text:
    484 A.2d 806
    Jan KOZIATEK, Appellant, v. William E. MARQUETT.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Nov. 23, 1984.

      Allen L. Feingold, Philadelphia, for appellant.
    George H. Knoell, III, Norristown, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WICKERSHAM, Judge:

Jan Koziatek appeals from the order of the Court of Common Pleas of Montgomery County denying his petition to proceed in forma pauperis.

In this case, which arose out of an automobile, accident, the jury returned a verdict finding that defendant-appellee was sixty-five percent (65%) negligent and plaintiff-appellant was thirty-five percent (35%) negligent, assessing damages sustained by plaintiff-appellant at $10,500.00. The lower court assessed delay damages, molded the verdict, and directed that a verdict be entered in favor of plaintiff and against defendant in the amount of $7,232.66.

Thereafter, the following occurred:

1. plaintiff filed post verdict motions;
2. plaintiff filed a petition to proceed in forma pauperis;
3. on September 12, 1980, Mr. Bonner [counsel for defendant] advised Judge Cirillo that he had never been served a copy of the petition to proceed in forma pauper-is, and requested that same be stricken;
4. on September 15, 1980, Judge Cirillo wrote to Mr. Bonner (counsel for defendant) and Mr. Feingold (counsel for plaintiff), advising that he was setting a conference for Tuesday, September 30, 1980, in his chambers, in order that the matter might be resolved;
5. on September 30, 1980, Judge Cirillo entered an Order, granting the petition to proceed in forma pauperis;
6. on October 2, 1980, Mr. Feingold wrote to Mr. McKeon, the court reporter, requesting that he transcribe the notes of testimony;
7. on October 3, 1980, Mr. McKeon raised the question of payment for said notes with Judge Cirillo and [Judge Stefan, the trial judge], as a result of which, Judge Cirillo, on October 3, 1980, revoked his Order of September 30, 1980. Copies of that Order were mailed to Mr. Feingold and Mr. Bonner;
8. on September 21, 1981, Mr. Bonner wrote to the Court Administrator, requesting that the case be listed for argument;
9. on January 15, 1982, Mr. Feingold wrote to [Judge Stefan], asserting that: “... certain strange happenings have taken place and I am not sure what the present status is of that Petition.”
10. on January 19, 1982, [Judge Stefan] wrote to Mr. Feingold, pointing out to him that since October 3, 1980, he had been aware that there was no outstanding Order of Judge Cirillo’s, authorizing the plaintiff to proceed in forma pauperis;
11. on January 22, 1982, Mr. Feingold wrote to [Judge Stefan], requesting that the outstanding petition to proceed in forma pauperis be heard prior to any argument on the plaintiff’s post verdict motion for new trial;
12. Mr. Feingold’s request was granted, and argument was scheduled on the outstanding petition to proceed in forma pauperis for November 1, 1982;
13. on November 17, 1982, after argument before a court en banc, plaintiff’s petition to proceed in forma pauperis was denied;
14. it is from the Order of November 17, 1982, that plaintiff appeals.

Lower ct. op. at 1-3.

Appellant states the first issue on appeal as follows:

Whether the Court below erred in denying and dismissing Appellant’s Petition to Proceed in Forma Pauperis when it wrongfully reasoned that a jury verdict for the Appellant would bar the petition.

Brief for Appellant at 1.

In giving its reason for denying plaintiff-appellant’s petition, the court en banc stated: “Having won the case, [appellant] now asks that the notes of testimony be transcribed, at public expense. The Court saw no basis for granting such request.” Lower ct. op. at 4. Appellant argues that this statement indicates that the lower Court took the position that a jury verdict in favor of the Plaintiff-Appellant acted as an absolute bar to his later petition to proceed in forma pauperis. We are uncertain that the verdict in favor of appellant was the sole factor which led to the court’s decision to deny appellant’s petition. If the verdict was the sole reason for the denial, however, we agree with appellant that such a holding was improper. In Mitek v. Ste-Mel Signs, Inc., 222 Pa.Super. 395, 294 A.2d 813 (1972), this court considered what effect an inadequate arbitration award in favor of the plaintiff would have on plaintiff’s right to petition to proceed in forma pauperis. We held that the “plaintiff would have the right under the common law to appeal in forma pauperis without restriction as to whether or not the appeal was from an award against him or from an inadequate award in his favor.” Id., 222 Pa.Superior Ct. at 398, 294 A.2d at 814. Also see, Selby v. Brown, 292 Pa.Super. 463, 437 A.2d 767 (1981). Thus, despite the fact that appellant received a favorable verdict at trial, he must nevertheless be given an opportunity to prove that he is in poverty. If he proves that he is indeed in poverty, then he enjoys a common law right to proceed in forma pauperis.

Appellant states the remaining two issues as follows:

Whether the Court below erred in denying and dismissing Plaintiff-Appellant’s Petition to Proceed In Forma Pauperis following a prima facie showing of impoverishment.
Whether the Court below abused its discretion when [it] summarily revoked its Order granting Plaintiff-Appellant’s Petition to proceed in forma pauperis.

Brief for Appellant at 1.

Since the court could not properly dismiss appellant’s petition solely on the basis of a verdict in his favor, the court was obliged to examine appellant’s petition to determine whether he has proved himself to be in poverty. Selby v. Brown, supra; Davila v. Soto, 250 Pa. Super. 42, 378 A.2d 443 (1977). Instantly, appellant filed a petition to proceed in forma pauperis and a verified statement which indicated that his sole source of support was a monthly disability payment. On its face, the petition would seem to have presented a prima facie case of impoverishment. See Thompson v. Garden Court, Inc., 277 Pa.Super. 460, 419 A.2d 1238 (1980). Appellee, however, filed an answer denying the averments of appellant’s petition. Thus, it was for the lower court to determine the truthfulness of appellant’s allegations. Id. (“The veracity of appellant’s allegations is a matter for the lower court to determine in the first instance”). If, however, the court disbelieved appellant’s averments, it was incumbent upon it to hold a hearing on the petition. “If for some reason the lower court suspects the truth of the allegations in the petition, it may set the matter down for a hearing, for to deny the petition summarily, without a hearing, would be improper.” Id., 277 Pa.Superior Ct. at 464, 419 A.2d at 1240. Accord Oppen v. Callahan, 282 Pa.Super. 282, 422 A.2d 1117 (1980); Davila v. Soto, supra; Howell v. Howell, 245 Pa.Super. 483, 369 A.2d 731 (1977); Gerlitzki v. Feldser, 226 Pa.Super. 142, 307 A.2d 307 (1973).

We believe that the lower court abused its discretion when it summarily dismissed appellant’s petition without first holding an evidentiary hearing. Therefore, we will remand to the lower court so that such a hearing may be held.

Order reversed and case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . We note that appellee had filed a motion to quash the appeal. That motion was denied by order of this court dated February 10, 1983. An order denying a petition to proceed in forma pauperis in a civil action is final and appealable because the order effectively puts the petitioner out of court. Thompson v. Garden Court, Inc., 277 Pa. Super. 460, 463 n.3, 419 A.2d 1238, 1240 n.3 (1980).

      . Even if the lower court improperly denied appellant’s petition solely on the basis of the verdict in favor of appellant, we may affirm the lower court's order if there is an otherwise valid reason for the denial. Commonwealth v. Fried, 327 Pa.Super. 234, 249, 475 A.2d 773, 780 (1984) (an appellate court may affirm the action of a lower court on a different rationale than that advanced by the lower court).

      . We recognize that oral argument was held before the court en banc. While argument of counsel may aid a court in many respects, it cannot fully replace an evidentiary hearing when the court is attempting to determine the truthfulness of allegations such as those contained in the instant petition.
      We also note that appellant was deposed by his counsel. It is unclear, however, whether counsel for appellee had the opportunity to cross-examine appellant. Therefore, we will not rely upon that deposition to determine the truthfulness of appellant's allegations, especially since that determination should first be made by the lower court. Thompson v. Garden Court, Inc., supra.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    484 A.2d 1390
    Gerald J. REILLY, a minor, by William J. REILLY and Elizabeth C. Reilly, his Parents and Natural Guardians, and William J. Reilly and Elizabeth C. Reilly, in their own right v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Vance Zieganfuss and William M. Baker and Bernice S. Baker. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Vance Zieganfuss.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1983.
    Filed Nov. 23, 1984.

