author: POPOVICH, Judge:

text:
    479 A.2d 608
    Paul DOUGLAS, Administrator of the Estate of Melody Douglas v. Christine L. SCHWENK, Stanley Bachulski, t/d/b/a Maple Bar and Nicholas Difelice and Amalia Difelice, t/d/b/a Nick’s Cafe and Michael Tarnoski and David Howe Christine L. Schwenk. Appeal of Nicholas DIFELICE and Amalia Difelice, t/d/b/a Nick’s Cafe.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Aug. 3, 1984.

      James A. Consoli, Reading, for appellants.
    James L. McAneny, Pittsburgh, for Douglas, appellee.
    Bradley D. Miller, Reading, for Schwenk, appellee.
    Leonard J. Gajewski, Reading, for Bachulski, appellee.
    David R. Eshelman, Reading, for Tarnoski, appellees.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.:
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas of Berks County sustaining the preliminary objections in the nature of a demurrer of additional defendants Michael Tarnoski and David Howe. We reverse.

In reviewing a demurrer we must accept as true all well-pleaded facts and the reasonable inferences therefrom. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). A demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). In accordance with the aforesaid, the factual allegations in the complaint must be examined to determine whether reasonable men might infer a lack of due care by the additional defendants which legally caused the death of Melody Douglas.

Ms. Douglas died as the result of an accident in which she was a passenger in a motor vehicle driven by Christine Schwenk, a minor. Suit was filed by the administrator of Ms. Douglas’ estate against the defendants Ms. Schwenk, Stanley Bachulski, t/d/b/a Maple Bar, and Nicholas and Amalia DiFelice, t/d/b/a Nick’s Cafe. The complaint submitted by the estate averred, in relevant part, that Ms. Douglas’ death was caused by the negligent operation of a motor vehicle by Ms. Schwenk, and by the negligence of the other defendants in serving Ms. Schwenk alcoholic beverages knowing that she was underage and/or when she was visibly intoxicated. In response, the DiFelices also filed a complaint joining Tarnoski and Howe as additional defendants. Therein, the DiFelices alleged, in pertinent part, that:

4. Defendants, Nicholas DiFelice and Amalia DiFelice t/d/b/a Nick’s Cafe, aver that if the Plaintiff [estate of Melody Douglas] sustained any damages, as alleged, they were caused as the result of the negligence of the Additional Defendants, Michael Tarnoski and David Howe, who were in the company of Christine Schwenk on January 13 and 14, 1981, and who on numerous occasions while they were in Christine Schwenk’s company furnished and gave to her alcoholic and intoxicaing [sic] beverages knowing her to be underage, knowing that she would be operating a motor vehicle, and having reason to believe that she would not be able to operate said motor vehicle in a safe manner. (Emphasis added)

In their preliminary objections the additional defendants-ap-pellees averred, in part, that:

3. As it appears from the Defendants’ [DiFelices’] Complaint, the only allegations of negligence against the additional defendants involve the furnishing or supplying of alcoholic or intoxicating beverages.
4. Neither of the additional defendants are “licensees” under the Dram Shop Act, 47 P.S. Section 4-493(1).
5. At the times pertinent to the Complaint, the additional defendants were not acting as the agents, servants and/or employees of any licensees under the Dram Shop Act, 47 P.S. Section 4-493(1).
6. Liability under the Dram Shop Act does not extend to individuals under the Act.
7. Additional defendants can not be liable to the plaintiff or defendants even assuming that averments in Defendants’ Complaint to be true. (Emphasis added)

The lower court agreed with the additional defendants that they did not come within the ambit of the applicable statute, i.e., Section 4-493(1) of the Liquor Code. The court did so on the basis that the rulings in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) and Klein v. Raysinger, 298 Pa.Super. 246, 444 A.2d 753 (1982) refused to read the aforementioned statute to impose civil liability for violations of its provisions by a nonlicensed person who furnished intoxicants for no remuneration. Ergo, the court held that since the additional defendants did not meet any of the requirements of the statute, as interpreted by the courts of this Commonwealth, “no liability [could] be asserted against them under section 4-493(1) of the Liquor Code.”

Also, the lower court refused to find the additional defendants subject to any form of liability, even under an extended theory of common law negligence independent of the provisions of the Liquor Code. Again, the court relied, mistakenly as will become evident infra, upon the Manning decision in holding “that the DiFelices’ complaint fail[ed] to state a cause of action against Tarnoski and Howe.” Thus, the additional defendants’ preliminary objection in the nature of a demurrer was granted, and this appeal followed.

