author: KUHN, J.,

text:
    Young v. Borough of East Berlin

      Samuel E. Teeter, for plaintiffs.

      James J. Kurtz, for defendants.
    November 14, 1989
   KUHN, J.,

On June 13, 1989, plaintiffs filed a three-count complaint against the borough of East Berlin and its engineer, Buchart-Hom Inc. Count I is a trespass action against the borough. Count II is a negligence claim against both the borough and its engineer. Count III is a punitive damages claim against the borough.

Plaintiffs allege that they own seven acres of real estate in the borough improved with a residence, a bam (rented to neighbors), outbuildings, a spring-house and a pond. Plaintiffs raise animals and use the pond for recreational purposes and wildlife preservation.

Up to September 4, 1985, they claim to have had an abundant supply of- water for their personal use, the pond and use by the animals. On that date plaintiffs claim that their domestic well and one spring ceased functioning during a pump test of a proposed borough well located on neighboring property owned by J. Raymond Miller and situated approximately 116 feet from plaintiffs’ well. The borough allegedly connected plaintiffs to the public water supply for approximately one week until the tests were completed and plaintiffs’ well and spring were replenished.

On June 2, 1989, the Department of Environmental Resources issued a permit to the borough for the proposed well site and on June 5, 1986, the Susquehanna River Basin Commission also approved the borough’s application for the well site subject, however, to a pumping restriction/ Plaintiffs allege that these permits were issued without notice from the borough or its engineer to DER or SRBC that plaintiffs’ well had gone dry during the testing and that the permits were issued based upon inaccurate assumptions and erroneous well distance determination supplied by the borough and its engineer. On September 16, 1989, the borough acquired the proposed well site.

Plaintiffs allege that in the spring of 1987, there was a decline in their water level when the borough began regular pumping of its well and by May 1987, their domestic spring was dry. Plaintiffs allege that from June 9 through August 8, 1987, they had little or no domestic water supply. They further allege that they requested to be reconnected to the public water system on June 19, 1987, but that the borough failed or refused to make connection until August 6, 1987.

In count I plaintiffs seek compensatory damages for conversion of their water supply.

In count II plaintiffs allege that the borough, through its engineer, was negligent in performing the well inventory and performing calculations submitted to DER and SRBC.

In count III plaintiffs allege that the borough’s failure to connect them to the public water system within 48 hours of the June 9, 1987, request was malicious, wanton, intentional and reckless.

The borough filed preliminary objections as follows:

(1) A demurrer to the claim for punitive damages against a political subdivision under count III.

(2) A demurrer to all counts on the basis of governmental immunity.

(3) A motion to strike certain compensatory damages claims as being unauthorized under the Political Subdivision Tort Claims Act.

We recognize that the courts of this commonwealth will not lightly sustain a demurrer.

“In considering preliminary objections in the nature of a demurrer, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. ... A demurrer admits every well-pleaded material fact set forth in the' complaint, as well as all inferences reasonably deducible therefrom, but not conclusions of law. . . . The law does not provide a ‘magic formula’ to determine sufficiency of a plaintiffs complaint, however, the law is clear that a demurrer can only be sustained in a case free from doubt. . . ’ Bartanus v. Lis, 332 Pa. Super. 48, 52, 480 A.2d 1178, 1180 (1984). (citations omitted)

First, our Supreme Court has made it clear that punitive damages cannot be imposed against an agency of the commonwealth. Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986). The discussion set forth therein would apply with equal persuasiveness to a borough. Therefore, count III is dismissed.

Next, on the basis of the pleadings in count I it would appear that plaintiffs have stated a cause of action.

Our Supreme Court in Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87 (1940) addressed the right of a property owner to seek damages when a well drilled for commercial purposes on lands of another diverts water from his existing well or spring. The court stated:

“This much is settled, that when a spring depends for its supply upon filtrations and percolations through the land of an adjoining owner, and in the use of that land for lawful purposes the spring is destroyed, such owner, in the absence of mañee and negligence on his part, is not liable for the damage thus occasioned.” 339 Pa. at 132, 14 A.2d at 90.

The question then concerned the embodiment of the phrase “for lawful purposes.” The court observed that:

“There has been an ever-increasing acceptance of the viewpoint that their use must be limited to purposes incident to the beneficial enjoyment of the land from which they are obtained, and if their diversion or sale to others away from the land impairs the supply of a spring or well on the property of another, such use is not for a ‘lawful purpose’ within the general rule concerning percolating waters but constitutes an actionable wrong for which damages are recoverable. ... We adopt this view ...” Id.

However, the borough contends that it is entitled to an immunity defense under the Political Subdivision Tort Claims Act, 42 Pa,C.S. §8501 et seq., unless plaintiffs can avail themselves of one of the exceptions to immunity set forth in section 8542 of the act. Section 8541 of the act provides:

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of a local agency or an employee thereof or any other person.”

A local agency is defined as a “governmental unit other than the commonwealth government.” 42 Pa.C.S. §8501. A borough is a local agency for immunity purposes.

Exceptions to immunity exist under section 8542 of the act when the injury is caused by negligent acts in eight specific categories: (1) operation of a motor vehicle; (2) care, custody or control of personal property of others in the possession or control of the local agency; (3) care, custody or control of real property in possession of the local agency; (4) dangerous conditions of trees, traffic signs, lights or other traffic controls, street lights or street fighting systems; (5) dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency; (6) dangerous conditions of streets; (7) dangerous conditions of sidewalks; and (8) care, custody or control of animals in possession or control of a local agency.

Initially, we note that plaintiffs, in their brief, describe count I as alleging intentional conduct by borough. Assuming this to be their desire, we must dismiss this cause of action. As noted above, the exceptions to immunity are limited to negligent conduct. A municipality is not liable for intentional acts. Sterner v. City of Pittsburgh, 97 Pa. Commw. 440, 509 A.2d 1368 (1986); Cornett v. Berwick Township, 30 Adams Leg. J. 44 (1988).

In count II plaintiffs are alleging negligence in the performance of tests and calculations by borough’s engineer which formed the basis of the DER and SRBC approval of the well site. They contend that such negligent conduct falls within the second exception, section 8542(b)(2) (care, custody or controlof personal property of others). This section specifically provides:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on the local agency:
“(2) Care, custody or control of personal property — The care, custody or control of personal property of others in the possession or control of the local agency. The only loss for which damages shall be recoverable under this paragraph are those property losses suffered with respect to the personal property in the possession or control of the local agency.”

Personal property, although undefined, encompasses everything that is the subject of ownership, not coming under the denomination of real estate. Klingner v. Pocono International Raceway Inc., 289 Pa. Super. 484, 490-1, 433 A.2d 1357, 1361 (1981).

. We find this exception inapplicable. Even if we assume that subterranean water is considered plaintiffs personal property, it was not under borough’s care, custody or control when the alleged negligent acts occurred. The control over subterranean water occurred after the alleged negligent acts of the engineer and after approval from DER and SRBC. We believe that the personal property must be in the actual, not potential, control or possession of the borough when the negligent act occurs before this exception applies. See Paul’s Plumbing & Heating Supply Co. Inc. v. Montgomery County Sheriff, 24 D.&.C 3d 541 (1982).

Therefore, we conclude that plaintiffs have failed to state a cause of action under count II.

Because of the above disposition of the several issues regarding borough’s liability, we need not address whether plaintiffs’ list of alleged compensatory damages are proper except to say that damages, if any, would be limited to “property losses.” 42 Pa.C.S. § 553(b)(6). .

Therefore, the attached order is entered.

ORDER OF COURT

And now, November 14, 1989, the preliminary objections of defendant, Borough of East Berlin, are sustained as to counts I, II and III for the reasons set forth in the attached opinion.

Plaintiffs are granted 20 days to file an amended complaint if they can do so consistent with the court’s opinion.

      . The water for the residence and bam was supplied from a drilled well. In addition, a spring was used by the farm animals and a separate spring fed the pond.

      . Although not addressed in the borough’s preliminary objections or the briefs, discussion was held during argument court whether plaintiffs are not limited by the exclusivity provisions of the Eminent Domain Code of 1964, 26 P.S. §1-101, et seq. to seeking damages for a de facto taking. Such taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property. We have found no case directly on point and do not intend, at this time, to suggest the viability of such an approach.

      . The borough argued that subsections 3 and 5, section 8542(b)(3) and (5), were the only exceptions remotely applicable; however, because plaintiffs have not pursued those exceptions, we will not address their applicability.


source: Caselaw Access Project

license: Public Domain

text:
    Moore v. Ski America Inc.

      Henry O. Heiser II, for plaintiff.

      Michael Ó’Hayes, for defendant.
    November 13, 1989
   KUHN, J.,

Plaintiff brought this action for injuries received February 1, 1986, while skiing at a public ski area owned and operated by defendant. Plaintiff rented skis, bindings, boots and poles from defendant’s rental concession. Approximately eight and one-half hours later plaintiff fell, causing injury to her knee. She alleges that the safety bindings failed to release properly. ;

In count I plaintiff alleges that defendant is liable under section 402A of the Restatement (Second) of Torts as a supplier of defective bindings. In count II she alleges that defendant was negligent in failing to properly select, adjust or fit the bindings and in failing to warn her of the risks of injury associated with skis and bindings.

Defendant has filed a motion for summary judgment asserting that the exculpatory language in a rental agreement signed by plaintiff is dispositive of her claims.

We have addressed this identical issue in Jankowski v. Ski Roundtop Inc., 28 Adams Leg. J. 87 (1986). We are not persuaded that the authority cited therein is no longer the law in Pennsylvania.

Plaintiff asks that we adopt the reasoning of Justice Hoffman’s dissent in Zimmer v. Mitchell & Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978) and the view of Justices Brosky, Del Sole and Hoffman in Brown v. Racquetball Centers Inc., 369 Pa. Super. 13, 534 A.2d 842 (1987). These respected justices felt that clauses which releases one “from any and all liability” or where one “assumes all risk of injury to my person” were not sufficiently particular to absolve the releasee of liability for its own negligence.

