author: POPOVICH, Judge: HUDOCK, Judge,

text:
    601 A.2d 302
    COMMONWEALTH of Pennsylvania, Appellee, v. Dale Thomas McDONEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1991.
    Filed Dec. 12, 1991.

      Paul J. Esposito, Harrisburg, for appellant.
    William T. Tully, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before POPOVICH, HUDOCK and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered October 31, 1990, in the Dauphin County Court of Common Pleas, following appellant’s conviction on the charges of possession of marijuana with intent to deliver, possession of marijuana and possession of drug paraphernalia. On appeal, appellant contends that the Police executed a valid search warrant in a manner which violated Pa.R.Crim.P. 2007, commonly known as the “knock and announce” rule, Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. Appellant also contends that the lower court abused its discretion when it sentenced him within the aggravated range of the sentencing guidelines. Having reviewed the record and the applicable law, we reverse the suppression ruling below, vacate the judgment of sentence and remand for a new trial.

The record reveals that on November 3, 1989, Officer Donald L. Brink of the Swatara Township Police Department, applied for a search warrant to seize any controlled substances and related items which might be found at appellant’s residence. The warrant was issued. Later that day, Officer Brink and other members of the Dauphin County Drug Task Force searched appellant’s house and, after seizing marijuana and drug paraphernalia, arrested appellant.

Appellant sought to suppress the evidence seized in the search, arguing that the manner of execution violated the “knock and announce” rule, Pa.R.Crim.P. 2007, and the Pennsylvania and United States Constitutions. However, his motion to suppress was denied, and appellant was convicted on all charges. Appellant again raised the suppression issue in his post-verdict motions but again was unsuccessful. Appellant was then sentenced to serve eleven and one-half months to twenty-three months in the Dauphin County Prison and to pay a fine of $1,000.00. A timely motion to modify sentence was filed and denied. This appeal followed.

When we review the denial of a motion to suppress, this court must:

“determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).”

Commonwealth v. Ariondo, 397 Pa.Super. 364, 367, 580 A.2d 341, 342-343 (1990), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989).

Having reviewed the record, we have determined that the factual findings as outlined by the court below are supported by the evidence. In its opinion, the lower court summarized the facts as follows:

On the day of the execution of the search warrant, Officer Brink and several other officers went to the front door of this house while several officers were detailed to the rear of this property. (N.T. 12). Trooper Lauder-milch knocked on the front door two or three times. (N.T. 12). Three to five seconds elapsed between the first series of knocks and the second series of knocks. (N.T. 13). They waited another three to five seconds and after receiving no response or any indication that the occupants were intending to respond to the knocks, Trooper Lauder-milch announced that the police were at the door and that they had a search warrant (N.T. 13) They waited another five to ten seconds and when they still received no response, they forcibly entered the door using a battering ram. (N.T. 13). Officer Brink testified that the knocks were loud enough so that they could be heard by someone on the first floor. (N.T. 13). Officer Brink stated that he heard no music playing when they entered the house or any other source of noise which would have prohibited the occupants from hearing the knocking and the announcement. (N.T. 22). Upon entering, the police found the defendant and his girlfriend seated at the dining room table which was located approximately fifteen to twenty feet from the front door. (N.T. 14).

Trial Court Opinion, p. 2.

We now apply the pertinent legal authority to the facts outlined above. Pa.R.Crim.P. 2007, Manner of Entry into Premises, provides:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

In Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054, 1056-1057 (1987), the Pennsylvania Supreme Court, when reviewing an alleged violation of the “knock and announce” rule, stated the following:

“Generally, absent exigent circumstances, police must announce both their authority and purpose before forcible entry.” Commonwealth v. Stanley, 498 Pa. 326, 334, 446 A.2d 583, 587 (1982); Rule 2007. The purpose of this “knock and announce” rule is to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectations against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry. Commonwealth v. McDonnell, 512 Pa. 172, 516 A.2d 329 (1986).
Exceptions to the rule have developed on the basis of the reasonableness of the police officer’s conduct in particular cases, and include the following: (1) the police need not engage in a futile gesture of announcing purpose when the occupants of the premises remain silent after repeated knocking and identification, Commonwealth v. Stanley, supra; (2) the police are virtually certain that the occupants of the premises already know their purpose, Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); Commonwealth v. Johnson, 223 Pa.Super. 83, 289 A.2d 733 (1972); (3) the police have reason to believe that an announcement prior to entry would imperil their safety, Commonwealth v. Stanley, supra; and (4) the police have reason to believe that evidence is about to be destroyed, Commonwealth v. Clemson, 234 Pa.Super. 191, 338 A.2d 649 (1975). These exceptions to the “knock and announce” rule fulfill the purpose of the rule in that entry is accomplished with a minimum of danger to officers and occupants or damage to the premises.

A similar listing of exceptions to the “knock and announce” rule was set forth in Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982). Therein, our high court recognized that exigent circumstances warranting noncompliance with Pa.R.Crim.P. 2007 exist when the police in good faith believe that they or someone within the premises are in peril of bodily harm and when the officers have reason to believe that a suspect is armed or might resist arrest. Norris, 446 A.2d at 248-249.

Instantly, the Commonwealth does not contend that the officers waited a reasonable period of time after knocking and announcing their identity and purpose. Nor does the Commonwealth contend that exigent circumstances developed at the scene which would warrant forced entry. Instead, the Commonwealth asserts that the officers had a basis for assuming that the suspect within the residence was armed and might resist arrest. Such knowledge, contends the Commonwealth, created an exigent circumstance under Pa.R.Crim.P. 2007(a), which excused the officers from their duty to provide the occupants of the premises with notice of their identity and purpose prior to forcible entry. See Appellee’s Brief, p. 14.

The Commonwealth bases its assertion of exigent circumstances on Officer Brink’s testimony that the probability of finding firearms proximate to controlled substances was “[q]uite high.” The officers also knew that in 1987, appellant was arrested and pleaded guilty on charges of possession of marijuana, possession of cocaine and possession of an unlicensed firearm. Apparently, a loaded .45 caliber handgun was found in appellant’s vehicle at the time of his arrest on the 1987 drug charges. (N.T. 18). The Commonwealth contends that the officers’ knowledge of appellant’s two-year-old weapons violation combined with their “assumptions” that drug dealers routinely “possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia” was sufficient to create the exigent circumstances necessary to permit forced entry without first affording appellant the opportunity to surrender the premises peaceably. Appellee’s brief, p. 18.

However, we must disagree with the Commonwealth and the lower court. In the recent case of Commonwealth v. Grubb, 407 Pa.Super. 78, 83-84, 595 A.2d 133, 135-136 (1991), we address an argument of the Commonwealth similar to that raised herein, stating:

The Commonwealth asserts a knock and announce entry by police would allow the suspected drug dealers the opportunity to arm themselves against police intrusion thereby imperiling the police officers’ safety. They base this argument on the inherent danger armed drug dealers pose to police, as well as the officer’s experience in conducting drug raids. Under limited circumstances, the knock and announce rule has been disregarded where police had reason to believe announcement prior to entry would imperil their safety. See Morgan, supra; Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Johnson, 223 Pa.Super. 83, 289 A.2d 733 (1972). However, in this case, to accept the Commonwealth’s argument is to recognize a presumption whereby exigent circumstances sufficient to do away with the knock and announce rule would exist any time a search for drugs is conducted. We would, in effect, be taking judicial notice of the fact that drug dealers customarily carry weapons and therefore any search of a suspected dealer’s operating base would necessarily endanger the investigating officers. We are unwilling to create this presumption. Such a fundamental change in the knock and announce rule should not be made by judicial determination based on allegations in a particular case but must be addressed in careful and studied deliberation by the legislature. Vague allegations in a probable cause affidavit to a magistrate do little to protect the arresting officer and weaken the safeguards provided to the citizenry by the constitution. The right, on the scene, under exigent circumstances, to break in unannounced recognizes that the peril to an officer serving a warrant is ever present and he must be able to protect himself. This usually can be done only at the time the warrant is being executed. The circumstances where verified and detailed information is supplied to the magistrate regarding the existence of weaponry which would present unusual danger to the searching officer, thereby permitting authorization of a no knock entry, need not be considered here as the facts do not warrant it. (Emphasis added)

Similarly, we will not find exigent circumstances to exist based merely on a “vague allegation” that guns may be present and a weapons conviction that is two years old. Certainly, under limited circumstances, the “knock and announce” rule may be disregarded where police have reason to believe announcement prior to entry would imperil their safety. See Stanley, supra. However, the present case was not one where, as in Stanley, supra, the officers were poised to arrest an escaped convict who was recently seen with a handgun and who had previously been convicted of a murder which he committed with a firearm. In the case sub judice, all the officers knew was that appellant had pleaded guilty to possession of an unlicensed weapon some two years earlier. Certainly, such information is stale at best. Accordingly, we find that the lower court erred when it determined that exigent circumstances existed which excused the police's failure to give the occupants an opportunity to surrender the premises peaceably.

Although the officers failed to comply with Pa. R.Crim.P. 2007, this does not ipso facto, necessitate a finding that the evidence seized must be suppressed. As was noted in Commonwealth v. Mason, 507 Pa. 396, 406-407, 490 A.2d 421, 426 (1985):

... exclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizes. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.

See also Commonwealth v. Davis, 407 Pa.Super. 415, 595 A.2d 1216 (1991) (technical violation of Rule 2007 did not warrant suppression); compare Commonwealth v. Chambers, 385 Pa.Super. 605, 561 A.2d 1257 (1989), affirmed, — Pa. —, 598 A.2d 539 (1991) (evidence suppressed due to violation of Rule 2007).