      David P. Bruton, Philadelphia, for appellants.
    Robert C. Daniels, Philadelphia, for appellees.
    Before SPAETH, President Judge, and BROSKY and JOHNSON, JJ.
   PER CURIAM:

This case is before us on remand from the Supreme Court. On June 8, 1984, we filed an opinion in which a majority of the panel, Judge JOHNSON dissenting, remanded for an evidentiary hearing to determine whether the trial judge should have recused himself. Reilly v. Southeastern Pennsylvania Transportation Authority, 330 Pa.Super. 420, 479 A.2d 973 (1984). We retained jurisdiction. Appel-lees filed a petition for allocatur, and on October 1, 1984, the Supreme Court granted the petition. The case was argued to the Court on October 30, 1984, and by per curiam order dated November 8, 1984, the Court “remanded [the case] to the Superior Court for consideration and disposition within twenty (20) days of the date of this Order, ... of the remaining issues not decided by that court on direct appeal.” This opinion is written to comply with that order.

Appellant, Southeastern Pennsylvania Transportation Authority, raises two issues as to which the majority of the panel had deferred decision until the case was returned to this court following remand; Judge JOHNSON, in his dissenting opinion, had reached the issues and found them without merit.

The first issue is whether the trial judge erred in refusing appellant’s request that certain specific questions be asked prospective jurors on voir dire. Appellant sought by the questions to determine whether the prospective jurors were biased against it. Instead of asking appellant’s specific questions, the trial judge tried to determine whether the prospective jurors were biased by asking more general questions. Although the trial judge might well have exercised his discretion otherwise, we do not believe that in exercising it as he did, he abused his discretion. See Starr v. Allegheny General Hospital, 305 Pa.Super. 215, 451 A.2d 499 (1982). Moreover, “[i]t is significant, if not dispos-itive, ... that [appellant] does not assert that the ruling of the trial judge resulted in any prejudice....” Bentivoglio v. Ralston, 447 Pa. 24, 31, 288 A.2d 745, 749 (1972).

The second issue concerns the charge to the jury; two errors are alleged.

First, appellant argues that it was error for the trial court to charge on appellant’s duty of care as a common carrier because when the accident occurred, this duty was not owed to appellee Gerald Reilly. Appellant’s argument would be persuasive had the facts been as appellant argues they were. However, the testimony was in conflict on the condition of the place where the bus stopped, and on what Gerald did when he alighted from the bus — whether he immediately ran in front of the bus or first took the cleared path to the sidewalk and then turned back and ran in front of the bus. Whether appellant’s duty as a common carrier had ended as to Gerald, or in other words, whether when the accident occurred Gerald had had “a reasonable opportunity to alight and pass out of danger,” Harris v. DeFelice, 379 Pa. 469, 473, 109 A.2d 174, 176 (1954), depended on how the jury resolved this conflict. Accordingly, it was not error for the trial court to instruct the jury on appellant’s duty as a common carrier.

Second, appellant argues that the trial court improperly charged the jury regarding Gerald’s duty to exercise due care. It is true that the trial court’s instruction was not as clear as it might have been. For example, the court stated:

He cannot have a duty to look to his left in anticipation of traffic coming from the wrong direction.
You have to decide,-however, whether or not he did have a duty to exercise or [sic] ordinary care to do it under those circumstances. Was he required as was indicated by counsel to swivel his head at that point, so that he could exercise due care for himself? Or in view of the amount of space traversed and the circumstances, did he perform what he was supposed to do under those conditions.
R.R. 583a-84a.

Later, however, the court stated:

The plaintiff did not have a duty to look to his left from where Baker’s car came, if he had no reason to look to his left, or to anticipate that any vehicular traffic would be proceeding in the wrong way from that direction.
. In considering whether the plaintiff had any reason to look to his left, you may consider, if you so find, that the bus driver had waved and signaled him to go across, and that that reasonably may have meant — if it happened at all — that the situation was all clear to his left. Nevertheless, all of it is for you to decide.
You may decide that the failure to look to the left for oncoming traffic, even though from the wrong direction, was a failure to exercise due care under those circumstances, and that that was negligence. All of that is part of your ball of wax.
Whether or not there is a duty to look for vehicles approaching from the wrong side of the road depends upon all of the circumstances at that time and must be considered in conjunction with the duty to look in the direction from which traffic is expected.
R.R. 584a-85a.

We believe that this clarified any confusion that may have been created by the court’s earlier statements regarding Gerald’s duty of care.

The Supreme Court having retained jurisdiction, we direct the Prothonotary of this court to forward this opinion to the Supreme Court.

      . We note that the confusion in the first part of the charge may well have been created by appellees’ proposed Point for Charge 23, which was: "A pedestrian, such as minor-plaintiff, Gerald J. Reilly, is not guilty of contributory negligence as a matter of law, by not looking to his left when he need not anticipate any movement from that direction, Armstrong, et al. v. McGraw, 115 Pa.Super. 156, 175 A. 279 (1934).” This is an incorrect statement of the law. In Armstrong it was stated: "[I]f [a pedestrian] looks in one direction, and judging the highway reasonably safe for passage starts across, but is struck by a motor vehicle proceeding along the wrong side of the street, his negligence is not to be decided as a matter of law but should be left to the jury.” Id., 115 Pa.Superior Ct. at 162, 175 A. at 281 (citations omitted). In the end, here the court did leave the issue of Gerald’s negligence to the jury.


author: WIEAND, Judge:

text:
    485 A.2d 1
    WESTERN PENNSYLVANIA SOCIALIST WORKERS 1982 CAMPAIGN, Francis Farley, Mark Zola and Linda Nordquist, Appellants v. CONNECTICUT GENERAL LIFE INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1984.
    Filed Oct. 26, 1984.
    Reargument Denied Jan. 8, 1985.
    Petition for Allowance of Appeal Granted June 18, 1985.

      Jon S. Pushinsky, Pittsburgh, for appellants.
    Eric A. Schaffer, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

Do the members of a politically oriented group have a constitutional right to use a privately owned shopping center to disseminate information and collect signatures on a nominating petition despite a general policy by the owner which precludes use of the premises for any and all political activity? The trial court held that there was no such right and refused injunctive relief. We affirm.

The material facts are not in dispute. In the spring of 1982, the “Western Pennsylvania Socialist Workers 1982 Campaign,” a political committee, undertook a massive petitioning drive to obtain 23,407 signatures necessary to place the Socialist Workers Party’s gubernatorial candidate, Mark Zola, on the November, 1982 ballot. Linda Nordquist, a registered Socialist Workers Party voter, Francis Farley, chairperson of the campaign committee, and Mark Zola, the candidate, who are appellants herein, sought to disseminate information and collect signatures at the South Hills Village shopping center.

South Hills Village is an enclosed mall owned by Connecticut General Life Insurance Company in the South Hills area of Allegheny County. Appellants chose South Hills Village because of the large number of persons who go there to shop and to take advantage of public service or entertainment programs periodically provided at the mall. The mall has seven public entrances and houses 126 retail businesses, with exterior parking facilities for approximately 5,000 vehicles. The owner of the mall has a long-standing, nondiscriminatory policy which bans all forms of politically oriented activity on its property, without regard to the nature of the activity or party affiliation of the would-be users.

Appellants sought, and were denied, permission to collect signatures and disseminate information in the mall. Aware of the owner’s policy, appellants elected not to expose themselves to arrest for ignoring it. Instead, they filed a complaint in equity on May 11, 1982 seeking an order which would enjoin the owner from enforcing its ban and allow appellants access to South Hills Village for their political activities. After a hearing before the Honorable Nicholas Papadakos, now a justice of the Pennsylvania Supreme Court, an adjudication and decree nisi were entered denying the requested relief. Exceptions were denied by a court en banc, and a final decree was entered on October 21, 1982. This appeal followed.

