500-2004
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
Dissenting Opinion by: HUDOCK, J.
The Commonwealth appeals from the order entered in the Court of Common Pleas of Schuylkill County, which granted Appellee’s petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546 vacated Appellee’s judgment of sentence, and directed a new trial due to the ineffective assistance of trial counsel, coupled with after-discovered evidence. The Commonwealth contends the PCRA court erred in granting Appellee a new trial on the basis (1) trial counsel was ineffective in failing to call as a witness and investigate properly Achille Walker and (2) after-discovered evidence in the form of Kelvin Robertson’s recanted testimony. We reverse the order granting a new trial and reinstate Appellee’s judgment of sentence.
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No. 1282 MDA 2007 2008 PA Super 128 Atlantic: n/a Filed: 6/11/2008
Appeal from the Order entered June 28, 2007 In the Court of Common Pleas of Schuylkill County Criminal at No(s): CP-54-CR-0000500-2004
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
Dissenting Opinion by: HUDOCK, J.
The Commonwealth appeals from the order entered in the Court of Common Pleas of Schuylkill County, which granted Appellee’s petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546 vacated Appellee’s judgment of sentence, and directed a new trial due to the ineffective assistance of trial counsel, coupled with after-discovered evidence. The Commonwealth contends the PCRA court erred in granting Appellee a new trial on the basis (1) trial counsel was ineffective in failing to call as a witness and investigate properly Achille Walker and (2) after-discovered evidence in the form of Kelvin Robertson’s recanted testimony. We reverse the order granting a new trial and reinstate Appellee’s judgment of sentence.
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Thursday, June 5, 2008
Superior Court 6/5/08 - LSI TITLE AGENCY, INC. F/K/A LENDER’S SERVICE, INC. v. EVALUATION SERVICES, INC.
LSI TITLE AGENCY, INC. F/K/A LENDER’S SERVICE, INC. v. EVALUATION SERVICES, INC.
No. 821 WDA 2007 2008 PA Super 126 Atlantic: n/a Filed: 6/6/2008
Appeal from the Order Entered April 11, 2007In the Court of Common Pleas of Allegheny CountyCivil Division at No. GD 06-030236
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: BENDER, J.
Evaluation Services, Inc. (ESI) appeals from the order, dated April 9, 2007, and entered April 11, 2007, that granted the motion for judgment on the pleadings filed by LSI Title Agency, Inc. f/k/a Lender’s Service, Inc. (LSI). In the same order, the court precluded ESI from litigating and/or continuing its breach of contract claim before the American Arbitration Association and denied ESI’s motion for judgment directing arbitration. For the reasons that follow, we affirm.
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No. 821 WDA 2007 2008 PA Super 126 Atlantic: n/a Filed: 6/6/2008
Appeal from the Order Entered April 11, 2007In the Court of Common Pleas of Allegheny CountyCivil Division at No. GD 06-030236
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: BENDER, J.
Evaluation Services, Inc. (ESI) appeals from the order, dated April 9, 2007, and entered April 11, 2007, that granted the motion for judgment on the pleadings filed by LSI Title Agency, Inc. f/k/a Lender’s Service, Inc. (LSI). In the same order, the court precluded ESI from litigating and/or continuing its breach of contract claim before the American Arbitration Association and denied ESI’s motion for judgment directing arbitration. For the reasons that follow, we affirm.
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Superior Court 6/5/08 - COMMONWEALTH OF PENNSYLVANIA v. RICHARD M. WIMBUSH
COMMONWEALTH OF PENNSYLVANIA v. RICHARD M. WIMBUSH
No. 1238 MDA 2007 2008 PA Super 125 Atlantic: n/a Filed: 6/5/2008
Appeal from the Order Judgment of Sentence June 18, 2007 In the Court of Common Pleas of Luzerne County Criminal at No(s): CP-40-CR-0003140-2006
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Luzerne County after a jury convicted Appellant on nine counts of Arson, one count of Institutional Vandalism, and one count of Risking a Catastrophe. Sentenced to 84 to 200 months’ incarceration on the Arson convictions, Appellant raises challenges to the denial of his motion to change venue and to the racial composition of his jury. Counsel for Appellant has also filed with this Court both a Petition to Withdraw as Counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (19678) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). After conducting an independent review of the record, we affirm and grant counsel’s petition to withdraw.