Instantly, we find that the officer’s activity did impinge upon appellant’s constitutional rights. The Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution prohibit unreasonable searches and seizures, and this applies to the execution of the warrant. Chambers, 598 A.2d at 540; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); Chambers, 561 A.2d at 1259. Whether the manner of execution of a search warrant is unreasonable is to be determined on a case by case basis. Id. Generally, “[t]he fourth amendment requires the police to knock and identify themselves and only if their calls are not answered within a reasonable time under the circumstances, may force then be used to enter. Grubb, 595 A.2d at 135 (emphasis added).

In the case sub judice, only thirty seconds passed between the first knock on appellant’s door and impact of the battering ram, and only five to ten seconds passed between the officers’ announcement of their identity and purpose and their forced entry. Certainly, the police did not afford appellant the opportunity to surrender the premises peacefully. Further, the Commonwealth cannot point to a single fact which the police observed during execution of the warrant which would indicate that exigent circumstances existed or that appellant would refuse to surrender the premises. The officers’ mere supposition that appellant might have a gun is not enough to permit the police to ignore appellant’s constitutional right to freedom from unreasonable searches and seizures. “The fact ... [that] police may be in danger does not justify the suspension of the fourth amendment.” Grubb, 595 A.2d at 133. Since exigent circumstances did not exist and the police did not wait a reasonable period of time before smashing in appellant’s door, we find that the execution of the search warrant was unreasonable and, therefore, was unconstitutional. Cf., Chambers, supra.

Balancing the benefits of deterring police misconduct against the costs of excluding otherwise reliable evidence, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), we conclude that the lower court erred in refusing to suppress the evidence in this case. Accordingly, we reverse the suppression ruling of the court below, and we vacate the judgment of sentence entered herein. In so doing, we are mindful that one of the prices we pay for the security which the Fourth Amendment bestows upon us is the risk that, occasionally, drug dealers will go free. See Grubb, 595 A.2d at 136; Chambers, supra; Newman, supra.

Judgment of sentence vacated and remanded for new trial. Jurisdiction relinquished.

HUDOCK, J., files a dissenting statement.

HUDOCK, Judge,

dissenting:

Respectfully, I dissent. I would affirm the trial court’s determination that exigent circumstances existed justifying the officers’ non-compliance with the “knock and announce” rule.

As the Commonwealth points out in its brief to this Court, if the record below supports the factual findings of the suppression court and the legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. Yerger, 333 Pa.Super. 501, 482 A.2d 984 (1984). Officer Brink testified that based upon his experience, the incidence of finding guns or armed suspects in a drug raid was “quite high”. (N.T. 17). He also had information that Appellant had been arrested approximately two years earlier in a drug raid while in possession of an unregistered, loaded handgun. Based upon these facts I believe the trial court was justified in concluding that the officer could have reasonably believed that this known and previously armed denizen of the drug world would again be armed at the time of the entry in question. Since the record supports his factual findings and legal conclusions, we should not disturb them.

The majority dismisses the Commonwealth’s contention that the officers here could assume that drug dealers routinely possess firearms, citing Commonwealth v. Grubb, 407 Pa.Super. 78, 595 A.2d 133 (1991). I do not believe that Grubb is controlling. In that case our Court refused to take judicial notice of the fact that drug dealers carry weapons so as to, ipso facto, constitute exigent circumstances justifying non-compliance with the “knock and announce” rule. In the case presently before this Court, the Commonwealth does not ask us to take judicial notice, but rather argues that the testimony of the officer as to his personal experience with drug raids and drug dealers justified him in his belief that the defendant and his accomplices might be armed. The trial court apparently accepted this testimony, as we must.

When the actual experience of the officer was coupled with the officer’s knowledge that this very defendant had previously possessed a loaded, unregistered firearm while engaging in his illegal activities, the officers cannot be faulted for taking action to guard against the danger they could reasonably conclude was present on the other side of the door. In short, I believe “exigent circumstances” existed under the facts of this case, as found by the trial court, to justify non-compliance with the “knock and announce” rule. Accordingly, I dissent.

      . Due to our resolution of the suppression issue, we need not address this issue.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    601 A.2d 308
    Robert J. MAYLIE, Jr., Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION a/k/a Amtrak and Steven F. Scott, James G. Warden and Daniel Sinisi, Appellees.
    Superior Court of Pennsylvania.
    Argued May 24, 1991.
    Filed Dec. 17, 1991.

      Joseph Smukler, Philadelphia, for appellant.
    Richard L. Goerwitz, Jr., Philadelphia, for Nat. R.R., appellee.
    Paul F.X. Gallagher, Philadelphia, for Warden & Sinisi, appellees.

      Before WIEAND, BECK and HUDOCK, JJ.
   WIEAND, Judge:

Plaintiff, Robert J. Maylie, Jr., appeals from an order of the trial court dismissing a cause of action alleged against Maylie’s employer, the National Railroad Passenger Corporation a/k/a AMTRAK, and Steven Scott, an AMTRAK employee, for civil conspiracy to deprive him of a fair trial in an action under The Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., for workplace injuries sustained at AMTRAK’s shop in Bristol, Pennsylvania. The trial court held that plaintiff’s state law claims had been preempted by The Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., and that therefore the state courts were without subject matter jurisdiction. Specifically, the court concluded that the plaintiff’s claim was based on a “matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the Railway Labor Act.” We affirm.

On May 27, 1983, Maylie initiated the instant action by a complaint in which he alleged that AMTRAK and Steven Scott, acting individually and in conspiracy, had threatened, harassed, and intimidated employees in AMTRAK’s Bristol Shop in order to prevent the employees from testifying on Maylie’s behalf in his FELA action for injuries sustained as an employee of AMTRAK. Maylie averred that as a result of defendants’ activities he had been deprived of a fair trial and had suffered impaired health and severe emotional distress.

The Railway Labor Act was promulgated in order to provide a comprehensive framework for the resolution of labor disputes in the railroad industry. Atchison, Topeka, and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 1414, 94 L.Ed.2d 563 (1987). Two of its general purposes were:

(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions;
(5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.

45 U.S.C. § 151a(4) and (5).

In promulgating the Act, Congress specifically expressed an intent to keep labor disputes in the railway industry out of the courts and to employ administrative procedures exclusively. See: Lewy v. Southern Pacific Transp. Co., 799 F.2d 1281 (9th Cir.1986). The Supreme Court has reinforced the notion that disputes concerning working conditions are to be decided without intervention by the courts.

In enacting [the RLA], Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. The [National Railroad Adjustment Board] was created as a tribunal consisting of workers and management to secure the prompt, orderly, and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Congress considered it essential to keep these so-called “minor disputes” within the NRAB and out of the courts.

Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978) (per curiam) (emphasis added).

Two classifications of controversies are distinguished under the Act: “major” and “minor” disputes. “Major disputes” arise out of the formation or change of collective bargaining agreements covering rates of pay, rules, or working conditions. Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945). “Minor disputes” grow out of grievances or the interpretation or application of agreements covering rates of pay, rules, or working conditions. See 45 U.S.C. § 153, First (i). Initially, minor disputes “must be dealt with through a railroad’s internal dispute resolution processes, and if not settled there, may be submitted to a division of the Adjustment Board, or to a Public Law Board, which is an arbitration board chosen by the parties.” Atchison, Topeka, and Santa Fe Ry. Co. v. Buell, supra, 480 U.S. at 563, 107 S.Ct. at 1414. Hence, the role of the courts in minor disputes is extremely limited. DeTomaso v. Pan American World Airways, Inc., 43 Cal.3d 517, 525, 235 Cal.Rptr. 292, 296, 733 P.2d 614, 618 (1987), cert. denied, 484 U.S. 829, 108 S.Ct. 100, 98 L.Ed.2d 60 (1987).

Maylie asserts that AMTRAK’s conduct gave rise to an independent cause of action under state tort law and, therefore, the RLA and its grievance mechanism are irrelevant. Defendants counter that Maylie’s claim is, in reality, a grievance or minor dispute arising from his employment relationship with AMTRAK, which is governed exclusively by the provisions of the Railway Labor Act. After careful review, we conclude that AMTRAK’s acts, as alleged in Maylie’s complaint, involve a minor dispute and that therefore the state courts are without subject matter jurisdiction to hear and decide the same.

The United States Supreme Court has spoken to the preemption of minor disputes by the RLA. In Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), a railroad employee commenced an action for breach of contract because his employer had refused to permit him to return to work following recovery from injuries sustained in an automobile accident. The Court, in affirming the dismissal of the suit, ruled that the plaintiff’s remedies under the RLA were exclusive because the claim involved a construction of the collective bargaining agreement. The Court noted that the plaintiff improperly had attempted to plead his way around the RLA:

The fact that petitioner characterizes his claim as one of “wrongful discharge” does not save it from the Act’s mandatory provisions for the processing of grievances .... Here it is conceded by all that the only source of petitioner’s right not to be discharged, and therefore to treat an alleged discharge as a “wrongful” one that entitles him to damages, is the collective-bargaining agreement between the employer and the union.... His claim is therefore subject to the Act’s requirements that it be submitted to the Board for adjustment.

Andrews v. Louisville & Nashville R. Co., 406 U.S. at 323-324, 92 S.Ct. at 1565. It seems clear, therefore, that it is not the characterization of a claim which is controlling but rather its substance which must be examined in ascertaining whether an action is a minor dispute preempted by the RLA.