Before we can proceed to a determination of the merits, it is first necessary to discuss the issue of mootness, inasmuch as the relief sought in the trial court — an order enforcing the alleged right to solicit signatures for the 1982 gubernatorial campaign — can no longer be granted. We agree with appellant that although the issue is technically moot at this point in time, the case is properly subject to appellate review. As the Pennsylvania Supreme Court has recognized, “[a] case that is technically moot may be decided on its merits if it involves a question that is capable of repetition but likely to evade review if the normal rules on mootness are applied. Wiest v. Mt. Lebanon S. Dist., 457 Pa. 166, 320 A.2d 362 (1974), cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974); Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974).” Commonwealth v. Joint Bargaining Committee, 484 Pa. 175, 179, 398 A.2d 1001, 1003 (1979). See: Scherrer v. Lamb, 319 Pa.Super. 290, 466 A.2d 163 (1983); Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983). The issues involved in the instant case are such that they are likely to reoccur and equally as likely to evade review. Therefore, we address the merits of appellants’ contentions.

The free speech provision of the First Amendment of the United States Constitution, applicable to the states by way of the Fourteenth Amendment, does not prevent a privately owned and operated shopping center from enforcing nondiscriminatory and nonarbitrary bans on certain forms of activity on its premises. The right of free speech secured by the federal Bill of Rights is held against the government and cannot be unreasonably infringed. In the absence of “state action,” however, the acts of purely private actors, such as privately owned shopping centers, do not violate the federal constitution; such enterprises are free to enforce policies banning certain forms of speech activities under federal doctrine. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

Recognizing these dispositive Supreme Court decisions, appellants have not argued that they have a federally protected right to exercise free speech at South Hills Village. Instead, they argue that the owner’s policy violates rights conferred by the Declaration of Rights contained in the Pennsylvania Constitution, Pa. Const. Art. 1. Specifically, appellants contend that appellee’s policy violates their right to alter, reform or abolish their government under Article 1, section 2; their rights of petition and assembly under Article 1, section 20; and their right to speak freely under Article 1, section 7. Their principal argument is premised upon the free speech provisions of section 7. Our discussion will also focus upon that provision because the parties have placed very little emphasis on the separate roles of sections 2 and 20, and because our interpretation of section 7 is controlling also of any interpretation of sections 2 and 20.

A state court, in interpreting the provisions of its state constitution, is free to read such provisions more expansively than correlative federal provisions and as conferring greater rights than those established under federal doctrine. Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152, 162 (1982). Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 466-467 (1983); Commonwealth v. Beauford, 327 Pa.Super. 199, 475 A.2d 783, 788 (1984); Commonwealth v. Corley, 316 Pa.Super. 327, 335 & n. 12, 462 A.2d 1374, 1378 & n. 12 (1983). See: Kroger Co. v. O’Hara Township, 481 Pa. 101, 392 A.2d 266 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Ferguson, 327 Pa.Super. 305, 475 A.2d 810 (1984); Note, The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324 (1982). Thus, the Supreme Court of the United States held that although there was no federal basis for a right of access to a private shopping center for politically oriented activities, the state courts of California were free to interpret the state constitution’s free speech provisions as guaranteeing such access. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), affirming 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979). See: Note, 95 Harv.L.Rev., supra at 1401-1408; Note, Granting Access to Private Shopping Center Property for Free Speech Purposes, 64 Marq.L.Rev. 507 (1981).

The applicability of state constitutional guarantees to shopping centers has been addressed by the courts of sister states. The results have not been uniform. Several jurisdictions have concluded, consistently with the United States Supreme Court, that state constitutional guarantees of free speech and petition do not confer upon individuals the right to exercise such rights at or upon privately owned shopping centers against the wishes of the owner. See: Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984) (3-2 decision); Woodland v. Michigan Citizens Lobby, 128 Mich.App. 649, 341 N.W.2d 174 (1983) (2-1 decision); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981) (unanimous decision). Cf. Lenrich Associates v. Heyda, 264 Or. 122, 504 P.2d 112 (1972). An almost equal number of jurisdictions has held that state constitutional provisions do guarantee some form of access to privately owned shopping centers. See: Batchelder v. Allied Stores International, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983) (4-3 decision); Alderwood Associates v. Washington Environmental Council, 96 Wash.2d 230, 635 P.2d 108 (1981) (4 justices announcing judgment of court, one justice concurring, and 4 justices dissenting); Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979) (4-3 decision); Shad Alliance v. Smith Haven Mall, 118 Misc.2d 841, 462 N.Y.S.2d 344 (1983) (trial court decision). We hold, after careful review of the content and history of Article I of the Pennsylvania Constitution, that privately owned shopping centers may constitutionally ban political activity.

Article I, section 7 of the Pennsylvania Constitution provides, in pertinent part, as follows:

The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

This provision limits the power of the state to restrict an individual’s freedom of expression. However, it is not a self-executing, affirmative declaration that individuals may exercise the right of free speech wherever they choose and in derogation of the rights of private property owners. Cf. Pendrell v. Chatham College, 386 F.Supp. 341, 344 (W.D. Pa.1974). If, as appellants contend, the requirement of state action is less stringent when interpreting the provisions of the Pennsylvania Constitution, as opposed to the Federal Constitution, it is nevertheless clear that the provisions of Article I, section 7 do not reach the acts of purely private actors.

In general, Article I of the Pennsylvania Constitution speaks to an individual’s rights vis-a-vis the government’s authority to restrict those rights. With respect to this Article, the Supreme Court of Pennsylvania has said: “ ‘A Constitution is primarily a declaration of principles of the fundamental law. Its provisions are usually only commands to the legislature to enact laws to carry out the purposes of the framers of the Constitution, or mere restrictions upon the power of the legislature to pass laws....’” Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 198, 311 A.2d 588, 591 (1973), quoting O’Neill v. White, 343 Pa. 96, 99, 22 A.2d 25, 26 (1941) (citation omitted). See: Murphy v. Harleysville Mutual Insurance Co., 282 Pa.Super. 244, 257-258 & n. 15, 422 A.2d 1097, 1104 & n. 15 (1980), cert. denied, 454 U.S. 896, 102 S.Ct. 395, 70 L.Ed.2d 211 (1981). Accord: L. Tribe, American Constitutional Law 1147 n. 1 (1978). See: J. Cooley, A Treatise on the Constitutional Limitations 36-37 (rev. ed. 1972).

Section 25 of Article I holds:

To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of the government and shall remain forever inviolate.

In the Gettysburg Tower case, our Supreme Court said of this section the following:

[I]t should be noted that Article 1 is entitled “Declaration of Rights” and all of the first twenty-six sections of Article 1 which state those specific rights, must be read as limiting the powers of government to interfere with the rights provided therein.
Section 25 of Article 1 should be read as summarizing the philosophy of the first twenty-four sections of Article 1, particularly when it declares that: “... everything in this article is excepted out of the general powers of the government and shall forever remain inviolate.”

Id., 454 Pa. at 200, 311 A.2d at 592 (emphasis in original) (environmental protection amendment to Constitution — Article 1, section 27 — held not self-executing and unable to support action by Commonwealth against private landowners in the absence of an enabling statute).

Most of the 28 sections of the Article I Declaration of Rights are specifically concerned with matters exclusively governmental and thus determinative of whether there has been “state action.” Where this is not clear, the courts of this Commonwealth have been hesitant about applying the several sections of Article I to private actors. For example, the 1971 Equal Rights Amendment, contained in section 28, has been held inapplicable to gender-based discrimination by private actors. Murphy v. Harleysville Mutual Insurance Co., supra, 282 Pa.Superior Ct. at 257, 422 A.2d at 1104. Similarly, the search and seizure provisions of Article 1, section 8, have been held inapplicable to the conduct of private parties. Commonwealth v. Dingfelt, 227 Pa.Super. 380, 382, 323 A.2d 145, 146 (1974); Simpson v. Commonwealth, Unemployment Compensation Board of Review, 69 Pa.Cmwlth. 120, 128, 450 A.2d 305, 309 (1982), cert. denied, — U.S. —, 104 S.Ct. 88, 78 L.Ed.2d 97 (1983).