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No. 1238 MDA 2007 2008 PA Super 125 Atlantic: n/a Filed: 6/5/2008
Appeal from the Order Judgment of Sentence June 18, 2007 In the Court of Common Pleas of Luzerne County Criminal at No(s): CP-40-CR-0003140-2006
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Luzerne County after a jury convicted Appellant on nine counts of Arson, one count of Institutional Vandalism, and one count of Risking a Catastrophe. Sentenced to 84 to 200 months’ incarceration on the Arson convictions, Appellant raises challenges to the denial of his motion to change venue and to the racial composition of his jury. Counsel for Appellant has also filed with this Court both a Petition to Withdraw as Counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (19678) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). After conducting an independent review of the record, we affirm and grant counsel’s petition to withdraw.
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Wednesday, June 4, 2008
Superior Court 6/4/08 - MATTHEW KRUSHINSKI CRAIG v. AMATEUR SOFTBALL ASSOCIATION OF AMERICA & JOHN DOE
MATTHEW KRUSHINSKI CRAIG v. AMATEUR SOFTBALL ASSOCIATION OF AMERICA & JOHN DOE
No. 218 WDA 2007 2008 PA Super 123 Atlantic: n/a Filed: 6/4/2008
Appeal from the Order entered in the Court of Common Pleas of Allegheny County, ,br> Civil Division, No(s): GD 04-9778
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Matthew Krushinski Craig appeals the December 28, 2006, Order granting the Amateur Softball Association of America’s (ASA) motion for summary judgment and dismissing his complaint with prejudice.
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No. 218 WDA 2007 2008 PA Super 123 Atlantic: n/a Filed: 6/4/2008
Appeal from the Order entered in the Court of Common Pleas of Allegheny County, ,br> Civil Division, No(s): GD 04-9778
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Matthew Krushinski Craig appeals the December 28, 2006, Order granting the Amateur Softball Association of America’s (ASA) motion for summary judgment and dismissing his complaint with prejudice.
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Superior Court 6/4/08 - T.M., as parent and legal guardian for D.M., a minor
T.M., as parent and legal guardian for D.M., a minor ELWYN, INC. and ELWYN ALTERNATIVE SCHOOL and MARKEITH EUGENE AIKENS APPEALS OF: ELWYN, INC. and ELWYN ALTERNATIVE SCHOOL
No. 805 & 1002 EDA 2007 2008 PA Super 113 Atlantic: n/a Filed: 6/4/2008
Appeal from the Orders of March 26, 2007, in the Court of Common Pleas of Delaware County, Civil Division at No. 05-14636
Before: BENDER, TAMILIA AND COLVILLE, JJ.
Opinion by: BENDER, J.
Concurring Statement by: COLVILLE, J.
Elwyn, Inc. and Elwyn Alternative School (collectively, “Elwyn”) appeal from two discovery orders, both dated March 23, 2007, and docketed on March 26, 2007. For the following reasons, we hold that the discovery orders at issue are immediately appealable pursuant to the collateral order doctrine and that the trial court failed to provide an adequate analysis to justify the breadth of the discovery orders. Accordingly, we vacate the orders and remand to the trial court for further proceedings consistent with this opinion.
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No. 805 & 1002 EDA 2007 2008 PA Super 113 Atlantic: n/a Filed: 6/4/2008
Appeal from the Orders of March 26, 2007, in the Court of Common Pleas of Delaware County, Civil Division at No. 05-14636
Before: BENDER, TAMILIA AND COLVILLE, JJ.