The requirement that a court determine the true foundation of a plaintiff’s cause of action is further illustrated in the leading case of Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.1978), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). In Magnuson, the railroad employee brought a claim against his employer for intentional infliction of emotional distress by virtue of the railroad’s alleged conspiracy to cover up the negligence of its supervisory employees which had led to plaintiff's discharge. The court held that plaintiff’s claim was a minor dispute governed by the RLA because the alleged conduct was “‘arguably’ governed by the collective bargaining agreement or had a ‘not obviously insubstantial’ relationship to the labor contract.” Id. at 1369-1370. The court rejected the plaintiff’s “artful pleading”, warning that if such pleadings circumvented the impact of the RLA, the congressional intent to provide a comprehensive federal scheme for the settlement of employer-employee disputes in the railway industry, without resort to the courts, would be thwarted. Id. at 1369. The court concluded that the action was “based on a matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the RLA.” Id.

In accordance with the interpretation of the RLA as set forth in Magnuson, courts have uniformly held that state law claims which are in essence and substance employment grievances are preempted by the RLA. See: Graf v. Elgin, Joliet & Eastern Railway Co., 790 F.2d 1341 (7th Cir.1986) (retaliatory firing for bringing FELA claim); Jackson v. Consolidated Rail Corporation, 717 F.2d 1045 (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984) (same); Campbell v. Pan American World Airways, Inc., 668 F.Supp. 139 (E.D.N.Y.1987) (intentional infliction of emotional distress, defamation, and false imprisonment); Gregory v. Burlington Northern Railroad Co., 638 F.Supp. 538 (D.Minn.1986) (wrongful discharge); Davidson v. Long Island Railroad Co., 617 F.Supp. 67 (S.D.N.Y.1985) (retaliatory firing for bringing FELA claim); Woodrum v. Southern Railroad Co., 571 F.Supp. 352 (M.D.Ga.1983) (fraud); Majors v. U.S. Air, Inc., 525 F.Supp. 853 (D.Md.1981) (false imprisonment and defamation); Carson v. Southern Railroad Co., 494 F.Supp. 1104 (D.S.C.1979) (defamation); DeTomaso v. Pan American World Airways, supra (defamation and intentional infliction of emotional distress).

In the present complaint, Maylie alleges that the railroad and Steven Scott “brought about an atmosphere of constraint at AMTRAK’s Bristol Shops” by threatening, harassing, and retaliating against employees who brought claims against the company, or who aided other claimants against the company. Maylie avers that this “conspiracy” impacted him directly; and, therefore, he seeks compensatory and punitive damages. However, each of Maylie’s allegations is “inextricably intertwined” with rights accorded him and his co-employees by their collective bargaining agreement. The resolution of Maylie’s case can only depend upon a court’s scrutinizing the rights given to all employees under the labor contract. Such an examination runs contrary to the underlying policy of the RLA to provide a resolution of minor disputes without resorting to the courts. See: Magnuson v. Burlington Northern, Inc., supra.

The fact that an inquiry into the parties’ labor agreement would have to be undertaken is magnified by the substance of Maylie’s complaint itself. The claim asserted is not for threats or harassment made against Maylie himself, but, according to the complaint, for activity directed to all individuals working in the Bristol Shop. Hence, the state court would necessarily be required to delve into the entire spectrum of labor relations as it existed between all shop employees and AMTRAK’s management. In order for a court to decide whether there was misconduct on the part of AMTRAK towards its employees, it would have to interpret the collective bargaining agreement and determine what constitutes permissible conduct by AMTRAK management.

Maylie’s conspiracy claim is similar to the one alleged in Spencer v. Missouri Pacific Railroad Co., 581 F.Supp. 1220 (E.D.Mo.1984), aff'd, 743 F.2d 627 (8th Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 925 (1985). In Spencer, a railroad employee charged his employer with intentional conspiracy to interfere with his employment rights, a tort action based on Arkansas law. The court held that the plaintiff could not circumvent the requirements of the RLA by characterizing his claim as one arising under state law. The court stated:

The fact that plaintiff claims conspiracy iii addition to actual interference with his employment rights does not render his claim sufficiently different from normal disputes concerning interpretation of a collective bargaining agreement as to create an exception to the mandatory requirement that minor disputes be settled by the NRAB.

Spencer v. Missouri Pacific Railroad Co., supra at 1221.

Our conclusion that Maylie’s harassment claim has been preempted by the RLA is also in accord with the decision of the Supreme Court of Missouri in Brown v. Missouri Pacific Railroad Co., 720 S.W.2d 357 (1986), cert. denied, 481 U.S. 1049, 107 S.Ct. 2180, 95 L.Ed.2d 836 (1987). There, the plaintiff had sued the railroad and recovered damages under FELA. Subsequently, plaintiff filed an action for “pri-ma facie tort” in the state court, alleging that the railroad, through its supervisory employees and claims agents, had undertaken systematic retaliatory harassment by, inter alia, threatening him with discharge if he filed suit. The plaintiff asserted that the collective bargaining agreement was silent on the question of harassment and that, therefore, no remedy was available thereunder. The court refused to decide even what remedies were available to plaintiff, because the National Railroad Adjustment Board “could best make the decision.” Id. at 361. The court reasoned as follows:

Harassment which strictly relates to working conditions is the kind of thing which is manifestly subject to the collective bargaining process. If existing remedies are inadequate, the bargaining agent may negotiate for corrective contract provisions. The bargaining agent should not be able to reserve civil actions for the employees it represents, on account of matters which could be, but were not, included in the collective bargaining agreement. We can foresee serious disruption in employer-employee relations if the employer could be haled into court because an employee’s supervisor has threatened him with discharge....

Brown v. Missouri Pacific Railroad Co., supra, 720 S.W.2d at 361. Therefore, the Court rejected the plaintiffs effort to avoid preemption. His claim “was closely related to his employment” and, as such, subject to the mandatory provisions of the RLA. Like the plaintiff in Brown, Maylie complains in the instant case of harassment and retaliatory conduct closely related to his employment at AMTRAK. Such claims have been preempted by federal law.

Finally, we reject plaintiffs argument that “outrageous” conduct by AMTRAK requires us to recognize an exception to the preemption doctrine as it did in Farmer v. Brotherhood of Carpenters, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). There, an employee/local union officer had been subjected to an ongoing campaign of personal abuse and harassment, including frequent public ridicule and incessant public abuse as a result of a disagreement with other union officials. The United States Supreme Court held that Farmer’s state action for emotional distress was not preempted by the National Labor Relations Act (NLRA) because “the State has a substantial interest in regulation of the conduct at issue.” Id. at 302, 97 S.Ct. at 1064. Farmer involved the NLRA, a federal law which only focuses on specific conduct which Congress had deemed subject to prohibition or protection. See: Jackson v. Consolidated Rail Corp., supra, 717 F.2d at 1052; 29 U.S.C. § 157-158. Conversely, the RLA was created “to provide for the prompt and orderly settlement of all disputes growing out of grievances, or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” 45 U.S.C. § 151a(5) (emphasis added). In Farmer, the Supreme Court determined that there was little potential for interference with the federal labor scheme because the state court action could be resolved without requiring any determination as to the underlying labor dispute.

In any event, Maylie has failed to identify a state interest sufficiently compelling to survive the test set forth in Farmer. This same issue was analyzed by the court in Majors v. U.S. Air, Inc., 525 F.Supp. 853 (D.Md.1981), where the plaintiff had brought a state action for defamation and false imprisonment against his employer. In rejecting plaintiff’s argument that the Farmer exception applied to his case, the court stated:

Majors asserts, without explanation, that the state has a substantial interest in protecting its citizens from the abusive conduct he was allegedly subjected to by [his employer]. It is fair to say that the state always has an interest in protecting its residents from tortious conduct; however, Farmer requires something more. To avoid preemption, that interest must be “so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”

Majors v. U.S. Air, Inc., 525 F.Supp. at 855. (citations omitted). Maylie’s assertion that AMTRAK has attempted to deprive him of his federally-created right to sue under FELA does not present such a “deeply rooted” interest. “The United States Congress, which created that right, has the primary interest in protecting it.... Yet, according to the uniform course of decisions, Congress considers the remedy before the NRAB for such retaliation adequate.” Brown v. Pacific Railroad Co., supra, 720 S.W.2d at 361.

Maylie’s claims that AMTRAK’s actions were in violation of his “state constitutional rights of due process and equal protection of the law” are also without merit. He has failed to allege any state constitutional claim cognizable under Pennsylvania law. The conduct complained of was private in character; it did not involve “state action.” Defendants have no statutory or financial relationship with the Commonwealth; the government cannot be said to have exercised control of or influence over the operations of defendants’ business; and the state cannot be deemed responsible for the specific conduct of which Maylie complains. AMTRAK is not an “arm of the state” for constitutional purposes. See: Cable Investments, Inc. v. Woolley, 680 F.Supp. 174 (M.D.Pa.1987) (applying Pennsylvania constitutional provisions); Crozer Chester Medical Center v. May, 352 Pa.Super. 51, 506 A.2d 1377 (1986). The provisions of the Constitution do not reach the acts of purely private actors. Western Pa. Socialist Workers v. Connecticut Gen. Life Ins. Co., 335 Pa.Super. 493, 485 A.2d 1 (1984), aff'd, 512 Pa. 23, 515 A.2d 1331 (1986).

We conclude, therefore, that Maylie’s claims have been preempted by the Railroad Labor Act which provides the mandatory and exclusive means for resolving minor disputes between railroads and their employees. Therefore, the state courts lack subject matter jurisdiction to entertain such claims. It follows that the Motion to Dismiss for Lack of Jurisdiction was properly granted by the trial court.