However, the majority of the Superior Court specifically addressed this concern and reached a contrary result by stating:

“In the instant case, the main exculpatory clause is the fourth paragraph of the agreement, releasing appellee ‘from any liability for damage and injury to. myself or to any person or property resulting from the use of this equipment . . . ’ To say that negligent conduct is not included in ‘any liability’ is patently incorrect. The dissent suggests a further tortured reading of the clause, and would hold that the alleged liability in this case did not accrue from ‘use of the equipment,’ but from appellee’s failure to inspect and fit the bindings for appellant. It is clear that the accident occurred while appellant was using the equipment and that appellant’s injury was at least compounded by the equipment’s failure to function as it should have.” 253 Pa. Super, at 480,385 A.2d at 440.

We appreciate counsel supplying the court with copies of the briefs in Zimmer v. Mitchell & Ness, supra. Those briefs make clear that the Superior Court was not presented with the issue of the impact of the exculpatory disclaimer on the section 402A claim. We, therefore, cling to our analysis on this issue set forth in Jankowski, supra.

Therefore, we enter the attached

ORDER OF COURT

And now, November 13, 1989, defendant’s motion for summary judgment as to count I is denied but as to count II is granted.

      . The document reads:

        “Please Read Before Signing”

        “I accept for use as is the equipment listed on this form and accept full responsibility for the care of the equipment while it is in my possession, and agree to reimburse Ski Liberty for any loss or damage other than reasonable wear resulting from use.
      “I understand that the releaseable bindings furnished herewith are designed to reduce the risk or degree of injuries from falling and that these bindings will not release under all circumstances and are no guarantee for my safety.

      “I furthermore release Ski Liberty and/or any employee thereof from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.

        “I the undersigned have read the above rental agreement.

      “Customer signature /s/Sandra Moore. Date 2/1/86.”

      . Affirmed per curiam 490 Pa. 427, 416 A.2d 1010 (1980).


author: WALKER, J.,

text:
    Fulton Terrace Ltd. Partnership v. Riley

      v Michael W. Chorazy, for plaintiff.

      Jonathan D. Fenton, for defendants.
    March 30, 1989
   WALKER, J.,

Plaintiff, Fulton Terrace Ltd. Partnership, owns and operates Fulton Terrace Apartments, an apartment complex financed and regulated by the Farmers Home Administration, U.S. Department of Agriculture. Defendants, Benette Riley and Walter Jefferson, are tenants of Apartment A-22 of Fulton Terrace Apartments in McC.onnellsburg, Pennsylvania. On December 30, 1987, defendants signed a one-year lease with Fulton Iterrace which commenced , on February 1, 1988.

On May 11, 1988, plaintiff personally served a notice to quit on defendants. The notice alleged that defendants were in non-compliance with terms and conditions of the lease. It directed defendants to surrender their apartment within 30 days from the date of service thereof.

On July 5, 1988, plaintiff filed a landlord and tenant complaint with District Justice Betty M. Keebaugh. The complaint alleged that a forfeiture of defendants’ apartment had occurred because defendants had breached the conditions of the lease.

District Justice Keebaugh scheduled a hearing on plaintiff’s complaint for August 1, 1988. After the hearing, District Justice Keebaugh rendered judgment in favor of plaintiff. On August 15, 1988, defendants filed a notice of appeal and supersedeas with this court. Plaintiff thereafter filed a complaint with the court seeking eviction of defendants from their apartment for material non-compliance with the lease.

Defendants filed a preliminary objection to plaintiffs complaint in the nature of a petition to dismiss for lack of jurisdiction. Plaintiff filed a reply to defendants’ preliminary objection and the matter was listed for argument court. Both parties having argued their respective positions before the court on December 27,1988, the above matter is now ripe for disposition.

Defendants’ petition to dismiss raises the follow-' ing questions:

(1) Whether plaintiff’s complaint should be dismissed because the notice to quit directed defendants to surrender within 30 days of date of service rather than three months;

(2) Whether plaintiff’s complaint should be dismissed because plaintiff failed to give written notice of proposed termination to defendants stating the grounds for the proposed eviction and advising defendants that they have 10 days in which to respond to the proposed eviction:

(3) Whether plaintiff’s complaint should be dismissed because plaintiff failed to serve defendants with a second notice to quit by first class mail; and

(4) Whether plaintiff’s complaint should be dismissed because the district justice hearing was held 27 days after the landlord and tenant complaint had been filed.

Prior to bringing an action for possession before a district justice, a landlord is required to serve a notice to quit the premises on the tenant in accordance with section 250.501 of the Landlord and Tenant Act. Section 250.501 provides in pertinent part:

“A landlord desirous of repossessing real property from a tenant may notify, in writing, the tenant to remove from the same at the expiration of the time specified in the notice under the following circumstances, namely, (1) upon the termination of a term of the tenant, (2). or upon forfeiture of the lease for breach of its conditions, (3) or upon the failure of the tenant, upon demand, to satisfy any rent reserved and due.
“In case of the expiration of a term or of a forfeiture for breach of the conditions of the lease where the lease is for any term of less than one year or for an indeterminate time, the notice shall specify that the tenant shall remove within 30 days from the date of service thereof, and when the lease is for one year or more, then within three months from the date of service thereof. . .
“The notice above provided for may be for a lesser time or may be waived by the teniant if the lease so provides.
“The notice provided for in this section may be served personally on the tenant, or by leaving the same at the principal building upon the premises, or by posting the same conspicuously on the leased premises.” (emphasis supplied)

In the case at bar, plaintiff personally served defendants with a notice to quit the premises on May 11, 1988. The notice directed defendants to surrender their apartment within 30 days of service. Defendants contend that the notice to quit was inadequate because it failed to give them 90 days’ or three months’ notice as required by section 250.501. The court agrees with defendants.

The record indicates that plaintiff sought to remove defendants from the premises for breach of the conditions of the lease. It also shows that the lease in question was for a definite term of one year. In addition, the lease failed to contain any provisions which waived or modified the notice requirements of section 250.501. Based on a strict interpretation of section 250.501, plaintiff was required to give defendants three months’ notice, rather than 30 days’ notice, before filing its complaint in the district justice’s office.

Plaintiff nevertheless argues that defendants received more than three months’ notice to quit. It relies on Pa.R.C.P.D.J. 1007 which provides:

“A. The proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas.
“B. The action upon appeal shall not be limited with respect to amount in controversy, joinder of causes of action or parties, counterclaims, added or changed averments or otherwise because of the particulars of the action before the district justice.”

Plaintiff also refers to the note following rule 1007 which states that:

. “[T]he court of common pleas on appeal can exercise its full jurisdiction and all parties will be free to treat the case as though it had never been before the district justice ...”

Plaintiff contends that, under rule 1007, the instant action was actually commenced on September 3, 1988 when it filed its complaint in the court of common pleas and not on July 5, 1988 when it filed its complaint in District Justice Keebaugh’s office. Plaintiff thus submits that defendants had more than three months’ notice to quit from the date of service thereof until the commencement of this action. In essence, plaintiff argues that the court should completely disregard the proceedings before the district justice regardless of whether or not any jurisdictional defects existed at that level.

The court does not believe that rule 1007 can be interpreted as broadly as plaintiff wants it to be. The purpose of rule 1007 is to permit the parties to start anew procedurally at the court of common pleas level. Upon appeal, either party may, inter alia, modify the amount in controversy, add new causes of action or parties, and bring counterclaims. The court of common pleas cannot, however, exercise jurisdiction over an appeal if the district justice did not have proper jurisdiction when she rendered judgment.

The available case law on this subject provides that the notice to quit required by section 250.501 is jurisdictional and in the absence of strict compliance with the provisions of the above section, the district justice would not have authority to enter judgment for the landlord. Pakyz v. Weiser, 15 Adams Leg. J. 196 (1974); Patrycia Brothers Inc. v. McKeefrey, 38 D.&C. 2d 149 (1966). Since plaintiff failed to give defendants three months’ notice to quit pursuant to section 250.501, District Justice Keebaugh did not have proper jurisdiction to hear the matter and render judgment for plaintiff. Accordingly, the judgment rendered by District Justice Keebaugh was defective and must be reversed. Since the court cannot assume jurisdiction from a defective judgment at the district justice level, defendants’ petition to dismiss is granted.

Having dismissed the action for lack of jurisdiction, the court need not consider issues 2, 3, and 4.

ORDER OF COURT

Now, March 30, 1989, it is ordered that the judgment of District Justice Betty M. Keebaugh entered on August 1, 1988, in the above-captioned matter, is hereby reversed. Defendants’ petition to dismiss for lack of jurisdiction is granted, and plaintiffs complaint is dismissed.

      . 68 P.S. §250.101 etseq.

      . In fact, paragraph 2(h) of the lease provided that “[t]he owner shall not terminate the residency of the tenant unless the owner complies with the requirements of local law ...”


author: ECKELL,

text:
    In re Anonymous No. 19 D.B. 81
    Disciplinary Board Docket no. 19 D.B. 81.
    June 14, 1989
   ECKELL,

Member,

Pursuant to rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

HISTORY OF PROCEEDINGS

This matter arises out of petitioner’s petition for reinstatement.

Pursuant to the provisions of section 214(c) of the Pennsylvania Rules of Disciplinary Enforcement, by order dated April 8, 1981, the Supreme Court of Pennsylvania suspended petitioner and directed that the matter be referred to the Disciplinary Board for th§ institution of formal proceedings. The order was based upon petitioner having been found guilty by á verdict entered by a jury on July 23, 1980 in the U.S. District Court for the [ ] District of Pennsylvania, of the offenses of three counts of filing false income tax returns in violation of Title 26 U.S.C. §7206(1).

