author: BERNSTEIN, J,

text:
    Rothermel v. Kelly’s Kids

      C.P. of Philadelphia County,
    January Term 2006,
    no. 2576.

      James B. Dolan, for plaintiff.

      Jeffery C. Pettit, for defendant.
    August 18, 2006
   BERNSTEIN, J,

ORDER

The plaintiff filed her complaint on January 19, 2006 and served it on March 8,2006. Plaintiff alleged counts of breach of contract, promissory estoppel, quantum meruit, and wrongful conversion against defendant. Defendant filed preliminary objections on March 20, 2006 which asserted that jurisdiction was improper in Pennsylvania, and venue improper in Philadelphia. Plaintiff filed her answer to the preliminary objections on April 7,2006. Defendant filed its motion to determine the preliminary objections on April 18,2006, and plaintiff filed her answer on May 8, 2006. On May 16, 2006 this court entered an order which set a date for oral argument regarding the preliminary objections. The order stated that the court would accept affidavits, deposition testimony, or live evidence at the hearing. This court accepted evidence and heard arguments on the preliminary objections on June 30, 2006.

Plaintiff is a resident of Wayne, Pennsylvania, located in Delaware and Montgomeiy counties. Defendant in this case is a Louisiana corporation with its principal place of business in the state of Mississippi, registered to do business in the state of Mississippi and the state of Texas. Defendant is not registered to do business in Pennsylvania and neither owns nor leases any real estate in Pennsylvania. Defendant has no employees in Pennsylvania.

Defendant sells children’s apparel. It sells its products through a catalog, website, and “home parties” in customer’s homes. All of defendant’s salesmen are independent contractors. In 2005 Kelly’s Kids contracted with 554 independent contractor salesmen, only six of whom did any business in Pennsylvania. Defendant’s gross sales in 2005 totaled $13,278,011.78, less than 1 percent ($96,556.42) from Pennsylvania. Defendant had 108,595 total orders in 2005 but only 848 (0.78 percent) came from Pennsylvania customers. Most of these Pennsylvania orders (621, or 73.23 percent) came from 72 home parties hosted in Pennsylvania in 2005. Only 28 of the 227 individual orders made in Pennsylvania were received through Kelly’s Kids’ website. Thus the total Pennsylvania web-generated sales represent 0.00026 percent of defendant’s total 2005 business.

Defendant’s website permits users to view and purchase merchandise, apply to be a sales representative, sign up to host a home party, sign up for a personal shopping account, request a catalog, and contact the defendant via e-mail. Kelly’s Kids received 4,499 orders over its website in 2005, only 28 of which originated in Pennsylvania (0.62 percent).

In July 2005 plaintiff entered into a contract to consult for the defendant. The contract was not created in Pennsylvania. Plaintiff performed most of her services for defendant in New York and New Jersey, and attended meetings in Mississippi. Plaintiff performed no services in Pennsylvania. This contract was to expire on October 14, 2005.

On September 2, 2005, plaintiff met with Carol Follmer, the general manager, at defendant’s offices in Mississippi. They discussed extending the contract for an additional year. Plaintiff e-mailed a proposal containing the terms of the contract extension to Ms. Follmer on September 13,2005. Plaintiff may have sent the e-mail from Kansas. During a telephone conversation on October 17, 2005 plaintiff offered and Ms. Follmer accepted a six-month contract in accord with the September 13 e-mail. There has been no evidence presented that either person was in Pennsylvania at the time the contract extension was agreed upon. Plaintiff claims that defendant improperly fired her on November 30, 2005, in breach of their oral contract. None of the events surrounding this cause of action occurred in Philadelphia County.

Pennsylvania courts’ jurisdiction over non-residents is governed by 42 Pa.C.S. §5322(b). “[T]he jurisdiction of the tribunals of [Pennsylvania] shall extend... to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” In International Shoe Co. v. Washington, the Supreme Court of the United States held that traditional notions of justice govern the constitutional standards of jurisdiction. “[D]ue process requires . . . that... if [the defendant] [is] not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”

It is well-established that “[Pennsylvania] courts may exercise two types of in personam jurisdiction over a non-resident defendant. . . . general jurisdiction, which is founded upon a defendant’s general activities within the forum as evidenced by continuous and systematic contacts with the state . . . [and] specific jurisdiction, which ... is focused upon the particular acts of the defendant that gave rise to the underlying cause of action.” The plaintiff does not claim that this court has specific jurisdiction and has not alleged any facts which would support such a claim. Specific jurisdiction is not in issue. The exercise of jurisdiction in Pennsylvania is proper only if the requirements for general jurisdiction are satisfied.

The Supreme Court of the United States in Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984), held that the defendant must engage in continuous and systematic general business contacts with the forum state in order for the exercise of general jurisdiction to be constitutionally exercised. This requirement can be satisfied by the presence of a company office, but cannot be satisfied merely by some commercial transactions. Over a period of eight years the defendant in Helicópteros purchased 80 percent of its equipment and replacement parts costing more than $4,000,000 from Texas companies, sent its employees to Texas for training and technical consultation, and transferred over $5,000,000 into its bank accounts from Texas. This level of business contact, though repetitious, was not sufficient to rise to the level of “systematic and continuous” because Helicópteros maintained no continuous presence in the state. More recently, in D’Onofrio v. II Mattino, a district court, applying Pennsylvania law, catalogued the factors which informed its inquiry into whether general jurisdiction was appropriate. The defendants’ only contacts with Pennsylvania consisted of an investigative trip and sending of news reports by wire, cable and over the Internet. The D ’Onofrio court refused to exercise jurisdiction because the defendants were not registered to conduct business in Pennsylvania, did not maintain offices and employees in Pennsylvania, and did not own any property in Pennsylvania.

Defendant Kelly’s Kids’ traditional business contacts with Pennsylvania are limited to commercial transactions amounting to a tiny percentage of its total sales. It is not registered to do business in Pennsylvania. It maintains no property in Pennsylvania. It has no employees in Pennsylvania. It has no offices in Pennsylvania. It has no permanent or continuous presence in Pennsylvania whatsoever, except its perpetual potential to be contacted via the world-wide web. There are no brick and mortar continuous and systematic general business contacts with Pennsylvania. The exercise of jurisdiction in this case can only be proper if the same due process requirements of general jurisdiction, namely systematic and continuous business contacts, are satisfied by nontraditional means over the Internet.

“[T]he Internet [is] a global ‘super-network’ of over 15,000 computer networks used by over 30 million individuals, corporations, and educational institutions worldwide.” In recent years it has become an indispensable and ubiquitous business tool. The capacity of the modem business to extend its reach worldwide has led the federal courts to consider the ways in which Internet activity may expose corporations to personal jurisdiction in foreign forums.