Affirmed.

      . Plaintiff was granted a new trial in the FELA action and, on April 30, 1991, a judgment was entered in the United States District Court for the Eastern District of Pennsylvania on a jury verdict awarding plaintiff damages in the amount of two million, five hundred sixty-seven thousand, two hundred fifty-nine dollars and sixty cents ($2,567,259.60).

      . We disagree with Maylie’s assertion that either Judge Ditter or Judge Poliak previously determined that the state court had jurisdiction over his cause of action. Judge Ditter’s opinion dealt with a motion for remand and had nothing to do with the issue of subject matter jurisdiction of state courts. Similarly, as the trial court observed, Judge Poliak’s opinion involved the defendants’ motion for a permanent injunction under the Anti-Injunction Act, 28 U.S.C. § 2283, and did not address either the merits of Maylie’s claims or the issue of preemption.


author: FORD ELLIOTT, Judge:

text:
    601 A.2d 313
    COMMONWEALTH of Pennsylvania v. Kathleen BIDDLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1991.
    Filed Dec. 17, 1991.

      Patrick J. Thomassey, Monroeville, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before McEWEN, FORD ELLIOTT and HESTER, JJ.
   FORD ELLIOTT, Judge:

In this case we are called upon to determine whether the Commonwealth has the sole discretion to invoke the mandatory sentencing provisions set forth in 18 Pa.C.S.A. § 7508 in situations where it would otherwise be applicable. For the following reasons, we hold that the Commonwealth does possess sole discretion to invoke the provisions under the statute and, accordingly, vacate the judgment of sentence and remand for resentencing.

Kathleen Biddle entered a guilty plea to two counts of possession of a Controlled Substance (cocaine), two counts of Possession of a Controlled Substance with Intent to Deliver, two counts of Delivery of a Controlled Substance, and one count of Criminal Conspiracy. For Delivery of a Controlled Substance, appellant was sentenced to a term of imprisonment of not less than 3 years nor more than 6 years and a concurrent sentence of not less than 4 years nor more than 8 years. A fine of $25,000 was also imposed pursuant to 18 Pa.C.S.A. § 7508. The trial court denied appellant’s motions to Withdraw Guilty Plea and to Reconsider and/or Modify sentence. This appeal followed.

According to appellant, she entered a plea of guilty to the drug charges pursuant to a plea bargain agreement with the Commonwealth. The agreement between the parties was conditioned upon appellant’s cooperation with authorities regarding her knowledge about drug trafficking, and, in return, the Commonwealth would agree to a three year sentence instead of the mandatory sentence under 18 Pa. C.S.A. § 7508. Nevertheless, the sentencing court rejected the agreement between the Commonwealth and appellant and sentenced her according to the mandatory sentencing provisions of 18 Pa.C.S.A. § 7508.

The appellant contends that the Commonwealth has the discretion to invoke the mandatory sentencing provisions and the Commonwealth agrees. The mandatory minimum sentencing provision of 18 Pa.C.S.A. § 7508 states, in pertinent part:

(b) Proof of of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Mandatory shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or pre-release or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided herein. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.

18 Pa.C.S.A. § 7508(b), (c).

Notwithstanding the arguments made by the Commonwealth and appellant during appellant’s sentencing hearing, the sentencing court imposed the mandatory sentence because it believed that it was bound by the law of 18 Pa.C.S.A. § 7508 in cases where the court determined that the provisions of the statute were applicable. The Commonwealth and appellant both maintain that the issue at bar was resolved by our supreme court in Commonwealth v. Pittman, 515 Pa. 272, 528 A.2d 138 (1987).

In Pittman, the defendant pleaded guilty to armed robbery. Pursuant to a plea bargain agreement, the Commonwealth did not give notice that it intended to proceed under the mandatory sentencing provision under 42 Pa.C.S.A. § 9712, sentences for offenses committed with firearms. The prosecutor also informed the sentencing court that the Commonwealth was not requesting the mandatory minimum sentence. Defendant received a sentence of two to four years imprisonment. Subsequently, the court, acting on its own motion, vacated the original sentence because it did not conform to the mandatory sentencing provision and notified the defendant that 42 Pa.C.S.A. § 9712 was applicable to his case. The sentencing court determined that, regardless of whether the Commonwealth requests that the mandatory minimum provision be invoked to impose sentence, whenever a defendant is convicted of an enumerated crime and the evidence indicates that the defendant used a firearm to commit the crime, the mandatory provisions of section 9712 require that a sentence of at least five years imprisonment be imposed. The court resentenced defendant to five to ten years imprisonment. Section 9712, sentences for offenses committed with firearms, is substantially similar to 18 Pa.C.S.A. § 7508 and reads in pertinent part:

(b) Proof at of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Authority of court in shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

42 Pa.C.S.A. § 9712(b), (c).

The question in Pittman was whether the sentencing court was permitted, in the absence of the Commonwealth’s invocation of the mandatory minimum sentencing provision, to sentence Pittman to a term of less than five years imprisonment, or whether the court was required by section 9712 to resentence defendant to a minimum of five years. To resolve the issue raised by the defendant, the court interpreted the meaning of the phrase, “reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing,” contained in subsection (b) of the statute. The supreme court reasoned that

If the Commonwealth had no option but to request imposition of a minimum sentence of five years in every case in which a firearm was used, presumably the statute would not have referred to the Commonwealth’s ‘intention to proceed’ under the section. Moreover, in the case at bar, even if it is assumed, arguendo, that the court, not the Commonwealth, could provide notice of an intent to proceed under the act, it could not have provided notice of the Commonwealth’s intent to proceed under the act, for the 'Commonwealth had no such intent, as it indicated at the sentencing hearing, supra.

Pittman, 528 A.2d at 141-142 (emphasis in original).

The supreme court concluded that the mandatory provisions of section 9712 may not be imposed absent notice of the Commonwealth’s intention to proceed, and it was therefore error for the sentencing court to apply the mandatory provisions without the Commonwealth’s notice.

The case sub judice and Pittman are analogous. In both cases, the mandatory minimum sentencing provisions were applicable. The defendants in both instances pleaded guilty, and the Commonwealth, pursuant to an agreement, did not file notice that it intended to proceed under the mandatory sentencing provision. Here, as in Pittman, the sentencing court imposed the mandatory without the Commonwealth’s notice to proceed under the mandatory section. The mandatory provisions of section 9712 are virtually indistinguishable from the provisions set forth at section 7508(b). Both sections 9712(b) and 7508(b) contain the language, “reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.” Our supreme court has construed this language to mean that the Commonwealth does have sole discretion to invoke the mandatory minimum sentencing provision. We find that Pittman is controlling and resolves the issue before us.

The trial court, on the other hand, believes that the mandatory provisions of section 9712 are distinguishable from the mandatory provisions of section 7508. As the trial court aptly notes, this is a case of statutory interpretation. The rules of statutory construction are applicable when interpreting the law. 1 Pa.C.S.A. § 1901 et seq. Where the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage. 1 Pa.C.S.A. § 1903. Since section 7508 is a penal provision, it must be strictly construed. See, generally, 1 Pa.C.S.A. § 1928. To ascertain the meaning of a statute, we must consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 We shall presume that the General Assembly did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229

The trial court determined that the sections of the statute (18 Pa.C.S.A. § 7508) must be read together and each section must be construed in conjunction with the other parts of the statute. The trial court finds that the language in section 7508 is clear and that the mandatory penalty must be imposed in all cases. Furthermore, the trial court opines that the legislature’s intent, with respect to section 7508, was to eliminate the possibility that a person guilty of violating the statute would receive any lesser penalty except those set forth in the statute to penalize drug traffickers. The Honorable Jeffrey A. Manning states as follows:

There is not even a hint, in the statutory language, in the words of the members of General Assembly who enacted the statute, or in any common sense analysis of the ‘mischief to be remedied or the object to be attained' that the Legislature ever intended to uproot judicial discretion to impose a lesser sentence and transplant that weed in the garden of prosecutorial discretion. To so interpret this statute grants to the prosecutor, a new unfettered right to decide what the sentence ought to be and the authority to make that decision in the secret recesses of his or her private office rather than by a fair and impartial jurist in the bright light of a public courtroom, as has been the Anglo American tradition of law and justice. The prosecutor always retains the traditional power and discretionary authority to bring a charge or not to bring a charge. But once having brought a charge under a statute requiring the imposition of a mandatory sentence upon a simple evidentiary determination by the Court, the prosecutor should not be permitted to thwart a proscribed penalty by the intentional or negligent omission of a notice requirement. The simple purpose for subsection (b) is to guarantee to the defendant procedural due process, that he not be subjected to mandatory punishment without notice and an opportunity “to present necessary additional evidence.” Its purpose is not to give the authority to sentence to the Commonwealth's attorney. To construe this section as granting unbridled power to the prosecutor to decide who is subject to Draconian punishment and who is not, would, in the words of Justice Scalia, deprive “legislators or the assurance that ordinary terms, used in an ordinary context, will be given a predictable meaning.”

Trial court op. at 10-11.