Upon consideration of the recommendation of the Disciplinary Board dated August 23, 1983, the Supreme Court issued its order dated September 23, 1983 that petitioner be suspended from the bar of the Commonwealth of Pennsylvania for a period to run -concurrently with the sentence of three years probation imposed by the U.S. District Court for the [ ] District of Pennsylvania on August 26, 1982. Petitioner was further ordered to pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.

By his petition dated May 9, 1988, petitioner requested reinstatement. The matter was referred to Hearing Committee [ ] consisting of [ ] which conducted a hearing on August 9, 1988. The committee filed a report with the Disciplinary Board on March 31, 1988 recommending reinstatement. No exeptions to the committee’s report and recommendation were filed by the Office of Disciplinary Counsel.

FINDINGS OF FACT

(1) Petitioner is an attorney formerly admitted to practice in the Commonwealth of Pennsylvania. At the date of the hearing his address was [ ].

(2) The professional history and affiliations of petitioner are generally as follows: Admitted to the bar in 1954; worked with the [A] Commission 1959 to 1962; with the [B] Company, 1963'to 1973 and in private practice from 1972 to 1974. In 1975 petitioner applied for a position as Administrative Law Judge with the [A] Commission, which position he held from 1976 to 1978. From 1978 until July 31, 1980 he held the position of commerce counsel with the [Cj Corporation, [ ■ ].

(3) During the period petitioner was practicing in [ ] County, he served as chairman of the Board of Commissioners of [ ] Township and as assistant county solicitor generally in charge of transportation matters.

(4) Petitioner was indicted on April 9, 1980 on three counts of filing a false individual income tax return, Form 1040, for the years 1973, 1974 and 1975.

(5) On July 23, 1980, petitioner was found guilty by a federal jury, in the U.S. District Court for the [ ] District of Pennsylvania, Judge [D] presiding.

(6) Petitioner was sentenced February 24, 1981 to a three-year probationary period, with a fine of $1,000 and a four-month participation in the work release program at the [ ] County Prison.

(7) On August 1, 1984, the Honorable [D] signed an order which terminated petitioner’s period of probation and remitted the fine of $1,000. This was done upon request of petitioner’s probation officer due to petitioner’s serious medical condition. It was not initiated by petitioner.

(8) [C] Corporation, petitioner’s employer at the time of his indictment, discharged petitioner effective July 31, 1980. Petitioner has not practiced law since that discharge and has worked only periodically between that time and the date of the conviction.

(9) Subsequent to his suspension, petitioner suffered from a severe physical illness which struck him in January 1984. Due to hardship, petitioner’s wife, a housewife since 1954, was forced to take a job at a department store while petitioner was on Social Security disability from July 1985 to June 1988.

(10) In 1987, petitioner declared bankruptcy as a result of his illness coupled with the financial difficulties which he experienced due to his suspension.

(11) At petitioner’s reinstatement hearing, petitioner appeared with counsel and presented 10 witnesses on his behalf. Friends, family and colleagues testified to petitioner’s exemplary moral qualifications, integrity, excellent reputation in the. community, competency, and learning in the law.

(12) Petitioner also presented evidence of his attendance at courses offered by the Pennsylvania Bar Institute. These courses were established pursuant to section 89.275(a)(15) and 89.279(a) of the Disciplinary Board rules. Attendance establishes that petitioner has met the minimum educational requirements for reinstatement following suspension in excess Of one year. Petitioner further testified as to the nature of the courses which he attended, including estate planning; real estate liens; fundamentals of civil depositions; corporations and their importance after tax reform; franchises, dealerships and distributorships; unemployment compensation; residential real estate; and support cases. These documents form a part of petitioner’s P2 (petitioner’s reinstatement questionnaire and supplemental attachments thereto).

(13) Petitioner testified as to the factual background of his suspension and his subsequent activities. Petitioner testified that the incidents which led to his conviction and suspension occurred during a period of time when he was practicing for the first time as a private practitioner.

(14) The hearing committee found that petitioner is held in high esteem by members of his community, both personally and professionally.

(15) The hearing committee found that petitioner has demonstrated moral qualifications and moral fitness compatible with the standards to be observed by a member of the bar of this commonwealth. Petitioner candidly discussed his personal life, the improprieties of which he was convicted, and the subsequent health difficulties which he encountered.

(16) The hearing committee found that petitioner has been rehabilitated, and that the resumption of practice by petitioner will be neither detrimental to the integrity and standing of the bar or the administration of justice, and will not be contrary to the public interest.

DISCUSSION

Petitioner has the burden of demonstrating by clear and convincing evidence that he has both the moral qualifications and competency and learning in law required for admission to practice in the Commonwealth of Pennsylvania. Petitioner has the further burden of demonstrating that this resumption of the practice of law shall not be detrimental to the integrity and standing of the bar or the administration of justice nor subversive to the public interest. Rule 218(c)(3)(i).

Moral Qualifications

From a reading of petitioner’s testimony before the hearing committee, it can be concluded that petitioner is totally aware of and mortified by his guilty conduct. He has fully admitted to his wrongdoing and is genuinely sorry for the suffering and embarrassment it has caused his family and friends. Petitioner’s own words are worthy of repetition here:

“I hope I was able to convince you today of my utmost regret for everything I have done and my sincerity. I am just asking you to give a 60-year-old man a chance. The eighties haven’t been very good to me. I am wondering if I will get through this decade alive. I would like to change the record, and I would like to leave my children a legacy of something better than what I have now.”

Petitioner has an excellent reputation in the community. Ten witnesses which included family, friends, colleagues and petitioner’s parish priest testified to petitioner’s moral qualifications and integrity. Petitioner has an otherwise unblemished record and has never had anything to do with theft of client’s funds. Petitioner did not practice law nor did he hold himself out to be a lawyer during the course of his suspension.

During the hearing, Disciplinary Counsel attempted to impeach petitioner’s integrity by pointing out specific items petitioner omitted on his reinstatement questionnaire. Petitioner failed to list a civil suit in which he was involved with the attorney he originally hired as his criminal defense counsel. However, the judgment was discharged in bankruptcy. Petitioner also failed to include a copy of the docket entry of the bankruptcy, case and an IRS lien. But, petitioner admitted to the bankruptcy and the IRS lien which both are a matter of public record. Petitioner needed to attach the indictment, docket entries, and report of probation officer concerning the conviction. Some of the papers were filed with the hearing committee directly and the committee gave petitioner 10 days in which to submit any other necessary papers. To the extent this represents an omission, it was one of form, not substance.

In the case of In re Anonymous no. 60 D.B. 75, 18 D.&C. 3d 640 (1981), the petitioner, who was convicted of a crime of receiving stolen property, omitted from his answer three civil actions of which he was party and failed to include certain income. The Disciplinary Board held that such omissions were either explained or were not relevant to the issue.

Likewise, the omissions or inaccuracies in petitioner’s reinstatement questionnaire, as elicited by Disciplinary Counsel which were admitted by petitioner, were of little consequence to the substance of petitioner’s reinstatement petition.

However, as stated In re Anonymous no. 16 D.B. 80, 20 D.&C. 3d 309, 317 (1981): .

“It certainly should not be assumed that the board encourages or condones incomplete or inaccurate answers to questions appearing on the questionnaire attached to the application for reinstatement. At the same time, it certainly should not be assumed that every mistaken response or oversight in answering the questionnaire will automatically disqualify a formerly admitted attorney, from regaining the privilege of practicing law in this commonwealth.”

The Disciplinary Board has found that petitioner possesses the requisite moral qualifications to be reinstated to the practice of law in the Pennsylvania Commonwealth.

Competency and Learning in the Law

After his suspension, petitioner read law books in the [ ] County and [ ] County law libraries, was on the Federal Department of Transportation mailing list and kept abreast of ongoing developments in the law by discussing issues with his daughter, who is an attorney. Petitioner also has successfully met. the minimum educational requirements by completing eight courses through the Pennsylvania Bar Institute. For a description of the courses see finding of fact 12 of this report. Also, four attorneys who either knew or worked with petitioner testified before the committee, without exception, that petitioner was a skilled and able attorney.

In light of these facts, petitioner has proven, by clear and convincing evidence, that he has the competency and learning in the law required for reinstatement to practice law in this commonwealth.

General Integrity

During the hearing, petitioner never waivered, in direct or cross-examination, from a very candid admission to this wrongdoing; and his conviction that he would never allow such error to reoccur. His testimony is supported by the fact that he perceives his illness (stomach cancer, which necessitated eight operations) as having been caused by his criminal indictment and conviction. He is motivated towards good behavior by the memory of how he suffered because of his past transgression and is completely dedicated to a reformed life.

Testimony of petitioner demonstrates his determination:

“I believe that my mind is sufficiently clear and my body is sufficiently strong (despite his illness), and my motivation and my initiative have returned. I will be capable of continuing the practice of law.”

Furthermore, four attorneys testified that if petitioner was reinstated to practice law, it would not be detrimental to the integrity and standing of the bar or the administration of justice nor subversive to the public interest. The Disciplinary Board agrees.

CONCLUSIONS OF LAW

The Disciplinary Board of the Supreme Court of Pennsylvania finds and concludes as follows:

(1) Petitioner has the moral qualifications for readmission to the practice of law in the Commonwealth of Pennsylvania.

(2) Petitioner has the competency and learning in the law required for readmission to the practice of law in the Commonwealth of Pennsylvania.

(3) Petitioner’s resumption of the practice of law in the Commonwealth of Pennsylvania will not be detrimental to the integrity and standing of the bar or the administration of justice, nor will it be subversive of the public interest.

(4) Petitioner should be reinstated to the practice of law in the Commonwealth of Pennsylvania and should be admitted to the Bar of the Supreme Court of Pennsylvania.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends to the Supreme Court of Pennsylvania that the instant petition for reinstatement of [petitioner] to the practice of law in the Commonwealth of Pennsylvania be granted by your honorable court.

The board further recommends that, pursuant to rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of said petition for reinstatement.

ORDER

And now, this August 2, 1989, upon consideration of the report and recommendations of the Disciplinary Board dated June 14, 1989, the petition for reinstatement is* granted.