Opinion by: BENDER, J.
Concurring Statement by: COLVILLE, J.
Elwyn, Inc. and Elwyn Alternative School (collectively, “Elwyn”) appeal from two discovery orders, both dated March 23, 2007, and docketed on March 26, 2007. For the following reasons, we hold that the discovery orders at issue are immediately appealable pursuant to the collateral order doctrine and that the trial court failed to provide an adequate analysis to justify the breadth of the discovery orders. Accordingly, we vacate the orders and remand to the trial court for further proceedings consistent with this opinion.
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Superior Court 6/04/08 - COMMONWEALTH OF PENNSYLVANIA v. CHRISTOPHER M. COLLINS
COMMONWEALTH OF PENNSYLVANIA v. CHRISTOPHER M. COLLINS
No. 1437 MDA 2006 2008 PA Super 124 Atlantic: n/a Filed: 6/4/2008
Appeal from the Order entered July 11, 2006 In the Court of Common Pleas of Centre County Criminal at No(s): CP-14-CR-0000635-2006
Before: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, BENDER, BOWES, GANTMAN, PANELLA, DONOHUE and ALLEN, JJ.
Opinion by: STEVENS, J.
Dissenting Opinion by: DONOHUE, J.
This is an appeal from the order entered by the Honorable Bradley P. Lunsford, Judge of the Court of Common Pleas of Centre County, Pennsylvania, granting Appellee’s Omnibus Pre-trial Motion to Suppress Evidence. At issue is whether a police officer’s safety check of passengers in a vehicle parked legally, after sundown, at a roadside location constitutes a mere encounter or an investigative detention. We find that given the totality of the circumstances, there was a mere encounter. We reverse and remand for further proceedings.
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No. 1437 MDA 2006 2008 PA Super 124 Atlantic: n/a Filed: 6/4/2008
Appeal from the Order entered July 11, 2006 In the Court of Common Pleas of Centre County Criminal at No(s): CP-14-CR-0000635-2006
Before: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, BENDER, BOWES, GANTMAN, PANELLA, DONOHUE and ALLEN, JJ.
Opinion by: STEVENS, J.
Dissenting Opinion by: DONOHUE, J.
This is an appeal from the order entered by the Honorable Bradley P. Lunsford, Judge of the Court of Common Pleas of Centre County, Pennsylvania, granting Appellee’s Omnibus Pre-trial Motion to Suppress Evidence. At issue is whether a police officer’s safety check of passengers in a vehicle parked legally, after sundown, at a roadside location constitutes a mere encounter or an investigative detention. We find that given the totality of the circumstances, there was a mere encounter. We reverse and remand for further proceedings.
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Tuesday, June 3, 2008
Superior Court 6/3/08 - LISA BILLHIME v. DARIN BILLHIME
LISA BILLHIME v. DARIN BILLHIME
No. 1134 MDA 2007 2008 PA Super 121 Atlantic: n/a Filed: 6/3/2008
Appeal from the Order entered June 15, 2007, Court of Common, Montour County, Civil Division at No. 2004-CV-135.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: DONOHUE, J.
(“Mother”) appeals from the order of the Court of Common Pleas of Montour County denying her motion to relinquish jurisdiction in this custody action to the state of Florida. After careful review, we reverse and remand.
......are the parents of twin boys born in Orlando, Florida on December 3, 1996. The family remained in Florida until 2001, when they relocated to Montour County, Pennsylvania. Mother
and Father separated in early 2004, at which time a custody action was filed in the Court of Common Pleas of Montour County. The trial court subsequently awarded primary physical custody of the children to the Mother and partial physical custody to the Father. In March 2005, Mother and the children moved back to Orlando, Florida, where they continue to live at this
time. Following the relocation to Florida, the trial court modified the custodial arrangement, with Mother retaining primary physical custody but permitting Father to enjoy custody during the boys’ spring, Thanksgiving and Christmas vacations, as well as nearly all of their summer vacation.
