J-A12042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEATRICE JIMENEZ, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHN ADAMS, DISTRICT ATTORNEY OF
BERKS COUNTY, AND
BERKS COUNTY CHILDREN AND YOUTH
SERVICES,
Appellee No. 1834 MDA 2014
Appeal from the Order entered October 1, 2014,
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 13453-2014
BEFORE: BOWES, DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED MAY 12, 2015
Beatrice Jimenez (“Appellant”) appeals from the trial court’s order
granting summary judgment in favor of John Adams, District Attorney of
Berks County, and Berks County Children and Youth Services (“DA/CYS”).
We affirm on the basis of collateral estoppel.
The trial court recited the background of this case, which is critical to
our disposition, as follows:
On or about May 22, 2014, [DA/CYS] filed a petition to
compel [Appellant] to produce her daughter for an interview, In
Re: A.C., Docket No. DP-406-13, in the Court of Common Pleas
of Berks County, Juvenile Division, before Judge Scott D. Keller.
The Petition was in response to [Appellant’s] refusal to
cooperate with [DA/CYS] in facilitating a Children’s Alliance
Center (“CAC”) interview with [Appellant’s] daughter, A.C.,
based upon allegations brought to [DA/CYS] that [Appellant’s]
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husband inappropriately touched her daughter. CAC protocol is
designed to create an environment in which the child feels safe
as possible to encourage the child to be honest without any fear
of repercussion. The purpose of the interview is to determine if
the child is being harmed. It is an investigatory exercise, not a
legal one. [Appellant] refused to produce the child for the
interview unless an attorney of her choice would be permitted to
be present during the interview. The attorney [Appellant] chose
is the same attorney who represented her husband in another
case where the attorney was successful in getting the charges
based on similar allegations dismissed. [DA/CYS] both pointed
out that CAC protocols for interviewing minor children in
circumstances such as these precluded having the non-offending
parent, or any representative on their behalf, present during the
interview. Both [DA/CYS] argued that having the attorney who
represented [Appellant’s] husband would likely have an even
greater chilling effect.
On or about May 23, 2014, [Appellant] filed an Action for
Declaratory Judgment against [DA/CYS] in the above captioned
matter seeking a determination as to whether an attorney of
[Appellant’s] choosing should be permitted to be present during
the interview; whether [Appellant] violated 18 Pa.C.S.A. § 4958;
and whether a Guardian Ad Litem should be appointed for A.C.
On or about June 18, 2014, the Juvenile Court heard the
Petition to Compel In Re: A.C., and ordered [Appellant] to
produce A.C. for an interview at CAC to be conducted in
accordance with CAC protocol, pursuant to which [Appellant’s]
attorney would not be permitted to be present during the
interview. [Appellant] timely filed an appeal from the Juvenile
Court’s order to the Superior Court.
On or about July 7, 2014, [DA/CYS] filed a Motion for
Summary Judgment on the above captioned matter. On or
about July 21, 2014, [DA/CYS] also filed a Motion to Disqualify
[Appellant’s] Counsel in the above captioned matter. Argument
on [DA/CYS’s] Motions was held on August 25, 2014, and August
27, 2014. Subsequently, between the filing of [DA/CYS’s]
Motions and Argument on the Motions, A.C. was interviewed by
the CAC pursuant to the Juvenile Court’s Order.
During Argument, District Attorney Kurland advised the
parties and this Court that the District Attorney would not be
pursuing any criminal investigation or charges against
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[Appellant] or [Appellant’s] attorney in relation to this matter
based upon the information they presently have.
Trial Court Opinion, 10/1/14, at 1-3 (emphasis added).
The trial court proceeded to explain:
The question at the heart of this matter is whether a non-
offending parent is entitled to have an attorney of their choice
attend a CAC interview of their child. In the instant case, that
issue has already been decided by Judge Keller’s June 18, 2014,
Juvenile Court Order, which expressly stated that in accordance
with CAC protocol, [Appellant’s] attorney was not permitted to
be present during the interview. That Order is now under appeal
to the Superior Court.
[Appellant] attempts to distinguish Judge Keller’s Order,
arguing that it only addresses whether a non-offending parent or
their chosen designee can attend a “forensic” interview with the
child and not “any” interview with the child. We disagree. The
matter before this Court relates to a forensic interview,
conducted to determine whether the child had been
inappropriately touched by [Appellant’s] husband. That is the
only type of interview pertinent to the dispute which gave rise to
this action.
Id. at 3-4.