Pursuant to rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: DOUGLAS,

text:
    In re Anonymous No. 11 D.B. 88
    Disciplinary Board Docket no. 11 D.B. 88.
    May 2, 1989
   DOUGLAS,

Member,

Pursuant to rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

- On February 2, 1988, petitioner, Office of Disciplinary Counsel, filed a pétition for discipline alleging that respondent deposited a $50,000 lawsuit-settlement check received on behalf of clients into respondent’s personal attorney account.- Petitioner also alleged that respondent failed to properly notify his clients of the receipt of the lawsuit-settlement funds, failed to promptly pay the proceeds to the client to whom the proceeds were due and used the funds for his own benefit without the consent.of his clients. Petitioner also claimed that respondent failed to provide his clients with an accounting of the_ funds and engaged in conduct which adversely reflects upon his fitness to practice law. The petition charged respondent with violating the following Disciplinary Rules of the Code of Professional Responsibility:

(1) D.R. 1-102(A)(4) — dealing with conduct involving dishonesty, fraud, deceit, or misrepresentation;

(2) D.R. 1-102(A)(6) — dealing with conduct adversely reflecting on an attorney’s fitness to practice law;

(3) D.R. 9-102(A) — requiring, in applicable part, that all funds of clients paid to the lawyer or law firm be deposited in one or more identifiable bank accounts wherein no funds belonging to a lawyer or law firm shall be deposited;

(4) D.R. 9-102(B)(l) — dealing with an attorney promptly notifying the client of the receipt of funds;

(5) D.R. 9-102(B)(3) — dealing with the maintenance of complete records of funds of a client coming into the possession of the lawyer and the rendering of appropriate accounts to the client regarding them; and

(6) D.R. 9-102(B)(4) — dealing with the prompt payment or delivery to the client, as requested by the client, of funds in possession of the lawyer which the client is entitled to receive.

Respondent filed an answer to the petition for discipline and the parties entered into numerous stipulations in May 1988. The matter was referred to Hearing Committee [ ] consisting of [ ]. A hearing was held on July 28, 1988, and the hearing committee filed its report on January 5, 1989. Two members of the hearing committee recommended public censure with probation by the Supreme Court under supervision provided by the board. The third member of the hearing committee recommended a six-month suspension together with probation. Both petitioner and counsel for respondent filed briefs on exceptions. Both parties also filed briefs opposing exceptions. The matter was subsequently adjudicated by the board at its March 9, 1989 meeting.

FINDINGS OF FACT

The board substantially adopts the findings of fact of the hearing committee as follows:

(1) Petitioner is the Office of Disciplinary Counsel with a principal office at 300 North Second Street, Harrisburg, Pennsylvania, and it is invested, pursuant to rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, [ ] Esq., was bom in 1939, admitted to practice law in the Commonwealth of Pennsylvania in 1971,* and his office is located at [ ]. For a time, he was employed in a bank trust department.

(3) [A] was killed and his wife, [B], was severely injured in an automobile accident with [C] in [ ] County in July 1983.

(a) In or about November or December 1984, respondent was retained by [D], the executor named in the will of [A], to probate the will and to represent [B] and the estate in a suit against [E], administratrix of the estate of [Cj.

(b)Accordingly, respondent acted to have the will probated and letters testamentary were granted to [D] on December 3, 1984.

(4) At the time respondent was retained, he and the [B] orally agreed that his fee would be $60 per hour in regard to the services he would render in the civil suit.

(5) Thereafter, negotiations were conducted between respondent and a representative of [F] Insurance Company, the insurer of [C].

(6) On February 27, 1985, respondent filed suit captioned [B] et al. v. [E], Administratrix in [ ] County.

(7) On February 28, 1985, [D] paid respondent for services rendered to dáte and costs advanced per the agreement between respondent and [D] concerning the case.

(8) In July 1986, suit settlement was achieved and [F] issued a $50,000 check dated July 21,1986. Of that sum, $12,000 was due respondent as a fee, with the remaining $38,000 due the [Bs] as suit proceeds.

(a) The [F] check was sent directly to respondent and made payable to him, as attorney for [B] and the estate.

(b) Respondent endorsed the check in his name on July 28, 1986.

(c) Respondent deposited the $50,000 check into a business account titled “[Respondent], Attorney at Law” at [G] Bank, numbered [ ].

(d) Said account was not one containing only clients’ funds, as described in Disciplinary Rule 9-102(A).

(9) In August 1986, [B] began receiving directly $1,000 annuity payments which were also due her under the settlement agreement.

(10) In or about August 1986, [D] telephoned respondent concerning the $38,000 due the [Bs] and, during that conversation and all subsequent conversations between [D] and respondent, respondent was candid and truthful regarding his dealings as to the $38,000 sum due the [Bs] and his subsequent dealings with that fund.

(11) October 8, 1986 marked the commencement of a number of communications between [H], the brother of [D], which communications by [H] were made on behalf of his mother, [B], one of the clients of respondent, and on that date the telephone conversation between [H] and the respondent concerned the $38,000 due the [Bs]. At that time, respondent informed him that:

(a) He had just received the $50,000 check “a couple of days ago”;

(b) He had deposited the check into an escrow account;

(c) Thereafter, the Internal Revenue Service had nevertheless frozen that escrow account due to back taxes that respondent owed; and

(d) He expected to have the money available by the end of the month.

(12) On or about November 5, 1986, [H] telephoned respondent concerning the funds. At that time, respondent informed him that:

(a) The funds still had not been released by the IRS;

(b) He was borrowing money to pay the back taxes so that the IRS would release the escrowed funds; and

(c) “She,” [B], would have the money by Thanksgiving.

(13) At about Thanksgiving, [H] again telephoned respondent about the funds, at which time respondent indicated that:

(a) He had not yet secured the bank loan (through which he was attempting to borrow funds for the purpose of paying the [Bs]); and

(b) He would let the IRS have the funds, and then would sue the IRS to recover the funds; and

(c) He would pay the [B] $15,000 the following week and the remainder soon thereafter.

(15) In about, late January 1987, respondent telephoned [B] and told her that he would immediately give to her $5,000 but that it would take him two or three months to pay her the balance of the funds.

(16) On or about February 9, 1987, respondent delivered to [B] a check in the amount of $5,000 drawn on an account held by him.

(17) On April 7, 1987, respondent paid to the [Bs] the remaining $33,000.

(18) On May 12,1987, respondent paid the [Bs] an additional $1,566.38 as interest for the time that he had retained the funds.

(19) The statements for respondent’s checking account show that, as early as August 7, 1986, the balance fell below $38,000.

(a) Thereafter, the balance continued to fall and on October 7, 1986, the balance was $13,242.47.

(b) On October 7, 1986, the Internal Revenue Service garnished all funds in that account.

(20) Between the deposit on July 28 and the garnishment on October 7, 1986, respondent’s checking account balance had been reduced due to numerous personal and business obligations made by respondent.

(21) As a result of the commencement of this proceeding, respondent has recognized his past inability to properly attend to the needs of his clients and the business aspect of his law practice as it was conducted.

(22) During the time period relevant to this case, respondent shared office space with Attorney [I] who was in ill health, and respondent spent considerable time attending to Attorney [I’s] clients and affairs for which he was not compensated.

(23) The relationship between respondent and [D] was good and continues to be so and respondent’s fee arrangement substantially increased the net proceeds from the law suit which his clients, the [Bs], were to and did ultimately receive.

(24) When respondent deposited the [Bs] funds into his personal business account, it was not done with a dishonest motive.

(25) Respondent’s misuse of the [Bs] funds was not motivated by an evil or fraudulent intent.

(26) During the period of time from respondent’s receipt of the [Bs] funds until they were ultimately paid to the [Bs], it was respondent’s intent to pay the funds due the [Bs] in full.

(27) The harm occasioned to respondent’s client, [B], consisted in the delay of her receipt of lawsuit-settlement funds due her.

(28) Shortly after the institution of the instant complaint, another disciplinary complaint was filed against the respondent for conduct which had occurred a number of years before and respondent received an informal admonition for same on January 14, 1988, the conduct complained of being a failure to give a written accounting to a client regarding the disbursement of certain funds.

(29) Respondent has been truthful and candid concerning his conduct in this matter and demonstrates appropriate remorse regarding it.

(30) Respondent has cooperated with petitioner in the investigation of this matter.

(31) The bookkeeping practices of respondent have improved as a result of this proceeding.

(32) Respondent enjoys a good reputation for honesty in his community, and has devoted a considerable amount of time to doing pro bono community work.

(33) Respondent provides the sole meaningful support for his wife ánd three children and also

. contributes to the support of his mother.

(34) Respondent and his family live a very modest lifestyle.

DISCUSSION

The board agrees with the findings of the hearing committee concerning the disciplinary rules violated by respondent. However, the board does not accept the hearing committee’s recommendation of public censure with probation. A majority of the board' recommends to your honorable court that respondent be suspended from the practice of law for a three-month period. Three members of the board dissent and would recommend a one-year suspension.

Respondent conceded that he violated Disciplinary Rule 9-102(A) by depositing the $50,000 settlement check into a business account where funds of his own were kept. Therefore, no further discussion on respondent’s violations of this rule is necessary.

The board also finds that respondent violated Disciplinary Rule 9-102(B)(1) by his failure to promptly notify [B] of the receipt of her $50,000 settlement funds on July 28, 1986. It was not until [B’s] son, [H], on his mother’s behalf, called respondent that respondent mentioned the receipt of the funds. Respondent-did, however, promptly notify his other client, [D], of the receipt of the funds. Therefore, respondent did not* violate Rule 9-102(B)(l) with respect, to [D], [B’s] other son.

