custody - civil rules - appt. of atty. for child - child interview - child attendance at proceedings - Rule 1915.11

Order https://www.pacourts.us/assets/opinions/Supreme/out/Order%20-%20105020175159411240.pdf?cb=1

Rule    https://www.pacourts.us/assets/opinions/Supreme/out/atttachment%20-%20105020175159411166.pdf?cb=1

Report https://www.pacourts.us/assets/opinions/Supreme/out/report%20-%20105020175159411181.pdf?cb=1

 

SUPREME COURT OF PENNSYLVANIA DOMESTIC RELATIONS PROCEDURAL RULES COMMITTEE

ADOPTION REPORT

On January 20, 2022, the Supreme Court of Pennsylvania adopted Recommendation 2 of 2021 of the Domestic Relations Procedural Rules Committee (Committee). The Recommendation amends Pa.R.Civ.P. 1915.11. This rule addresses the appointment of a child’s attorney in a custody case, the child interview by the court, and a child attending various court proceedings. The Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained in this Adoption Report are those of the Committee, not the Court.

The Committee received correspondence suggesting Pa.R.Civ.P. 1915.11(b) infringes upon a self-represented party’s ability to represent himself or herself by not permitting the self-represented party to participate in the child interview in the same manner as a represented party through counsel. Currently, Pa.R.Civ.P. 1915.11(b) provides that the court may interview the child in the presence of the parties’ attorneys and, if the court permits, the parties. Moreover, the current rule permits a party’s attorney to question the child, but not a self-represented party, which was the basis for the proposed rulemaking. This specific provision creates the appearance of a disadvantage to the self-represented party by not allowing that party to put forth questions to the child that are relevant to the self-represented party’s case and, presumably, the child’s best interest. The Committee agreed this distinctively dissimilar treatment between represented and self-represented parties could impact the court’s best interest analysis. Bearing in mind the court’s overall concern in child custody cases is the child’s best interest, including the process of determining the child’s best interest, the Committee believes the Recommendation strikes a balance between the self-represented party’s right to present evidence for determining the child’s best interest and the child’s best interest in addressing the court’s questions without intimidation or fear.

The Recommendation does not substantively amend subdivisions (a) and (c) with revisions in those subdivisions limited to stylistic changes. Instead, the Recommendation’s substantive amendments are included in subdivision (b), which has been restyled, as well. This subdivision provides the court with two options for the parties or counsel to participate in the child interview. First, subdivision (b) incorporates the current rule’s provision of permitting an attorney to question the child under the court’s supervision into subdivision (b)(4)(i) but adds the qualifier requiring that all parties are represented; and second, the Recommendation adds subdivision (b)(4)(ii) as an additional option for the court to allow counsel and a self-represented party to submit to the court written questions that are directed to the child, which the court may include in its child interview.

The amendment becomes effective April 1, 2022.

 

 

 

 

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PFA - testimony of parties' therapist about threats allowed into evidence

Ryan v. Ruize – Pa. Super. – 12-14-21 – reported, precedential decision

https://www.pacourts.us/assets/opinions/Superior/out/J-S21002-21o%20-%20104984205154548011.pdf?cb=1

 

 

Held: In PFA case, trial court properly permitted fact testimony of the parties’ therapist concerning husband’s statements to her, during counseling session, that if he killed mother with a gun at their home, it would look like an accident.

 

The court held that

 

• Psychiatrist/psychologist privilege under 42 Pa. C.S. 5944 did not apply, by definition, to the therapist, who was not part of a treatment team that included a psychiatrist or psychologist, Farrell v. Regola, 150 A.3d 87 (Pa. Super. 2016); Commonwealth v. Simmons, 719 A.2d 336, 343 (Pa. Super. 1998) (counselor’s title not dispositive)

 

• Privilege under 42 Pa. C.S. 5948 for confidential communications to a “qualified professional” in divorce or custody cases did not apply to PFA cases.

 

• ++++++++++++++++++

 

This case is also reported in the PLAN Legal Update, which you can access and search without a password.

 

 

 

LEP - license suspension - refusal to allow blood test - knowing, conscious refusal

Vasquez-Santiago v. Penn DOT – Cmwlth. Court – en banc – January 4, 2022

https://www.pacourts.us/assets/opinions/Commonwealth/out/453CD20_1-4-2220220104_093106_6037417.pdf?cb=1

 

Held: Licensee’s lack of understanding of the English language prevented him from making a knowing and conscious refusal of a chemical blood test because he could not understand the consequences of a refusal.  The trial court court’s “finding of an insurmountable language barrier is supported by substantial evidence.”