We conclude that the lower court has erred and do so on the basis of our high Court’s recent pronouncement in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983).

In Congini, the Court updated the liability of an adult social host for injuries sustained by his minor guest after serving him intoxicating liquors. In finding the host-employer amenable to suit by a guest-employee for intoxicants ingested during the course of a Christmas party held at the employer’s place of business, the Court distinguished a ruling entered the same day where liability was found wanting; viz.:

In Klein v. Raysinger, [504 Pa. 141, 470 A.2d 507 (1983),] we held that there exists no common law liability on the part of a social host for the service of intoxicants to his adult guests. In arriving at this decision we relied upon the common law rule that in the case of an ordinary able bodied man, it is the consumption of alcohol rather than the furnishing thereof, that is the proximate cause of any subsequent damage.
However, our legislature has made a legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol. Under Section 6308 of the Crimes Code 18 Pa.C.S. § 6308, a person “less than 21 years of age” commits a summary offense if he “attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.” Furthermore, under Section 306 of the Crimes Code, 18 Pa.C.S.A. § 306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor.
This legislative judgment compels a different result than Klein, for here we are not dealing with ordinary able bodied men. Rather, we are confronted with persons [under the age of 18] who are, at least in the eyes of the law, incompetent to handle the affects of alcohol.
* * * * * *
Section 6308 of the Crimes Code represents an obvious legislative decision to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age. Thus, we find that defendants were negligent per se in serving alcohol to the point of intoxication to a person less than twenty-one years of age, and that they can be held liable for injuries proximately resulting from the minor’s intoxication.
******
Under our analysis, an actor’s negligence exists in furnishing intoxicants to a class of persons legislatively determined to be incompetent to handle its effects. It is the person’s service which forms the basis of the cause of action, not whether or not a putative plaintiff is entitled to recover. Resolution of this latter issue requires a fuller record than the one which we have on demurrer.

504 Pa. at 163 & n. 3, 470 A.2d at 517-518 & n. 3.

In light of Congini’s holding that an adult who serves/furnishes liquor to a minor “can be held liable for injuries proximately resulting from the minor’s intoxication,” id., the DiFelices’ complaint joining the additional defendants on the grounds that they (Tarnoski and Howe) “furnished” Ms. Schwenk alcoholic beverages knowing she was underage, would be driving and would not be able to operate said motor vehicle in a safe manner was sufficient to state a cause of action for which relief could be granted. Further, the brief in support of DiFelices’ joinder argument repeats the claim that the “Additional Defendants were more than mere social hosts furnishing liquor, they were knowledgable [sic] persons providing alcohol to a minor in violation of the laws and statutes of Pennsylvania.” (Emphasis added) See also DiFelices’ Answer to plaintiff’s complaint where they, in New Matter, assert that Ms. Schwenk “[o]perated her vehicle having been furnished intoxicating beverages by Michael Tarnoski and David Howe[.]” (Emphasis added) No less appears in DiFelices’ Answer to plaintiff’s complaint wherein they deny, at Point 32, that either they or their agents “sold, furnished, or gave liquor ... to Christine L. Schwenk or that they knew or had reason to know that she was under the legal drinking age.”

Therefore, given the well-pleaded facts in DiFelices’ complaint attempting to join Tarnoski and Howe as additional defendants, it is reasonable to infer that it was the additional defendants who furnished liquor to the minor-Ms. Schwenk; that she, thereafter, was involved in an automobile accident which resulted in Ms. Douglas’ death. To the extent that the additional defendants dispute this point in their preliminary objections by arguing, “even assuming that [the] averments in [DiFelices’] Complaint to be true[,]” that they were patrons in Nick’s Cafe and not responsible for the ultimate dispensing of the alcohol, (see Brief of Argument of Additional Defendants at 5-6), the DiFelices denied having served or furnished any liquor to Ms. Schwenk and cast the light of suspicion upon the additional defendants. (See DiFelices’Complaint at Point 4)

Thus, “an issue of fact is raised” as to who “furnished” Ms. Schwenk with alcohol. We indicate no conclusions as to what the decision should be when and if all of the facts are developed. We merely rule that on the present state of the record, demurrer was incorrectly sustained. See Congini v. Portersville Valve Co., supra; Clevenstein v. Rizzuto, supra.

Accordingly, finding the existence of a genuine issue of fact from the pleadings presented to this Court, we reverse the Order entered below.

Jurisdiction is relinquished.