With respect to Disciplinary Rule 9-102(B)(3) — dealing with the maintenance of complete records of funds of a client coming into the possession of the lawyer and the rendering of appropriate accounts to the client regarding them, the board feels that respondent violated only the second portion of that rule. Respondent failed to render appropriate accounts to his client regarding funds he received on behalf of [B]. An accounting of such funds was not made until May 1987, almost one year after he had received the funds. Yet respondent did maintain a complete record of the [Bs’] funds since respondent’s records were complete enough to show the deposit of these funds into respondent’s business checking account. It should be noted that respondent did not identify disbursements from the [B] account as a separate client card might. Nonetheless, respondent’s records of the [B] funds “coming into his possession” were sufficiently complete..

The record clearly demonstrates that respondent violated Disciplinary Rule 9- 102(B)(4) which requires the prompt payment or delivery of client funds upon the client’s request. [H] contacted respondent several times and requested respondent pay the funds due to [B]. Although respondent had received these funds in July 1986, he failed to pay any part of these funds to [B] until February 9 and April 7, 1987.

The record does not establish that respondent’s conduct involved dishonesty, fraud or deceit. The board believes that respondent’s misuse of the [B] funds constituted carelessness and negligence, but failed to amount to dishonesty, fraud and deceit. On the other hand, respondent, did make misrepresentations to [H] on several occasions regarding the funds. Thus, the board finds that respondent violated that part of Disciplinary Rule 1-102(A)(4) dealing with conduct involving misrepresentation.

Finally, the board feels that the evidence is not sufficient to support a finding that respondent’s conduct adversely reflects upon his fitness to practice law. No evidence was adduced in the matter, apart from the specific rule violations to which that evidence applied, which demonstrates any “other conduct” that adversely reflects upon respondent’s fitness to practice law. Furthermore, two members of the [ ] County Bar, [J], Esq., and [K], Esq., testified before the hearing committee as to respondent’s ability as a lawyer and his efforts on behalf of Community Services and the Catholic Church. They further testified that they desired to have respondent join them in their law practice. Although respondent’s conduct certainly amounts to a careless and negligent misuse of client funds, the record contains insufficient evidence to find that such conduct adversely reflects on his ability to practice law. Accordingly, the board finds that respondent did not violate Disciplinary. Rule 1-102(A)(6).

CONCLUSIONS OF LAW

The Disciplinary Board adopts the following conclusions of law with respect to the charges against respondent:

(a) Respondent violated Disciplinary Rule 1-102(A)(4) in that he made misrepresentations during communications with [H] who was acting on behalf of his mother, [B], concerning the settlement funds respondent had received in settlement of the [Bs’] law suit.

(b) Respondent did not violate Disciplinary Rule 1-102(A)(6) for the reason that there was no “other evidence” adduced by petitioner separate and apart from evidence petitioner adduced as to other disciplinary rule violations that adversely reflected upon respondent’s fitness to practice-law.. -

(c) Respondent violated Disciplinary Rule 9-102(A) relating to the depositing of clients’ funds in an identifiable bank account wherein no funds belonging to the lawyer were deposited by his own admission.

(d) Respondent violated Disciplinary Rule 9-102(B)(1) inasmuch as he did not promptly notify one of his clients, [B], of the receipt of lawsuit-settlement funds.

(e) Respondent violated Disciplinary Rule 9-102(B)(3) in that he failed to render appropriate accounts to his client, [B], regarding funds of hers that came into the possession of respondent.

(f) Respondent violated Disciplinary Rule 9-102(B)(4) for although he was requested to make payment of [B’s] funds to her by [H] speaking on her behalf, which funds were in respondent’s possession, he failed to make prompt payment of the same to her and she was entitled to receive the same.

RECOMMENDATION

The Disciplinary Board recommends as follows:

(1) That respondent, [ ], be suspended from the practice of law for a period of three months.

(2) That respondent, [ J, be directed by the court to pay all the necessary expenses and costs incurred in these proceedings. *

Board members Mundy, Gilbert and Padova dissent and would recommend a one-year suspension. Mr. Keller did not participate in the adjudication.

.ORDER

And now, October 11, 1989, upon consideration of the report and recommendations of the Disciplinary Board dated May 2, 1989, it is hereby ordered that [respondent] be and he is suspended from the bar of this commonwealth for a period of three months, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.

Mr. Justice Larsen and Mr. Justice Papadakos dissent and would issue a rule to show cause why respondent should not be disbarred.


author: HESS, J.,

text:
    Commonwealth v. Swartz

      Shawn Wagner, assistant district attorney, for the commonwealth.

      Jonathan Birbeck, for defendant.
    June 30, 1989
   HESS, J.,

Defendant, Brian T. Swartz, has filed post-trial motions after a jury trial held on November 8, 1988, at which he was found guilty of driving under the influence. 75 Pa.C.S. §3731. The testimony at the trial indicated that, during the early morning hours of June 26, 1988, defendant was arrested and charged with driving under the influence as well as other summary violations of the Motor Vehicle Code. He was transported to the Cumberland County Booking Center where, though informed of the ramifications under the implied consent law, he refused to take either a breathalyzer or blood alcohol test. While in the Cumberland County Booking Center, defendant was directed to perform various sobriety tests which were recorded on videotape. He had not been warned concerning his rights against self-incrimination prior to the taping nor was he represented by counsel while the taping was in progress.

A timely pretrial motion to suppress both the audio and visual portions of the videotape was filed. Defendant’s motion to suppress the audio portion of the tape was granted but the motion to suppress the video portion was denied. Defendant now contends that it was error to admit the video portion during a trial. This tape was reviewed by the jury twice, the second view occurring at their request and during their deliberations.

The Fifth Amendment to the U.S. Constitution guarantees that no person shall.be compelled in any criminal case to be a witness against himself. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) and its numerous progeny, our courts have held that the accused must be informed of this Fifth Amendment right prior to custodial interrogation by the police. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966), and in the many cases which have since construed it, the courts have held that the Fifth Amendment applies only to evidence of a communicative or testimonial nature and not to the seizure of physical evidence or even, for that matter, to the withdrawal of blood. More specific to this case, our Superior Court held in Commonwealth v. Romesburg, 353 Pa. Super. 215, 509 A.2d 413 (1986), that “Field sobriety tests do not elicit téstimoniál or communicative evidence and, thus, do not trigger Fifth Amendment protection.” Id. at 218, 509 A. 2d at 415.

In Commonwealth v. Waggoner, 373 Pa. Super. 23, 540 A.2d 280 (1988), the Superior Court was faced with Fifth Amendment concerns in the context of videotaping. In Waggoner, defendant was arrested and charged with driving under the influence, and was subsequently videotaped performing field sobriety tests. The court held that no Miranda warnings were required prior to videotaping Wag-goner performing physical acts involving sobriety tests, since requiring a defendant to perform a field sobriety test did not involve a communication. Id. at 29. In Waggoner, however, defendant, without benefit of Miranda warnings, posed questions, answered questions, and made statements during the course of the sobriety test which were captured on videotape. In reaching the conclusion that the audio portion of the videotape was within the purview of the Fifth Amendment, the Waggoner court relied on Commonwealth v. Conway, 368 Pa. Super. 488, 534 A.2d 541 (1987).

In Conway, the court was similarly faced with the question of whether the audio portion of a videotaped sobriety test should have been admitted into evidence.-In that case, Conway asked questions to get clarification concerning the officer’s test instructions. He was also asked, by the police, to count from 1001 to .1030 as part of one test. The court concluded that these verbalizations were testimonial, and that defendant was thereby compelled to reveal his thought processes and exhibited a type of confusion which the court held to be incriminating. Waggoner at 30, 540 A.2d at 283, citing Conway.

On the basis of these appellate precedents, we are entirely satisfied that our order suppressing the audio portion of the videotape was proper. Defendant, however, contends that we erred by not excluding the entire videotape. For this proposition, he cites Commonwealth v. Thompson, 377 Pa. Super. 598, 547 A.2d 1223 (1988) as controlling. His reliance on this case is misplaced. In Thompson, defendant was videotaped performing field sobriety tests. During the taping, Thompson requested the assistance of counsel and, when the police failed to fulfill his request, Thompson commented several times on the failure. Thompson thereafter became obscene and uncooperative with the authorities, all of which was captured on the videotape. At trial, defense counsel was put in the untenable position of either playing the entire audio and visual portions of the tape or showing simply the video portion containing unexplained belligerence on the part of defendant. Since Thompson’s behavior apparently arose out of his having been denied counsel, and it being necessary to play the audio portion by way of explanation, but the audio portion being otherwise inadmissible, the Superior Court was compelled to the conclusion that the entire tape had to be excluded.

In the case sub judice, there is no showing that unexplained verbalizations on the videotape could, themselves, create confusion or indicate intoxication. There was, in short, nothing of a testimonial or communicative nature which would cause one to believe that the tape was more than simply a film of defendant’s performance of a field sobriety test. The facts of this case, therefore, do not bring it within the exception, created by Thompson, to the normal rule that the jury is entitled to view physical evidence including a film of defendant’s sobriety testing.

Mr. Swartz also claims that his Sixth Amendment right to counsel' was violated because he was not permitted to have an attorney present at the videotaping. It is true that the right to counsel inheres in all criminal prosecutions where a defendant’s loss of liberty is at stake, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed. 2d 530 (1972), and that the right attaches at all “critical stages” of the proceedings against the accused. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967). That videotaping is such a critical stage, however, has been specifically repudiated by our Superior Court in Commonwealth v. Waggoner, supra. While this case leaves no doubt that the right to counsel attached during audiotaping, the conclusion is otherwise with regard to the visual portion of the tape.