Although the trial court’s concerns are well taken, we find that we are bound by our supreme court’s interpretation of the identical functional language in Pittman. The supreme court decided that transferring such discretionary authority to the prosecution was constitutionally permissible because it is within the traditional powers accorded the prosecution. Additionally, in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), the supreme court noted:

... the argument that section 9712 violates the separation of powers principle by depriving the sentencing court of discretion may be rejected out of hand. We must also decline the invitation to hold that section 9712 improperly delegates this legislative power to the executive by giving the prosecution discretion whether to invoke the mandatory sentencing procedure. We perceive no distinction between such an exercise of discretion and the prosecutorial discretion exercised at any other stage of the criminal prosecution. The decision to accord the Commonwealth a measure of discretion as to whether to employ section 9712 in a given case was a proper exercise of legislative judgment.

Wright, 494 A.2d at 361, n. 4.

Our supreme court has thus determined that, in the same manner that the legislature may limit the sentencing court’s discretion to impose a lesser sentence than the mandatory minimum, it may grant the prosecution discretion whether to seek a penalty under the mandatory sentencing provisions. Despite the trial court’s very valid concerns, we are constrained to find that our supreme court’s rationale in Pittman applies to the instant case.

Judgment of sentence vacated. Case remanded for resen-tencing.

      . 35 Pa.S.A. § 780-113(a)(16).

      . 35 Pa.S.A. § 780-113(a)(30).

      . 35 Pa.S.A. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 903(a)(1).

      . Appellant also claims that she should have been permitted to withdraw her guilty plea after sentencing since she was informed prior to sentencing that that the Commonwealth did not intend to proceed under the mandatory sentencing provisions of 18 Pa.C.S.A. § 7508. Appellant claims that she pleaded guilty pursuant to a plea bargain agreement. After reviewing the record, we agree with the Commonwealth that appellant did not plead guilty pursuant to a plea agreement. It was, according to the trial court, a straight-up plea. However, an agreement was entered into between the Commonwealth and appellant that the Commonwealth would not file notice of its intention to seek the mandatory sentence, if appellant cooperated with law enforcement regarding drug trafficking. Since appellant cooperated with authorities, the Commonwealth did not file notice of intent to proceed under the mandatory sentencing provisions and recommended only a three year sentence as opposed to the mandatory four year sentence at the sentencing hearing.
      We do not find it necessary to address the issue of whether appellant should be permitted to withdraw her plea due to our disposition of appellant’s second claim.

      . Although the Commonwealth believes that it has the discretion of seeking a penalty under the mandatory provisions of 18 Pa.C.S.A. 7508, it argues on appeal that the sentence should be affirmed since it is less than the maximum and lawful.

      . By enacting 18 Pa.C.S.A. § 7508, our legislature intended to punish drug dealers with mandatory minimum terms of imprisonment. The General Assembly also hoped that the provisions would act more as a deterrent, than as punishment. Legislative Journal-Senate, HB 668 2/23/88, Vol. 1, p. 1784. A review of the senator’s comments prior to voting on section 7508 reveals that this legislation was passed to protect the people of this Commonwealth from devasting social, economic, and personal effects that drugs wreak on the lives of many people. Id. Some senators, however, argued to the effect that mandatory sentencing was not the cure for the serious ills in our society from which drug abuse and drug trafficking stem, but merely a “band-aid’ type solution. It was also argued that, in the end, mandatory minimum sentences would be increasingly more expensive to the taxpayer because more people would be incarcerated and probation would not be possible; and, more jails would be needed to house the influx of drug traffickers since even first time offenders would be incarcerated. Id.

      . Recently, in Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300, n. 6 (1991), a section 7508 case, this court, relying on Pittman, noted that the delegation of discretion to the prosecutor to decide whether to invoke the mandatory sentencing provisions is constitutionally permissible.

      . We further note that our legislature amended 18 Pa.C.S.A. § 7508 as recent as December 1990, but it did not see fit to amend any of the language in subsection (b) referring to the Commonwealth’s intention to proceed under this section. This language had been interpreted by our supreme court in Pittman in 1987, and, if the legislature did not want this language in section 7508 to be construed the same as the almost identical language in section 9712, the legislature could have removed the language regarding the Commonwealth’s intention.


author: MONTEMURO, Judge: TAMILIA, Judge,

text:
    601 A.2d 319
    Robert RUMBAUGH, Individually and on Behalf of All Other Shareholders of Beck-Rumbaugh Assoc., Inc. v. Norman H. BECK, Jr. and Joan W. Beck, a/k/a Joan Williams, his wife, and Richard Biborosch and Joseph W. Chandler and Michael J. Del Collo, Esquire and Plum Realty, Inc. and Beck-Rumbaugh Assoc., Inc. Appeal of Joseph W. CHANDLER. Robert RUMBAUGH on Behalf of All Other Shareholders of Beck-Rumbaugh Assoc., Inc. v. Norman H. BECK, Jr. and Joan W. Beck, a/k/a Joan Williams, his wife, and Richard B. Biborosch and Joseph W. Chandler and Michael J. Del Collo, Plum Realty, Inc. and Beck-Rumbaugh Assoc., Inc. Appeal of Norman H. BECK, Jr. and Joan W. Beck a/k/a Joan Williams, his wife. Robert RUMBAUGH, Individually and on Behalf of All Other Shareholders of Beck-Rumbaugh Associates, Inc., Appellants, v. Norman H. BECK, Jr. and Joan W. Beck, a/k/a Joan Williams, his wife, and Richard Biborosch, Joseph W. Chandler, Michael J. Del Collo, Esquire and Plum Realty, Inc. and Beck-Rumbaugh Assoc., Inc.
    Superior Court of Pennsylvania.
    Argued April 18, 1991.
    Filed Dec. 31, 1991.

      Aaron J. Beyer, Philadelphia, for Chandler, appellant at No. 1706 and appellee at Nos. 1707 and 1708.
    Norman H. Beck, pro se.
    Fred Lowenschuss, Philadelphia, for Rumbaugh, appellants at No. 1708 and appellees at Nos. 1706 and 1707.
    David E. Loder, Philadelphia, for Del Collo, appellee at Nos. 1706, 1707 and 1708.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   MONTEMURO, Judge:

The parties in this action in conspiracy and fraud cross-appeal from the trial court’s order denying their post-trial motions and entering judgment in favor of plaintiff Robert Rumbaugh and against defendants Norman H. Beck, Jr., Joan Beck and Joseph W. Chandler. Having carefully reviewed the record in this case, we affirm in part and reverse in part the judgment against Chandler and remand for an assessment of an appropriate damage award. We quash the appeal of appellants Joan Beck and Norman Beck.

In 1976, defendant-appellant Norman H. Beck and plaintiff-appellant Robert Rumbaugh (Rumbaugh) incorporated Beck-Rumbaugh Associates, Inc. (“Corporation”) to sell office equipment and supplies as manufacturers’ representatives. Beck owned 51% of the corporate shares and Rum-baugh owned 49% of the corporate shares. The relationship between Beck and Rumbaugh eventually deteriorated, resulting in almost continuous litigation since 1979, including an action brought in 1979 in federal district court by Rum-baugh, the instant action brought by Rumbaugh in the Philadelphia Court of Common Pleas in 1984, and a filing by Beck for voluntary bankruptcy of the Corporation in 1985.

In the federal district court suit, Rumbaugh claimed that Beck breached an agreement to purchase Rumbaugh’s 49% ownership interest in the Corporation and alleged other wrongful conduct on the part of Beck and the Corporation; the jury determined that Rumbaugh was entitled to recover $135,109.00 from Beck personally for breach of the agreement, as well as an additional $5,000 from Beck and $28,000 from the Corporation. The jury also determined that the Corporation was entitled to $8,154.00 from Rumbaugh on its counterclaim for breach of a non-competition agreement. As a condition of execution of the judgment, the district court required that Rumbaugh deposit his stock in the Corporation with the court. See Rumbaugh v. Beck, No. 79-3849 (E.D.Pa. June 1, 1983) (Hannum, J.). The decision was affirmed on appeal to the United States Court of Appeals for the Third Circuit. See Rumbaugh v. Beck, 841 F.2d 1120 (3d Cir.1988).

In 1984, Rumbaugh brought this action in equity as an individual and on behalf of all other shareholders of the Corporation, alleging the existence of three different conspiracies as well as fraud and unlawful conversion. The first count was brought individually and on behalf of the stockholders of the Corporation against the five individual defendants and the defendant realty company and asserts that the defendants conspired to and did convert the assets of the Corporation, primarily by (1) causing fraudulent mortgages to be recorded as liens against the Florida condominium owned by the Corporation and (2) diverting rental income from the condominium. The second claim asserts a claim on behalf of Rumbaugh as an individual, alleging an illegal conspiratorial relationship between defendants Norman Beck, Joan Beck, Biborosch, Chandler, Del Collo and Plum Realty, Inc. (the Becks’ real estate agent) to convert the assets of the Corporation and thereby prevent Rumbaugh from executing on the judgments he won in federal court against the Corporation and Beck. The third count, brought individually and on behalf of the Corporation, alleges an unlawful agreement between defendants Norman Beck and Joan Beck to deprive Rumbaugh of his share of profits from the Corporation between 1981 and the time of trial. Rumbaugh asserted his fourth and final count as an individual against Norman and Joan Beck, requesting an accounting of all money and commissions received on account of the Corporation’s business. The complaint sought compensatory and punitive damages arising out of the alleged conspiracies and fraudulent conversion; the complaint also requested an award of counsel fees.

Five months after the present suit was brought, the Corporation filed a voluntary petition in bankruptcy under Chapter 7 of the Bankruptcy Code. At the trial in the instant case, Rumbaugh argued that the filing of the bankruptcy was part of the defendants’ ploy to defeat Rum-baugh’s ability to execute on the judgment.