      . It must be noted that at the time the trial court entered its ruling it did not have the benefit of our Supreme Court’s decision in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983).

       In Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) we held that a violation of the Liquor Code could not form the basis for a cause of action against a non-licensee. However, the Crimes Code is applicable to all the citizens of this Commonwealth. Thus, in finding that a cause of action exists under the facts of this case, we are not departing from our holding in Manning. (Footnotes omitted)

      . Parenthetically, we observe it is still yet to be resolved whether the alcohol consumed by Ms. Schwenk, as far as the parties at bar are concerned, was provided by the tavern owners-DiFelices directly to the minor, was purchased by the additional defendants for the minor while in DiFelices’ establishment or was furnished by the additional defendants at a setting other than Nick’s Cafe.
      At this time we voice no view as to the manner in which the factual scenarios hypothesized supra would affect the liability of either the DiFelices or the additional defendants.
      Lastly, we wish to point out that the original defendants-DiFelices have a right to join additional defendants in an attempt to eliminate or defray their liability/damages. See Pa.R.Civ.P. 2252.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    479 A.2d 612
    ESTATE OF Bernard D. STALNAKER, Deceased. Appeal of Marian Lee MORGAN. ESTATE OF Bernard D. STALNAKER, Deceased. Appeal of D’Arcy D. AMBURN, Executrix and Beneficiary.
    Superior Court of Pennsylvania.
    Argued June 15, 1983.
    Filed Aug. 3, 1984.

      Frank A. Bedford, III, Wynnewood, for appellant (at 670) and for participating party (at 857).
    Thomas M. Thistle, Philadelphia, for appellant (at 857) and for participating party (at 670).
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

These are cross appeals from a decree of the Orphans’ Court of Philadelphia regarding the estate of Bernard D. Stalnaker, deceased (hereafter referred to as testator). Mr. Stalnaker died on February 7, 1980 leaving a will dated December 3, 1973 and a codicil thereto dated November 25, 1977. In the will, the testator left his entire estate to his daughter D’Arcy D. Amburn and also named her executrix. In addition to the will, the testator executed a handwritten codicil which reads:

I, Bernard D. Stalnaker, 238 South 21st Street, Phila., Pa., herewith request that the sum of thirty thousand dollars ($30,000.00) be re-apportioned from my estate, established in my latest will, and left to Marian Lee Morgan Perronne, daughter of Mrs. Wayne Enyeart of Lantanta, Fla.
The above amount is to be given to Marian Lee Morgan Perrone without any equivocation and uncontestable by either of my two daughters or any other person or persons.
This codicil is to become effective this day, the date of this writing which is November 25, 1977 (November the twenty-fifth, nineteen hundred and seventy-seven).
The amount of $30,000.00 is to be paid from insurance monies from Aetna Life & Casualty Co. of Hartford, Conn., local agent, H. Griffith Robbins of Philadelphia, Pa.

Under the codicil, Marian Lee Morgan Pirrone (hereafter referred to as niece) appeared to be entitled to $30,000.00 from the estate, representing insurance proceeds. At the time of his demise, the testator owned and was the named insured under two policies issued by Aetna. One life insurance policy was in effect naming Amburn and her sister Lora Jo Dickhart as beneficiaries. Another policy was a disability policy, from which appellant was receiving benefits at the time of his death. Aetna paid the proceeds of the life insurance, $100,526.00, to Amburn and Dickhart and paid testator’s estate, $183.33, the remaining cash value of the disability policy.

The will and codicil were admitted to probate. After procedural jousting, the niece filed objections to the Am-burn’s first and final account and the matter was called to audit. The Orphans’ Court held that the daughter had to elect to either accept the insurance proceeds or to take under the will. The chancellor noted that if she elected to retain the insurance proceeds, only $2,281.00 would remain in the estate after admitted and proven claims had been satisfied. The court reserved ruling upon the niece’s claim, that the estate should not pay attorney’s fees incurred in presenting the daughter’s position, until after the election was made.

Both parties filed exceptions. After argument before the court en banc, the chancellor’s decree was confirmed and Amburn was directed to make her election within thirty days. Resolution of the challenge to the attorney’s fees listed in the account was reserved until after the election. Thereafter, the parties filed cross appeals to this court. On appeal, the niece continues to argue that she is entitled to $30,000 of the insurance proceeds, while Amburn insists such proceeds did not pass through the will and therefore the bequest to the niece was adeemed. Amburn insists that the court erred in requiring her to make an election.