“As with our analysis of Waggoner’s Fifth Amendment right to counsel, the visual and audio portions of the videotape require separate treatment. We will first address the visual portion of the videotape. Videotaping of Waggoner’s field sobriety tests made exact reconstruction of his performance of the test possible. Instead of being exposed to a police officer’s description at trial of how Waggoner had performed the field sobriety tests, Wagonner had his performance accurately captured on tape. Moreover, since the Fifth Amendment provides no protection against having one’s physical performance of the tests recorded on videotape, his counsel’s presence at the videotaping would'have made no difference. Wag-goner would have still been required to perform the tests. Furthermore, when the videotape was shown at trial, Waggoner had the opportunity to argue that his poor performance of the tests was due to his arthritic condition rather than to his state of intoxication. Thus, any risk involved in the visual aspect of the videotaped sobriety tests could have been sufficiently cured at trial. Given these factors, the visual taping of Waggoner performing the sobriety tests cannot be labeled a critical stage entitling Waggoner to the Sixth Amendment’s right to counsel.” Wag-goner, supra.

We conclude, therefore, that Brian Swartz was not improperly denied the presence of counsel during videotaping and that we did not err by permitting the commonwealth to show the tapes to the jury, without sound. He should not, therefore, have a new trial.

ORDER

And now, June 30, 1989, defendant’s motions for post-trial relief are denied. Sentence is deferred pending receipt by the court of a short-form presentence investigation report.


author: CHRONISTER, J.,

text:
    Gibbons v. Stremmel

      Richard K. Renn, for plaintiff.

      Allen H. Smith, for defendant.

      July 6, 1989
   CHRONISTER, J.,

This matter is before the court on cross motions for summary judgment filed by both plaintiff and defendant. This lawsuit arises from a criminal charge of theft filed by defendant Stremmel against plaintiff Gibbons. Plaintiff purchased $10 worth of gas at the Hess station operated by Stremmel. Due to an apparent failure of communication, the attendant filled the tank, which came to $16. When the attendant finished filling the tank, he came to plaintiff’s car window, and she handed him $10. The attendant, apparently following a policy established by Stremmel, did not attempt to communicate to plaintiff the fact that the $10 was insufficient payment. (Because of the location of the gas station, there had been a frequent problem with customers attempting to get gas without making full payment.) In ordfer to avoid problems -for the attendants they were instructed not to make an issue of it. Instead, they were to take down the license number and Stremmel would then file a criminal charge.

Criminal charges were filed against plaintiff Gibbons in front of District Justice Becker. At the preliminary hearing the charges were dismissed. District Justice Becker also required plaintiff to pay the $6 balance due for the additional gasoline. Since the criminal charge was dismissed, there would appear to be no legal authority to order payment of the $6 in the criminal proceeding. However, plaintiff complied with the order.

Plaintiff has now brought suit for libel per se, malicious prosecution, abuse of process, the intentional infliction of emotional distress by instituting criminal charges to collect a civil debt, negligence, and punitive damages.

Plaintiff has conceded that, given the facts of this case and the law concerning libel and intentional infliction of emotional distress, summary judgment in favor of defendant is appropriate as to them. Summary judgment is therefore granted to defendant on these counts.

With regard to abuse of process, defendant claims this count must be dismissed as á matter of law because the facts support only a malicious prosecution claim. We agree. Malicious abuse of process has to do with the wrongful initiation of such process, while abuse of process is concerned with a perversion of a process after it is issued. McGee v. Feege, 517 Pa. 247, 535 A.2d 1020 (1987). The court must determine whether there has been a perversion of the legal process once it is instituted. Casa DiSardi Inc. v. Alpha Motors Inc., 227 Pa. Super. 415, 323 A.2d 288 (1974). Plaintiff in this case alleges only that Stremmel wrongfully filed a criminal charge against her, not that he abused the process after he filed it. Hence, as a matter of law, there was no abuse of process, and'this count must be dismissed.

In contrast, the tort of malicious use of process arises when á party institutes a lawsuit with a malicious motive and lacking probable cause. Shaffer v. Stewart, 326 Pa. Super. 135, 473 A.2d 1017 (1984). This cause of action is known as malicious prosecution when it is founded upon wrongfully instituted criminal proceedings. Deitrich Industries Inc. v. Abrams, 309 Pa. Super. 202, 206, 455 A.2d 119, 122 (1982). In order to successfully pursue a cause of action for malicious use of process: (1) a party must obtain a favorable termination of the wrongfully instituted action; (2) the legal process must have been used with malice and without probable cause; and (3) a seizure of property or, if the underlying action were a criminal prosecution, an arrest of the person must have occurred. Id. at 207, 455 A.2d at 122. (citations omitted)

Defendant claims that the malicious prosecution count should be dismissed because the underlying action did not terminate favorably to plaintiff, and there was probable cause to bring the action against her. Defendant’s argument is that “the present case is somewhere between conviction and acquittal” because District Justice Becker ordered plaintiff Gibbons to pay $6, “discharged” her, and put the costs on the county. We disagree. The magistrate’s notation of “not guilty” and costs upon the county are clearly a disposition favorable to plaintiff.

In the alternative, defendant claims that the complaint for malicious prosecution should be dismissed because probable cause was established when District Justice Becker overruled Attorney Renn’s demurrer to the evidence; when plaintiff was ordered to pay $6; when costs were put on the county and not on defendant Stremmel; and when plaintiff Gibbons failed to appeal the decision and clear her name.

The absence of probable cause is an indispensable element in an action for malicious prosecution, and it is not conclusively established by an adjudication of innocence in a prior proceeding; if probable cause does exist, the motive of the prosecutor, whether malicious or not, is immaterial.

The court finds that lack of probable cause may be found in defendant Stremmel’s testimony at the preliminary hearing:

A: The only thing I know is what Mark gave me of the information that this lady or gentleman, whoever the name was, did not pay the bill, and the only way we got is to turn the license plate in and collect our money. That’s all I know.

Q: Do you have any information whatsoever that led you to believe that she intentionally took the service of $16 worth of gas with the intent to steal that from you?

A: No. The only information I gave was what Mr. Baughman gave me.

District Justice Beckér’s overruling of a demurrer is procedurally confusing. Only a prima facie case is required to hold a charge for court, and the district justice must assume the commonwealth’s testimony is true. Therefore to refuse the demurrer is the equivalent of finding a prima facie case. However, the defense then put on testimony, including the recall of Mr. Stremmel. The district justice then dismissed the charges. The ruling on the demurrer is then not a final ruling on the issue. The discharge of defendant is final, and is therefore controlling.

We note that the issue of malice has not been raised by defendant. However, as noted by plaintiff in her brief, malice may be inferred from lack of probable cause. Wainauskis v. Howard Johnson Co., 339 Pa. Super. 266, 279, 488 A.2d 1117, 1123 (1985). (citations omitted) Plaintiff has made out a cause of action for malicious prosecution, and defendant’s motion, must be denied.

Defendant next claims that the negligence count must, be dismissed because the law does not recognize a tort of negligent prosecution. Plaintiff responds that the negligence count is directed at two areas leading to the filing of the criminal complaint; the failure of defendant to conduct a reasonable investigation, and his failure to determine the proper method of collecting a civil debt.

Ohr review of the negligence case law has revealed no support for plaintiffs claim that a cause of action for negligent prosecution exists, and plaintiff has not directed our attention to any. Plaintiff in her brief has cited Wainauskis v. Howard Johnson Co., 339 Pa. Super. 266, 488 A.2d 1117 (1985) to us, saying that court recognized the duty of one to conduct a reasonable investigation. While that is true, the Wainauskis court recognized, that duty in an action for malicious prosecution.

The concept of negligence is only relevant in that the lack of probable cause necessary for the action may be based on negligently failing to investigate before filing the criminal charge. This does not establish the right to sue as a negligence theory per se.

Defendant’s last argument is that the punitive damage claim for all counts should be dismissed because the facts of record do not establish conduct which rises to the level that a reasonable person could call outrageous. Defendant says punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment, citing McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436 (1987). Defendant says absent any evidence that plaintiff was singled out for special harassment, or that anything was done outside the normal legal channels, the punitive damage requests should be dismissed.

It seems quite clear from the record that defendant is alleged to have proceeded “outside the normal legal channels” in filing a criminal charge to collect a civil debt. Because of this,, we are unable to say as a matter of law that a criminal complaint over a $6 misunderstanding could not be viewed as outrageous conduct. Defendant’s motion on this issue is denied.

Plaintiff has also moved for summary judgment. Because of our rulings on defendant’s motions, only the malicious prosecution and punitive damages claims remain. While plaintiff has clearly made out a prima facie case of malicious prosecution, we cannot rule as a matter of law on the issue of malice. While malice can be inferred from lack of probable cause, we think it is a jury question and plaintiff’s motion is therefore denied.

ORDER

And now, July 6, 1989:

(1) Defendant’s motion for summary judgment as to libel, intentional infliction of emotional distress, abuse of process, and negligence are granted.

(2) Defendant’s motion for summary judgment as to malicious prosecution and punitive damages are denied.

(3) Plaintiff’s motions for summary judgment are denied.


author: CALLAN, J.,

text:
    Larrimore v. Doe

      Terry Valko, for plaintiff.

      R. Thomas Forr Jr., for unborn child.

      Barbara M. Wolvovitz and Jon Pushinsky, for defendant.
    September 25, 1989
   CALLAN, J.,

Plaintiff Keith Larrimore and X, an unborn child, filed a motion for a preliminary injunction and an action for declaratory relief. Plaintiffs seek a judicial declaration holding that the Abortion Control Act is unconstitutional on seven separate grounds as it relates to plaintiff.

Plaintiff’s petition for preliminary injunction was heard by this court as the final matter in motions court on September 18, 1989.

Plaintiffs asserted that the Supreme Court’s recent decision in Webster changed the status of the law concerning abortion. Plaintiffs also asserted that the Danforth decision was not controlling and was distinguishable.

On the basis that the law was not clear as to the issues presented in the wake of Webster, this court granted the preliminary injunction to preserve the status quo pending a final hearing. This court was concerned about the plaintiff’s standing but desired time to review the Webster decision. If the case law had supported the plaintiffs and no injunction issued, the harm done was irreparable. Making no decision on the very date that the abortion was scheduled was the same as denying the petition.