It is helpful to examine the background of Article 1, section 7 and the reasons for its adoption. See: Berardocco v. Colden, 469 Pa. 452, 458-459, 366 A.2d 574, 577 (1976). In colonial Pennsylvania, the colonists were not at liberty to speak and write freely on governmental matters. Censorship, in the form of prior restraint as well as punishment, was the rule before adoption of the Constitution. See generally: William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961); J. White, supra at 82-83. Cf. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978) (plurality opinion). Article 1, section 7 was adopted as a means by which to restrict the government’s right of intrusion upon an individual’s right of free speech. “[W]hat it was designed to do was to prohibit the imposition of prior restraints upon the communication of thoughts and opinions, leaving the utterer liable only for an abuse of the privilege.” William Goldman Theatres, Inc. v. Dana, supra, 405 Pa. at 88, 173 A.2d at 62. There is no historical basis for concluding that the framers of the Constitution intended to reach the owners of purely private property when they adopted the original free speech provisions of the Constitution.

This view finds support in the Pennsylvania decisions. In Brush v. Pennsylvania State University, 489 Pa. 243, 414 A.2d 48 (1980), the Supreme Court reviewed claims that Penn State’s regulations which barred canvassing in certain dormitories violated both state and federal rights of free expression. Penn State argued, unsuccessfully, that regulation of the dormitories did not constitute “state action,” and that, as a consequence, rights of free speech were not violated by university regulations pertaining thereto. The Court rejected this argument because there was a nexus between the Commonwealth and Penn State sufficient to sustain a finding of “state action.” Id., 489 Pa. at 249-250, 414 A.2d at 52. Although the Court rested its decision on federal constitutional grounds, the decision is instructive for our purposes because the Court cited Article 1, section 7 of the Pennsylvania Constitution and the federal right of free speech, implicitly suggesting that both constitutional provisions required a finding of at least some form of “state action.” See generally: Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union, Local 590, 425 Pa. 382, 227 A.2d 874 (1967), rev’d, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), overruled, Hudgens v. NLRB, supra.

Appellants rely heavily upon the 1981 Supreme. Court decision in Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), In Tate, the Court overturned convictions for defiant trespass stemming from the defendants’ refusal to desist from distributing politically oriented materials in a peaceful manner while on the campus of Muhlenberg College, a privately owned institution of higher learning in Allentown. The college was being used at the time as the site for a symposium on criminal justice, open to the public for a nominal registration fee of $4. Among the speakers scheduled to appear was William Kelly, then Director of the Federal Bureau of Investigation. Defendants, political activists who opposed Kelly’s views, sought to disseminate literature on college property immediately outside the student union building where the symposium was taking place. They had previously sought, but had been denied, permission to distribute these materials on campus. When they persisted in their attempts to distribute leaflets on the college campus, they were arrested and later convicted of defiant trespass. The Supreme Court reversed the convictions.

In Tate, the defendants’ alleged rights of free expression under the state constitution collided with the college’s right to possess and regulate its property as it saw fit. The focal point of the controversy was the affirmative defense provided by the legislature to the charge of defiant trespass in 18 Pa.C.S. § 3503(c)(2) as follows:

(c) Defenses. — It is a defense to prosecution under this section that:
(2) the premises were at the time open to the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises.

The Court ruled that the college had generally opened its campus to the public, that a standardless permit requirement was an unlawful condition to entry, and that, therefore, the appellants were protected by the affirmative defense defined in the statute.

The Court suggested that the college had been a “public forum” and thus a quasi-state actor. The Court appears to have placed the college on a continuum somewhere between the extremes of a state actor, on the one hand, and a purely private actor, on the other. It then found the college closer to the former than the latter. Thus the Court found that the college was a “community center for Allentown,” maintaining within a few hundred yards of defendants’ arrest a United States Post Office station, a public cafeteria, an information and ticket sales booth for public events, and a federal book depository library required to be open to the public. Id., 495 Pa. at 167, 432 A.2d at 1386. The Court was also concerned that the defendants should have the right to speak freely on the very subject being discussed publicly at the symposium in an area generally accessible to the public. Having invited Mr. Kelly to speak and express his views in a “public forum,” the college could not arbitrarily deny the defendants an opportunity to express themselves freely on the same subject. Id., 495 Pa. at 168, 432 A.2d at 1380. By its invitation to Kelly and to the public, the college had created an atmosphere ripe for political debate; and the arbitrary denial of access thereto was held improper. Thus, in balancing the right of the college to possess and protect its property against the defendants’ freedom of expression in view of the particular activity being conducted at that particular time by the college, the Court determined that the right of expression should prevail. Similarly, in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982), it was held that Princeton University, a private institution, could not, in view of state constitutional guarantees, arbitrarily deny political activists permission to disseminate information peacefully in a reasonable manner where the University had a policy of encouraging public political debate on its property.

Where, then, does a privately owned shopping center, admittedly not an arm of the state, belong in this continuum? Is it so related to the state as to be a quasi-state entity?

There are three instances in which a supposedly “private” actor has been held subject to federal constitutional restraints. The tests, adopted by the federal courts, although not binding upon us, are nevertheless helpful and, it may be added, consistent with Pennsylvania law. They have been discussed at length in recent federal decisions and hold that federal constitutional restraints will be applied where there is a “symbiotic relationship” between a private actor and the government; where there is a sufficient “nexus” between the actor and the government; and where the actor has assumed a “public function” so as to occupy the position of an arm of the state for constitutional purposes. Community Medical Center v. Emergency Medical Services of Northeastern Pennsylvania, Inc., 712 F.2d 878 (3rd Cir.1983); Miller v. Indiana Hospital, 562 F.Supp. 1259 (W.D.Pa.1983). See: Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Brush v. Pennsylvania State University, supra.

There is no dispute, and appellants do not contend otherwise, that there is neither a symbiotic relationship nor a nexus between South Hills Village and state government. Appellants argue, however, that South Hills Village, by inviting the public to enter its shopping mall, has thrust itself into the position of a state actor by assuming a “public function.” Appellants contend that South Hills Village and similar shopping centers have replaced the traditional municipal or downtown shopping area where free speech historically has been protected. They argue that this requires shopping centers to be treated as though they were public property for state constitutional free speech and petitioning purposes.

We cannot in common sense and good reason extend constitutionally protected free speech to privately owned stores and shopping centers merely because the public is invited to enter for purposes of doing business. Indeed, the Pennsylvania Supreme Court has already decided that private shopping centers are not quasi-public entities. Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union, Local 590, supra, 425 Pa. at 387-388, 227 A.2d at 877-888. Although reversed by the Supreme Court of the United States on First Amendment grounds, the state court’s holding that privately owned shopping centers are not quasi-public entities remains a viable rule for purposes of interpreting the Pennsylvania Constitution. Indeed, the United States Supreme Court’s application of First Amendment rights to privately owned shopping centers was later overruled in Hudgens v. NLRB, supra. Thus, the precedential value of the Pennsylvania Supreme Court’s decision in Logan Valley, even under federal standards, remains unimpaired.

The decision in Commonwealth v. Tate, supra, does not support a different conclusion. That decision was limited to a situation in which an educational institution had held itself out to the public as a community resource and cultural center, had allowed members of the public to enter its campus, and had permitted community use of its facilities as a public forum for a public official of national prominence. Commonwealth v. Tate, supra, 495 Pa. at 174, 432 A.2d at 1390. South Hills Village lacks any of these essential trappings of a public forum.

Merely inviting the public for purposes of engaging in commerce does not convert a privately owned shopping center into a public or quasi-public forum. Lloyd Corp. v. Tanner, supra at 564-565, 92 S.Ct. at 2227, 33 L.Ed.2d at 200-201. See: Cologne v. Westfarms Associates, supra at —, 469 A.2d at 1210; Woodland v. Michigan Citizens Lobby, supra at 176; State v. Felmet, supra at 177, 273 S.E.2d at 712; Lenrich Associates v. Heyda, supra at 124, 504 P.2d at 114. See also: Brush v. Pennsylvania State University, supra, 489 Pa. at 251 n. 6, 414 A.2d at 52 n. 6. The owner’s policy banning all political activity without discrimination was determined to be necessary to maintain an atmosphere conducive to the successful conduct of its commercial enterprise. Appellants, on the other hand, have contended that their state constitutional rights of free expression, petition and assembly should be balanced against less significant property interests of appellee, as was done in Commonwealth v. Tate, supra, and in cases from other jurisdictions. Unlike the situation in Tate, however, there is no basis for balancing the parties’ respective rights in this case. Without at least a quasi-public entity, we are not free to rewrite the constitution and impose upon the owner of this shopping center judicial restraints regarding the manner in which it does business.

