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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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