Following a bench trial, the trial court concluded that defendants Norman H. Beck, Joan Beck and Joseph Chandler conspired to deprive Rumbaugh of his share of the condominium and assets of the Corporation; the court concluded that the Becks and Chandler wrongfully diverted corporate assets for the purpose of sheltering funds from lawful execution by Rumbaugh. The chancellor awarded Rumbaugh monetary compensation and counsel fees, but denied Rumbaugh’s request for punitive damages. The court ruled against Rumbaugh on the remaining allegations of conspiracy.

Rumbaugh, the Becks and Chandler brought these cross-appeals following the trial court’s denial of their post-trial motions and entry of judgment in favor of Rumbaugh. Initially, we note that appellants Joan Beck and Norman Beck have filed a pro se appellate brief with this Court. Their brief violates numerous rules of appellate procedure insofar as the Becks have failed to include a statement of jurisdiction, a statement of the questions involved, a statement of the case, a summary of the argument, a short conclusion stating the precise relief sought, and any designated argument section. See Pa. R.A.P. 2111(a), 2114, 2115, 2116(a), 2117, 2118, and 2119(a). A review of the record shows that in fact, the Becks’ brief is merely a repetition of their proposed findings of fact and conclusions of law and their post-trial motions which were submitted to the trial court. It is well-established that such blatant violations of the rules of procedure may result in dismissal of the appeal. See Vaskie v. West American Insurance Co., 383 Pa.Super. 76, 556 A.2d 436, 438 n. 1 (1989); Commonwealth v. Ely, 381 Pa.Super. 510, 554 A.2d 118 (1989); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1984); Lucarelli v. W.C.A.B., 119 Pa.Cmwlth. 72, 546 A.2d 151 (1988). We are unable to determine precisely what the Becks’ allegations of error are or make any rulings on them, as the Becks have failed to properly state any questions for our review. We therefore quash the appeal of Joan and Norman Beck.

Appellant Joseph Chandler raises five issues on appeal: (1) whether the trial court erred in refusing to grant Chandler’s motion for a non-suit on the basis that Rumbaugh failed to meet his burden of proving that Chandler was involved in a conspiracy; (2) whether the trial court erred in concluding that Rumbaugh had standing to pursue a shareholder’s derivative action in accordance with Pa. R.C.P. 1506; (3) whether the trial court lacked jurisdiction to resolve this dispute given the pending bankruptcy action of Beck-Rumbaugh Associates, Inc.; (4) whether the trial court erred in denying Chandler’s motion for a non-suit on the basis that Rumbaugh failed to prove damages; (5) whether the trial court erred in denying Chandler’s motion for a nonsuit on the basis that Rumbaugh’s total interest in Beck-Rumbaugh Associates was fully litigated and liquidated in a prior action in federal court. Plaintiff-appellant Rumbaugh raises one additional issue on appeal: whether the trial court erred in assessing the amount of damages and refusing to award punitive damages.

First we must determine the effect that the verdict in the federal action has on the claims advanced in this case and on Rumbaugh’s standing to assert a cause of action as a shareholder on behalf of the Corporation. Rumbaugh advances two incompatible positions relative to his rights regarding the Corporation. Rumbaugh claims to be an interested shareholder with the right to bring a shareholder derivative action and recover assets of the Corporation diverted by the conspirators; yet, at the same time, he asserts the right to recover the monetary judgment which he won against Beck in the federal case in which he sued for Beck’s breach of an agreement to buy out Rumbaugh’s share in the Corporation. Rumbaugh claims that the defendants conspired to deprive him of the ability to recover this award from the Corporation and Beck by conspiring to divert corporate funds and otherwise encumber corporate property. Thus, on the one hand, Rumbaugh claims shareholder status of the Corporation, whereas on the other he claims entitlement to recover for the sale of his share in the stock of the Corporation. We conclude that under principles of collateral estoppel, Rumbaugh may not assert claims as a shareholder in the Corporation, given the conclusions of the jury in the federal action.

The doctrine of collateral estoppel will bar the litigation of an issue where

(1) the issue decided in the prior adjudication was identical with the one presented in the later action, (2) there was a final judgment on the merits, (3) the party against whom the plea is asserted was a party to the prior adjudication, and (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. In Re Estate of Ellis, 460 Pa. 281, 333 A.2d 728, 731 (1975).

Safeguard Mutual Ins. Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975). These four criteria are met here.

The federal litigation centered on whether Beck had agreed to buy Rumbaugh’s share in the Corporation. The determination of the jury was that Rumbaugh voluntarily ceased to be active in the Corporation as of June 30, 1979; Beck had agreed to purchase Rumbaugh’s stock in the Corporation; and Beck had breached that agreement. The jury determined that Rumbaugh was owed $135,109.00 by Beck for breach of the agreement. As a prerequisite for execution of the judgment for the contract price of his stock, the district court ordered Rumbaugh to deposit his shares of stock in the Corporation with the court, holding that if Rumbaugh collects on the award, he will have been paid for his interest in the Corporation, and "to retain his stock will result in double recovery.” Rumbaugh v. Beck, supra, slip op. at 7. [841 F.2d 1120 (table)]. The court noted that “Rumbaugh holds bare legal title to his stock subject to divestment upon payment of the contract price for the stock.” Rumbaugh v. Beck, supra, slip op. at 5. [841 F.2d 1120 (table) ]. The judgment of the district court was affirmed on appeal. Rumbaugh v. Beck, 841 F.2d 1120 (3d Cir.1988).

In light of the findings of the jury in the federal action, we find that the issue of Rumbaugh’s interest in the Corporation was finally litigated on its merits in the federal action. As the federal action resulted in a determination that Beck had agreed to purchase Rumbaugh’s interest in the Corporation, we must conclude that Rumbaugh is collaterally estopped from asserting an interest as a shareholder of the Corporation, and therefore does not have standing to bring a shareholder derivative action on behalf of the Corporation. See Pa. R.C.P. 1506 (requiring that plaintiff who brings shareholder derivative action must be a stockholder or owner of interest in the corporation at time of transaction of which he complains); Fitzpatrick v. Shay, 314 Pa.Super. 450, 461 A.2d 243 (1983). Thus, Rumbaugh’s claims for his share of the corporate profits and assets accrued between 1981 and the time of trial must fail. He may not recover for the sale price of his stock and at the same time continue to assert a right to assets accumulated after he relinquished his rights as a stockholder. We note, however, that Rumbaugh asserted claims in this action in part as an individual against Norman Beck, Joan Beck and Chandler, alleging that the Becks and Chandler unlawfully agreed to and in fact did vest Chandler with certain legal rights to allow Beck to evade satisfaction of his and the Corporation’s liability to Rumbaugh arising out of the federal litigation. Rumbaugh does have standing to pursue the claims which he raised as an individual, namely, the conspiracy to deprive him of the ability to execute on the federal judgment, as this is an injury for which he, rather than the Corporation, is entitled to recover damages.

Chandler argues that Rumbaugh is completely barred under the doctrine of collateral estoppel from litigating the issues in this case because the prior federal action and the bankruptcy action completely resolved Rumbaugh’s interest in the Corporation. We disagree with this argument to the extent that this suit deals with the defendants’ efforts to deprive Rumbaugh of the ability to enforce the judgment won by Rumbaugh in the federal action. In fact, Rumbaugh asserted at the trial in this case that the placing of the Corporation in voluntary bankruptcy was part of the scheme to prevent Rumbaugh from executing on the judgment. As the instant case involves legal principles and facts which are significantly different from those forming the basis of the suit in federal district court and the bankruptcy court, we disagree that Rumbaugh is collaterally estopped from pursuing his cause of action for wrongful conversion, fraud and conspiracy. Further, we note that the bankruptcy hearing and decision occurred after the trial in this case. Thus, at the time this suit was brought and tried, there was no final decision from the bankruptcy court which could collaterally estop Rumbaugh from litigating his right to recover the federal judgment owing to him.

Chandler argues that the Philadelphia Court of Common pleas lacked jurisdiction to hear this matter. Rum-baugh initiated the instant suit in October, 1984. In March of 1985, Beck placed the Corporation in voluntary bankruptcy under Chapter 7 of the Bankruptcy Code. Chandler argues that once the Corporation was placed in bankruptcy, the Philadelphia Court of Common Pleas lost jurisdiction over this action, as the complaint sought the return of rental payments diverted from the Corporation and sought damages representing Rumbaugh’s share of the condominium purchased by the Corporation, and the bankruptcy court has sole jurisdiction to hear claims regarding corporate assets which have been diverted from the Corporation. As stated above, Rumbaugh has standing to assert only his individual claims regarding the defendants’ conspiracy, fraud and unlawful conversion. Chandler does not challenge the trial court’s power to hear these claims.

Moreover, we note that the bankruptcy court, the United States District Court for the Eastern District of Pennsylvania and the trustee in bankruptcy all refused Chandler’s request to stay these proceedings, have the case removed to bankruptcy court or have the action taken over by the trustee in bankruptcy. See In re Beck-Rumbaugh Associates, Inc., 103 B.R. 628, 630 (Bankr.E.D.Pa.1989) aff'd. 114 B.R. 418 (E.D.Pa.1990). The federal statute conferring original jurisdiction in the United States district courts to hear all civil proceedings arising under the Bankruptcy Code or related to cases under the Bankruptcy Code provides that

in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding ... arising in or related to a case under title 11 [11 U.S.C. § 101 et ruptcy].