For the court to assume such a regulatory function ... would relegate the legislature to a subordinate role in our governmental scheme. Statutes would become largely obsolete if courts in every instance of the assertion of conflicting constitutional rights should presume to carve out in the immutable form of constitutional adjudication the precise configuration needed to reconcile the conflict. If, as the plaintiffs contend, the development of large suburban shopping centers has greatly diminished opportunities for political advocacy in the public streets of downtown areas and other public places, the problem should be presented to the legislature. We cannot presume that that body has any less concern for political liberty than this court.

Cologne v. Westfarms Associates, supra at —, 469 A.2d at 1210.

Finally, it is readily apparent that a constitutional balancing of interests would weigh heavily in favor of the owner’s right to impose a uniform, nondiscriminatory ban on political activity in its enclosed shopping center. The nature of the privately owned real estate, the limited nature of its invitation to the public to enter, and the nondiscriminatory scope of its prohibition on political activity must be held to outweigh the interest of the Socialist Workers Committee, or any other politically oriented group, to access and entry for political purposes.

Decree affirmed.

      . In Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), the Court reversed a decision by the Pennsylvania Supreme Court, 425 Pa. 382, 227 A.2d 874 (1967), in which the Pennsylvania Court had ruled that a shopping plaza was not a quasi-public entity and thus could ban picketing without violating the First Amendment. In Hudgens v. NLRB, supra, the Supreme Court expressly overruled its prior decision in Logan Valley.

      . The original free speech provisions of the Pennsylvania Constitution were adopted in 1776, some ten years before the adoption of the first amendment to the United States Constitution. For a history of the free expression provisions in early Pennsylvania history, see T. White, Commentaries on the Constitution of Pennsylvania 81-86 (1907).

      . 18 Pa.C.S. § 3503.


author: JOHNSON, Judge:

text:
    485 A.2d 9
    COMMONWEALTH of Pennsylvania v. Samuel RENDE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1984.
    Filed Oct. 26, 1984.
    Reargument Denied Jan. 7, 1985.

      Edward A. McQuoid, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant takes this appeal from the orders of June 17, 1983 denying his pre-trial Motion to Dismiss Indictment [sic]' and pretrial Motion to Bar Imposition of the Death Penalty. We now affirm the order denying the Motion to Dismiss and quash the appeal from the denial of the Motion to Bar Imposition of the Death Penalty.

Appellant was charged on June 10, 1981 with criminal homicide in the death of Norman McGregor. The Commonwealth contends that Thomas Skelton had offered a “contract” to kill McGregor and that appellant and at least six others were accomplices involved in carrying out the alleged “contract” killing. All co-participants were charged separately. Skelton was acquitted of the charge.

Appellant subsequently filed the pre-trial Motions to Dismiss and Bar Imposition of the Death Penalty. The Motion to Dismiss raised issues of (1) due process, (2) collateral estoppel and (3) the acquittal of the principal, as the basis for dismissal. The Motion regarding the Death Penalty raised solely statutory issues.

Three issues are raised on this appeal: (1) whether the Motion to Dismiss was improperly denied, as the Commonwealth is collaterally estopped from prosecuting appellant on the charge, (2) whether the trial court improperly denied the Motion to Bar Imposition of the Death Penalty, and (3) whether these orders are appealable.

The Commonwealth argues, inter alia, that the orders appealed should be quashed as interlocutory. Ordinarily, all pre-trial orders are considered interlocutory and not appealable. Commonwealth v. Bennett, 236 Pa.Super. 509, 345 A.2d 754 (1975). However, an order denying a pre-trial motion to dismiss on the grounds of double jeopardy/collateral estoppel is a final, appealable order. Commonwealth v. Winter, 324 Pa.Super. 258, 471 A.2d 827 (1984). The Commonwealth argues that appellant’s estoppel argument does not encompass a “true” double jeopardy claim. However, because there exist situations where collateral estoppel may be properly raised in an appeal from the denial of a pre-trial motion to dismiss indictment, we believe it prudent to address the merits of appellant’s collateral estoppel argument.

The facts in the instant case are almost identical to those found in Commonwealth v. Winter, 324 Pa.Super. 255, 471 A.2d 826 (1983). The defendant in Winter appealed from an order denying his motion to quash the information on collateral estoppel grounds. He argued that because a co-defendant was acquitted in a separate trial based on the jury’s rejection of the testimony of an accomplice and because the Commonwealth’s case in defendant’s prosecution depends on the testimony of that same accomplice, collateral estoppel, bars defendant’s prosecution.

The court in Winter stated:

Appellant correctly observes that principles of collateral estoppel are a part of the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See also: Commonwealth v. Hude, 492 Pa. 600, 611-612, 425 A.2d 313, 319 (1980). Collateral estoppel is issue preclusion. “ ‘It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” In the Interest of R.R., 317 Pa.Super. 334, 345, 464 A.2d 348, 354 (1983), quoting Commonwealth v. Peluso, 481 Pa. 641, 645, 393 A.2d 344, 346-347 (1978) and Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.
However, this Court, in Commonwealth v. Lewis, 306 Pa.Super. 81, 452 A.2d 13 (1982) held that the doctrine of nonmutual, collateral estoppel is not applicable to criminal cases. The interest of the Commonwealth in enforcing its criminal laws, the Court held, outweighs its interest in judicial economy; and, therefore, collateral estoppel as a defense to a criminal charge is available only where prior, criminal litigation involved the same parties. See also: Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).

324 Pa.Super. at 257, 471 A.2d at 826-27. The court then affirmed the order denying the defendant’s motion to quash because the defendant had not been a party and did not participate in the co-defendant’s trial.

The same rule must apply in the instant case, for appellant raises the collateral estoppel principle where he had not been involved in Skelton’s trial which resulted in acquittal. In sum, the collateral estoppel principle, as embodied in the Fifth Amendment prohibition regarding double jeopardy, requires both mutuality of parties and that the previous acquittal has put the defendant in jeopardy. As appellant was not in jeopardy regarding Skelton’s prior acquittal, he cannot raise collateral estoppel where said estoppel is nonmutual. Therefore, the trial court did not err in denying appellant’s Motion to Dismiss Indictment. Also we find no merit in appellant’s argument that the instant case is so unusual as to require application of nonmutual collateral estoppel on the basis of fundamental fairness and justice.

The remaining issues raised by appellant’s Motion to Dismiss and Motion to Bar Imposition of the Death Penalty are not properly before this court, as they are interlocutory. See Commonwealth v. Tabb, 491 Pa. 372, 375 n. 2, 421 A.2d 183, 185 n. 2 (1980), U.S. cert. den., 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 202 (1981) (appeal from denial of pre-trial motion based on double jeopardy does not permit “piggybacking” of non-double jeopardy issues). We therefore need not address the remaining issues in appellant’s Motion to Dismiss and must quash the appeal from the order denying appellant’s Motion to Bar Imposition of the Death Penalty.

The order denying appellant’s Motion to Dismiss is affirmed. The appeal from the order denying appellant’s Motion to Bar Imposition of the Death Penalty is quashed.


author: HESTER, Judge:

text:
    485 A.2d 11
    Jacqueline Victoria CLINGERMAN, Executrix, of the Estate of Anna M. Sadowski, Deceased, Appellant, v. William B. SADOWSKI.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Oct. 26, 1984.
    Reargument Denied Jan. 8, 1985.
    Petition for Allowance of Appeal Granted June 24, 1985.

      Bernard S. Shire, Monessen, for appellant.
    Ernest P. Dehaas, III, Uniontown, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

On October 14, 1981, appellant’s decedent, Anna M. Sa-dowski, filed a Complaint in Equity against appellee, William D. Sadowski, in the Court of Common Pleas of Fayette County, Pennsylvania. In September, 1980, following forty-four years of marriage, the decedent and appellee separated. During their years together, Mr. and Mrs. Sadowski had accumulated considerable wealth generated by several successful business ventures. Mrs. Sadowski’s equity action was instituted for the preservation and equal division of all assets held as entireties’ property.