Life insurance proceeds, payable to a named beneficiary on a policy owned by a decedent and insuring that decedent’s life, pass outside of the decedent’s estate. See Henderson Estate, 395 Pa. 215, 149 A.2d 892 (1959). Therefore, here the niece does not appear to be entitled to such proceeds. However, where a decedent disposes of an asset, during his or her lifetime but then treats it in his or her will as if it was still part of the estate, and the donee of the life time gift is also a beneficiary under other provisions of the will, such donee may be required to elect between keeping the inter vivos transfer or taking under the will. Vassilakis v. Vassilakis, 371 Pa. 268, 8 A.2d 789 (1952); Stoke’s Estate, 61 Pa. 136 (1869); Andreas Estate, 5 Pa. D & C2d 773 (1956).

In Sharar’s Estate, 136 Pa.Superior Ct. 478, 7 A.2d 506 (1939); and Arney Estate, 62 Pa. D & C2d 39 (1973), the precise issue as raised here by the niece, was addressed. In both cases the decedent had named certain persons as beneficiaries of life insurance policies as well as legatees in his or her will. The wills however provided for a different disposition of the insurance proceeds from that designated pursuant to the insurance contract. The insurers paid the beneficiaries named pursuant to the policy. In both Sha-rar’s and Arney, the devisees who had received the proceeds of the insurance policies were directed to choose between retaining such proceeds or taking their bequest under the will. If they decide to retain the insurance proceeds then they could not benefit under the will until after the remaining testamentary scheme had been satisfied. Therefore, in this case the Orphans’ Court correctly directed the daughter to make an election.

Amburn, the daughter, attempts to avoid the holding of Sharar’s Estate by arguing that the bequest to the niece was a specific bequest which failed by ademption as the specific asset devised was no longer part of the estate. A specific bequest or devise is a gift of a particular article or other property, real or personal, which is distinguishable from all other things of the same kind. A specific bequest can only be satisfied by the delivery of the particular item. In Re Estate of Fox, 494 Pa. 584, 431 A.2d 1008 (1981); Soles Estate, 451 Pa. 568, 304 A.2d 97 (1973). Where at the time of the testator’s or testatrix’s death he or she no longer owns an interest in the thing specifically devised, the gift is extinguished or adeemed. In Re Estate of Nakoneczny, 456 Pa. 320, 319 A.2d 893 (1974).

If a monetary legacy is given with reference to a particular fund, but only as an indication of a convenient source for satisfying such legacy, it will be considered demonstrative and not specific. Crawford’s Estate, 293 Pa. 570, 143 A. 214 (1928). If the legacy is to be paid from a larger source, the bequest will be considered demonstrative. Welch’s Appeal, 28 Pa. 363 (1857). In the case at hand we find that the bequest to the niece was demonstrative and not specific. In the first paragraph of the codicil the testator directs that $30,000 “be reapportioned from my estate” and only in the fourth paragraph is the source of the $30,000, “the insurance proceeds”, designated. We interpret the fourth paragraph as being guidance, and not a directive, to the executrix.

In Soles Estate, supra, the Supreme Court after determining that it could not confidently determine the testator’s scheme from the will itself, placed itself “in the armchair” of the decedent and looked to the circumstances existing at the time the will was executed. Doing likewise here, we must observe that the codicil does not indicate a particular policy. The chancellor found that at the time of the execution of the codicil, testator owned three policies of insurance, two life insurance policies and one disability policy. One of the life insurance policies had been cashed in prior to testator’s death and he had claimed benefits under the disability policy reducing its value at his death. We must attempt to give effect to the testator’s wishes, as expressed by him at the time he signed the codicil, however we are unable, with any degree of confidence, to determine which, if any, particular policy he was referring to.

Furthermore, at the minimum, the codicil is far from clear. “[I]f there is doubt, the courts are inclined to find a demonstrative rather than a specific legacy, devise or bequeath.” Estate of Nakoneczny, supra, 456 Pa. at 324, 319 A.2d at 896 (citations omitted), see also Soles Estate, supra. Here we must presume the bequest to the niece was not specific. We conclude therefore that there is no reason to exempt Amburn from the operation of the doctrine of equitable election.

Finally, we are also in agreement with the Orphans’ Court decision to withhold the decision on the challenge to the payment of counsel fees. Such a decision is unnecessary and premature until after the daughter makes her election.

Order affirmed. Appellant Amburn is directed to make her election within thirty days of this opinion. We do not retain jurisdiction.

      . Spelled "Peronne" in the codicil.