 

From the opinion:

The Licensee’s inability to understand the office as he read the DL-26B Form in English prevented Licensee from understanding the consequences of his refusal to submit to chemical testing. “The law has always required that the police must tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.” Department of Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873l 877 (Pa. 1989). To the extent that Martinovic suggests that it is “inconsequential” whether a licensee understands those consequences, Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005), we regard this language as dicta, and conclude that it is not consistent with applicable precedent.

 

 

 

 

 

 

 

schools - residence of child where parents separated and live in different districts

H.R., a minor v. Shaler Area School District -  Cmwlth. Court – unreported opinion** - January 5,m 2022

 

https://www.pacourts.us/assets/opinions/Commonwealth/out/1008CD20_1-5-2220220105_085217_9533513.pdf?cb=1

 

This opinion discusses in some detail the law relating to where a child can go to school, where the child’s parents are separated and live in different districts.

 

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**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

 

 

 

 

 

courts - filing fees - Act 93 of 2021

Fees - https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104999409155692500.pdf?cb=1

Order - https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104999409155692603.pdf?cb=1

 

 

PROMULGATION OF FINANCIAL REGULATIONS PURSUANT TO ACT 93 OF 2021

204 Pa. Code Ch. 29, Subch. I (relating to budget and finance)

§ 29.351. Definitions. 

(a) Pennsylvania Supreme, Superior and Commonwealth Courts. Initial Filing. 

Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on all items enumerated in the fee schedules of the Appellate Courts for which a filing and service fee is collected, excluding the following: 

1. Second and Subsequent Filings for Extension of Time. 
2. Reargument/Reconsideration.
3. Services in Connection with Appeals to or Writs of Certiorari from the United States Supreme Court. 
4. Miscellaneous Fees. 
5. Subpoenas.

(b) Court of Common Pleas. Prothonotary. Civil Actions and Legal Proceedings. 

1. Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on a civil action or legal proceeding in a Court of Common Pleas whenever it is initiated upon the filing of the first legal paper therein of record with the prothonotary. The first legal paper may be any of the following: 

1. Praecipe for a Writ of Summons. 
2. Complaint.
3. Deleted.
4. Petition.
5. Notice of Appeal from a court of limited jurisdiction. 
6. vi. Petition or grant of any other legal paper commencing an action or proceeding authorized by Act of Assembly or rule of court. 

2. For purposes of these regulations, the initiation of a civil action or legal proceeding shall include, but is not limited to: 

1. Actions governed by or authorized under the Pennsylvania Rules of Civil Procedure, such as Civil Action Ejectment, Equity, Ground Rent, Mandamus, Mortgage Foreclosure, Partition of Real Property, Quiet Title, Quo Warranto, Replevin, and the Prevention of Waste. 
2. ActionspertainingtoDependency,Annulments,Divorce,Custody, Partial Custody, Alimony Pendente Lite, Support, and Paternity. With respect to Divorce actions, a separate statutory fee shall be imposed for each count in the complaint in addition to the count requesting divorce. 
3. Statutory actions such as Confirmation of Arbitration Awards, Conformation of Confessed Judgment, Declaratory Judgment, Opening or Striking Off a Judgment, Eminent Domain, Habeas Corpus, Proceedings on Liens (other than revival), Name Changes, Partition of Property Held by Husband and Wife as Tenants By the Entireties, Tax Sales of Real Property. 
4. Other actions not included in subsections (i), (ii) or (iii), such as: Appeals from Board of Elections, Appeals from Board of Viewers, Appeals from Zoning Boards, and Certiorari to Magisterial District Judges. 

(c) Court of Common Pleas. Orphans’ Court Clerk, Register of Wills. 

Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on all petitions for grant of letters, and first filings in petitions concerning adoptions, incapacitated persons’ estates, minors’ estates, and inter vivos trusts. 

(d) Court of Common Pleas. Clerk of Court. 

1. Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed upon conviction, guilty plea, or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or other pretrial diversionary program based upon the initiation of any criminal proceeding. The initiation of a criminal proceeding shall include the following:  

1. Cases commenced at the magisterial district judge level resulting in the issuance of a numbered docket transcript form (OTN), and subsequently waived or held to court. 
2. The appeal of a summary conviction to the Court of Common Pleas. 
3. Cases involving juvenile defendants where a petition alleging delinquency has been filed in the Court of Common Pleas. 
4. Cases involving juvenile defendants certified to the Court of Common Pleas, resulting in the issuance of a numbered docket transcript form (OTN). 
5. Cases involving the severance of charges into separate cases resulting in the issuance of one or more additional numbered docket transcripts (OTNs). 

2. Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed for each filing of a deed, mortgage or property transfer for which a fee, charge or cost is now authorized. The documents identified as meeting the above conditions are listed below. The list is not exclusive; other filings for which a fee is imposed and that can be considered a property transfer are included, and the fee shall be imposed. Subject to later amendment, the following documents have been identified as meeting the statutory provisions: 

1. Deeds in any form. 
2. Mortgages.
3. Mortgage assignments. 
4. Mortgage releases. 
5. Mortgage satisfaction pieces. 
6. Installment sales agreements. 
7. Leases for a term of thirty (30) years or longer. 
8. Easements.
9. Rights of Way. 

(e) Minor Judiciary. Civil and Criminal Proceedings. 

For purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1[,] and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on the initiation of a legal proceeding except as provided in subsection (iii). The initiation of a legal proceeding, in the following courts of the Minor Judiciary, shall include, but is not limited to, the following: 

1. Magisterial District Judge. Civil Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed in connection with the filing of a complaint in Trespass and Assumpsit or for the Recovery of Possession of Real Property (Landlord and Tenant Proceeding) or for any other Civil Action as provided in the Rules of Civil Procedure Governing Actions and Proceedings before Magisterial District Judges. 
2. Magisterial District Judge. Criminal Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed upon a conviction, guilty plea or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or any other pretrial diversionary program based upon the filing of a criminal complaint or non-traffic citation charging an offense classified as misdemeanor or summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure. 

iii.Magisterial District Judge, Pittsburgh Municipal Court, and Philadelphia Municipal Court. Title 75 Summary Offenses Initiated by Traffic Citation. Except for the provisions of subsection (g)(2) below, a statutory fee of twelve dollars ($12.00) shall be imposed upon a conviction or guilty plea based upon the filing of a traffic citation charging a violation of Title 75 (relating to vehicles) offense classified as summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure. 

4. Pittsburgh Municipal Court. Civil Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed in connection with the filing of a civil complaint seeking recovery of fines and penalties imposed by an ordinance of the City of Pittsburgh or by any ordinance or regulation relating to housing and health administered and enforced by the county health department where the violation occurs within the City of Pittsburgh. 
5. Pittsburgh Municipal Court. Criminal Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed upon a conviction, guilty plea or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or any other pretrial diversionary program based upon the filing of a criminal complaint or non-traffic citation charging an offense classified as misdemeanor or summary under state statute or local ordinance as provided for in the Pennsylvania Rules of Criminal Procedure. 

vi. Philadelphia Municipal Court. Civil Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed in connection with the filing of a complaint for a Civil Action, as defined in the Philadelphia Municipal Court Rules of Civil Procedure. 

vii.Philadelphia Municipal Court. Criminal Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed upon conviction, guilty plea or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or any other pretrial diversionary program based upon the filing of a criminal complaint or non-traffic citation charging an offense classified as misdemeanor or summary under state statute or local ordinance as provided for in the Pennsylvania Rules of Criminal Procedure. 

(f) Recorders of Deeds. 

Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed for each filing of a deed, mortgage or property transfer for which a fee, charge or cost is now authorized. The documents identified as meeting the above conditions are listed below. The list is not exclusive; other filings for which a fee is imposed and that can be considered a property transfer are included, and the fee shall be imposed. Subject to later amendment, the following documents have been identified as meeting the statutory provisions: 

1. Deeds in any form. 
2. Mortgages.
3. Mortgage assignments. 
4. Mortgage releases. 
5. Mortgage satisfaction pieces. 
6. Installment sales agreements.
7. Leases for a term of thirty (30) years or longer. 

7. Easements.
8. Rights of Way. 

(g) Temporary Surcharge. 

1. Beginning [July 1, 2019] January 1, 2022, and until [December 31, 2021] June 30, 2022, for purposes of [section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E)] 42 Pa.C.S. § 3733.2, a temporary surcharge of twenty-one dollars and twenty-five cents ($21.25) shall be collected by all collectors of the JCS/ATJ/CJEA fee to supplement the nineteen dollars ($19.00) statutory fee described above. This temporary surcharge may not be imposed upon a conviction or guilty plea based upon the filing of a traffic citation charging a Title 75 (relating to vehicles) offense classified as summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure. 