28 U.S.C. § 1334(c)(1). Thus, a bankruptcy court has the prerogative to refrain from exercising jurisdiction over state claims which are in some way related to the bankrupt corporation. Where the state action involves predominantly issues of state law and the state court can timely adjudicate the matter, or where litigation of the action in the bankruptcy court will result in expense, delay, waste and inefficiency, in the interest of comity, the bankruptcy court will abstain from hearing the proceeding. See e.g. In re Engra, Inc., 86 B.R. 890 (S.D.Tex.1988); In re Lindsey, 85 B.R. 397 (W.D.Tex.1988); In re Wood, 84 B.R. 432 (S.D.Miss.1988); Re Windtech, Inc., 80 B.R. 628 (D.Conn.1987). Thus, as the bankruptcy court and the district court refrained from exercising their jurisdiction over the instant action, the case was properly before the Philadelphia Court of Common Pleas.

Chandler argues that the trial court erred in denying Chandler’s motion for a non-suit and in not entering judgment in favor of Chandler because Rumbaugh failed to prove that Chandler was involved in a conspiracy. In conjunction with this argument, Chandler claims that the trial court erred in taking judicial notice of the bankruptcy proceedings, and without the benefit of the factual findings of the bankruptcy court, there is not sufficient evidence to sustain the trial court’s finding of conspiracy.

Our scope of review on appeals from a decree in equity is a limited one. Facts found by the chancellor in a court of equity, when supported by competent evidence in the record, are binding upon an appellate court. Presbytery of Beaver-Butler v. Middlesex Presbyterian Church, 507 Pa. 255, 489 A.2d 1317, cert. denied, 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985).

Pierce v. Penman, 357 Pa.Super. 225, 515 A.2d 948 (1986), appeal denied 515 Pa. 608, 529 A.2d 1082 (1987). Although we agree that the trial court should not have taken judicial notice of the findings of the Bankruptcy Court, we conclude that Rumbaugh produced enough evidence at the trial in this case to prove the existence of an unlawful conspiracy.

The trial in this case was completed as of May 25, 1988. The bankruptcy court’s decision was filed in August, 1989. The trial court’s adjudication and decree nisi in this case was filed on March 16, 1990. Despite the fact that the bankruptcy court’s decision came down over a year after the record in this case was closed, the trial court took judicial notice of the bankruptcy proceedings, including some of the factual conclusions of the Bankruptcy Court. See Adjudication and Decree Nisi, March 16, 1990 at 7-10.

As a general rule our courts may not take judicial notice in one case of the records of another case. Gulentz v. Schanno Transportation, Inc., 355 Pa.Super. 302, 513 A.2d 440 (1986), appeal denied 515 Pa. 580, 527 A.2d 541 (1987); Woolard v. Burton, 345 Pa.Super. 366, 498 A.2d 445 (1985); In re Estate of Brockerman, 332 Pa.Super. 88, 480 A.2d 1199 (1984). We find that the trial court erred in taking judicial notice of the bankruptcy court’s proceedings, particularly in light of the fact that bankruptcy court’s findings were not made part of the record in this case, as the bankruptcy court did not even resolve the estate of the Corporation until after the instant trial ended.

We nevertheless find that Rumbaugh proved at trial that an unlawful conspiracy existed between defendants Norman Beck, Joan Beck and Joseph Chandler.

To prove a civil conspiracy, it must be shown that two or more persons combined or agreed with intent to do an unlawful act by unlawful means.... Proof of malice, i.e., an intent to injure, is essential in proof of a conspiracy. ...

Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 466, 472 (1979) (citations omitted). After hearing the evidence in this case, the trial court concluded that Rum-baugh had met his burden of proof that Norman Beck, Joan Beck and Joseph Chandler engaged in “an unlawful conspiracy with the common design, intent and purpose of causing legal damage and harm to Rumbaugh and the Corporation by diminishing, destroying, or impairing ... Rumbaugh’s ability to enforce the aforesaid civil judgment and to obtain the amounts owed to him by Beck and the Corporation.” Adjudication and Decree at 11. In support of its finding, the court stated:

In furtherance of this conspiracy, Beck and Chandler caused a fraudulent mortgage to be placed against the condominium [owned by the Corporation] in the sum of $20,000.00 to be in favor of Chandler. If any monies were paid by Chandler in exchange for the $20,000.00 mortgage, such monies were not paid to the Corporation, were not used to benefit the Corporation, and were not used to make the necessary installment payments toward the first mortgage on the condominium, which was held by the Maryland National Bank. Instead, any such monies were wrongfully diverted to Beck and/or his wife, Joan Beck, so as to deplete or reduce the assets of the Corporation and to shelter such funds from lawful execution by Rumbaugh. Pursuant to the aforesaid conspiracy, Beck has caused the Corporation to fail to pay the installments on the first mortgage held by Maryland National Bank. As a result, the Maryland National Bank instituted foreclosure proceedings against the condominium. Beck received a $6,750.00 rental check from Plum Realty pursuant to a leasing agreement pertaining to the condominium, which he wrongfully endorsed and gave to his wife, Joan Williams Beck, who in turn wrongfully endorsed said check using the name “Joan Williams” and deposited it in her personal account. Thus, the $6,750.00 check was wrongfully diverted to the Becks so as to deplete or reduce the assets of the Corporation and to shelter such funds from lawful execution by Rumbaugh. The said rental payments were not used to benefit the Corporation nor to make the necessary installment payments toward the first mortgage on the condominium which was held by the Maryland National Bank, as should have been done. Following the pending foreclosure proceedings instituted against the condominium, Beck caused the Corporation to file for bankruptcy, thereby freezing the Corporate assets, without ever giving notice to Rum-baugh and thus wrongfully deprived Rumbaugh from obtaining any monies or assets whatsoever. In addition to the aforesaid findings of fact, to support its finding of conspiracy, this Court finds from the evidence presented in this case ... that Chandler and Beck were long-time friends, Chandler knew Beck owed money to Rumbaugh, the district court judgment was entered before Chandler ever made any loans to Beck, and neither Beck nor Chandler appeared at trial in the present action to rebut accusations of collusion by Rumbaugh.

Trial Court Adjudication and Decree Nisi, March 16,1990 at 11-12.

We disagree with Chandler that this evidence was insufficient to support a finding of conspiracy. We note that Rumbaugh’s efforts to make out his case were greatly impeded by the defendants’ failure to cooperate except upon order of the court. It is well-established that the credibility of witnesses is within the purview of the trial court. Thus, it was well within the province of the trial court, as fact-finder, to conclude that Chandler must have known of the filing of the mortgage on his behalf. Chandler’s deposition testimony reveals that Chandler is an experienced businessperson who had numerous dealings in real estate, was a principal of a company and was represented by various attorneys in several states. The trial court committed no error in drawing the reasonable inference that a person in Chandler’s position with Chandler’s business savvy simply would not loan $20,000 without some security for the loan. It is also reasonable to infer that the filing of the mortgage by Chandler’s attorney did not occur without Chandler’s knowledge. Chandler testified that although his Florida attorney, Mr. Thomas Purdo, was his golfing partner and handled legal matters for him in Florida, Mr. Purdo never discussed the filing of the mortgage in Chandler’s favor with Chandler. At his deposition, Chandler testified that he had little or no remembrance of any of the facts surrounding the transaction involving the Florida condominium. Although Chandler testified that he believed he had lent the $20,000 to Beck alone, Chandler acknowledged that he nevertheless filed a proof of claim against the Corporation’s estate in bankruptcy court for $20,000 plus interest on the basis of the mortgage he held against the Florida condominium.

The trial court could reasonably disbelieve Chandler’s testimony that he had absolutely no awareness of his interest in the condominium or the mortgage which he held against the Florida property until' he received notice from the bank which was foreclosing on the first mortgage. Similarly, the court could reasonably find incredible Chandler’s testimony that he had no idea who Robert Rumbaugh was or that the Corporation even existed and that he believed Beck owned the condominium personally until service of the complaint in this lawsuit.

Our courts have held that a civil conspiracy may be proven by circumstantial evidence, provided the evidence is full, clear and satisfactory. Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1958); Blank & Gottschall Co. v. First National Bank of Sunbury, 355 Pa. 502, 50 A.2d 218 (1947); S.N.T. Industries, Inc. v. Geanopulos, 363 Pa.Super. 97, 525 A.2d 736 (1987), appeal denied 520 Pa. 577, 549 A.2d 137 (1988). Given the relationship between the Becks and Chandler, and Chandler’s involvement with the Florida condominium and the bankruptcy action, we hold that Rumbaugh met his burden of proving that Chandler conspired with Norman and Joan Beck to diminish and encumber the Corporation’s assets and thereby prevent Rumbaugh from executing on his judgment against Beck and the Corporation. See Collins v. Cronin, 117 Pa. 35, 45, 11 A. 869 (1887) (Pennsylvania recognizes cause of action for conspiracy to transfer property of debt- or so that it cannot be reached by legal process, thereby hindering, delaying and cheating creditors). We disagree with Chandler that simply because Chandler chose not to be forthcoming with information at his depositions and chose to absent himself from the courtroom proceedings in this case, his denials and lack of cooperation alone defeat Rum-baugh’s case.

We also disagree with Chandler that the trial court’s finding of conspiracy rested upon the findings of the Bankruptcy Court. The evidentiary basis for the conspiracy, that is, Joan Beck’s unlawful conversion of corporate funds, the relationship between the Becks and Chandler, and Chandler’s unlawful involvement with the Florida condominium, was established at the trial in this case through the deposition of Chandler and the testimony of the other witnesses. Although the trial court did refer to the bankruptcy court’s findings, a reading of the chancellor’s summary of the evidence, as quoted above, which supports his finding of conspiracy convinces us that the court’s conclusions derive from the facts presented during the trial of this case.