      . A second life insurance policy had been cashed in prior to appellant’s death.

      . The codicil was only admitted to probate after the niece petitioned to have it admitted.

      . The issue was also raised in Vassilakis, supra; however, that appeal was resolved on procedural grounds.


author: HESTER, Judge:

text:
    479 A.2d 616
    COMMONWEALTH of Pennsylvania v. Russell W. JOKI, Appellant.
    Superior Court of Pennsylvania.
    Argued May 15, 1984.
    Filed Aug. 3, 1984.

      Robert N. Clarke, Washington, for appellant.
    Mark S. Riethmuller, Washington, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an Order entered by the Court of Common Pleas of Washington County on June 15, 1982. Appellant, Russell W. Joki, was convicted of violating a zoning ordinance of Union Township, which required that a conditional use permit be obtained for purposes of coal extraction. A fine of $300.00 dollars was imposed. Following the denial of post-verdict motions, appellant perfected this appeal.

Appellant contends the complaints were improperly instituted in the lower court. The zoning officer filed five criminal complaints pursuant to Pa.R.Crim.P. 51 A(4), which provides:

a complaint shall be filed with an issuing authority when the affiant is not a police officer as described in Section C of this Rule. (Emphasis added).

Appellant maintains a zoning officer is a police officer and could not, therefore, institute an action by the filing of a private criminal complaint. In support of his position, appellant relies on Pa.R.Crim.P. 51 A(3)b, which provides:

a citation shall be filed with an issuing authority by a police officer when the offense charged is any violation of an ordinance or a summary offense (emphasis added).

Appellant further contends that a zoning officer lacks the authority to initiate a criminal process and therefore the charges brought against him should be dismissed with prejudice.

The issue before us is whether a zoning officer is a police officer as defined by Pa.R.Crim.P. 51. If so, the filing of the private complaint was error.

The lower court ruled that a zoning officer is not a police officer. It held that there were limitations on the powers of zoning officers. Section 10614 of the Pennsylvania Municipalities Planning Code, 53 Pa.C.S. § 10101 et seq., provides that a zoning officer “shall administer the zoning ordinance in accordance with its literal terms____” In light of § 10614, the trial court determined that although a zoning officer is given power to administer zoning regulations, he had no authority to enforce them. Without enforcement powers, a zoning officer cannot assume police officer status. Therefore, the court concluded that it was proper for the zoning officer to institute the proceedings by private complaint. Although we disagree with this reasoning, we nevertheless affirm the order.

The lower court overlooked the provisions of 53 Pa.C.S. § 10617, which we believe provides enforcement powers for zoning officers. Under § 10617, entitled “Enforcement remedies”, a governing body may delegate its powers to a zoning officer “to prevent, restrain, ... any act, conduct, business or use constituting a violation.” Thus, the governing body can enforce regulations through its zoning officers. The Zoning Ordinance of Union Township provides, inter alia, that “the Zoning Officer, who shall be appointed by the Board of Supervisors (the governing body) shall ... administer and enforce the provisions of this Ordinance.” (emphasis added).

Accordingly, the zoning officer does possess authority to enforce the zoning regulations in Union Township. Whether this makes such officer a police officer under Pa.R.Crim.P. 51 remains for our disposition.

Rule 51 C provides “a police officer shall be limited to a person who by law has been given the powers of a public officer when acting in the scope of his employment.” The Comment to Rule 51 C also defines police officers as:

county detectives and ... various local enforcement agents (such as building inspectors and other municipal code enforcement officials ...) if such persons are authorized to institute summary criminal proceedings as a means of enforcement and if vested by law with police powers while acting in the scope of their employment. (Emphasis added).

As determined above, zoning officers can enforce regulations, and § 504 of the Zoning Ordinance of Union Township makes violators amenable to summary criminal proceedings.

Appellee contends, notwithstanding such authority to enforce and institute summary criminal proceedings, that such officers are not “vested by law with police power when acting within the scope of their employment;” therefore, it was proper to institute the action via private complaint. To substantiate this proposition, appellee points to the fact that zoning officers are not given powers of arrest and are not charged with keeping the public peace. Hence, they are not police officers. Appellee relies upon Miller v. Hastings Borough, 25 Pa.Super. 569 (1904), which enunciates these powers and duties of a police officer.

It must be noted that in Miller, this Court held the borough was not liable for omission or malfeasance of police officers because they are not agents or servants of the borough. Any reference to the police officers’ duties was dictum. Furthermore, the Miller court would undoubtedly accede to our Legislature’s later definition of a police officer in Rule 51 C.