First, Mrs. Sadowski complained that appellee removed $326,000.00 from their joint account at Gallatin National Bank and placed the money with an unknown financial institution in an account registered in his name alone. Thereafter, appellee allegedly made substantial withdrawals, using the funds exclusively for his benefit. According to Mrs. Sadowski, this was done without her knowledge.

Secondly, Mrs. Sadowski averred that appellee had liquidated most of their model train collection having an approximate value of $500,000.00. The funds realized from the sale had been allegedly secreted into a private account for appellee’s sole use and benefit while the whereabouts of the unsold trains had been withheld from Mrs. Sadowski.

As a result, Mrs. Sadowski requested the lower court to order appellee to account for all funds transferred from joint bank accounts or certificates of deposit, funds realized from the sale of their model trains, unsold trains removed from the marital residence, and any and all cash, coins, art, furniture and furnishings which had been removed from the home. Additionally, Mrs. Sadowski sought a permanent injunction to restrain appellee from further dissipation of joint assets. Finally, she sought an equal division of all funds transferred, used or converted by appellee along with all other jointly-owned property.

Anna M. Sadowski died on May 16, 1982, thereby precipitating the appointment of her daughter, Jacqueline Victoria Clingerman, the executrix of her estate, as party plaintiff below and appellant herein. Appellee filed an answer, new matter, and counterclaim to appellant’s complaint. In new matter, appellee requested a dismissal of the complaint on grounds that Mrs. Sadowski’s death resulted in the passing of all disputed property to him as surviving spouse. Appel-lee’s counterclaim concerned Mrs. Sadowski’s alleged refusal to timely approve the sale of their lumber company and realty company to Tri-State Pallet and Repair, Inc. Mrs. Sadowski’s delay in approving the sale allegedly resulted in a loss of $500,000.00 in sale proceeds.

Appellant filed preliminary objections to appellee’s answer, new matter and counterclaim in the nature of a motion to strike off the pleading. Pursuant to said preliminary objections, a hearing was conducted which resulted in the striking of appellee’s counterclaim.

Thereafter, appellee filed a motion for judgment on the pleadings on grounds that Mrs. Sadowski’s death caused the passage of all disputed property solely to him by operation of law. By order dated December 28, 1982, said motion was granted, and appellant’s action was dismissed with prejudice. This appeal followed.

The primary issue presented for review is whether the death of a spouse, who had commenced an equity action for the preservation and equal division of entireties’ property, results in the abatement of said action and the passing to the surviving spouse/defendant of unrestricted title to the property. We hold that it does not and, accordingly, we vacate the disposition of the court below and remand for further proceedings.

A husband and wife who hold title to property by the entireties are each seized of the whole and not of the part. William F. Walsh, Commentaries on the Law of Real Property, vol. 2, § 121 (1947). This maxim arises from the common law theory that a marriage creates a unified holding of property whereby neither spouse maintains an individual interest in entireties property. Instead, both spouses share possession and all rights and enjoyment arising therefrom. Treatise on Modern Law of Real Property and Other Interests in Land, § 290, p. 290 (1940).

Having its roots in the marital relationship, the unity of title precludes the termination of a tenancy by the entireties except in the rarest occurrences. Termination occurred only upon the death of one spouse, legal divorce or agreement between spouses.

While both parties live as husband and wife, termination of an entireties estate occurs, therefore, only by their joint acts. This is not restricted, however, to conventional agreements which spouses enter between themselves or join as sellers of entireties property to some third person. A legal fiction was created for those instances where one spouse misappropriates entireties property for his exclusive benefit without the approval of the other spouse, thereby compelling the other spouse to apply for equitable sanctions. The misappropriation is an offer to sever the estate while the excluded spouse’s equity action is the equivalent of an acceptance. Vento v. Vento, 256 Pa.Super. 91, 389 A.2d 615 (1978); Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961).

The power to withdraw funds from an entireties’ bank account must be utilized for the mutual benefit of both spouses; it is not rightly exercised where funds are withdrawn for the exclusive use of one spouse and to the detriment of the other. Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934). In Damirgian v. Damirgian, 262 Pa.Super. 463, 396 A.2d 1263 (1978), the plaintiff-wife instituted an equity proceeding to acquire an accounting and equal division of funds withdrawn by her husband from entireties savings accounts and certificates. Having concluded that the appropriated funds were not spent for the mutual benefit of the parties, the court first acknowledged the termination of the entireties’ estate when the wife “accepted” her husband’s “offer” through her act of commencing suit. Thereafter, the Damirgian court held entire-ties’ property ripe for accounting and division.

It must be noted that appellee’s misappropriation of funds from the bank account and realized from the sale of trains was simply an allegation set forth in appellant’s complaint. With judgment on the pleadings having been entered on account of Mrs. Sadowski’s death and without any determination of the merits, it is premature to hold that the entireties estate has terminated. Whether appellee misappropriated the funds thereby having extended his offer to terminate, can only be determined following trial. Consequently, there was no known offer which appellant could accept by instituting suit.

Whether death of one joint tenant following the institution of suit terminated a joint tenancy was raised in Sheridan v. Lucey, 395 Pa. 306, 149 A.2d 444 (1959), an opinion relied on by the lower court. One of three joint tenants of real estate filed a partition action; however, the plaintiff-joint tenant died prior to trial. Holding that title vested in the surviving joint tenants, the Sheridan court determined that severance had not occurred. Inasmuch as the plaintiff may have discontinued the partition action and thereby preserved the joint tenancy, the commencement of suit was a request to sever with actual severance not possible prior to a decree for partition. The Sheridan court expressed this view accordingly:

We believe that the pendency of a partition proceeding, before the issues have been formulated, is such a premature act that the complainant has an election to continue the proceedings to judgment, thus affecting a severance of the joint estate or discontinuing the action and leaving the joint tenancy in status quo. It therefore becomes apparent that the death of the complainant does not work an election but leaves the parties where they were at the time of his death, i.e., vested with a joint tenancy whereby the remaining or surviving tenant, by operation of law, obtains the deceased tenant’s interest.

Id., 395 Pa. at 309, 149 A.2d at 446. We agree with Sheridan to the extent that it is premature to find the entireties estate terminated by the commencement of the equity action by appellant’s decedent. It is similarly premature, however, to hold that the disputed property passed solely to appellee upon Mrs. Sadowski’s death. Accordingly, we will not proceed as far as Sheridan in holding appellee unconditionally entitled to all disputed property.

We carefully note that our disposition here is not inconsistent with Sheridan. Inasmuch as a joint tenant is empowered to unilaterally terminate a joint tenancy, misappropriation by the other tenants is not an issue. Consequently, there is no need to move litigation to a conclusion following the death of the plaintiff/joint tenant.

In contrast, termination of a tenancy by the entireties depends in situations sub judice upon the wrongdoing of one tenant; therefore, it would promote injustice to abate proceedings upon the death of the innocent tenant with a potentially miscreant tenant taking unrestricted title.

The more sound and equitable approach is to permit the deceased tenant’s personal representative to proceed as plaintiff and prosecute the equity action until the issue of misappropriation of funds is decided. Should it be determined that appellee misappropriated funds for his exclusive benefit, the entireties estate is terminated and an accounting, division or other appropriate relief should be ordered. Should no misappropriation be found, an agreement to terminate is precluded by the absence of an offer. In that event, all entireties’ property would pass to appellee as surviving spouse.

Order vacated and remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished.


author: CIRILLO, Judge, McEWEN, Judge,

text:
    485 A.2d 15
    COMMONWEALTH of Pennsylvania, v. John J. McSORLEY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed Nov. 9, 1984.
    Petition for Allowance of Appeal Granted March 26, 1985.

      Barbara Geisz Demarest, Plymouth, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and CIRILLO, JJ.
   OPINION ANNOUNCING THE JUDGMENT OF THE COURT:

This is an appeal from the lower court’s denial of a motion to dismiss the charges on grounds of double jeopardy. A pre-trial order denying a motion to dismiss on grounds of double jeopardy is a final, appealable order. Commonwealth v. Buechele, 298 Pa.Super. 418, 444 A.2d 1246 (1982).