In Zippo Mfg. Co. v. Zippo Dot Com Inc, 952 F. Supp. 1119, 1123 (W.D. Pa. 1997), a manufacturer of cigarette lighters sued an internet news service for trademark infringement. The defendants contracted with 3,000 Pennsylvania residents to provide access to its news service. To do so, it utilized seven internet service providers in Pennsylvania. These business contacts were all made while the defendant was illegally using the plaintiff’s trademark. The defendant’s only contacts with Pennsylvania were over the Internet. Nonetheless, the Zippo court held that the exercise of specific jurisdiction was permissible. As stated by the Supreme Court of the United States in Burger King Corp. v. Rudzewicz, “^jurisdiction . . . may not be avoided merely because the defendant did not physically enter the forum state.” The Zippo court used a sliding scale analysis to determine whether a website was sufficiently interactive to justify an exercise of jurisdiction. “At one end of the spectrum are situations where a defendant clearly does business over the Internet----At the opposite end are situations where a defendant has simply posted information on an Internet web site which is accessible to users in foreign jurisdictions. ... The middle ground is occupied by interactive web sites where a user can exchange information with the host computer.”

The standard by which any commercial activity must be measured for general jurisdiction purposes is the systematic and continuous contacts standard. “[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” The inquiry for commercial activity on the Internet is identical to the inquiry for commercial activity conducted by telephone, telegraph, or physical mail. The examination of the nature and quality of the commercial activity in an Internet case requires exactly the same constitutional analysis as any other jurisdictional question.

Plaintiff urges this court to interpret Zippo and its progeny as establishing a sliding scale whereby any website of sufficient interactivity in the middle of the sliding scale permits the exercise of general personal jurisdiction. By this logic, any organization or individual in the world that operates a minimally interactive website would be subject to personal jurisdiction in Pennsylvania regarding any cause of action whatsoever. This result offends traditional notions of fair play and substantial justice.

Although the court in Zippo dealt with specific jurisdiction, the Superior Court of Pennsylvania has applied the same approach to general jurisdiction in Mar-Eco Inc. v. T & R Sons Towing and Recovery Inc., 837 A.2d 512 (Pa. Super. 2003). In Mar-Eco a Pennsylvania motor vehicle dealer sued a Maryland motor vehicle dealer, claiming that personal jurisdiction was appropriate. “[The defendant] regularly conducted] business in Pennsylvania through ... its [website] . . . where customers can order parts, schedule service, apply for financing, calculate payments, search [defendant’s new and used vehicle inventory and apply for employment.” The website also permitted customers to exchange trade-in information with the dealership, get specific price quotes on specific vehicles, and select from a variety of financing packages. Users were notified that the dealership would submit any of the user’s private information transmitted over the website to third parties. The defendant created a virtual dealership. Virtually any activity which could have been conducted at the physical dealership could be virtually conducted over the website. The Superior Court found that the defendant’s website fell into the middle ground of interactivity, and that, because the defendant regularly conducted business in Pennsylvania over its website, the exercise of general jurisdiction was appropriate.

Since the Mar-Eco virtual dealership website was the middle ground of interactivity, the Kelly’s Kids website falls on the low end of interactivity. While the Mar-Eco website simulated nearly every activity which a customer could conduct at the physical dealership, Kelly’s Kids’ website is little more than catalog orders which can be transmitted instantaneously. The contact made over the website flows entirely from the customer to Kelly’s Kids. Customers receive no feedback from the website. Customers merely select items for purchase, place an order, provide payment, provide information and await receipt of the items by mail. The only difference between this process and placing an order through a mail order catalog or by phone is the speed with which the order is received.

Kelly’s Kids’ Pennsylvania website contacts are initiated solely by its customers. These contacts are irregular, not systematic. Kelly’s Kids effected only 28 Internet sales in Pennsylvania in 2005, less than three per month, one sale every 13 days. A single sale of child’s clothing every two weeks is not doing business continuously. The irregular distribution of a business contact once every two weeks does not satisfy the constitutional requirements of due process even if conducted over the Internet.

This court does not have jurisdiction over the defendant. Defendant’s preliminary objections are therefore sustained.

      . Plaintiff offered no evidence to demonstrate that the contract was created in Pennsylvania. This court must conclude that it was not.

      . Affidavit of Carol Follmer, the general manager of Kelly’s Kids.

      . Defendant’s exhibit O contains this e-mail, as well as an e-mail sent by plaintiff two days later from Kansas. The second e-mail indicates that plaintiff’s flight to Philadelphia was delayed. There is no evidence of any Pennsylvania connection.

      . The court assumes that these facts, as plead by plaintiff, are hue for the purpose of determining preliminary objections.

      . 326 U.S. 310, 316 (1945). (citations omitted)

      . Mar-Eco Inc. v. T & R Sons Towing and Recovery Inc., 837 A.2d 512, 515 (Pa. Super. 2003).

      . Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438-39, 445-46 (1952) (jurisdiction was proper over a Philippine mining company that was ran out of an office in Ohio during WWII).

      . Helicopteros, 466 U.S. at 416 (jurisdiction was not proper over a Colombian corporation that repeatedly purchased training, services, and equipment in Texas, and trained its employees there).

      . 430 F. Supp.2d 431, 439 (E.D. Pa. 2006).

      . 430 F. Supp.2d at 440.

      . Zippo Mfg. Co. v. Zippo Dot Com Inc., 952 F. Supp. 1119, 1123 (W.D. Pa. 1997).

      . Id. at 1125-26.

      . 471 U.S. 462, 476 (1985).

      . 952 F. Supp. at 1124.

      . Zippo, 1119 F. Supp. at 1125-26. (emphasis in original)

      . Given the pervasiveness of interactive websites in the global economy, this interpretation would transform Pennsylvania into the world’s forum. Such unrestricted forum shopping is as offensive to traditional notions of fair play and substantial justice when it results in cases being heard in Pennsylvania as when a Pennsylvania corporation is forced to litigate in Siberia an action which arose in Pennsylvania. 837 A.2d at 514.

      . 837 A.2d at 514.

      . Id. at 514.

      . Although there is no evidence that credit card information can be received via the website, the court assumes this interactivity.

      . The mere potential to conduct business in a systematic way is not equivalent to actually conducting systematic business contacts.

      . Being continuously available to business is not the same as continuously conducting business. Maintaining a telephone line to accept orders does not mean that business is continuously being conducted over that telephone line.


source: Caselaw Access Project

author: LEWIS, J,

license: Public Domain

text:
    Commonwealth v. Eckenrode

      C.P. of Dauphin County,
    no. 1342 CR 2006.

      Francis T. Chardo, for Commonwealth.

      William C. Costopoulos, for defendant.
    October 4, 2006
   LEWIS, J,

Presently before this court is defendant Kevin Patrick Eckenrode’s petition for writ of habeas corpus and omnibus pretrial motion. For the reasons set forth below, this court denies both the petition and motion.

FACTUAL HISTORY

A suppression hearing held before this court on August 4,2006 established the following facts: on February 25, 2006, at approximately 7 p.m., Harrisburg City Police were dispatched to the Pennsylvania Place apartment building located at 301 Chestnut Street in response to a 911 call placed by off-duty National Guard Lieutenant Paul Kanish, who told 911 operators that he witnessed a woman fall to the ground as he was walking toward the building. Kanish also told operators that the defendant was present at the scene and appeared to have knowledge of the incident. The 911 operator directed Kanish to detain the defendant until police arrived, to which Lieutenant Kanish, who was aided by fellow military officer Sharon Jenkins, complied. Upon arriving at Pennsylvania Place, police found Rachel Kozlusky’s body lying on the ground in a pool of blood, and shortly afterwards, a Dauphin County deputy coroner pronounced Ms. Kozlusky dead at the scene.