The Comment to Rule 51 C, supra, indicates that certain municipal officers, included in the definition of police officers, would not have arrest powers. It is stated that “this Rule is not intended to give powers of arrest to any person who does not otherwise by law possess such powers.” We interpret Rule 51 C and the comment thereto to provide that such officers are police officers, while they act within the scope of their authority. This definition was not intended to expand the duties of the zoning officer to include keeping the public peace; nevertheless, it does not preclude equating zoning officers with police officers for purposes of Rule 51, supra. The dispositive criterion is whether a zoning officer acts within the scope of his authority. The zoning officer did so here.

We therefore hold that a zoning officer has authority to institute summary criminal proceedings and is vested with police powers while acting within the scope of employment for purposes of Pa.R.Crim.P. 51. Consequently, it was error for the zoning officer to file a complaint instead of a citation. We are of the opinion, however, that this procedural error does not require reversal.

A common tenet of our legal system is that form should not be exalted over substance. This case exemplifies that concept. Appellant was given his day in court and adjudged guilty following a complete review of the merits. The procedural error was harmless; appellant incurred no prejudice which would justify our disregard of the results of an impartial trial.

Moreover, the error here benefited appellant. Had the zoning officer issued a citation, a summons would necessarily be issued and the case would automatically proceed to a hearing. By issuing a private complaint, however, it was within the issuing authority’s discretion to issue process. If no probable cause were found, a summons would not have been issued and no proceedings instituted. In sum, appellant was provided with an additional procedural opportunity to meet prosecution.

We are aware that this Court strictly construed Rule 51 in Commonwealth v. Shelton, 260 Pa.Super. 82, 393 A.2d 1022 (1978). However, that case is distinguishable. There the issuing authority mailed a copy of the citation to the defendant in lieu of a summons. Since a citation cannot provide the same information as a summons and therefore cannot effectively apprise the defendant of the alleged offense, the defendant was significantly prejudiced. That was not the case here.

Procedural rules “are not to be exalted to the status of substantive objects ... but means whereby justice, as expressed in legal principles, is administered.” McKay v. Beatty, 348 Pa. 286, 287, 35 A.2d 264 (1944). See also, Reading Co. v. Willow Development Co., 407 Pa. 469, 471, 181 A.2d 288 (1962); Templeton Appeal, 399 Pa. 10, 16, 159 A.2d 725 (1960); Coppage v. Smith, 381 Pa. 400, 405, 113 A.2d 247 (1955). Furthermore, the Court has recently adopted Pa.R.Crim.P. 70 dealing specifically with defects in form, content or procedure in summary cases. Rule 70 provides:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of the complaint, citation, summons, or warrant, or in a defect of the procedures of this chapter, unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant, (emphasis added).

The effective date of this rule is July 1, 1982, which is subsequent to this case, but it is a clear statement of the Supreme Court’s view of the validity of technical objections to form of process.

This Court has correctly advanced the inténtion of the Supreme Court in the context of procedural error:

We have considered this question previously and our position is clear: ‘... lower court will not be reversed either for waiving or refusing to waive non-compliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party____’

Stokes v. Thiemann, 296 Pa.Super. 112, 116, 442 A.2d 322, 323 (1982) quoting Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971).

We hold that appellant was neither prejudiced nor injured. Accordingly, we affirm.

Order affirmed.

      . A case involving, as this one does, a local government criminal matter arising under a zoning code, properly comes within the jurisdiction of the Commonwealth Court. See 42 Pa.C.S.A. § 762(a)(4)(i). However, because appellee failed to object to this court’s lack of jurisdiction, our jurisdiction has perfected, and it is within our discretion to decide the case on its merits. Township of Eldred v. County of Monroe, 330 Pa.Super. 74, 478 A.2d 1357 (1984); Pa.R.A.P. 741(a). In order to best serve the interests of judicial economy, we will resolve the present matter in this forum.


text:
    479 A.2d 619
    Joseph CASEL and Betty Casel, Individual Citizens, Appellants, v. Clinton SCOTT, Conewango Township Supervisor, Robert Follett, Conewango Township Supervisor, Russell H. Jackson, Conewango Township Supervisor, William A. Bevevino, Esq., Conewango Township Solicitor, Richard E. Hegerty, Conewango Township Police Chief, Richard A. Hernan, District Attorney of Warren County, and the Township of Conewango.
    Superior Court of Pennsylvania.
    Argued May 17, 1984.
    Filed Aug. 3, 1984.