This case presents a difficult question that arises out of an unusual fact pattern. Appellant, John J. McSorley, Jr., was arrested on November 14, 1981 and charged with operating a motor vehicle while under the influence of alcohol. After arraignment on December 14, 1981 McSor-ley received a letter dated January 18, 1982 from Dr. Vincent F. Miraglia. Dr. Miraglia was the Director of the Main Line Council on Alcoholism. The Council operated a safe driver clinic for Montgomery County. The letter directed appellant that he was required to attend the driving school. The appellant testified that he interpreted this letter as directing him to report for the Montgomery County Accelerated Rehabilitative Disposition Program (hereinafter, “ARD”). In addition to the wording, see infra note 2, the letter came under the letterhead of the District Attorney’s ARD/DUI (driving under influence) Division. The letter also stated that McSorley was required to pay a Fifty Dollar ($50.00) fee for the program.

Dear Mr. McSorley:
You are directed by the Montgomery County District Attorney’s Office to attend the Safe Driving Clinic.
You are to report to the Montgomery County Court House on the following dates and time for classes and interview.
Monday, February 1, 1982 at 7:30 p.m. Interview/Class at 8:00 p.m.
Monday, February 8, 1982 at 8:00 p.m.
Monday, February 15, 1982 at 8:00 p.m.
Monday, February 22, 1982 at 8:00 p.m.
You are required to pay a fee of $50.00 for the interview and four classes; make check or money order payable to the Main Line Council on Alcoholism.

Appellant then received a letter dated January 25, 1982 from Joseph M. Iacovitti, Chief of the ARD Division of the Montgomery County District Attorney’s Office. This letter gave appellant a general description of the ARD alternative. The letter instructed McSorley to complete an enclosed questionnaire to determine his eligibility and to return it within ten (10) days in order to be considered for the program. It is not clear from the record exactly when appellant received this letter. However, appellant completed the questionnaire and hand delivered it on February 1, 1982 — the same evening he appeared for his first session of the safe driving clinic.

Thereafter, appellant attended the remainder of the classes of the safe driving clinic. On February 22, 1982, after the last session, McSorley received a certificate signed by Dr. Miraglia stating that he had successfully completed the requirements of the clinic. Appellant next received a letter dated February 25, 1982 from Mr. Iacovitti. This correspondence stated that McSorley was ineligible for ARD because of two prior arrests in Philadelphia County. The case was then scheduled for trial.

The record demonstrates that appellant attended the safe driving clinic believing he was in ARD. He felt that successful completion of the clinic would result in dismissal of the charges against him. Before each of appellant’s four sessions at the county courthouse he jotted down “ARD” on the visitors’ log under “Nature of Business.” McSorley was acting under his own understanding of the situation since he did not consult a lawyer during any aspect of the proceedings until after receiving the February 25 letter rejecting him for the program.

At appellant’s hearing on this motion to dismiss, Mr. Iacovitti’s testimony demonstrated that the district attorney’s office never intended to recommend McSorley for ARD. Nevertheless, the January 18 letter directing McSor-ley to appear at the classes was sent only after Dr. Miraglia received notification from the district attorney’s office that McSorley had been accepted into the program. This was the usual administrative method of informing the clinic about ARD participants. There was no indication why this notice was sent from the district attorney’s office. Therefore, we assume it was an administrative error.

Appellant contends that his payment of a fifty dollar ($50.00) fee and attendance at the safe driving program was a restriction on his freedom and deprivation of his liberty. Accordingly, appellant maintains that the deprivation amounts to an order of sentence for double jeopardy purposes. Therefore, dismissal of the case would be necessary to protect appellant from multiple punishment.

The Commonwealth maintains that appellant’s attendance at the safe driving program was a voluntary act on his part. The Commonwealth did not “direct” appellant to enter the safe driving clinic because the Commonwealth is without power to direct any defendant to enter the ARD program. Therefore, appellant was never subjected to punishment flowing from a conviction and jeopardy did not attach.

The prohibition against double jeopardy protects a defendant from multiple punishments for successive prosecutions for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). In a non-jury trial, jeopardy attaches when the court has begun to hear evidence. Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (with the swearing of the first witness).

After extensive research, it appears that double jeopardy-provisions have yet to be applied to Pennsylvania’s diversion program. Indeed, our search has not revealed any case where a criminal defendant was prosecuted after successfully completing ARD.

When a criminal defendant agrees to diversion the proceedings are deferred with the state reserving the right to prosecute if the defendant violates any of the conditions of the program. Pa.R.Crim.P. 184. Where the defendant successfully meets the conditions of the program, the charges against the defendant will be dismissed and he is usually entitled to have his arrest record expunged. Pa.R. Crim.P. 185; Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981).

Nevertheless, the caselaw does not give a clear picture of how ARD effects the status of a criminal defendant. In Commonwealth v. McDevitt, 57 Pa.Commw.Ct. 589, 427 A.2d 280 (1981), the court held that by accepting ARD a defendant knowingly waives his right to prove his innocence or risk conviction by entering a plea. The court also held that admission into ARD is an offense for purposes of classifying the defendant an habitual offender even though formal convictions cannot be obtained under the program. Id. at 591, 427 A.2d at 282. On the other hand, the fact of a witness’ admission into ARD is not a “conviction” for impeachment purposes. Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981). In Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982), this Court went as far to say that admission into ARD is not equivalent to a conviction “under any circumstances” since charges are deferred. Additionally, a lower court has held that successful completion of ARD is not equivalent to a finding of innocence. Commonwealth v. McKellin, 9 D. & C.3d 572 (1979).

Against this background, the lower court ruled that McSorley had not been put in prior jeopardy and had not suffered any punishment from ARD or any other criminal penalty. Also, the court held that there was not any valid evidence that McSorley had been accepted into the ARD program.

At first glance, it would appear that appellant’s double jeopardy claim should fail because jeopardy had not yet attached. However, we find the law of our sister state of Ohio to be most helpful. In State v. Urvan, 446 N.E.2d 1161, 4 Ohio App.3d 151 (1982), the court was faced with a similar double jeopardy claim. In that case, the defendant was charged in Medina County, Ohio under an allied offense statute with receiving stolen property. The defendant was recommended for and successfully completed the diversion program in Medina County. As a result, the receiving charge was dismissed. One week later, the defendant was indicted in Cuyahoga County for grand theft relating to the same events as the Medina County charge. The defendant filed a motion to dismiss the Cuyahoga charge on grounds of double jeopardy.

The court pointed out that

Any view of diversion processes not at war with their purposes must include a conception of them (when successfully completed) as the equivalent of served or probated time with the consequent expiation of the crime---Moreover, if the program is to make logical sense and traffic at all in fair treatment, the state’s election to pursue the crime of stolen property forecloses its right to undertake pursuit of the grand theft charge through a second agent (Cuyahoga County). Jeopardy must attach as a result of the activity of the first (Medina County).”
Id. 446 N.E.2d at 1166, 1167.

The court interpreted the diversion process in terms of a contractual relationship between the state and the defendant. Id. at 1167. Just as in this Commonwealth, to participate in a diversion program a defendant must waive any statute of limitations and any constitutional or statutory speedy trial rights. Pa.R.Crim.P. 178. The defendant agrees to whatever conditions the state establishes with the expectation that the charges will be dismissed when he meets those conditions.

As the Urvan court points out “if pre-trial diversion programs are to be effective, the state must live up to its obligations.” Id at 1167. True, diversion programs give district attorney discretion over which cases are proposed for ARD. Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979). However, the decision to divert a defendant “comes after the prosecutor has fully discharged all discretionary functions and after the prosecutorial die has been cast.” Dearborne v. State, 575 S.W.2d 259, 263 (Tenn.1980). In placing a defendant into a diversion program, the state covenants to dismiss the charges once the defendant satisfies the conditions of the program. Unless the defendant violates one of those conditions, the state cannot prosecute him. Just as the terms of a plea bargaining arrangement are binding on the state, Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980), so must the terms of a diversion agreement bind the state. To hold otherwise, would create a disincentive for defendants to enter diversion programs. “For the state to be allowed to ... bring a second prosecution ... after all the terms of the diversion contract have been met, violates the spirit and the letter of constitutional double jeopardy policy and the spirit of the legislative policy in the state.” Urvan, id., 446 N.E.2d at 1168.