2. Magisterial District Judge, Pittsburgh Municipal Court, and Philadelphia Municipal Court. Title 75 Summary Offenses Initiated by Traffic Citation. Beginning [July 1, 2019] January 1, 2022, and until [December 31, 2021] June 30, 2022, for purposes of [section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E)] 42 Pa.C.S. § 3733.2, a temporary surcharge of ten dollars ($10.00) shall be collected to supplement the twelve dollars ($12.00) statutory fee imposed upon a conviction or guilty plea based upon the filing of a traffic citation charging a violation of Title 75 (relating to vehicles) offense classified as summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure.

 

 

 

 

 

contracts - commercial lease - exculpatory clause

Keystone Specialty Services v. Ebaugh – Pa. Superior Court – non-precedential memorandum decision** – 11-22-21

https://www.pacourts.us/assets/opinions/Superior/out/J-S27045-21o%20-%20104963094152340299.pdf?cb=1

 

Held: Commercial tenant could not recover for property damage allegedly caused by landlord’s negligence where lease contained exculpatory clause relieving landlord of such liability.

Tenant signed a lease that contained exculpatory clauses that specifically provided, in the same size print as all the other lease terms, that “Landlord shall not be liable for loss of, or damage to, [Tenant’s] stored items” and that “Landlord shall not be liable to Tenant ... for ... any loss, damage or destruction of Tenant’s personal property.” . . . .It was also undisputed that Plaintiff’s claims in this action were for damage to personal property that it stored on the Premises. 

Exculpatory clauses in contracts are valid where they do not contravene public policy, are between persons relating entirely to their own private affairs and each party is a free bargaining agent to the agreement. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010); Topp Copy Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993); Kibler, 184 A.3d at 981. 

Exculpatory clauses that satisfy these requirements are enforceable and bar negligence claims where the language of the exculpatory clause states that it applies to all claims for injury or damage or to any claim for injury or damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 890-91; Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. 1978) (en banc), aff’d without opinion, 416 A.2d 1010 (Pa. 1980). 

Exculpatory clauses in a commercial lease that provide that the landlord is not liable for any damage to the tenant’s personal property on the leased premises are valid and enforceable and bar contract and negligence claims for such property damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Cannon v. Bresch, 160 A. 595, 596-97 (Pa. 1932). 

The exculpatory language in the Lease is essentially indistinguishable from the exculpatory clauses in Topp Copy Products and Cannon and was therefore valid and sufficient to bar Plaintiff’s claims for damage to its personal property. The Lease twice expressly stated that Landlord would not be liable for damage to Plaintiff’s personal property and stated that this applied to “any loss, damage or destruction of Tenant’s personal property.” Lease at 1; Lease Addendum at 2 (emphasis added). The word “any” is equally all- encompassing as the word “all” in the leases at issue in Topp Copy Products and Cannon. Zimmer, 385 A.2d at 440; Merriam-Webster’s Collegiate Dictionary 56 (11th Ed. 2003) (defining “any” as including “every” and “all”). Moreover, the Lease further made clear that Plaintiff cannot obtain compensation from Landlord for damage to its personal property by expressly providing that Plaintiff must obtain insurance to protect itself from loss from “theft, damage and/or destruction, from any cause or reason.” Lease Addendum at 2 (emphasis added). 

Tenant/plaintiff argues that because the Lease did not use the word “negligence” in its exculpatory clauses, the exculpatory clauses are insufficient to bar claims for damage to Plaintiff’s property that was caused by Landlord’s negligence. That, however, is not the law. Although an indemnification clause does not cover claims arising out of the indemnitee’s negligence unless it expressly refers to indemnification for the indemnitee’s negligence, Topp Copy Products, 626 A.2d at 100-01; Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 4-5 (Pa. 1991), that rule does not apply to exculpatory clauses that bar recovery from the other party and provide no indemnification for claims of third parties. Chepkevich, 2 A.3d at 1193; Topp Copy Products, 626 A.2d at 100-01; Nissley, 913 A.2d at 890-91. 

Pennsylvania courts have consistently held that exculpatory clauses may bar suits based on negligence even where the language of the clause does not specifically mention negligence at all.” Chepkevich, 2 A.3d at 1193. In Topp Copy Products and Nissley, our Supreme Court and this Court held that exculpatory clauses that did not reference negligence barred claims for damages caused by the defendant’s negligence. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 888, 890-91. 

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This case is also reported in the PLAN Legal Update, which you can access and search—without a password—here.

**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).