Lozoskie v. Lozoskie

43 Pa. D. & C.4th 326, 1998 Pa. Dist. & Cnty. Dec. LEXIS 69
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedNovember 16, 1998
Docketno. 90-FC-1253
StatusPublished
Cited by1 cases

This text of 43 Pa. D. & C.4th 326 (Lozoskie v. Lozoskie) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lozoskie v. Lozoskie, 43 Pa. D. & C.4th 326, 1998 Pa. Dist. & Cnty. Dec. LEXIS 69 (Pa. Super. Ct. 1998).

Opinion

FORD, J.,

This difficult custody case periodically comes before the court for hearing, and the updates that we receive at each hearing are not encouraging. The relationship between the plaintiff mother and the defendant father has not been good dur[327]*327ing our acquaintance with the case and seems to get worse as time passes. At the center of the dispute is the parties’ son, Ryan C. Lozoskie, who was bom on September 16, 1987.

The father lives in Virginia. The mother lives in Lehigh County with the child. In June of this year, the father, with counsel, came before the court to reinstitute regular visitation with his son. There already was in place the August 23,1996 order of court which granted the father regular, unsupervised visits with his son. That order was entered by agreement of the parties. However, as we will explain later in this opinion, the father did not properly utilize the visitation rights granted him under the order and, primarily through his own fault, had not seen his son from September of 1997 until June of 1998. Both parents contributed to this nine-month gap in face-to-face contact, but the fault was primarily the father’s.

On June 10, 1998, we scheduled a hearing on defendant’s petition for special relief wherein the defendant was seeking to reinstitute visitation. Despite the fact that counsel for the plaintiff, John R Karoly Jr., Esquire, had appropriate notice of the scheduling of that hearing (while he did not formally enter his appearance until June 19, 1998, we note that he filed a petition of record on behalf of the plaintiff dated December 29,1997 and participated in a phone conference with the court in 1998, before June), he gave the plaintiff only one day’s notice of that hearing. Accordingly, she did not appear for the hearing, particularly when she learned that Attorney Karoly was not available for the hearing and that, if she was to be represented at the hearing, it was to be by Attorney Lewis Thompson, an associate of Attorney Karoly. The associate of Attorney Karoly appeared on June 10, [328]*3281998, the very day when the case was called for hearing, and presented a motion for continuance for an inadequate reason. The motion was denied and properly so. Attorney Karoly did not appear on June 10.

At the hearing on June 10, we took testimony from the defendant and granted him a one-hour visitation that day, on a supervised basis, which visitation took place.

Subsequent to the hearing, the court entered an order on June 16, 1998, which was signed by our colleague, the Honorable Edward D. Reibman, and which order was entered after request by the undersigned to Judge Reibman with a dictation as to exactly what should appear in the order. The order was entered in this fashion because of the unavailability of the undersigned during that week.

Among other things, the order directed that the defendant “shall pick up the minor child at the plaintiff’s home at noon on June 20,1998 and transport the child to Baltimore, Maryland and plaintiff, Jane Tercha, shall pick up the minor child at the paternal grandparents’ home in Baltimore, Maryland on June 21, 1998 at 8 p.m.” The order further provided that, beginning two weeks after the June 20-21 visitation, “The prior order of court dated August 23, 1996 shall be in effect until further order of court.” We note that the August 23,1996 order had never been rescinded or altered.

The defendant’s petition for contempt and sanctions that was filed against plaintiff and Attorney Karoly, and is a subject of this order and opinion, pertains to the visitation that was denied the father on June 20 and 21,1998.

We now set forth our findings of fact.

[329]*329It is undisputed that Attorney Karoly and plaintiff, Jane Tercha, knew about the provisions of the court’s order of June 16, 1998.

Upon receipt of this order, the plaintiff and Attorney Karoly consulted for the purpose of doing what was necessary to make sure that the court-ordered visitation for June 20-21 did not occur. At all times, plaintiff, Jane Tercha, acted on the advice of Attorney Karoly and believed that, in good faith, she could disregard the provisions of our June 16 order. Accordingly, we dismiss the petition for contempt and sanctions that was brought against her.

On June 19, 1998, at 3:45 p.m., Mr. Karoly filed a notice of appeal with the Lehigh County Clerk of Courts, civil division, appealing our order of June 16, 1998 to the Superior Court of Pennsylvania. The next day, June 20, the defendant drove from his home in Virginia, with the paternal grandfather, to pick up the child and return with him to Virginia for the overnight visitation. After a stop at the state police barracks (which we thought unnecessary), the father went to the home of the mother. The mother and child were not there. At some point, the father had a discussion with the maternal grandfather, who told the father that he could not have visitation that day. The maternal grandfather displayed an “unsigned order” which indicated that visitation should not take place. The “unsigned order” was a copy of the notice of appeal or a copy of some other document pertaining to the appeal. The father looked around that locale to locate Ryan but was unsuccessful. He returned to his home and visitation did not take place that weekend.

[330]*330The notice of appeal that was filed on June 19, 1998 was filed for one purpose by Mr. Karoly, to provide him with an argument that he could use to defeat the visitation that we had ordered. His argument was that the notice of appeal acted as an automatic supersedeas justifying his client in denying visitation on June 20. During the course of the September 22 hearing, Mr. Karoly admitted that that was the purpose of the filing of the notice of appeal.

The history of this appeal at the level of the Superior Court of Pennsylvania corroborates that this appeal was not filed in good faith because of any belief in the merits of it, but rather was filed as a vehicle to frustrate what this court had directed. In an order dated October 2,1998, the Superior Court of Pennsylvania dismissed plaintiff’s appeal based on “appellant’s failure to serve the trial court judge and court reporter with a copy of the notice of appeal as required by Pa.R.A.P. 906(a)(2), (3); appellant’s failure to comply with the trial court’s order of July 13, 1998 directing the filing of a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b); and appellant’s failure to order and pay for the transcripts as mandated by Pa.R.A.P. 1911(a).”

Also, the statement made by Mr. Karoly in his written closing argument following the September 22 hearing demonstrates his determination that he, rather than the court, would determine visitation, at least on June 20 and 21. He states:

“Accordingly, because the June 16, 1998 order provided a sudden overnight visitation of the minor child, Ryan Lozoskie, with his father whom he had not seen or heard from for nearly 10 months and, because the minor’s court-ordered counselor, Jack Gerhard, and the minor’s [331]*331mother, plaintiff, Jane Tercha, represented that this visitation would create immediate and irreparable harm to the minor child, an appeal was filed that date...

Court orders must be respected by the parties. Counsel cannot willy-nilly alter our orders because counsel believes that we have made a mistake, particularly in a difficult custody case like this. Additionally.

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Cite This Page — Counsel Stack

Bluebook (online)
43 Pa. D. & C.4th 326, 1998 Pa. Dist. & Cnty. Dec. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lozoskie-v-lozoskie-pactcompllehigh-1998.