At around 7:15 p.m., Detective Donald Heffiier arrived at the scene and spoke briefly with the defendant. The defendant told Detective Heffiier that Ms. Kozlusky, age 23, was sitting on the window ledge of his 23rd floor apartment when she started to slip, so he tried to grab her, but she fell. Detective Heffiier then asked the defendant if he would go to the police station for further questioning, to which the defendant agreed. Detective Heffiier then, in the presence of the defendant, told Officer Stacey Lauver to transport the defendant to the police station, but that the defendant was not to be booked because he was only a witness. Officer Lauver then placed the defendant into the back of a transport van and took him to the station. Upon arriving at the station, Officer Lauver escorted the defendant to the roll call room, where the two watched the Olympics on television. While in the roll call room, the defendant kept asking if Ms. Kozlusky was okay, and at one point blurted out that he was hanging Kozlusky out of the window, but could no longer hold onto her. Officer Lauver then asked the defendant how he was hanging Kozlusky out of the window, to which the defendant responded by demonstrating such on Officer Lauver. Lauver did not ask any further questions.

Detective Christopher Krokos then arrived at the station at approximately 8:30 p.m. for the purpose of interviewing the defendant. Detective Krokos went to the roll call room and asked Officer Lauver to speak with him in the hallway, out of the defendant’s presence, so that she could brief him on what had occurred. Officer Lauver relayed to Detective Krokos what the defendant had told her. Krokos then told the defendant that he wanted to talk to him about what had happened, but if the defendant preferred, that the two could talk at another time. The defendant indicated that he wished to complete the interview at that time. Detective Krokos then escorted the defendant to a third floor conference room where the two sat at a table with the defendant sitting closer to an open door. Krokos explained to the defendant that he was free to leave. The defendant then told Detective Krokos that Ms. Kozlusky was his girlfriend and that she came to visit him on Friday evening. He further stated that he and Kozlusky stayed up most of the night drinking a case of beer and a bottle of wine, then woke up at around 3 p.m. on Saturday and went to the Gingerbread Man in Harrisburg at around 4 p.m and continued to drink until approximately 7 p.m. The defendant also told Detective Krokos that Ms. Kozlusky wanted to sit on the window ledge of his apartment, but that she could not get the screen out of the window, so the defendant assisted her in doing so. Ms. Kozlusky then sat on the window sill with her feet hanging out of the apartment. While sitting on the window sill, Ms. Kozlusky told the defendant that she wanted to see if she could touch her feet to the window of the apartment below, and asked the defendant for help in doing so. At that point, the defendant told Detective Krokos that he attempted to lower Kozlusky by her armpits, but that she was not low enough. He then changed his grip to just holding her by her wrists, when she slipped from his grasp and fell.

Detective Heffner arrived at the station at around 9:25 p.m. and spoke with Detective Krokos about his interview with the defendant, and at around 9:40 p.m. read the defendant his Miranda rights and charged him with criminal homicide. Upon being Mirandized, the defendant invoked his right to counsel, at which time all questioning ceased and the defendant was booked. Shortly after midnight on February 26, 2006, police executed a search warrant on the defendant’s apartment, which led to the discovery of a marijuana pipe in a dresser drawer and resulted in the defendant being charged with possession of drug paraphernalia.

Detectives Krokos and Heffner both described the defendant as being intoxicated, but that the defendant was not slurring his speech, or having trouble walking, and was responsive to questions and forming complete sentences. Detective Krokos indicated that at several points during their interview, the defendant was crying. Additionally, Officer Lauver testified that when she initially observed the defendant, she believed that he was “extremely intoxicated”. However, Lauver further explained that after having had contact with the defendant, and talking to him about the Olympics and making other “small talk” at the police station, she could tell that he was not as intoxicated as she originally believed. A blood test taken at approximately 12:15 p.m. onFebruary 26, 2006, revealed that the defendant’s blood alcohol level was .256 percent.

PROCEDURAL HISTORY

After his preliminary arraignment, the defendant was remanded to the Dauphin County Prison without bail. On March 1,2006, defendant filed a motion for bail, and on March 14, 2006, this court held a hearing which resulted in bail being set in the amount of $200,000. Also at the bail hearing, the Commonwealth conceded that the evidence against the defendant did not rise to the level of first- or second-degree murder. On March 29, 2006, a preliminary hearing was held before Magisterial District Judge Joseph Solomon and the charges against the defendant were bound over to this court. On June 6, 2006, the defendant filed a petition for writ of habeas corpus, along with an omnibus pretrial motion, and on August 3, 2006 defendant filed memoranda supporting his position. This court held a hearing concerning both issues on August 4, 2006, and deferred its ruling allowing the Commonwealth to file a brief in support of its position, and the defendant to file any additional briefs. The Commonwealth filed a brief in opposition to defendant’s omnibus pretrial motion on August 18, 2006, and the defendant filed a response via letter dated August 23,2006.

PETITION FOR WRIT OF HABEAS CORPUS

Defendant asserts that the Commonwealth has failed to establish a prima facie case of third-degree murder because there is no evidence from which malice aforethought can be inferred. This court finds such argument to be without merit.

Third-degree murder is the unlawful killing of another with malice. Commonwealth v. Hickson, 402 Pa. Super. 53, 58, 586 A.2d 393, 395 (Pa. Super. 1990). (citations omitted) As the defendant points out, malice aforethought, the general intent prerequisite to a finding of murder in any degree, has been defined by the Pennsylvania Supreme Court as follows:

“[M]alice aforethought requires aunique state or frame of mind characterized by wickedness, hardness, cruelty, recklessness, and disregard of social duty:

“Malice is a legal term, implying much more [than ill-will, spite, or a grudge]. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.

“Malice has been characterized as exhibiting an ‘extreme indifference to human life,’ and ‘may be found to exist not only in an intentional killing, but also in an unintentional homicide where the perpetrator “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.””’ Commonwealth v. Ludwig, 583 Pa. 6, 21-22, 874 A.2d 623, 632 (Pa. 2005). (citations omitted) (emphasis in original)

This court finds that the defendant’s actions in dangling Ms. Kozlusky outside of his 23rd floor apartment building by her wrists could certainly be characterized by a jury as “exhibiting an extreme indifference to human life” and “consciously disregarding] an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Id.

The defendant argues that in light of his extreme intoxication and emotionally distressed condition, that defendant was legally incapable of “consciously disregarding any unjustified and extremely high risk that his actions might cause death or serious bodily injury.” And even if he was legally capable of achieving the requisite mental state, that the defendant’s conduct was in no way legally or factually malicious. Further, the defendant asserts that because Ms. Kozlusky voluntarily sat on the window sill, that she assumed the risk of sustaining injury or death.