Both Rumbaugh and Chandler challenge the trial court's award of damages. The trial court entered the following award:

DECREE NISI
AND NOW, this 16th day of March, 1990, it is hereby DECLARED and DECREED that:
1. Plaintiff Robert Rumbaugh is awarded the sum of $3,307.50 for rental fees improperly withheld from him.
3. Plaintiff is awarded 49% of all trustee fees, counsel fees, other administrative expenses and all other costs authorized in the bankruptcy action, and may file a copy of the order with this Court in which such payments have been allowed by the Bankruptcy Court.
4. Plaintiff is awarded $49,736.38 for his share of the condominium.
5. The foregoing awards are against defendants Norman H. Beck, Joan Beck, and Joseph W. Chandler.

Decree Nisi, March 16, 1990.

Rumbaugh argues that on the basis of the trial court’s findings of fact and conclusions of law, he is entitled to a minimum verdict of $248,863.79; in addition, Rumbaugh claims that he is entitled to punitive damages. Chandler is of the view that Rumbaugh failed to prove entitlement to any damages.

This suit involved a claim that the conspirators unlawfully agreed to divert, diminish and encumber the Corporation’s assets in order to prevent Rumbaugh from executing on his judgments against Beck and the Corporation.

The damages to which plaintiff is entitled are such only as naturally and proximately result from the wrongful act or acts done in pursuance of the conspiracy, prior to the commencement of the action, and which directly result from the conspiracy....
The measure of damages for defeating the collection of plaintiffs debt, by placing the debtor’s property out of plaintiff’s reach, is the value of the property and not the amount of the debt, unless the value of the goods exceeds the amount of the debt, in which case the measure is the amount of the debt....

15A C.J.S. Conspiracy § 33, at 715, 717 (1955).

Rumbaugh proved that rental income from the condominium was diverted from the Corporation; that Chandler caused a fraudulent mortgage to be placed against the Florida condominium; and that the actions of Chandler and the Becks resulted in the Maryland Bank’s foreclosure on the condominium, thereby precipitating the bankruptcy proceeding and the subsequent sale of the condominium and depletion of corporate assets. As Rumbaugh proved that the defendants unlawfully conspired to hinder Rumbaugh as a creditor of Beck and of the Corporation, Rumbaugh is entitled to recover the amount of the value of the Corporation’s property which was diverted, diminished or encumbered as a consequence of the wrongful acts of the defendants, not to exceed the amount of the federal judgment. We note that the trial court based the damage award on the erroneous assumption that Rumbaugh’s status as a shareholder of the Corporation entitled him to one-half of the value of the assets of the Corporation. On remand, the court should determine the amount of damages in light of Rumbaugh’s status as a defrauded creditor of Beck and the Corporation in accordance with the principles set forth above.

We agree with Chandler that there is no basis in Pennsylvania law to support the award of counsel fees.

The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of parties, or some other recognized exception. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301, 344 A.2d 837, 842 (1975); Shapiro v. Magaziner, 418 Pa. 278, 280, 210 A.2d 890, 892 (1965).

Mantell v. Mantell, 384 Pa.Super. 475, 559 A.2d 535, 542 (1989).

The only arguable statutory basis for awarding counsel fees to Rumbaugh for pursuing this litigation is provided by 42 Pa.C.S.A. § 2503.

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(9) Any participant who is awarded counsel fees because of the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

Section 2503 is inapplicable, however, to conduct that occurred prior to the commencement of this suit. Cher-Rob, Inc. v. Art Monument Co., 406 Pa.Super. 330, 594 A.2d 362 (1991). Unless Chandler acted to delay or to obstruct justice during the pendency of this action, the award of counsel fees under § 2503 is inappropriate. Thus, the Chancellor erred in awarding counsel fees to compensate Rumbaugh for the costs of instituting the present action.

Finally, Rumbaugh claims that the trial court erred in denying his request for punitive damages. Our Supreme Court recently stated:

Assessment of punitive damages are proper when a person’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct, Pittsburgh Outdoor Adv. Co. v. Virginia Manor Apts., Inc., 436 Pa. 350, 260 A.2d 801 (1970), and are awarded to punish that person for such conduct. Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986); Restatement of Torts, Section 908(1).
In Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), we adopted Section 908(2) of the Restatement (Second) of Torts which states:
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. (Emphasis added).
The determination of whether a person’s actions arise to outrageous conduct lies within the sound discretion of the fact-finder and will not be disturbed by an appellate court so long as that discretion has not been abused. Likewise, in equity matters, our standard of review "... is limited to a determination of whether the Chancellor committed an error of law or abused his discretion. The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.” Lower Frederick Twp. v. Clemmer, 518 Pa. 313, 543 A.2d 502 (1988).

SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991).

The Chancellor determined that punitive damages are not proper in this action because its damage award fully compensates Rumbaugh for harm caused by the conspiracy. (T.C.O. 17). In light of our reversal of the Chancellor’s award of counsel fees, the trial court should also be given an opportunity to reassess the appropriateness of awarding punitive damages.

In light of the foregoing, we remand this case for a determination of an appropriate damage award. We quash the appeal of Joan Beck and Norman Beck.

Quashed in part. Affirmed in part and reversed in part and remanded for further proceedings consistent with this decision. Jurisdiction relinquished.

TAMILIA, J., concurs and dissents.

TAMILIA, Judge,

concurring and dissenting:

Although I join much of the majority Opinion, I dissent to the holdings that there is neither legal authority to award punitive damages nor counsel fees in the amount of $25,000.

The majority found the determination by the trial court that Rumbaugh should share in the profits of the corporation was erroneous because the federal action resulted in a transfer of his share of the stocks to appellees, for which he must be compensated, but eliminates him as a shareholder for purposes of participating in the profits. I fully agree in this analysis and finding.

I disagree with the majority that an award of counsel fees and/or punitive damages is not legally permissible because the facts of this case and legal conclusions therefrom drawn by the majority fully justify such an award. The majority states: “we conclude that Rumbaugh produced enough evidence at the trial in this case to prove the existence of an unlawful conspiracy.” (Montemuro, J., p. 325.) The majority further states:

We also disagree with Chandler that the trial court’s finding of conspiracy rested upon the findings of the Bankruptcy Court. The evidentiary basis for the conspiracy, that is, Joan Beck’s unlawful conversion of corporate funds, the relationship between the Becks and Chandler, and Chandler’s unlawful involvement with the Florida condominium, was established at the trial....
Rumbaugh proved that rental income from the condominium was diverted from the Corporation; that Chandler caused a fraudulent mortgage to be placed against the Florida condominium; and that the actions of Chandler and the Becks resulted in the Maryland Bank’s foreclosure on the condominiums, thereby precipitating the bankruptcy proceeding and the subsequent sale of the condominium and depletion of corporate assets. ... On remand the court should determine the amount of damages in light of Rumbaugh’s status as a defrauded creditor of Beck and the Corporation in accordance with the principles set forth above.

(At 327-328.) I believe the findings above clearly support the award of counsel fees and would also justify Rum-baugh’s requests for punitive damages.

As to counsel fees, it is provided by 42 Pa.C.S. § 2503, Right of participants to receive counsel fees:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(9) Any participant who is awarded counsel fees because of the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

Id. (emphasis added). I believe the actions of the Chandlers and the Becks was “otherwise arbitrary, vexatious and in bad faith.” Their conspiracy to defeat a judicial determination by the federal court, thereby forcing this litigation, fulfills all the requirements of arbitrary, vexatious and bad faith conduct and fully justifies the award of counsel fees necessary for Rumbaugh to pursue rights already won in a court of law. To require relitigation because of conspirational and unlawful action without compensation for legal costs diminishes the rightful recovery and inflicts further damages on Rumbaugh. Punitive damages should also be considered because of the unlawful, cynical and outrageous actions of the Becks and Chandler. That behavior certainly fulfills the requirements for awarding punitive damages detailed in SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991), cited by the majority.

I, therefore, concur with the majority’s decision to remand to recalculate damages in view of its finding on divestiture of Rumbaugh in the Corporation by the federal district court adjudication. I would affirm the trial court’s award of $25,000 in counsel fees and remand for a determination of punitive damages.

      . We note that this argument is inconsistent with Chandler’s assertion that Rumbaugh is collaterally estopped from litigating the issues in this case because his interest in the Corporation was fully litigated in the bankruptcy action.

      . For example, the chancellor concluded that in furtherance of the conspiracy, the defendants diverted rental income in the amount of $6,750.00 from the corporate account; the chancellor awarded Rum-baugh one-half of this amount on the basis of Rumbaugh’s shareholder agreement entitling him to fifty percent (50%) of the corporate profits. As we concluded above, Rumbaugh can no longer claim a shareholder interest in the Corporation, but instead is a creditor of the Corporation and of Beck. According to our reading of the law on conspiracy to defraud creditors, Rumbaugh would be entitled to an award equivalent to the full amount of the rental funds diverted by the conspirators, that is, the full value of the property removed from the Corporation. Further, as the trial court determined that the conduct of the defendants led to the Maryland bank’s foreclosure on the condominium, Rumbaugh may properly recover an additional compensatory award representing the amount, if any, by which the estate of the Corporation was diminished as a result of the foreclosure and the subsequent sale of the condominium, to the extent that the diminution affected Rumbaugh’s ability to recover the federal award. The court may award any other damages reflective of a depletion of the corporate assets stemming from the conspiracy, provided that the damage award does not exceed the amount of the federal judgment which Rumbaugh has not yet recovered.