Unfortunately, the transition to this custodial schedule proved difficult and multiple petitions for contempt were filed and adjudicated in the trial court in Montour County. On June 8, 2006, Father filed a petition with the trial court seeking primary custody of the children. On February 28, 2007, Mother responded by filing a motion requesting that the trial court relinquish jurisdiction over this child custody action to the Circuit Court for the 9th Judicial Circuit in and for Orange County, Florida. Following an evidentiary hearing, the trial court denied Mother’s motion to relinquish jurisdiction, ruling that “[c]ontinuing jurisdiction over the custody case above captioned shall remain with the courts of the Commonwealth of Pennsylvania.” Order,
6/15/07. In its written opinion dated June 19, 2007, the trial court explained that it denied Mother’s motion because “there exists evidence that 1 In July 2004, Mother filed a Petition to Relocate to Florida with the children. The trial court denied the Petition, but in March 2005 this Court reversed that decision, permitting the relocation of Mother and children to Florida.
This timely appeal followed. In accordance with our standard of review, this Court will not disturb a decision to exercise or decline jurisdiction absent an abuse of discretion by the trial court. Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005). An abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. Id. Based on our careful review of the record, we conclude that the trial court abused its discretion and that its decision to deny Mother’s motion to relinquish jurisdiction must be reversed.
In its written opinion, the trial court found that it retained exclusive continuing jurisdiction to modify custody orders in this case pursuant to section 5422(a) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. § 5401 et seq. Section 5422(a) provides as follows:
§ 5422. Exclusive, continuing jurisdiction
(a) General rule.--Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until:
(1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships;
(2) a court of this Commonwealth or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this Commonwealth.
23 Pa.C.S.A. § 5422(a).
Subsection 5422(a)(1) thus provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a
“significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s “care, protection, training and personal relationships” is no longer available here.
In denying mother’s motion to relinquish jurisdiction, the trial court relied almost exclusively on Father’s continuing “significant connection” with Pennsylvania. The trial court found that Father is the fifth-generation owner of a farm in Montour County, retains a Pennsylvania driver’s license, has an active equitable distribution action pending in the local court, and enjoys the majority of visitation time with his children in the state. Trial Court Opinion, 6/19/07, at 2.
In contrast, however, the trial court’s opinion does not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that the boys visit here on three occasions per year and spend time with their father, friends and paternal grandfather. Trial Court Opinion, 6/19/07, at 2-3. A review of the record of the evidentiary hearing reveals that little evidence was introduced regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by section 5422(a)(1) of the UCCJEA.
In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida....
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No. 1134 MDA 2007 2008 PA Super 121 Atlantic: n/a Filed: 6/3/2008
Appeal from the Order entered June 15, 2007, Court of Common, Montour County, Civil Division at No. 2004-CV-135.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: DONOHUE, J.
(“Mother”) appeals from the order of the Court of Common Pleas of Montour County denying her motion to relinquish jurisdiction in this custody action to the state of Florida. After careful review, we reverse and remand.
......are the parents of twin boys born in Orlando, Florida on December 3, 1996. The family remained in Florida until 2001, when they relocated to Montour County, Pennsylvania. Mother
and Father separated in early 2004, at which time a custody action was filed in the Court of Common Pleas of Montour County. The trial court subsequently awarded primary physical custody of the children to the Mother and partial physical custody to the Father. In March 2005, Mother and the children moved back to Orlando, Florida, where they continue to live at this
time. Following the relocation to Florida, the trial court modified the custodial arrangement, with Mother retaining primary physical custody but permitting Father to enjoy custody during the boys’ spring, Thanksgiving and Christmas vacations, as well as nearly all of their summer vacation.