It is well-settled that voluntary intoxication is not a defense to third-degree murder. 18 Pa.C.S. §308. Additionally, consent to bodily injury is only a defense in the context of competitive sporting events or in situations where the consent establishes a justification defense. 18 Pa.C.S. §311(b). Further, assent does not constitute consent if it is given by a person who by reason of intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense. 18 Pa.C.S. §311 (c)(2).

Thus, defendant’s argument that he was too intoxicated to act with malice must fail. This court finds that the Commonwealth has presented sufficient evidence to proceed with a third-degree murder charge, and therefore denies the defendant’s petition for writ of habeas corpus.

OMNIBUS PRETRIAL MOTION TO SUPPRESS STATEMENTS

Defendant argues that statements made to the police should be suppressed because they were obtained in violation of the defendant’s constitutional rights. First, defendant asserts that his statements to police must be suppressed due to the fact that defendant underwent custodial interrogation for over two hours before being apprised of his Miranda warnings. Pennsylvania courts have set forth the following standard regarding situations in which Miranda applies:

“There are two separate requirements, custody and interrogation, that have to be found in order for Miranda to apply. Police detentions in Pennsylvania become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of arrest.

“Interrogation is police conduct calculated to, expected to or likely to evoke admission. The overlying test to determine whether a person is being subjected to a custodial interrogation necessitating Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.

“The standard for determining whether police have initiated a custodial interrogation or an arrest is an objective one, with due consideration given to the reasonable impression conveyed to the person interrogated rather than the strictly subjective view of the troopers or the person being seized.

“The factors that the court considers to determine whether there has been a custodial interrogation include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.

“Police detentions become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to become the functional equivalent of an arrest. Arrest is an act that indicates an intention to take a person into custody or that subjects the person to the will and control of the person making the arrest.” Commonwealth v. Turner, 772 A.2d 970, 973-74 (Pa. Super. 2001). (citations omitted)

We now turn to the crucial issue of whether custodial interrogation occurred in the instant case. This court must determine if the defendant was in custody at the times he made statements to various members of the Harrisburg City Police Department.

The defendant argues that he was the focus of the investigation from the moment he was detained by Lieutenants Kanish and Jenkins, two passers-by complying with the 911 operator’s directive to detain the defendant. Defendant asserts that from the point of this detention, up until his arrest several hours later, he was in custody.

This court finds such argument to lack merit. There is no evidence appearing in the record to indicate that Lieutenants Kanish and Jenkins were dressed in military uniforms, or that they in any way restrained the defendant; rather the two off-duty military officers simply moved the defendant away from Ms. Kozlusky’s body and stood with him off to the side. This court does not find that these actions in complying with the 911 operator’s request to detain the defendant constitute state action.

Additionally, Detective Heffner’s contact with the defendant was noncustodial. Detective Heffner testified that when he arrived at Pennsylvania Place the defendant approached him, which is when Heffner asked the defendant what had happened. Detective Heffner’s contact with the defendant was very brief, and ended in Heffner asking the defendant if he would go to the police station to answer some further questions. When the defendant agreed to go to the station, Detective Heffner specifically told Officer Lauver, in the defendant’s presence, not to book the defendant and that he was only a witness. Additionally, the defendant was not handcuffed or restrained at any point during his brief encounter with Detective Heffner.

Next, this court must look to Officer Lauver’s contact with the defendant. At the direction of Detective Heffner, Officer Lauver placed the defendant, who was not handcuffed or shackled, into the back of a marked Harrisburg Police Department transport van, and took him to the station. Officer Lauver testified that the defendant had to ride in the back of the van, as do all passengers, due to department policy. At the station, Officer Lauver and the defendant sat in a roll call room and watched the Olympics on television. Officer Lauver testified that the defendant was not handcuffed or restrained at any time, and that the two made “small talk” during the time that they were together. Under these facts, this court does not find that the defendant was in police custody at the point of his interaction with Officer Lauver.

Additionally, this court finds that Detective Krokos’ questioning of the defendant was noncustodial. Detective Krokos specifically told the defendant that he was free to leave the station, and that they could do the interview at another time. However, the defendant said that he wanted to get the interview over with, and that he would speak to Detective Krokos at that time. Further, the defendant, who was unrestrained, sat at a conference table, close to an open door, while he and Detective Krokos spoke for less than one hour. Under the totality of the circumstances surrounding the interview between Detective Krokos and the defendant, this court does not find that the defendant was in police custody. As such, Miranda warnings were not required.

Next, the defendant argues that his statements should be suppressed because his extreme degree of intoxication and state of emotional distress render the statements made involuntary.

In support of his position, defendant cites Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (Pa. 1968), where the Supreme Court reversed a defendant’s conviction of various assault, rape and larceny charges, due to the fact that at the time the defendant made incriminating statements he was a “chronic alcoholic” who was “getting the d.t.’s,” was nauseous and had pains in his stomach and head, was sweating, shaking and cold, and requested medical assistance which was refused. Under those facts, the court held that the defendant’s mental and physical condition rendered the statements involuntary, and thus should have been suppressed. Holton, 432 Pa. at 15-16, 247 A.2d at 231.

The present case is easily distinguishable from Holton. Here, there is no evidence in the record to suggest that the defendant was ever sick or hallucinating, or that he was not capable of forming complete and reasonable thoughts and sentences. This court finds Commonwealth v. Milligan, 693 A.2d 1313, 1317 (Pa. Super. 1997) to be controlling. There, the Superior Court set forth the following standard regarding statements made by an intoxicated defendant:

“The fact that an accused has been drinking does not automatically invalidate his subsequent incriminating statements. The test is whether he had sufficient mental capacity at the time of giving his statements to know what he was saying and to have voluntarily intended to say it. Recent imbibing or the existence of a hangover does not make his confession inadmissible, but only goes to the weight to be accorded to it.” Milligan, 693 A.2d at 1316-17.

In the instant case, although the defendant was obviously under the influence of alcohol at the time of his statements, as evidenced by his blood alcohol content level as well as testimony from Krokos, Heffner, and Lauver, the statements were clearly voluntary. Detective Krokos testified that the defendant was forming complete sentences and was not slurring his speech. Additionally, Detective Krokos testified that the defendant did not change his “story” regarding the night’s events during the hour that the two spoke. This fact is further evidence that the defendant was capable of reasoning and formulating thoughts.

This court finds that the defendant had “sufficient mental capacity at the time of giving his statements to know what he was saying and to have voluntarily intended to say it.” Id.

The defendant’s final argument supporting his suppression motion asserts that his due process rights were violated because the police failed to tape his interrogations and destroyed the handwritten notes of his statements.

Presently, there is no requirement in Pennsylvania for police officers to record statements made by defendants. Although not controlling, the Superior Court in Commonwealth v. Craft, 447 Pa. Super. 371, 669 A.2d 394 (Pa. Super. 1995), examined this very issue before us today, holding that the due process requirements of the United States and Pennsylvania Constitutions do not require the recording of custodial confessions.

Therefore, although defendant makes many persuasive policy arguments in support of his position that statements should be electronically memorialized, the defendant fails to set forth a compelling reason for this court to interpret the state’s due process clause as requiring such recordings.