The date of the hearing was set on the continuation resulting in the injunctioii for September 27, 1989 at 10 a.m., but moved forward by this court to September 25, 1989 to be in compliance with rule 1531(d) of the Pennsylvania Rules of Civil Procedure which required a hearing within five days of the granting of a preliminary injunction.

An application for stay or dissolution of this court’s preliminary injunction was filed with the Pennsylvania Superior Court on or about September 19, 1989. A notice of appeal was filed on or about September 20, 1989.*

The docket record was mailed to the Superior Court on or about September 21, 1989. This case is also now pending before the Superior Court.

All matters of record, including the application for stay and brief in support thereof, and briefs submitted, have been reviewed by this court; and having heard argument this date by the attorneys for each side, we proceed to disposition of this case.

ISSUES

(I) Does plaintiff Larrimore have standing to seek the relief requested?

(II) Does X, an unborn child, have standing to seek the relief requested?

FINDINGS OF FACTS

Plaintiff Keith Larrimore asserts that he is the father of X, an unborn child. Mr. Larrimore was informed by Jane Doe on or about September . 14, 1989 that she was expecting a baby and that he was the father. Jane Doe indicated to plaintiff, Larrimore, that she intended to have an abortion performed in Pittsburgh on Monday, September 18, 1989.

Soon after learning of the pregnancy and Jane Doe’s intention to have an abortion, Mr. Larrimore sought legal advice which resulted in the instant matter being presented to the Blair County courts. On Friday, September 15, 1989, an order to show cause was issued by Judge Peoples of the court of common pleas. The rule returnable was scheduled for Monday, September 18, 1989, at motions court. Jane Doe was served with the order to show cause at about 6 p.m. on Friday, September 15, 1989.

This court received the petition and complaint, in this case, at or about 9 a.m. on*September 18, 1989. That same morning Jane Doe called the court administrator’s office to indicate that she could not attend the hearing; and was also unable to obtain legal counsel. .

Plaintiff Larrimore testified and offered one witness. The thrust of the testimony was to establish that Mr. Larrimore had known Jane Doe for about two-and-a half months, but had been intimate with her, and that he was the father of X, an unborn child. The length of pregnancy was determined to be in the fifth or sixth week, clearly within the first trimester.

In early July, the U.S. Supreme Court issued its most recent opinion dealing with the abortion issue, Webster v. Reproductive Health Services, 492 U.S. _, 106 L.Ed. 2d 410, 109 S.Ct. _ (1989) (hereinafter and before referred to as Webster.)

DISCUSSION

This case raises what has been called by Justice Blackmun, “the most politically divisive domestic legal issue of our time.” Webster, 106. L.Ed. 2d at 463. This court echoes the feelings expressed by Justice Reardon in his dissenting opinion in Doe v. Doe, 314 N.E. 2d 128, 62 A.L.R. 3d 1082 (1974).

“The resolution of the issues presented by the bill before the court requires entry by the court into areas of such delicacy and perplexity that the usually adequate tools of judicial scrutiny appear crude and clumsy, ill-suited to the task at hand.”

It would be. relatively simple for this court to sidestep or avoid this case. It is a general concept of our system of law in this commonwealth that once an appeal has been taken to the Superior Court, the court of common pleas is divested of authority to act. However, this court does not avoid a* case merely because it is a political hot potato.

This cdurt cannot be affected by or sensitive to outside pressures. The court would note that the number of out-of-court statements by participants on both sides of this case, as well as absolute statements of the wrongness of this court’s decisions, only underscore the nature of the controversy. This most divisive legal issue cannot be resolved in this court. This issue is for the legislative, not the judicial, branch of government.

In this forum, in this court, the issues presented have been and will be decided on the facts and the law. There is no room in this legal forum for the absolutes reflected by both sides of this case. This court cannot make moral judgments, only legal determinations.

This court fails its oath of office to even attempt to avoid this or any other case, barring a conflict of interest. This court had the authority to grant the preliminary injunction on the basis of a colorable claim to standing, and the immediate harm which would have resulted if no action had been taken.

In Coleman v. Coleman, 57 Md. App. 755, 471 A.2d 1115 (1984), a temporary restraining order issued on January 6, 1984 upon petition of the husband seeking to prevent his wife from having an abortion. The court in Coleman, after a hearing on January 13, 1984, a period of seven days after the entry of the temporary order, dissolved that order and denied injunctive relief to the husband.

This court has not been divested of its authority to hear this case because of the Superior Court’s involvefnent. When an ex parte injunction issues, prior to a hearing to continue the injunction, such hearing is an integral part of the proceedings. An appeal taken prior to the hearing is premature and in violation of the Rules of Civil Procedure. United Electrical Radio and Machine Workers of America, v. Sherman, 352 Pa. 133, 41 A.2d 86 (1945); Roth v. Columbia Distributing Company of Allentown, 371 Pa. 297, 89 A.2d 824 (1952).

Having established jurisdiction, this court turns to the legal issues presented. This court could find no case which has been decided after a review of the Webster decision. While defendants cites Arnold v. Board of Education, 880 F.2d 305 (11th Cir. 1989), this court’s review thereof fails to indicate that Webster was considered. Arnold dealt with a wrongful death claim. That court held that the natural father had no standing concerning the claim of an alleged coerced abortion case. The Arnold case cited and followed Danforth. It should also be noted that Arnold at page 312, footnote 9 reflects that the fetus had no standing to state a cause of action in that recovery.

This court is satisfied after an extensive review of recent state and federal case law that Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 49 L.Ed. 2d 788, 96 S.Ct. 2831 (1976) (hereinafter and before referred to as Danforth) controls.

In deciding that case the Supreme Court held:

“The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of two marriage partners can prevail. Inasmuch as it is the women who physically bears the child, and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” Danforth, 428 U.S. at 71, 49 L.Ed. 2d. at 806, (citation omitted)

While plaintiffs assert that they do not seek an absolute veto, but only desire to establish the respective rights of the parties, and that Danforth is distinguished on the basis that the statiite in Dan-forth imposed an absolute veto, such assertions are without merit. If the woman’s “right” is disputed, what plaintiffs seek is a veto. The law does not permit such a veto.

Plaintiffs challenge the Abortion Control Act as being unconstitutional because it fails to recognize the rights of the natural father, but that very issue is determined in Planned Parenthood Association v. Fitzpatrick, 401 F.Supp. 554 (E.D. Pa. 1975). A spousal consent provision of the Abortion Control Act was held to be invalid because that provision gave “the spouse an unqualified arid unconditional veto over the wife’s decision to have an abortion, thus completely ignoring the fundamental right of the pregnant woman to make the abortion decision.” Id. at 565.

Plaintiffs assert that Webster changes the status of the law in terms of obtaining an abortion. This court is satisfied after an extensive review of Webster that any limitations or constrictions placed on Roe v. Wade do not reach the position urged by plaintiffs. Danforth not only was not constricted or limited by Webster, but it was extensively cited by the Webster court.

Whether the issue of abortion be termed a “fundamental right,” “a limited fundamental right,” or “a liberty interest protected by the due process clause” (see Webster, 106 L.Ed. 2d at 421), there is no question that Mr. Larrimore lacks standing.

Justice Blackmun stated:

“Today, Roe v. Wade, 410 U.S. 113, 35 L.Ed. 2d. 147, 935 S.Ct. 705 (1973) and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive but are not secure.” Webster, 106 L.Ed. 2d. at 448.

This court is also satisfied that Roe v. Wade and the cases that follow hold that the word “person” does not include the unborn, (see footnote 9, page 312 in Arnold). X, an unborn child, does not have standing in this case.

CONCLUSIONS OF LAW

(1) The court has jurisdiction in this matter.

(2) Based upon both federal and state law, plaintiff, Keith Larrimore, does not have standing in this matter.

(3) Based upon state and federal law, plaintiff X, an unborn chüd, lacks standing in this matter.

In light of the foregoing findings, discussions and conclusions, we deem the following to be appropriate:

DECREE NISI

And now, September 25, 1989, it is hereby ordered, directed, and decreed nisi, that the preliminary injunction entered by order of this court, dated September 18, 1989, is hereby dissolved.

It is further, ordered, directed, and decreed, that the motion for preliminary injunction. and complaint for declaratory jundgment are denied and dismissed; summary judgment being entered on behalf of defendant, Jane Doe, on the complaint for declaratory judgment.

It is further ordered, directed, and decreed, that this decree nisi shall become the final decree in this , case, unless exceptions be filed to said decree nisi within 10 days following the date of filing of the decree.

It is further ordered, directed, and decreed, that the prothonotary, or acting prothonotary of this court, shall provide notice of the filing of this decree nisi as mandated by the Pennsylvania Rule of Civil Procedure 1517.


author: LEVIN, J.,

text:
    School District of the City of Erie v. The Hamot Medical Center of the City of Erie

      Gerald J. Villella, for plaintiff City of Erie.

      John W. Beatty, for plaintiff School District of the City of Erie.

      James D. McDonald and Gary Eiben, for defendants Hamot Medical Center and Hamot Health Systems.

      John M. Quinn Sr. and Kenneth W. War go, for defendant St. Vincent Health Center.
    April 24, 1989
   LEVIN, J.,

Before the court at this time is a petition to intervene. This is an action challenging the exemption from local real estate taxation of various parcels of real estate owned by the Hamot Medical Center in the City of Erie. Appeals were taken by the School District of the City of Erie and the City of Erie from the listing by the Erie County board of assessment appeals of properties owned by Hamot Medical Center of the City of Erie, Pennsylvania, as tax-exempt. On December 21, 1988, the board of assessment appeals issued a decision finding that the properties at issue met its requirements for tax-exempt status. The board of assessment appeals mailed its order on December 21, 1988, and it was received by the City of Erie in á timely manner.

The School District of the City of Erie filed a “complaint and appeal” on January 14, 1989. The City of Erie filed a document entitled “notice of intervention” on January 18, 1989. After the time period for appeal had expired, the City of Erie filed another document entitled “petition to intervene.” This document was filed on January 26, 1989. The appeal period had expired January 20, 1989.