Unfortunately, the transition to this custodial schedule proved difficult and multiple petitions for contempt were filed and adjudicated in the trial court in Montour County. On June 8, 2006, Father filed a petition with the trial court seeking primary custody of the children. On February 28, 2007, Mother responded by filing a motion requesting that the trial court relinquish jurisdiction over this child custody action to the Circuit Court for the 9th Judicial Circuit in and for Orange County, Florida. Following an evidentiary hearing, the trial court denied Mother’s motion to relinquish jurisdiction, ruling that “[c]ontinuing jurisdiction over the custody case above captioned shall remain with the courts of the Commonwealth of Pennsylvania.” Order,
6/15/07. In its written opinion dated June 19, 2007, the trial court explained that it denied Mother’s motion because “there exists evidence that 1 In July 2004, Mother filed a Petition to Relocate to Florida with the children. The trial court denied the Petition, but in March 2005 this Court reversed that decision, permitting the relocation of Mother and children to Florida.
This timely appeal followed. In accordance with our standard of review, this Court will not disturb a decision to exercise or decline jurisdiction absent an abuse of discretion by the trial court. Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005). An abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. Id. Based on our careful review of the record, we conclude that the trial court abused its discretion and that its decision to deny Mother’s motion to relinquish jurisdiction must be reversed.
In its written opinion, the trial court found that it retained exclusive continuing jurisdiction to modify custody orders in this case pursuant to section 5422(a) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. § 5401 et seq. Section 5422(a) provides as follows:
§ 5422. Exclusive, continuing jurisdiction
(a) General rule.--Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until:
(1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships;
(2) a court of this Commonwealth or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this Commonwealth.
23 Pa.C.S.A. § 5422(a).
Subsection 5422(a)(1) thus provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a
“significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s “care, protection, training and personal relationships” is no longer available here.
In denying mother’s motion to relinquish jurisdiction, the trial court relied almost exclusively on Father’s continuing “significant connection” with Pennsylvania. The trial court found that Father is the fifth-generation owner of a farm in Montour County, retains a Pennsylvania driver’s license, has an active equitable distribution action pending in the local court, and enjoys the majority of visitation time with his children in the state. Trial Court Opinion, 6/19/07, at 2.
In contrast, however, the trial court’s opinion does not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that the boys visit here on three occasions per year and spend time with their father, friends and paternal grandfather. Trial Court Opinion, 6/19/07, at 2-3. A review of the record of the evidentiary hearing reveals that little evidence was introduced regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by section 5422(a)(1) of the UCCJEA.
In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida....
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Superior Court 6/3/08 - BARRY G. STUMPF v. TERRY L. NYE
BARRY G. STUMPF v. TERRY L. NYE
No. 955 MDA 2007 2008 PA Super 122 Atlantic: n/a Filed: 6/3/2008
Appeal from the Judgment entered May 2, 2007 In the Court of Common Pleas of Lancaster County Civil at No(s): CI-01-09277
Before: STEVENS, LALLY-GREEN, and FITZGERALD, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment entered in the Court of Common Pleas of Lancaster County in favor of Terry L. Nye and against Barry G. Stumpf and Doug Esbenshade in the total amount of $100,000.00. This matter arose when Mr. Stumpf and Mr. Esbenshade committed an assault and battery upon Mr. Nye following a boxing match. On appeal, Mr. Stumpf alleges (1) the trial court erred in excluding evidence of Mr. Nye’s previous violent altercations, which tended to show his character/reputation for violence, (2) the trial court erred in excluding evidence that Mr. Nye pleaded guilty to the summary offense of disorderly conduct, and (3) the trial court erred in charging the jury on conspiracy. We affirm.