Accordingly, the following is entered:

ORDER

And now, October 4, 2006, it is hereby ordered that both the defendant’s petition for writ of habeas corpus and omnibus pretrial motion are denied.

      . 18 Pa.C.S. §2501.

      . 35 Pa.C.S. §780-113(a)(32).


author: GEORGE. J,

text:
    Cahill v. Ski Liberty Operating Corp.

      C.P. of Adams County,
    no. 06-8-29.

      Daryl E. Christopher, for plaintiffs.

      Hugh M. Emory, for defendants.
    November 14, 2006

      . The parties consistently used the incorrect caption throughout their pleadings. Apparently, the defendants misread the caption number on the writ of summons issued in this matter to read 06-8-29 rather than the proper caption number of 06-S-29. When the defendants praeciped for a rule to file a complaint, their praecipe carried the wrong number. All subsequent pleadings have duplicated that initial error. Accordingly, all are advised that the correct caption number, 06-S-29, should be used on all pleadings henceforth.

   GEORGE. J,

On January 17, 2004, Timothy Joseph Cahill was skiing at the Liberty Mountain Ski Resort located in Carroll Valley, Adams County, Pennsylvania. Cahill, an experienced skier, enjoyed skiing privileges at Ski Liberty through his purchase of a season pass. Cahill applied for the 2003-2004 season pass through a website operated by Ski Liberty. In order to complete the application, the website required Cahill to acknowledge that he agreed to the terms of a “season pass and advantage card release agreement” by clicking the “okay” box on the web page. The web page included an explanation of the terms which included a release and assumption of risk clause. Cahill’s application on the website was followed up with a written application which Cahill signed on January 11,2004. In a conspicuous location immediately above his signature, the written application provides that he agreed to be legally bound by the “Notice of risk”, “Assumption of risk”, “Release from liability”, and “Acknowledgement” provided to him by Ski Liberty.

On the date in question, Cahill fell on an icy area while skiing near the bottom of Eastwind and Strata slopes. He claims that although he was unaware of ice in this area, Ski Liberty knew of the danger since, during the previous evening, a snow-making water hydrant broke releasing water which ultimately froze into ice because of the cold conditions. As a result of his fall, Cahill claims to have severely injured his face, back, ribs and left hand. A complaint was filed on March 17, 2006, claiming that Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area. Ski Liberty has filed an answer with new matter alleging Cahill assumed the risk of his injuries and released Ski Liberty from all liability. Ski Liberty currently moves for judgment on the pleadings.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the plaintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966). Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. Nederostek v. Endicott-Johnson Shoe Co., 415 Pa. 136, 138, 202 A.2d 72, 73 (1964). Amotion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. Dunn v. Board of Property Assessment, Appeals and Review of Allegheny County, 877 A.2d 504, 510 n. 12 (Pa. Commw. 2005). Since I find that the release entitles Ski Liberty to judgment as a matter of law, the complaint will be dismissed.

Although disfavored under Pennsylvania law, exculpatory agreements, or releases, are valid provided they comply with the safeguards enunciated by our Superior Court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (1980) as follows:

“The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction . . . [T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.” Id. at 478, 385 A.2d at 439. Applying this criteria, I find the releases executed by Cahill to be valid.

The pleadings support a conclusion that the present agreement is not one of adhesion. Cahill was not forced to enter into the contract, but did so voluntarily in order to ski at Liberty Mountain. The agreement between the parties related to Cahill’s engaging in a matter of personal choice without any evidence of coercion or inducement negating the volitional nature of his act. Clearly, this activity is not essential to Cahill’s personal Or economic well-being but, rather, was a purely recreational activity. S qq Kotovsky v. Ski Liberty Operating Corporation, 412 Pa. Super. 442, 603 A.2d 663 (1992) (holding that exculpatory agreement signed by skier injured in downhill race was valid).

The releases also do not contravene public policy. The clauses were purely private in nature and in no way affect the rights of the public. In fact, releases such as that before the court are actually in furtherance of public policy. Our state legislature, in enacting 42 Pa.C.S. §7102(c) (relating to comparative negligence), specifically recognized that there are inherent risks in the sport of downhill skiing and specifically preserved the doctrine of assumption of risk as it applied to downhill skiing injuries and damages. 42 Pa.C.S. §7102(c). This suggests that it is the policy in this Commonwealth to enforce the doctrine of assumption of risk for persons knowingly engaging in downhill skiing. Kotovsky, supra at 448, 603 A.2d at 666.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, release Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

Cahill received, and acknowledged receipt, of the release from liability on two separate occasions. Notably, the first occasion appears to have been well in advance of the sale thereby allowing him ample opportunity to read it before using the facilities. This factual background reveals that the intent of the parties was imminently clear and spelled out with the utmost particularity in plain language. Therefore, under the criteria set forth in Zimmer, the releases are valid.

Perhaps in recognition of the viability of the releases at issue, Cahill does not challenge their validity but, rather, disputes their application to the current facts. In this regard, Cahill suggests that a hazardous condition created by Ski Liberty, and known to exist by the resort, is not an inherent risk to the sport of skiing thereby making the exculpatory agreements and assumption of risk doctrine inapplicable. In support of this argument, Ca-hill cites Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa. Super. 2005). In Crews, the Superior Court reviewed the trial court’s dismissal of a complaint wherein the plaintiff sought damages for injuries received when the plaintiff was involved in a collision with another snowboarder who was a minor under the influence of alcohol. In reversing the trial court, the Superior Court concluded that the plaintiff did not assume the risk of a collision with an underage drinker on a snowboard since the same is not an inherent risk of the sport of skiing.

Cahill’s reliance on Crews is misplaced. Primarily, Crews specifically limited the issue before the court to an analysis of the application of the assumption of risk doctrine. Instantly, this court addresses a separate and distinct issue concerning the validity of an exculpatory agreement. Although these different issues are dealt with simultaneously in a number of court opinions, they are indeed distinguishable and require separate analysis. Compare Zimmer v. Mitchell and Ness, supra with Crews v. Seven Springs Mountain Resort, supra. Accordingly, I find Crews to be inapplicable to the issue of whether the release agreement entered by Cahill is valid.

Since I have found that Cahill knowingly and voluntarily entered into an exculpatory agreement releasing Ski Liberty from both the inherent dangers of downhill skiing and any negligence on the part of Ski Liberty or its employees, it is not necessary to undertake a detailed analysis of application of the assumption of risk doctrine to the current matter. Nevertheless, as noted, our legislature has expressly preserved assumption of risk as a defense to actions for downhill skiing injuries. 42 Pa.C.S. §7102(c). Moreover, Ski Liberty provided Ca-hill prior and detailed notice of the dangerous and inherent risks of skiing. The notice is both thorough and exhaustive. Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory, but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man-made variety utilizing water and a complex system of sprayers, hydrants and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

Since I find the exculpatory agreement valid, Cahill’s claim cannot be sustained. Similarly, Mrs. Cahill’s derivative claim for loss of consortium must also automatically fail as a matter of law. See Kiers by Kiers v. Weber National Stores Inc., 352 Pa. Super. 111, 507 A.2d 406 (1986); Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552 (1985); and Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617 (1971).