      Marsha A. Meadows, Warren, for appellants.
    Charles J. Duke, Bradford, for appellees.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the Order of June 2, 1982, entered by the Court of Common Pleas of Warren County, granting counsel fees, costs and expenses to selective appellees.

Appellants instituted an action in Mandamus against the Conewango Township Supervisors, the Chief of Police, the Township Solicitor, ánd the District Attorney. The Writ was based on violations of a township ordinance which prohibited the drilling and operation of oil and gas wells within 200 feet of a residence or a place of public assembly without first obtaining a permit. A well had been drilled within 100 feet of appellants’ building and was in continuous operation. Appellants commenced the Writ of Mandamus to compel the officials to take action to prevent continued violation of the ordinance.

The court dismissed appellants’ action as to the three Supervisors, the Solicitor, and the Chief of Police, holding that the ordinance did not create a specific legal right in appellants nor a corresponding duty in the aforementioned officials to cause complete cessation of an oil and/or gas well operation. The District Attorney was held not to be under a duty pursuant to the ordinance and was entitled to use reasonable discretion in taking any action. On March 16, 1982, the court dismissed the Writ of Mandamus. No appeal was perfected from that decision.

Appellees herein then filed a petition for counsel fees, costs and expenses pursuant to 42 Pa.C.S.A. § 2503(7), (9), averring that appellants acted arbitrarily and/or vexatiously in commencing the action. Appellants filed a similar action against one of the appellees, the District Attorney, for issuing a subpoena in bad faith against their counsel.

The court denied relief to appellants and supervisor-appel-lees. However, the court did award counsel fees, costs and expenses selectively to the appellee District Attorney, appel-lee Solicitor, and appellee Chief of Police, finding appellants’ action in Mandamus to be arbitrary or vexatious. It is from that order that appellants appeal.

Appellants first assignment of error is that the lower court abused its discretion in awarding counsel fees selectively to appellees. We agree.

For such an award of counsel fees to lie, the course pursued by such party must be said to be “arbitrary ... obdurate or vexatious.” 42 Pa.C.S.A. § 2503(7), (9). The lower court found that appellants acted out of “frustration” at being denied redress, and it thereafter equated frustration with the above statutory definition.

This Court has recently accepted the definition of arbitrary as being “based on random ... selection other than reason,” and of vexatious as being “instituted without sufficient grounds and serving only to cause annoyance.” In Re Estate of Roos, 305 Pa.Super. 86, 94-5 n. 2, 451 A.2d 255, 259 n. 2 (1982), quoting Santoro v. City of Philadelphia, 59 Pa.Cmwlth. 114, 122, 429 A.2d 113, 117 (1981), quoting The Webster New Encyclopedia International Dictionary, 1975.

A well was operating within 100 feet of appellants’ building in violation of the provisions of the ordinance. Due to the fact that the action in Mandamus was instituted as a result of non-enforcement of the ordinance in an effort to terminate a violation, we conclude the action cannot be described as arbitrary or vexatious. The lower court correctly found that appellants acted out of frustration; however, frustration based on inaction by public officials is very often the impetus for an action in Mandamus. The suit was not arbitrary or vexatious based on our definition of those terms.

We reverse and vacate the Order of June 2, 1982, imposing counsel fees, costs and expenses, upon appellants.

Next, appellants sought an award of counsel fees as punitive damages against appellee District Attorney for his alleged bad faith in subpoenaing appellants’ counsel. Appellants’ counsel pointed to Pa.R.Civ.P. 4011(a) which states “no discovery or inspection shall be permitted which... is sought in bad faith.” We do not agree with appellants’ position.

This Court has followed the criterion for determining bad faith as established by our Supreme Court in McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936). Bad faith has been defined as “fraud, dishonesty, or corruption.” In Re Estate of Roos, supra.

We agree with the trial court that appellee had a legal right to institute depositions since he had been sued in . his capacity as District Attorney. Appellants’ counsel had not previously requested action by the District Attorney or notified his office of the alleged violations of the ordinance. Appellee, as the District Attorney, had a legal right to the information supplied by the depositions and his actions were not instituted in bad faith for the purpose of intimidation. Appellants’ claim was properly dismissed.

Finally, appellants seek review of the dismissal of the Writ of Mandamus. No appeal was taken from the denial of the Writ; appellants now pursue this appeal nunc pro tunc. We conclude this issue is not properly before us.