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No. 955 MDA 2007 2008 PA Super 122 Atlantic: n/a Filed: 6/3/2008
Appeal from the Judgment entered May 2, 2007 In the Court of Common Pleas of Lancaster County Civil at No(s): CI-01-09277
Before: STEVENS, LALLY-GREEN, and FITZGERALD, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment entered in the Court of Common Pleas of Lancaster County in favor of Terry L. Nye and against Barry G. Stumpf and Doug Esbenshade in the total amount of $100,000.00. This matter arose when Mr. Stumpf and Mr. Esbenshade committed an assault and battery upon Mr. Nye following a boxing match. On appeal, Mr. Stumpf alleges (1) the trial court erred in excluding evidence of Mr. Nye’s previous violent altercations, which tended to show his character/reputation for violence, (2) the trial court erred in excluding evidence that Mr. Nye pleaded guilty to the summary offense of disorderly conduct, and (3) the trial court erred in charging the jury on conspiracy. We affirm.
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Monday, June 2, 2008
Superior Court - 6/2/08 - GLADSTONE PARTNERS, LP AS SUCCESSOR IN INTEREST TO PCA CORPORATION v. OVERLAND ENTERPRISE, INC., C/O KYLE KNOSP
GLADSTONE PARTNERS, LP AS SUCCESSOR IN INTEREST TO PCA CORPORATION v. OVERLAND ENTERPRISE, INC., C/O KYLE KNOSP
No. 653 MDA 2007 2008 PA Super 115 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order January 31, 2007,In the Court of Common Pleas of Luzerne County,Civil Division at No. 12648 of 2006.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Overland Enterprise, Inc., c/o Kyle Knosp, (Overland), appeals the order entered on January 31, 2007, in the Court of Common Pleas of Luzerne County, that struck off as untimely the appeal of Overland from a judgment entered against it by a district justice. Upon review, we affirm.
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No. 653 MDA 2007 2008 PA Super 115 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order January 31, 2007,In the Court of Common Pleas of Luzerne County,Civil Division at No. 12648 of 2006.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Overland Enterprise, Inc., c/o Kyle Knosp, (Overland), appeals the order entered on January 31, 2007, in the Court of Common Pleas of Luzerne County, that struck off as untimely the appeal of Overland from a judgment entered against it by a district justice. Upon review, we affirm.
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Superior Court 6/2/08 - IN RE: ESTATE OF NORMAN F. SHELLY
IN RE: ESTATE OF NORMAN F. SHELLYAPPEAL OF: MARCREEK FARMS, MICHAEL J. COOK, RICHARD SWISHER, AND STEPHEN D. BROWN
No. 443 MDA 2007 2008 PA Super 116 Atlantic: n/a Filed: 6/2/2008
Appeal from the Judgment February 12, 2007,In the Court of Common Pleas of Franklin County,Orphans' Court Division at No. 163 OF 1999.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Marcreek Farms, Michael J. Cook, Richard Swisher, and Stephen D. Brown (Appellants) appeal from the orphans’ court’s February 12, 2007 grant of summary judgment in favor of Margaret P. Evans, Terry L. Shelly, Larry R. Shank, and Donna Oberholzer (collectively Four Heirs) and its denial of Appellants’ motion for summary judgment. Upon review, we affirm.
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No. 443 MDA 2007 2008 PA Super 116 Atlantic: n/a Filed: 6/2/2008
Appeal from the Judgment February 12, 2007,In the Court of Common Pleas of Franklin County,Orphans' Court Division at No. 163 OF 1999.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Marcreek Farms, Michael J. Cook, Richard Swisher, and Stephen D. Brown (Appellants) appeal from the orphans’ court’s February 12, 2007 grant of summary judgment in favor of Margaret P. Evans, Terry L. Shelly, Larry R. Shank, and Donna Oberholzer (collectively Four Heirs) and its denial of Appellants’ motion for summary judgment. Upon review, we affirm.