For the foregoing reasons, defendants’ motion for judgment on the pleadings is granted.

ORDER

And now, November 14,2006, for the reasons set forth in the attached opinion, defendants’ motion for judgment on the pleadings is granted. The prothonotary is directed to enter judgment in favor of the defendants, Ski Liberty Operating Corp. and Snow Time Inc.

      . Timothy Joseph Cahill will be referred to throughout this pleading as “Cahill.” Plaintiff, Anne Leslie Cahill, is the wife of Timothy Joseph Cahill and has filed a derivative claim for loss of consortium.

      . Liberty Mountain Ski Resort is owned and operated by Snow Time Inc., which is a Delaware corporation operating in Adams County. Collectively, the parties will be referred to as “Ski Liberty.”

      . Both the website and the written documents accompanying the application provide as follows:

        “Notice Of Risk

      “I understand and accept the fact that snowsports (skiing . . .) in their various forms, including the use of lifts are dangerous with inherent and other risks. These risks include but are not limited to . .. ice and icy conditions... All of the inherent and other risks of snowsports present the risk of permanent catastrophic injury or death.

        “Assumption Of Risk

      “Understanding and agreeing that snowsports are hazardous, I voluntarily and expressly assume for myself the risk of injury while participating in these sports.

        “Release From Liability

        “In consideration of the use of the ski area’s facilities, I AGREE NOT TO SUE Ski Liberty Operating Corp., Whitetail Mountain Operating Corp., and/or Ski Roundtop Operating Corp., their owners, agents and employees, if injured while using the facilities, regardless of any negligence on the part of the Ski Area or its employees....

        “Acknowledgement

      “In consideration of being permitted to use the facilities at Liberty Mountain Resort, Whitetail Mountain Resort and Ski Roundtop, I expressly acknowledge:
      “(1) I have read and understand the ‘Notice of Risk,’ ‘Assumption of Risk,’ ‘Release from Liability,’ ‘Be Aware, Ski with Care,’ and ‘Your Responsibility Code.’...
      “(3) I voluntarily assume for myself all the risks involved in snow-sports.” (emphasis in original)

      . The written application reveals an order date for the season pass of October 31, 2003 which circumstantially establishes the date application was submitted by Cahill over the internet.


author: CHARLES, J,

text:
    Commonwealth v. Camacho-Vasquez

      C.P. of Lebanon County,
    no. CP-38-CR-1995-2005.

      Megan Ryland-Tanner, for Commonwealth.

      Charles R Buchanio, for defendant.
    January 29, 2007
   CHARLES, J,

To use a military analogy, the parties to this litigation are engaged in a “battle” over a parole violation within the context of a much larger “war” involving the efficacy of therapeutic polygraph examinations. Here, the Commonwealth seeks to revoke defendant’s parole largely because he flunked a polygraph examination that was designed to reveal details about his underlying offense. Defendant argues that polygraphs should never be employed as a strategy to justify parole violation punishment. In the alternative, defendant decries the tactic of using the polygraph examination as a means to gamer a confession that he had never been previously required to offer.

We are well aware that polygraphs are routinely used as part of sex offender therapy. We were somewhat surprised when we found no Pennsylvania appellate precedent to provide guidance with respect to the propriety of therapeutic polygraphs. Because of this, we have expanded the scope of our research to include decisional precedent from courts in other states. Based largely upon the wisdom we gleaned from extra-Pennsylvania precedent, we will affirm the use of polygraphs as a therapeutic tool in sex offender counseling. However, for reasons that will be articulated in more detail below, we will refuse the Commonwealth’s request for parole revocation under the unique facts of this case.

I. FACTS

On March 8, 2006, defendant Jafet Camacho-Vasquez entered a nolo contendere plea to the following charges:

(1) Indecent assault (M-l)

(2) Indecent assault (M-l)

(3) Corruption of minors (M-l)

(4) Corruption of minors (M-l)

Based upon this plea, we sentenced defendant on July 26, 2006 to receive identical sentences on Counts I and II. On each count, the defendant was sentenced to pay the cost of prosecution, a fine of $ 100 and be imprisoned in the Lebanon County Correctional Facility for a period of 90 days to two years less one day. As a condition of parole, we ordered that the defendant undergo sexual offense counseling.

At some unknown date, the defendant was paroled. The Lebanon County Probation and Parole Department assigned him to a sex offender treatment program sponsored by Reading Specialists. On November 27, 2006, the defendant underwent an intake interview with therapist John Flavin of Reading Specialists. During the course of this intake interview, the defendant was told that honesty was a critical component of his treatment. In the words of Mr. Flavin, “progress in therapy is dependent upon honesty.”

To determine the honesty of a client’s statements, Reading Specialists relies heavily upon polygraph ex-animations. According to Mr. Flavin, the polygraph results will drive the nature of his company’s therapeutic decisions. If an individual claims innocence and passes a polygraph, therapy is deemed unnecessary. On the other hand, if an individual claims innocence and fails a polygraph, Reading Specialists assumes that he is lying. Unless the individual recants his claim of innocence, he will be unsuccessfully discharged from the program.

At the parole revocation hearing, Mr. Flavin testified that the defendant professed innocence during the initial intake interview. Defendant’s claim of innocence did not waiver when he was confronted with the police reports and the prospect of a polygraph. Therefore, a polygraph was scheduled and conducted. Four questions were asked of the defendant. Each of these four questions related to the crime to which he pled no contest. As to each of the four crime-specific questions, the defendant was found by the polygrapher to be deceptive.

On December 18, 2006, defendant was confronted with the results of the polygraph. He was given another opportunity to admit the underlying criminal offense. Once again, he reiterated his innocence. Because of the defendant’s obstinate refusal to admit culpability, Reading Specialists determined that it could do nothing further and discharged him from its care.

Following the defendant’s discharge from Reading Specialists, the Commonwealth filed a motion to revoke parole. This motion was based upon the defendant’s inability to complete the Reading Specialists’ sex offender program. At the date of the initial parole violation hearing on December 27,2006, both parties couched the debate as involving the propriety of a therapeutic polygraph. We asked the parties to brief that issue and continued the parole violation hearing until January 17. In the meantime, we completed our own preliminary research regarding the issue as we perceived it.

On January 17, the Commonwealth sought to change its definition of this dispute. Instead of focusing upon the polygraph, the Commonwealth suggested that we should not look beyond the fact that defendant was discharged from therapy. According to the Commonwealth, the defendant’s discharge, by itself, justifies a parole violation. Not surprisingly, the defendant asks us to look beyond the fact of his discharge in order to examine the underlying reason why the discharge occurred.

Within the milieu of the above dialogue, we received testimony from Mr. Flavin, who explained exactly what was done at Reading Specialists and why. Following the hearing, the parties asked for and were given one additional week in which to file briefs. All pertinent information has now been presented and this matter is now ripe for disposition.