Hamot Medical Center has filed an answer in opposition to the petition to intervene. It is the contention of Hamot Medical Center that the proper method by which the City of Erie should have challenged the action of the board of assessment appeals was to file a notice of appeal from the board’s ruling.

The court notes that this matter has been before this court previously. Hamot has filed both a petition for review and a complaint in equity. This action by Hamot was in response to various proce-, dural rulings of the board of assessment appeals. A hearing was held on the petition for review and the complaint in equity on October 25, 1988, before the Honorable Roger M. Fischer. On October 27, 1988, Judge Fischer ruled that the btíard had jurisdiction to hear the exemption appeals which are the heart of the present action. An appeal by Hamot Medical Center from Judge Fischer’s ruling is presently pending in the Commonwealth Court.

The first issue that the court will address, is the question whether the City of Erie is entitled to be a party or alternatively be allowed to intervene in tfie School-District of the City of Erie’s appeal of the board’s December 1, 1988, order.

There is no question that the City of Erie filed a notice of intervention in each of the proceedings. These notices of intervention specifically incorporated by reference the complaint and appeal previously filed by the school district, and both the school district and the city filed within 30 days of the board’s decision in each assessment appeal. It is the position of Saint Vincent and Hamot that the city’s action was not authorized by statute or rule. Therefore, they contend that the city’s appeal is null and void.

The relevant statute on this matter is 72 Pa.C.S. §5350i. This section reads as follows:

“The corporate authorities of any borough, town, township, school, institution and poor district, and county, who may feel aggrieved by any assessment of property or .subjects of taxation for its corporate purposes, shall have the right to appeal therefrom in entirety or by individual assessments in the same manner, subject to the same procedure, and with like effect as if such appeal were taken by a taxable with respect to his assessment, and in addition may take an appeal from any decision of the board or court of common pleas as though it had been a party to the proceedings before such board or court eyen though it was not süch a party in fact. Such authorities may intervene in any appeal by a taxable under section 9 of this act as a matter of right.”

The Judicial Code at 42 Pa.C.S. §102 defines appeal as: -

“Any petition or other application to a court for review of subordinate governmental determinations. The term includes an application for certiorari under section 934 (relating to writs of certiorari) or under any other provision of law. Where required by the context, the term includes proceedings on petition for review.”

The court notes that 72 Pa.C.S. §5350i does not list “city”, among the corporate authorities entitled to appeal or intervene a decision of the board. Yet this statute must bear some weight in the court's decision. The City of Erie, by ordinance no. 57-1979, has accepted this act. It was the apparent intention of the legislature to omit the word “city” because not every city has made itself subject to the Second Class A and Third Class County Assessment Act. Since the city hás accepted the provision of this act, all of the provisions thereof, including the right to appeal from assessments as provided for other municipal districts, should apply to the City of Erie, including section 5350i. 72 Pa.C.S. §5350j(c).

Under 72 Pa.C.S. §5020-520, a corporate authority of any city aggrieved by any assessment of any property or subject of taxation for its corporate purposés shall have the right to appeal therefrom in the same manner, subject to the same procedure, and with like effect, as if such appeal were taken by a taxable with respect to his property. Admittedly, there are no statutes that address the issue of the appealability of a board of assessment decision concerning the tax-exempt status of a party. Thus, this is a case of first impression for the court.

The court is aware that it is obligated to strictly construe any statute provisions .exempting persons and property from taxation. 1 Pa.C.S. §1928(5). Nevertheless, at the same time, the court realizes that if it is at all possible, the legislation should be construed under the law to favor the public interest as against private, interest. Public interest would favor intervention. 1 Pa.C.S. §1922(5). ■

In. this, situation, the court believes the interests of all parties would be best served by analyzing the consequences of not allowing the city to be an intervening party. 1 Pa.C.S. §1921(6). Applying this test to the hospitals, there would be no effect on the substantial rights of Hamot or Saint Vincent by allowing the city to appeal the board’s decision. Indeed, both organizations will be presenting the same information and law concerning the defense of their tax-exempt status.

If the court were to rule in favor of the hospitals against the City of Erie, there would be extreme prejudice to the City of Erie. Conversely, the hospitals would not incur the same prejudice since they must be prepared to protect their rights in a litigation against all arguments the City of Erie would develop through the school district.

It cannot be said that the city’s interests would be adequately represented by just the school district’s appeal in this action. The court is certain that the city and its counsel could provide much insightful information concerning this case. The City of Erie and the school district are two separate taxing bodies, and as such they could have differing legal theories and facts tp bring to this suit. Hence, the city should be allowed to appeal the board’s decision to protect their rights. Pa.R.C.P. 2329(2). Additionally, the city is a proper party for intervention in this action since a determination of such action may affect their legally enforceable interest of collecting taxes. Pa.R.C.P. 2327(4).

A final reason to allow intervention is that statute in essence would permit the city to intervene even though they were not a party in the court below. 72 Pa.C.S. 5350(i). Hospitals contend that this only applies if a city had not been a previous party to the litigation. The court finds little merit in this contention since if the legislature had intended this, limitation, it would have specifically provided for same. Inasmuch as it was not set forth in the statute, the court must assume- that no such limitation was meant to be imposed by the legislature. If the city can become a party eventually at some appellate level, certainly it should be allowed to be an intervening party where the facts are being developed.

The next issue before the court is whether the City of Erie notice of intervention which was filed within the 30-day limitation as required under 42 Pa.C.S. §5571(b) constitutes an appeal. The Local Agency Law does not contain a section which specifies the time period in which an appeal must be filed. However, the proper time limit is in the Judicial Code.

The relevant statute concerning the time limit from which an appeal from an assessment board decision should be taken is 42 Pa.C.S. §5571(b). This statute section reads as follows:

“Other counts — Except as otherwise provided in subsections (a) and (c), an appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order.” (Subparagraphs (a) and (c) of section 5571 are not relevant to the court’s present case.)
The court in the present action has the discretion to treat an error in an objection to governmental determination such as the present case as if it were a properly filed appeal. 42 Pa.C.S. § 708(a) and (c). 42 Pa.C.S. §708(a) and (c) provide:
“(a) General Rule — No objection to a governmental determination shall be defeated by reason of error in the form of the objection or the office of clerk of court in which the objection is filed.
“(c) Other matters — If a complaint in the nature of equity, mandamus, prohibition, quo warranto or other original process is commenced in any court against a government unit or one or more of the persons for the time being conducting its affairs, as such, objection to a governmental determination by any of them, where the proper mode of relief is an appeal from the determination of the government unit, this alone shall not be a ground for dismissal, but the papers whereon the process against the government unit or any of such persons was commenced shall be regarded and acted on as an appeal from such determination of the government unit and as if filed at the time such process was commenced.”

These two subsections of the statute provide the courts with the discretion to overlook procedural errors in an appeal. The court is limited to overlooking errors in a complaint or other original process as an appeal. Doe-Spun Inc. v Morgan, 93 Pa. Commw, 447, 502 A.2d 287 (1985). In any property assessment appeals case there are set procedural requirements. However, when the tax-exempt status of one party is challenged, there are no procedural requirements.

In the present case, the city has filed the notice of intervention and the petition for intervention. Indeed, in each proceeding, the city has filed a notice of intervention which specifically incorporated by reference the complaint and appeal previously filed by the school district. Both the City of Erie and the school district have filed their notices within 30 days of the board’s decision in each assessment appeal.

As stated earlier, the definition of appeal in the Judicial Code includes any petition or other application to a court for review of subordinate governmental determinations. 42 Pa.C.S. § 102. The City of Erie’s notice to intervene did not state that it was an “appeal.” Nonetheless, the city’s notice of intervention correctly incorporates the School District of the City of Erie’s pleading by reference. Pa.R.C.P. 1019(g).

Also, the court has authority to allow an appeal even if it is improperly labeled. 42 Pa.C.S. § 708(a) and (c). The city’s notice of intervention was filed within the 30-day time limit for appeals. The content of the notice is identical to the school district’s appeal. Consequently, the court could allow the City of Erie to correct the caption or direct appropriate docketing. Pa.R.C.P. 1018(g). As such, the city’s pleading would still conform to the 30 days’ time limit in which an appeal has to be filed.

As noted earlier, the court believes that no error in the city’s pleadings affects the substantial rights of the parties. Whether the defect was the way the notice was docketed or how the caption or hearing read, the court has the right to disregard these procedural errors. Pa.R.C.P. 126. This notice of intervention falls directly under the provisions of 42 Pa.C.S. §708. Counsel for Hamot Medical Center correctly points out that it is only where a complaint or other original process has been filed that a court may treat a document other than a notice of appeal as sufficient substitute for an appeal. 42 Pa.C.S. § 703(c). The court believes that the City of Erie’s notice of intervention would constitute original pro-, cess. This notice incorporated by reference the school district’s complaint and appeal. As such, it is similar to a complaint with attachments or like a contract with similar documents included.

In conclusion, the court believes that both Hamot and Saint Vincent have received adequate notice of the city’s intention to join in the school district’s appeal action. No substantial rights of Hamot or Saint Vincent were affected by the error of the captioning of this action as a notice of intervention. Therefore, the court will overlook the heading “notice of intervention” and treat the filed papers as an appeal instead of a motion for intervention. 42 Pa.C.S. §708(a) and (c).

The court has not addressed the applicability of the Local Agency Law. The question of whether the Local Agency Law is applicable is one which need not be decided at this time. At a later date, the court must eventually wrestle with this issue to determine the type of hearing that must be held, particularly whether said hearing is to be a de novo one. Regardless of whether this case is covered by the provisions of the Local Agency Law or exclusively by the provisions of the General Assessment Law, the appeal period is fixed by the 30-day period set forth in section 5571(b) of the Judicial Code. 42 Pa.C.S. §5571(b).

ORDER

And now, April 24, 1989, it is hereby ordered, adjudged and decreed that the City of Erie’s motion for intervention is granted.