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Superior Court 6/2/08 - OVERLAND ENTERPRISE, INC., C/O KYLE KNOSP v. GLADSTONE PARTNERS, LP AS SUCCESSOR IN INTEREST TO PCA CORPORATION
OVERLAND ENTERPRISE, INC., C/O KYLE KNOSP v. GLADSTONE PARTNERS, LP AS SUCCESSOR IN INTEREST TO PCA CORPORATION
No. 339 MDA 2007 2008 PA Super 114 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order February 7, 2007,In the Court of Common Pleas of Luzerne County,Civil Division at No. 1310 of 2007.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Gladstone Partners, successor to PCA Corporation, (Gladstone), appeals the order entered on February 7, 2007, in the Court of Common Pleas of Luzerne County, that enjoined it from exercising possession over real estate which it obtained via judgment against its former lessee, Overland Enterprise, Inc., c/o Kyle Knosp. Upon review, we reverse.
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No. 339 MDA 2007 2008 PA Super 114 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order February 7, 2007,In the Court of Common Pleas of Luzerne County,Civil Division at No. 1310 of 2007.
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Gladstone Partners, successor to PCA Corporation, (Gladstone), appeals the order entered on February 7, 2007, in the Court of Common Pleas of Luzerne County, that enjoined it from exercising possession over real estate which it obtained via judgment against its former lessee, Overland Enterprise, Inc., c/o Kyle Knosp. Upon review, we reverse.
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Superior Court - June 2, 2008 - COMMONWEALTH OF PENNSYLVANIA v. LARRY D. WALLS
COMMONWEALTH OF PENNSYLVANIA v. LARRY D. WALLS
No. 915 WDA 2006 2008 PA Super 120 Atlantic: n/a Filed: 6/2/2008
Appeal from the Judgment of Sentence ofOctober 1, 2003 in the Court of Common Pleas ofBlair County, Criminal, No. 1999 CR 2173
Before: MUSMANNO, KLEIN and POPOVICH, JJ
Opinion by: KLEIN, J.
Larry Walls appeals from his judgment of sentence entered on October 1, 2003. A jury found him guilty of, inter alia, robbery and aggravated assault; he was sentenced to an aggregate term of imprisonment of 13 to 26 years. On January 29, 2007, we affirmed his judgment of sentence and on November 20, 2007, the Supreme Court of Pennsylvania vacated our decision and remanded for reconsideration in light of Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006), which holds that merger is proper even though the lesser offense requires a scienter component not included within the elements of the greater offense.
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No. 915 WDA 2006 2008 PA Super 120 Atlantic: n/a Filed: 6/2/2008
Appeal from the Judgment of Sentence ofOctober 1, 2003 in the Court of Common Pleas ofBlair County, Criminal, No. 1999 CR 2173
Before: MUSMANNO, KLEIN and POPOVICH, JJ
Opinion by: KLEIN, J.
Larry Walls appeals from his judgment of sentence entered on October 1, 2003. A jury found him guilty of, inter alia, robbery and aggravated assault; he was sentenced to an aggregate term of imprisonment of 13 to 26 years. On January 29, 2007, we affirmed his judgment of sentence and on November 20, 2007, the Supreme Court of Pennsylvania vacated our decision and remanded for reconsideration in light of Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006), which holds that merger is proper even though the lesser offense requires a scienter component not included within the elements of the greater offense.
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Superior Court 6/2/08 - COMMONWEALTH OF PENNSYLVANIA v. DONALD S. WOJTASZEK
COMMONWEALTH OF PENNSYLVANIA v. DONALD S. WOJTASZEK
No. 987 WDA 2007 2008 PA Super 119 Atlantic: n/a Filed: 6/2/2008
Appeal from the PCRA Order May 1, 2007In the Court of Common Pleas of Cambria CountyCriminal at No(s): CP-11-CR-0001497-1995 CP-11-CR-0001498-1995
Before: STEVENS, BOWES, JJ., and McEWEN, P.J.E.
Opinion by: STEVENS, J.
Appellant, Donald Wojtaszek, appeals from an order of the Court of Common Pleas of Cambria County, denying his second Post Conviction Relief Act (PCRA) petition. Lacking jurisdiction to hear this claim, we affirm the order.