On October 1, 2014, the trial court determined that there was “no
genuine issue as to any material fact”, and granted DA/CYS’s motion for
summary judgment. Id. at 5. Appellant appealed on October 29, 2014.
The trial court and Appellant have complied with Pa.R.A.P. 1925.
Appellant presents six issues for our review:
A. WAS THE GRANTING OF THE MOTION FOR SUMMARY
JUDGMENT PREMATURE BECAUSE DISCOVERY RELEVANT TO
THE MOTION FOR SUMMARY JUDGMENT HAS NOT BEEN
COMPLETED BY APPELLEES?
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B. DID THE ISSUE DECIDED BY THE HONORABLE SCOTT D.
KELLER THAT THE APPELLANT COULD NOT HAVE COUNSEL
PRESENT AT A “FORENSIC INTERVIEW” RESOLVE ALL THE
ISSUES IN THIS DECLARATORY JUDGMENT ACTION WHERE
APPELLANT ARGUED THAT SHE HAD A RIGHT TO HAVE AN
ATTORNEY OF HER CHOICE OBSERVE AND HEAR ANY
INTERVIEW OF HER DAUGHTER, INCLUDING A “FORENSIC
INTERVIEW,” TO PROTECT HER DAUGHTER?
C. DID THE ASSISTANT DISTRICT ATTORNEY’S STATEMENT
DURING ORAL ARGUMENT BEFORE THE LOWER COURT THAT
THEY WOULD NOT PURSUE CRIMINAL CHARGES AGAINST
APPELLANT AND/OR HER ATTORNEY “AT THIS TIME” BASED
ON THE INFORMATION THEY PRESENTLY HAD RESOLVE ALL
ISSUES OF MATERIAL FACT CONCERNING WHETHER
APPELLANT’S ASSERTION OF A CONSTITUTIONAL RIGHT TO
HAVE COUNSEL PRESENT FOR ANY INTERVIEW OF HER
DAUGHTER WAS AN OBSTRUCTION OF THE
COMMONWEALTH’S INVESTIGATION IN VIOLATION OF 18 Pa.
C.S.A. §4958(b)(1)?
D. ARE THE ISSUES RAISED IN THIS DECLARATORY JUDGMENT
ACTION RENDERED MOOT AFTER THE MOTION FOR
SUPERSEDEAS BEFORE THE LOWER COURT WAS DENIED,
AFTER THE EMERGENCY MOTION TO STAY FILED BEFORE THE
PENNSYLVANIA SUPERIOR COURT WAS DENIED, WHEN
APPELLANT THEN COMPLIED WITH THE LOWER COURT’S
ORDER TO PRODUCE HER DAUGHTER FOR A “FORENSIC
INTERVIEW” WITHOUT COUNSEL BEING PRESENT?
E. IN VIEWING THE RECORD IN THE LIGHT MOST FAVORABLE
TO APPELLANT, THE NON-MOVING PARTY, WAS THE MOTION
FOR SUMMARY JUDGMENT TO APPELLANT’S DECLARATORY
JUDGMENT ACTION PROPER BASED ON THE SPECIFIC
ISSUES RAISED IN THIS APPEAL?
F. IS THE DECLARATORY JUDGMENT ACTION A VALID
ALTERNATIVE TO DETERMINE IF A PARTICULAR SECTION OF
THE CRIMES CODE APPLIES TO A COMMON SET OF FACTS
WITHOUT A PARTICULAR PERSON RAISING THE SAME ISSUE
BY BEING PROSECUTED FOR VIOLATING THE LAW AND
CREATING A “TEST” CASE?
Appellant’s Brief at 4-5.
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When reviewing an appeal from the grant of summary judgment, we
recognize:
Our scope of review of a trial court's order granting or denying
summary judgment is plenary, and our standard of review is
clear: the trial court's order will be reversed only where it is
established that the court committed an error of law or abused
its discretion.
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Weissberger v. Myers, 90 A.3d 730, 733 (Pa. Super. 2014) (citation
omitted).
Here, it is significant that this Court, on March 5, 2015, at docket 1110
MDA 2014, decided Appellant’s appeal from the order directing her to
produce her daughter for an interview at the CAC. In re: A.C., a minor,
__ A.3d ___ (Pa. Super. 2015) (unpublished memorandum). We affirmed
the trial court, and in doing so, expressly determined, inter alia, that
Appellant’s issue as to the constitutionality of the CAC interview protocol vis-
à-vis Appellant’s right to have counsel of her choosing present at the
interview was moot. Id. at 5. We additionally concluded that even if the
issue were not moot, Appellant’s claim was without merit. See id. at 6-8.