II. DISCUSSION

A. General Standard for Parole Violation Hearings

In a parole revocation hearing, the Commonwealth bears the burden of establishing that a defendant violated the terms of his probation. See e.g, Dorsey v. Commonwealth of Pennsylvania, Board of Probation and Parole, 132 Pa. Commw. 476, 573 A.2d 628 (1990). Unlike a criminal trial, where the Commonwealth’s burden is beyond a reasonable doubt, at a revocation hearing, the Commonwealth need only prove a violation by a preponderance of evidence. Commonwealth v. Simms, 770 A.2d 346 (Pa. Super. 2001). In any parole violation hearing, the court is required to address two questions:

(1) Whether the parolee has in fact violated one or more conditions of parole; and

(2) Should the parolee be recommitted to prison as a result. See Commonwealth v. Simms, supra.

Essentially, we are asked to evaluate whether the conduct of the parolee establishes that parole has been an ineffective vehicle of rehabilitation. See e.g., Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983).

B. Admissibility of Polygraph Evidence

John Flavin’s testimony left little doubt about the importance of therapeutic polygraphs within the sex offender treatment program of Reading Specialists. In fact, it is obvious to us that defendant’s discharge from sex offender counseling — and his resulting parole violation— were inextricably linked to his deceptive polygraph result. Given the realities of this case we would be remiss if we did not directly address the viability of therapeutic polygraphs for convicted sex offenders.

The general rule in Pennsylvania is that “any reference to a [polygraph] test which raises an inference concerning the guilt or innocence of a defendant is inadmissible.” Commonwealth v. Sneeringer, 447 Pa. Super. 241, 255, 668 A.2d 1167, 1174 (1995). See also, Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971). “Since it is uniformly held that such a test is not judicially acceptable,... it is obvious that neither a professed willingness nor a refusal to submit to such a [polygraph] test should be admitted.” Commonwealth v. Saunders, 386 Pa. 149, 157, 125 A.2d 442, 446 (1956). (citation omitted) In fact, in some cases the mere mention of a polygraph test during a trial will warrant the granting of a motion for mistrial. Commonwealth v. Watkins, 750 A.2d 308 (Pa. Super. 2000).

Relying upon the general principles outlined above, the defendant suggests that we should dismiss the parole revocation motion as being impermissibly grounded upon an inadmissible scientific test. Upon superficial examination, the defendant’s argument has some appeal. However, it cannot bear up to close scrutiny.

There is a vast difference between an accusatory polygraph and a therapeutic one. With respect to the former, the polygraph is used as a confrontational tool to extract evidence of uncharged criminality. In the latter, the polygraph is used as a tool to identify risk behaviors and encourage honesty. Within the panoply of constitutional rights afforded to every criminal defendant, use of accusatory polygraphs is not to be condoned. On the other hand, convicted criminals do not enjoy the full panoply of constitutional rights. As we see it, depriving therapists of a tool that can be highly useful in rehabilitating a known offender strikes us as going too far.

Although we have found no appellate precedent in Pennsylvania regarding the use of therapeutic polygraphs, there is abundant guidance from across the country, much of which involves situations very similar to the one at hand. Some of the most oft-cited cases include the following:

(1) People v. Miller, 208 Cal. App. 3d 1311, 86 ALR 4th 705 (1989) — In Miller, the defendant was convicted of a sex offense against a child. He challenged a condition of probation that required him to submit to polygraph examinations. The defendant argued that the polygraph condition was “overbroad” because there were no restrictions on the questions to be asked by the polygrapher. The court stated: “This is patently incorrect. The polygraph condition was expressly requested by the probation officer and imposed by the court to monitor defendant’s compliance with the condition prohibiting unsupervised contact with young females. Thus, any polygraph examination administered to defendant necessarily will be limited to questions relevant to compliance with that condition.” 80 ALR 4th at p. 707. Based upon this analysis, the court permitted use of the therapeutic polygraph.

(2) Varnson v. Satran, 368 N.W.2d 533 (N.D. 1985)—In Varnson, a parole board’s decision was predicated in part upon an inmate’s failed polygraph examination. The North Dakota Supreme Court articulated the general rule that polygraphs are not admissible in a criminal trial. However, the court noted that parole release hearings “differ significantly” from other types of fact-finding trials. The Supreme Court of North Dakota concluded that inmates are not entitled to “a complete panoply of rights and procedural safeguards designed for free citizens in an open society.” Accordingly, the Supreme Court affirmed the parole board’s reliance upon the polygraph examination.

(3) Gyles v. State of Alaska, 901 P.2d 1143 (Al. App. 1995) — In Gyles, the defendant was convicted of sexually abusing a minor. He was ordered to participate in sex offense counseling that included use of polygraphs. The parole officer’s stated purpose for seeking the polygraph was to “gain some insight and determine if he has re-offended or has had any contact with minors.” Id. at p. 1146. Although the Alaska appellate court did not quarrel with the use of a polygraph, it was concerned about the breadth of the parole officer’s polygraph request. Noting that even parolees have a Fifth Amendment right against self-incrimination as it relates to uncharged crimes, the court remanded the case to the trial judge for a determination of whether a polygraph could implicate the defendant in later criminal proceedings.

(4) State v. Ostreicher, 2002 WL 450393 (Conn. Super. 2002) — In Ostreicher, the court approved the concept of therapeutic polygraphs, stating: “The court finds that polygraph testing furthers the legitimate purposes of the defendant’s probation because it has valid rehabilitative and deterrent purposes. For this reason, the court finds the polygraph machine to be a suitable tool which may be utilized by the probation authority to supervise sexual offenders.” However, the Connecticut appeals court also expressed concern about the implication of the polygraph upon a parolee’s Fifth Amendment right against self-incrimination. The court stated that the defendant “has lost the privilege against self-incrimination in relation to crimes for which he has been convicted and may be compelled to answer questions related to that offense as a condition of his probation.” However, the court emphasized that no defendant can be compelled to answer questions that could be used against him if he were tried for another crime.

(5) Mangarella v. State, 17 P.3d 989 (Nev. 2001) — In this case, the Nevada Supreme Court was asked to rule upon the constitutionality of a statute that specifically authorized the use of therapeutic polygraphs for parolees. While upholding the use of therapeutic polygraphs, the Nevada court emphasized that the questioning must “reasonably relate” to the purpose of parole and cannot be used as an investigative tool to disclose previously unreported criminality.

(6) In State v. Naone, 990 P.2d 1171 (Hawaii App. 1999), the defendant was ordered into sex offender treatment as a condition of being accepted into a deferred prosecution program. The sex offender treatment required defendant to submit to a polygraph. He refused. The Hawaii appeals court noted: “When defendant expressed concern about the use of the polygraph results, the family court immunized him from the evidentiary use of the polygraph results. When defendant objected to the person who would administer the polygraph examination, he was given the option of being examined by a polygraph examiner of his choice. Under these circumstances, the record amply demonstrates that the family court did not abuse its discretion when it concluded that the defendant’s refusal to take the polygraph examination ... constituted a violation of the terms [of his deferred prosecution program].” Id. at p. 1189.

