Valeriano v. Krasowski-Gegenheimer

10 Pa. D. & C.5th 42
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJanuary 5, 2010
Docketno. 04-1791#3
StatusPublished

This text of 10 Pa. D. & C.5th 42 (Valeriano v. Krasowski-Gegenheimer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Valeriano v. Krasowski-Gegenheimer, 10 Pa. D. & C.5th 42 (Pa. Super. Ct. 2010).

Opinion

CAMPBELL, J,

I. BRIEF BACKGROUND

The two parties lived together and had a child together, Paul J. Valeriano III, born on February 28,2000. Since that time, the parties have had an on-again, off-again relationship with numerous troubles including two protection from abuse orders and a number of custody actions culminating in this action wherein appellee, Paul Valeriano (Father) filed for partial custody time with the child. Since 2006, the child has spent partial custody time with Father via court order. This case has involved a great deal of legal action with a large amount of pleadings, hearings, and appeals, all leading to the multi-day .custody trial near the end of 2008.

At that 2008 trial, the sole matter at issue was whether the court should, per appellant’s (Mother’s) request, [44]*44impose a supervised-only restriction on the child’s custody time with Father. This court concluded that such a restriction was not in the child’s best interests. This court ordered continued child-father counseling, and, as an extra precaution in response to appellant’s repeated arguments that Father was psychologically unfit, this court ordered a psychological expert to evaluate Father for custody purposes. After that expert information was presented, this court entered a final custody order; and, appellant appealed that final order as well as earlier rulings.

At the time of filing the notice of appeal, appellant did not immediately serve a notice of appeal and concise statement on this court. But, this court was not inconvenienced by the minor delay. On the other hand, appellant also did not file any transcript requests for three weeks after filing the notice of appeal, which delay did cause a problem in preparing the file for transmittal, and which resulted in the Superior Court querying appellant’s counsel as to why the transcripts had not been ordered.

Regarding the letter appellant’s counsel sent to the Superior Court of Pennsylvania to explain why counsel took several weeks and prompting from the Superior Court before ordering transcripts within which letter counsel characterized this judge’s administrative assistant as unhelpful, this court asserts that counsel’s characterization is grossly inaccurate and unfortunately made. Obviously, appellant’s counsel was present on every day of testimony and, doubtless, had in his professional file the exact days and hours, especially in his billing, and also could access the official file in prothonotary as easily as this court’s staff. This court does not have informa[45]*45tion regarding court reporters going back over a year in chambers, but the court reporters are happy to provide that information. This court’s administrative assistant did offer all the information she could access in chambers but suggested counsel cross-check the official file for accuracy and check with the court reporters’ office for reporter names. The delay in ordering any transcripts was certainly not this court’s staff’s fault.

There was some ongoing court reporter confusion regarding one short but important transcript as amid all of the testimony requested there was, it turned out, one lunchtime session when one court reporter filled in for another and this fact was not recorded in any log. But, contrary to the letter characterizing this court’s staff as unhelpful, this court’s staff strove to be as helpful as possible at all times; and, ultimately, this court’s staff solved the mystery of why the lunchtime transcript was not in the log of the court reporter assigned for that day.

Currently, given the time when the transcripts were ordered, and one of the court reporters having pre-set Christmas vacation plans, not all of the transcripts have been produced. This court shall proceed with finishing its memorandum opinion without access to some of the transcripts, so that the record can be transmitted as quickly as possible when all of the transcripts are produced.

II. FIRST TWO ISSUES COMPLAINED OF UPON APPEAL

In his first two issues complained of on appeal appellant takes exception to an evidentiary ruling of this court [46]*46during a September 13, 2006 hearing on a motion for special relief. While this court fervently believes appellant should have his day in Superior Court, there is a question as to whether this issue is now moot. Appellant complains that she was not allowed to present certain historical claims of abuse at the special relief hearing. However, the final custody order which appellant is currently appealing was entered by this court after a later multi-day custody trial and a subsequent psychological evaluation hearing. At trial, appellant presented extensive testimony including the historical abuse allegations which she was not allowed to present at the special relief hearing. This court considered that testimony when crafting its final custody order; thus, this court is uncertain about the relevance of challenging the prior evidentiary ruling.

A. Error 1: Assuming Appellant’s 2006 Evidentiary Issue Is Not Moot, This Court Explains Its Reasoning in Limiting the Evidence Presented at That Hearing

The Superior Court has repeatedly held that a lower court’s decision as to the admission or exclusion of evidence is within the lower court’s discretion, and the lower court’s evidentiary decision will only be overturned where there is a clear abuse of that discretion. E.g, Concorde Investments Inc. v. Gallagher, 345 Pa. Super. 49, 497 A.2d 637 (1985). Pa.R.E. 402 sets forth that “[evidence that is not relevant is not admissible.” Pa.R.E. 403 sets forth that even relevant evidence may be excluded if its probative value is outweighed by any of a number of factors including “by considerations of undue delay, waste of time ....”

[47]*47In this case, the appellant alleged three factual bases for her requested relief in his motion for special relief. Her first allegation was that “[o]n or about August 1, 2004, respondent bit the child in the butt for discipline purposes.”1 The other allegations were that defendant (appellee) verbally abused the child, and that defendant “pushed Mother into child, knocking child down ...” and “flicked the child, slapped the child, and push (sic) the child down.” These August 2006 allegations were alleged to have occurred before appellant’s July 2006 protection from abuse hearing. The appellee’s counsel objected at the special relief hearing to any evidence which occurred prior to the protection from abuse two months earlier as appellant had agreed to a custody provision in that agreed-upon order two months earlier; thus, appearing to, at least temporarily, resolve these issues until a custody trial. This court found appellee counsel’s objection persuasive.

As established at the special relief hearing, at appellant’s protection from abuse hearing on July 31, 2006, wherein appellant sought a P.F.A. order against the appellee, appellant appeared with counsel. Entering the hearing, appellant and the parties’ child were on the [48]*48temporary protection from abuse order as protected parties. On the date scheduled for the protection from abuse hearing, after extended discussions with the other side, appellant entered into an agreed-upon protection from abuse order with appellee that included a temporary custody provision allowing the child continued periods of partial custody with appellee.

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Bluebook (online)
10 Pa. D. & C.5th 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valeriano-v-krasowski-gegenheimer-pactcomplberks-2010.