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As the trial court observed, the “question at the heart of this
[declaratory judgment] matter is whether a non-offending parent is entitled
to have an attorney of their choice attend a CAC interview of their child.”
Trial Court Opinion, 10/1/14, at 3. The trial court further stated that in her
declaratory judgment action, Appellant was “asking this Court to render an
advisory opinion on a matter which is factually moot and presently under
appeal to the Superior Court.” Id. at 4.
Reduced to their essence, Appellant’s six issues in this appeal
regurgitate her ongoing assertion before the trial court and in her prior
Superior Court appeal that she had “a right to have an attorney of her choice
present at the interview of her daughter.” Appellant’s Brief at 11. Appellant
claims that her declaratory judgment action against DA/CYS “presents a
valid alternative to determine if a particular section of Pennsylvania Crimes
Code, to wit: 18 Pa.C.S.A. §4958(b)(1), violates Appellant’s right to counsel
under the 14th Amendment to the United States Constitution when [DA/CYS]
are insisting that Appellant requesting an attorney of her choice be present
to any interview of her daughter ‘obstructs, interferes with or impairs or
prevents’ their investigation of alleged child abuse.” Id. We disagree.
Upon review, it is obvious that Appellant is attempting to relitigate issues
which have been or could have been litigated. Appellant is collaterally
estopped from doing so.
We recently explained:
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Collateral estoppel, or issue preclusion, is a doctrine which
prevents re-litigation of an issue in a later action, despite the
fact that it is based on a cause of action different from the one
previously litigated. Balent v. City of Wilkes–Barre, 542 Pa. 555,
669 A.2d 309, 313 (1995).
Collateral estoppel applies if (1) the issue decided in the prior
case is identical to one presented in the later case; (2) there was
a final judgment on the merits; (3) the party against whom the
plea is asserted was a party or in privity with a party in the prior
case; (4) the party or person privy to the party against whom
the doctrine is asserted had a full and fair opportunity to litigate
the issue in the prior proceeding and (5) the determination in
the prior proceeding was essential to the judgment. Catroppa v.
Carlton, 998 A.2d 643, 646 (Pa. Super. 2010).
(citation omitted).
Weissberger, supra.
Here, Appellant is clearly attempting to revive her prior contentions,
arguments, and issues regarding the preclusion of the appearance of her
attorney at the CAC interview of her daughter. We cannot entertain
Appellant’s renewed efforts. In disallowing an employer to “revisit … and, in
a disguised way, to relitigate,” the initial finding of an employee’s disability,
our Supreme Court observed:
We acknowledge that the term “res judicata” is a somewhat
sloppy term and that it is sometimes used to cover both res
judicata itself (claim preclusion) as well as collateral estoppel
(“broad” res judicata or issue preclusion). Collateral estoppel,
broad res judicata or issue preclusion “forecloses re-litigation in
a later action, of an issue of fact or law which was actually
litigated and which was necessary to the original judgment.”
City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh,
522 Pa. 44, 55, 559 A.2d 896, 901 (1989).
Hebden v. W.C.A.B. (Bethenergy Mines, Inc.), 632 A.2d 1302, 1304
(Pa. 1993).
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Further:
As the Court recently decided in Callowhill Center
Associates [LLC v. Zoning Board of Adjustment, 2 A.3d 802
(Pa.Cmwlth.2010)], the doctrine of res judicata/collateral
estoppel applies not only to matters decided, but also to
matters that could have, or should have, been raised and
decided in an earlier action. Our decision in Callowhill Center
Associates recognized well-settled precedent that collateral
estoppel applies if there was adequate opportunity to raise
issues in the previous action. Stevenson v. Silverman, 417 Pa.
187, 208 A.2d 786 (1965); Hochman v. Mortgage Finance
Corporation, 289 Pa. 260, 137 A. 252 (1927).
Bell v. Township of Spring Brook, 30 A.3d 554, 558
(Pa.Cmlwth.2011) (emphasis supplied).
Buyfigure.com, Inc. v. Autotrader.com, Inc., 76 A.3d at 561 (citations
omitted).
In sum, Appellant in the present appeal is pursuing a “disguised way
to relitigate” her claim that she should have been permitted to have her
attorney present during the – now past and thus moot – CAC interview of
her daughter. Hebden, 632 A.2d at 1305. Accordingly, we find no error of
law or abuse of discretion in the trial court’s entry of summary judgment in
favor of DA/CYS.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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