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No. 987 WDA 2007 2008 PA Super 119 Atlantic: n/a Filed: 6/2/2008
Appeal from the PCRA Order May 1, 2007In the Court of Common Pleas of Cambria CountyCriminal at No(s): CP-11-CR-0001497-1995 CP-11-CR-0001498-1995
Before: STEVENS, BOWES, JJ., and McEWEN, P.J.E.
Opinion by: STEVENS, J.
Appellant, Donald Wojtaszek, appeals from an order of the Court of Common Pleas of Cambria County, denying his second Post Conviction Relief Act (PCRA) petition. Lacking jurisdiction to hear this claim, we affirm the order.
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Superior Court 6/2/08 - COMMONWEALTH OF PENNSYLVANIA v. TAMOSEN STATEN
COMMONWEALTH OF PENNSYLVANIA v. TAMOSEN STATEN
No. 2094 EDA 2006 2008 PA Super 118 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order July 7, 2006In the Court of Common Pleas of Philadelphia CountyCriminal at No(s): M.C.# 05-09-3174
Before: STEVENS, DONOHUE, and FITZGERALD, JJ.
Opinion by: STEVENS, J.
This is an appeal from an order that denied Appellant’s petition to the Court of Common Pleas of Philadelphia County for a writ of certiorari. Appellant contends the Court of Common Pleas erred in denying his writ and motion for discharge based on the Commonwealth’s alleged violation of Pa.R.Crim.P. 1013, Prompt Trial—Municipal Court, because his Municipal Court trial commenced eight days beyond the 180 day Mechanical Run Date. As the record reveals the eight day overrun occurred despite both the Commonwealth’s due diligence in bringing Appellant to trial in compliance with to Rule 1013 and the court’s rescheduling trial for the earliest possible date, we affirm.
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No. 2094 EDA 2006 2008 PA Super 118 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order July 7, 2006In the Court of Common Pleas of Philadelphia CountyCriminal at No(s): M.C.# 05-09-3174
Before: STEVENS, DONOHUE, and FITZGERALD, JJ.
Opinion by: STEVENS, J.
This is an appeal from an order that denied Appellant’s petition to the Court of Common Pleas of Philadelphia County for a writ of certiorari. Appellant contends the Court of Common Pleas erred in denying his writ and motion for discharge based on the Commonwealth’s alleged violation of Pa.R.Crim.P. 1013, Prompt Trial—Municipal Court, because his Municipal Court trial commenced eight days beyond the 180 day Mechanical Run Date. As the record reveals the eight day overrun occurred despite both the Commonwealth’s due diligence in bringing Appellant to trial in compliance with to Rule 1013 and the court’s rescheduling trial for the earliest possible date, we affirm.
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Superior Court 6/2/2008 - IN THE INTEREST OF: R.N., JR., A MINOR
IN THE INTEREST OF: R.N., JR., A MINORAPPEAL OF: R.N., JR., A MINOR
No. 1572 MDA 2007 2008 PA Super 117 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order entered August 14, 2007,in the Court of Common Pleas of York County,Juvenile Division, at No. CP-67-JV-0000341-2007.
Before: STEVENS, PANELLA and HUDOCK, JJ.
Opinion by: HUDOCK, J.
This is an appeal from the dispositional order imposed following Appellant’s adjudication as delinquent for drug and firearm-related offenses. We affirm.
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No. 1572 MDA 2007 2008 PA Super 117 Atlantic: n/a Filed: 6/2/2008
Appeal from the Order entered August 14, 2007,in the Court of Common Pleas of York County,Juvenile Division, at No. CP-67-JV-0000341-2007.
Before: STEVENS, PANELLA and HUDOCK, JJ.
Opinion by: HUDOCK, J.
This is an appeal from the dispositional order imposed following Appellant’s adjudication as delinquent for drug and firearm-related offenses. We affirm.
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