In applying these principles to the case at hand, we first must determine whether appellant was participating in the ARD program. It is clear that the procedures outlined in Pa.R.Crim.P. 175, et seq., were not followed. Nevertheless, appellant was justified in relying on the January 18 letter. A reasonable person faced with the same circumstances would not have acted differently. Dr. Miraglia’s letter was sent pursuant to authorization by the Montgomery County District Attorney’s Office. As the Urvan court noted, the state cannot avoid its obligations by pretending that it acts disparately. Urvan, id, at 1167. What the State of Ohio “knew and did in Medina County ... it knew in legal contemplation in Cuyahoga County and was bound in both places by applicable federal and state constitutional principles. Whether the state acts by design or inadvertence makes no difference.” (Footnote omitted.) (Emphasis added.) Id. at 1167. We find this reasoning applicable in this case where the “inadvertence” occurred within the District Attorney’s Office of Montgomery County. What the district attorney’s office knew and did with its right hand (sending the notification that appellant could reasonably have interpreted as evidencing his acceptance into ARD), it cannot take away with its left hand (by claiming that appellant was ineligible). A reasonable reading of both the January 18 and January 25 letters might well have indicated to appellant that a successful completion of the program would result in a dismissal of the charges against him. Appellant detrimentally relied on this reasonable interpretation. Under the circumstances, we hold that appellant was implicitly accepted into ARD.

Although the Commonwealth is restrained from prosecuting appellant at this time, we cannot dismiss the proceedings against the appellant. Appellant has completed the safe driving clinic which is ordinarily only one phase of an ARD agreement that would be given to a defendant under similar charges. Therefore, we enter an order staying the proceedings against appellant and remanding with directions to divert appellant into ARD and impose whatever remaining conditions as would be imposed on a defendant under similar circumstances. Jurisdiction relinquished.

CIRILLO, J. files concurring opinion.

McEWEN, J. files dissenting opinion.

CIRILLO, Judge,

concurring:

I am troubled by the majority’s seemingly casual reliance on the double jeopardy clause as grounds for reversal. While the double jeopardy clause may be invoked in various contexts, its principal design is to protect criminal defendants from multiple trials and multiple punishments for the same offense. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Where there is no threat of either successive prosecutions or multiple punishments, the double jeopardy clause is not offended. Commonwealth v. Yost, 305 Pa.Super. 316, 451 A.2d 549 (1982); Commonwealth v. Beckman, 304 Pa.Super. 239, 450 A.2d 660 (1982); United States v. Hecht, 638 F.2d 651 (3rd Cir.Pa.1981). In my view this case does not engender double jeopardy concerns.

A criminal defendant has a “constitutional interest in finality, a cognizable interest in seeing that criminal proceedings against him are resolved once and for all.” Wes-ten and Drubel, “Toward a General Theory of Double Jeopardy,” 1978 Sup.Ct.Rev. 81. Here however, appellant has no right to expect that his problems with the Commonwealth have been resolved. His constitutional interest in finality has not yet vested.

Certainly, a criminal defendant, once convicted, may rest confident that he will not be retried for the same offense. A participant in an ARD program, however, is not entitled to the same confidence. Admission to an ARD program is not equivalent to a conviction under any circumstances. Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982). Rather, participation in a diversion program results in a deferral of criminal charges until completion of the program. Pa.R.Crim.P. 181. In the event that the program is successfully completed, the charges are dismissed and no conviction ever results. Commonwealth v. Knepp, supra. Only when the program is completed may an ARD participant feel secure in final disposition of charges, not before. Only then may he shield himself with the protection of the double jeopardy clause.

In this case, appellant has completed only one phase of his diversion program. The Commonwealth removed appellant from ARD while appellant had remaining conditions of diversion yet to complete. While I think appellant should be given the opportunity to complete ARD, it is not by reason of double jeopardy.

Rather, I view the concept of contract as the compelling analogy. Dr. Miraglia’s letter written under District Attorney letterhead, which directs appellant to attend safe driving school, extends appellant an offer of the ARD alternative. When appellant accepted that offer by enrolling in the safe driving clinic, an agreement or arrangement was entered into. As the majority notes:

In placing a defendant into a diversion program, the state covenants to dismiss the charges once the defendant satisfies the conditions of the program. Unless the defendant violates one of those conditions, the state cannot prosecute him. Just as the terms of a plea bargain arrangement are binding on the state, Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980), so must the terms of a diversion agreement bind the state. (Majority op. at p. 19).

By removing appellant from diversion, for reasons other than a failure to comply with conditions of diversion, the Commonwealth has breached its agreement.

Accordingly, I concur in the result reached by the majority, appellant should be allowed to complete ARD. This disposition is proper, not because the Commonwealth’s removal of appellant from ARD is a double prosecution or double punishment, but rather, it is plainly a breach of agreement.

McEWEN, Judge,

dissenting:

Since, unlike my colleagues, I do not perceive such reflections of equity or of contract law or of protection against double jeopardy that would serve to bar prosecution of appellant by the Commonwealth, I most respectfully dissent.

Appellant was arrested on November 18, 1981, at the scene of a motor vehicle accident after he failed a field sobriety test and registered 0.22% on a breathlyzer. As a result, he was charged with violation of Section 3731 of the Vehicle Code, 75 Pa.C.S. § 3731, Driving Under the Influence of Alcohol. Soon after his preliminary hearing in January, 1982, appellant received the following letter:

Appellant a few days thereafter received the following further letter concerning the offense with which he was charged:

Appellant completed the questionnaire enclosed with this letter of January 25 and returned it personally to the Office of the District Attorney on February 1, 1982, just hours prior to attending the first of the four safe driving classes he would eventually attend.

Appellant was thereafter notified by letter on February 25, 1982, that his application for the ARD program had been denied due to two prior convictions in Philadelphia. Appellant entered a not guilty plea on March 2, 1982, and then retained counsel for institution of the proceedings at issue.

The lead opinion finds that principles of double jeopardy preclude prosecution. Jeopardy had, however, in my view, never attached. The concurring opinion finds that principles of contract law and fairness preclude prosecution but I am unable to agree.

While appellant attended four two and one-half hour driving clinic classes, for which he was charged $50.00, he had been made aware before he attended even the first class, by the letter of January 25 from the District Attorney, that he had not been admitted to the ARD program since it was necessary to first complete two procedures, specifically, appellant had to complete an application for inclusion in the program and the District Attorney had to determine whether appellant was eligible for the program. The letter made clear that if appellant filed the application, “[t]he matter will then be carefully reviewed and a final determination made, of which you will be notified.”

Twenty-five days after appellant submitted his application, he was notified of his ineligibility for the program. The only hardship occasioned as a result of the confusion by the initial letter of January 18, 1982, was appellant’s attendance at four safe driving classes and the payment of a $50.00 fee. While under certain circumstances principles of fairness might operate to preclude prosecution, the facts of the instant case do not compel such a conclusion. I, therefore, dissent.

      . The opinion is entitled "Opinion Announcing the Judgment of the Court" because while a majority of the panel agrees with the judgment, a majority does not join in the opinion.

      . § 3731 of Pennsylvania Motor Vehicle Code. Appellant was also charged with violating § 3310(a) of the Code — following too closely.

      . Relevant parts of the letter provided:

      . Interestingly, the Knepp court did cite McDevitt, supra, as holding that ARD was a “conviction” for habitual offender purposes. Knepp, supra, 307 Pa.Superior Ct. at 541, 453 A.2d at 1018.

      . Ohio’s diversion program, R.C. 2935.36, is virtually identical to Pennsylvania's. Pa.R.Crim.P. 175, et seq.

      . R.C. 2941.25. The statute refers to allied offenses of "similar import.” An accused may be tried for both, but may be convicted and sentenced for only one. The prosecutor has the choice of which offense to pursue. Urvan, supra, 446 N.E.2d at 1166.

      . Either county could have had venue over the entire sequence, but Medina County acted first.

      . Of course, if appellant had shown the letter to an attorney familiar with ARD procedures this confusion would have been avoided. However, defendants should not be forced to retain counsel for minor offenses just so as they can understand the county bureaucracy. Instead, counties should structure their procedures and correspondence so that lay people will not be disadvantaged.