(7) State v. Riles, 957 P.2d 655 (Wash. 1998) — The Washington Supreme Court addressed the concept of therapeutic polygraphs in the context of a defendant who had been convicted of raping a child. The court stated: “The use of the polygraph examination may enhance the assessment, treatment and monitoring processes by encouraging disclosure of information relevant and necessary to understanding the extent of present risks and compliance with treatment and court requirements. When obtained, the polygraph data achieved through periodic examinations is an important asset in monitoring the sex offender client in the community.” Id. at p. 663. Based upon this analysis, the court permitted the use of therapeutic polygraphs.

Not every jurisdiction has permitted the use of therapeutic polygraphs. See e.g., Patton v. State, 580 N.E.2d 693 (Ind. App. 1991). However, it appears from our research that the overwhelming majority of jurisdictions where the issue was addressed have favored the use of therapeutic polygraphs in one form or another. Based upon our survey of the majority view favoring polygraphs, we draw the following conclusions:

(1) Therapeutic polygraphs can be an important tool in a parole officer’s arsenal of rehabilitative devices, especially when the parolee is a sex offender who has displayed deviant sexual tendencies.

(2) Practically every case we read cited the United States Supreme Court’s decision in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). In Murphy, the United States Supreme Court declared that a defendant cannot be compelled as a condition of probation/parole to answer questions that could be used against him if he were tried for another crime. Because of Murphy, every court that permitted use of therapeutic polygraphs also created barriers limiting the polygrapher’s ability to ask questions pertaining to uncharged criminality.

(3) Questions in a therapeutic polygraph about the underlying offense that created the offender’s parole status will be permitted. A defendant who has already admitted or been found guilty of a crime cannot be punished twice and therefore jeopardy does not attach when a parolee is required to answer questions about his/her underlying offense.

(4) All questions employed in a therapeutic polygraph must somehow “reasonably relate” to either the deterrent or rehabilitative purposes of the defendant’s parole. “Fishing expeditions” during the therapeutic polygraph process should not be permitted.

Based upon the above conclusions, we hold that the Lebanon County Probation Department did not err by referring the defendant to a sex offender treatment program that employed the use of therapeutic polygraphs. We also conclude that it is appropriate to ask most defendants questions about the underlying offense that created his/her parole status. Had the defendant in this case entered a guilty plea, the above holdings would have ended our inquiry. However, the factual wrinkle that requires us to progress further in our analysis is that this defendant entered a nolo contendere plea.

C. Effect of Defendant’s Nolo Contendere Plea

Conceptually, the Commonwealth seeks to camouflage the defendant’s argument through oversimplification. At oral argument, the Commonwealth’s attorney suggested that our inquiry should be limited to the following: “Defendant was ordered into treatment. He did not complete his treatment. Ergo, he should be re-incarcerated.” Not only would such an approach be unfair, but it would also contravene appellate precedent. See e.g., Miller v. Pennsylvania Board of Probation and Parole, 784 A.2d 246 (Pa. Commw. 2001).

As we pierce the veil of defendant’s violation to examine its true source, we conclude that the genesis of defendant’s violation is his refusal to admit the facts of his underlying crime. Therapist Flavin acknowledged that Reading Specialists’ decision to discharge the defendant was made because he failed the polygraph regarding his underlying offense and continued to stubbornly deny culpability. We agree that in most cases, this would be enough to justify aparóle violation. However, this case is different than most in that the defendant’s plea was one of nolo contendere rather than guilt.

Loosely translated, the Latin words “nolo contendere” mean “no contest”. When a defendant enters a nolo contendere plea, he says in effect, “I will not contest these charges.” Commonwealth v. Hayes, 245 Pa. Super. 521, 369 A.2d 750 (1976). While there is no difference in terms of punishment between a guilty plea and a nolo contendere plea, there is nonetheless a significant difference in terms of what the defendant is required to acknowledge under oath. When a defendant enters a plea of guilty, he is required to acknowledge under oath that he committed the offense charged. In contrast, a nolo contendere plea merely requires that a defendant acknowledge he has no defense. As it relates to this case, the difference between a guilty plea and a nolo contendere plea has more than semantic import.

In this case, the defendant entered a nolo contendere plea as part of a plea agreement with the Commonwealth. As such, the Commonwealth knew, or should have known, that the defendant would not be required to actively acknowledge guilt. In return for the Commonwealth’s forbearance with respect to an admission of guilt, the defendant agreed to be sentenced and punished for the crimes charged. Now the Commonwealth is turning around and saying to the defendant: “Even though we agreed that you would not have to admit guilt in return for your agreement to suffer a specified punishment, we now wish to extend your specified punishment because you will not admit guilt.” This approach strikes us as both unfair and violative of the parties’ plea agreement.

Had the defendant entered a guilty plea, we would have embraced the Commonwealth’s argument. A person who admits under oath that he is guilty of a crime may be made to confront the details of that crime in a therapeutic setting and, if necessary, submit to a polygraph as part of the therapeutic process. If the defendant fails to do this, he can be subject to parole revocation.

To the extent that the Commonwealth believes that therapeutic sex offender treatment is important, it has an obvious remedy — refuse the proffer of a nolo contendere plea. If the Commonwealth, or the victim, perceives that sex offender therapy is particularly important for a given defendant, all the Commonwealth need do is insist upon a guilty plea or proceed to trial. Here, because the parties agreed to the nolo contendere plea, and because it would be unfair to incarcerate the defendant under the circumstances presented, we will refuse the Commonwealth’s motion to revoke the defendant’s parole.

III. CONCLUSION

To use the analogy with which we began this opinion, we rule today that the Commonwealth must lose its “battle” to revoke Jafet Camacho-Vasquez’ parole. However, the essence of our decision enables the Commonwealth to win the “war” over the use of therapeutic polygraphs as a tool in the monitoring and treatment of almost all sex offenders. So long as the Commonwealth and the defendant do not enter into a nolo contendere plea agreement, therapeutic polygraphs may be employed as a therapeutic tool during sex offender treatment. In this case, only the defendant’s negotiated nolo contendere plea will save him from reincarceration. An order consistent with the above will be entered this date.

ORDER

And now, January 29,2007, upon consideration of the parties’ arguments, the order of this court is as follows:

(1) Defendant’s challenge to the use of therapeutic polygraph examinations is denied.

(2) The Commonwealth’s motion to revoke defendant’s parole is also denied.

      . In Miller, the court held that a defendant cannot be violated for failing to comply with an impossible or highly impractical parole condition. By the very nature of this ruling, courts are required to examine the nature of the parole condition violated and why the defendant was or was not able to comply.

      . By this opinion, we do not wish to imply that every defendant who enters a guilty plea and fails a subsequent therapeutic polygraph will automatically be violated. A hearing will still have to take place at which the sentencing judge will be able to inquire about the purpose of the polygraph and the questions asked during the process. As always, the sentencing judge will have full discretion to determine whether and for how long parole can be violated.

      . Henceforth, the Commonwealth should be on notice that we will not require a sex offender who pleads nolo contendere to submit to therapy or polygraphs that address details of the underlying crime.