We have held that where there “is no evidence suggesting that appellee delayed filing ... because of any breakdown in the court’s operation... the lower court should not have allowed the appeal to be filed nunc pro tunc.” Drozdowski v. Keystone Truck Leasing, 277 Pa.Super. 55, 59, 419 A.2d 657, 659 (1980).

Appellants’ contention that there was “inexplicable behavior on the part of the agents of the Commonwealth demanding an extraordinary remedy,” is without merit considering they failed to file a timely appeal. This was not due to any breakdown in the court’s operation. Based on the limited circumstances in which these extraordinary appeals are accepted, we can assuredly conclude that such was not the case here.

We affirm the Order of June 2, 1982, except to the extent that it awarded counsel fees, costs and expenses to selective appellees.

Affirmed in part; reversed and vacated in part.


author: BECK, Judge:

text:
    479 A.2d 621
    COMMONWEALTH of Pennsylvania v. Donald E. REAGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 19, 1984.
    Filed Aug. 3, 1984.

      Charles B. Coleman, Assistant Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   BECK, Judge:

The question is whether an appeal from an interlocutory order adjudicating appellant competent to stand trial for homicide under the provisions of the Mental Health Procedures Act, 50 P.S. § 7101 et seq. (hereinafter “Act”) is appealable prior to trial. We hold that such an interlocutory order is not appealable.

Although neither party has raised the issue of the appeal-ability of this order, we address the issue sua sponte. Commonwealth v. Hunter, 294 Pa.Super. 52, 54, 439 A.2d 745, 746 (1982).

Section 7403 of the Act provides that when a defendant previously found incompetent to stand trial has regained competence, “the [criminal] proceedings shall be resumed.”

Generally, a criminal defendant may appeal only from a judgment of sentence. However, an appeal before final judgment may be permitted in “exceptional circumstances”, such as

“... (1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great importance is involved.” Id., 294 Pa.Superior Ct. at 56, 439 A.2d at 747, quoting Commonwealth v. Bolden, 472 Pa. 602, 610-611, 373 A.2d 90, 93-4 (1977).

For example, in Bolden the Pennsylvania Supreme Court permitted pre-trial appeal of the refusal to dismiss an indictment based on double jeopardy grounds. The Court concluded that because the double jeopardy clause was designed to protect an individual from having to stand trial, not merely to bar a second conviction, appellate review after judgment would not adequately protect an accused’s rights.

In contrast, determinations of mental competence to proceed to trial have not been found to present “exceptional circumstances” requiring immediate appeal. Thus, in Commonwealth v. Novak, 384 Pa. 237, 120 A.2d 543 (1956), a defendant awaiting trial petitioned for committment to a hospital on the ground of mental illness under the Mental Health Act of 1951, the predecesor act of the one under consideration in this appeal. Novak’s appeal from the trial court’s denial of his petition and its order that he was competent to stand trial was quashed.

In so deciding, the Novak court acknowledged that an otherwise interlocutory appeal may be heard in “exceptional circumstances.” No such circumstances were present, the Court decided, and appellant Novak was free to challenge the determination of competence following trial. See also Commonwealth v. Bruno, 424 Pa. 96, 225 A.2d 241 (1967) (no appeal from trial court’s order for appointment of a sanity commission to determine defendant’s competence, since “exceptional circumstances” did not exist).

In keeping with this traditional view of the absence of exceptional circumstances, our appellate courts have routinely reviewed on direct appeal the lower court’s pre-trial determination of competency under the present Act. See, e.g., Commonwealth v. Smith, 322 Pa.Super. 504, 469 A.2d 1104 (1983); Commonwealth v. Pifer, 384 Pa.Super. 170, 425 A.2d 757 (1981); Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Knight, 276 Pa.Super. 348, 419 A.2d 492 (1980); Commonwealth v. Harper, 479 Pa. 42, 387 A.2d 824 (1978).

Since the order of the lower court is interlocutory, we quash this appeal without prejudice to the rights of the appellant to raise the issue of his competency to stand trial in a timely filed direct appeal.

      . The appellant was charged with homicide, robbery and theft in 1976, and adjudicated incompetent to stand trial shortly thereafter. After treatment at Farview and Norristown State Hospitals, he was adjudicated competent following hearings in 1982. The instant order was issued pursuant to that determination.

      . Twenty months have passed since the court determined that appellant was competent to stand trial. Our decision here is, of course, no bar to a further inquiry into appellant’s competency to stand trial at this time. See Commonwealth v. Harper, 479 Pa. 42, 387 A.2d 824 (1978).