author: O’BRIEN, J.,

text:
    Taylor v. Taylor

      Arthur L. Zulick, for plaintiff.

      Robert M. Rosenblum, for defendant.
    December 12, 1990
   O’BRIEN, J.,

Plaintiff, James A. Taylor, and defendant, Carol A. Taylor, were married on April 14, 1965. Plaintiff husband filed a complaint on September 2, 1986 seeking a divorce on grounds of either irretrievable breakdown of the marriage or indignities to the person. Following two evidentiary hearings, a special master appointed by the court filed a report on September 21, 1987 recommending a divorce on the ground of indignities and equitable distribution of marital property. Neither party filed exceptions to the master’s recommendation and on October 13, 1987 this court entered a decree of divorce incorporating the master’s recommendations with respect to equitable distribution. No appeal was filed from that decree, by either party.

The equitable distribution decreed by the court provided for the division of jointly owned real property in Stroud Township, Monroe County, Pennsylvania. Defendant wife received 1.77 acres which included thereon the marital domicile, swimming pool and outbuildings. Plaintiff husband received the remaining unimproved acreage. On June 26, 1990, upon petition of plaintiff, this court issued a rule to show cause upon defendant why she should not execute the deeds to carry out the equitable distribution of the marital realty. On August 7, 1990, in the absence of a timely answer by defendant, the rule was made absolute. On August 13, 1990, defendant wife filed a petition requesting the court to vacate the divorce decree, to which plaintiff filed a timely answer. Plaintiff husband countered by filing a petition requesting the court to hold defendant wife in contempt for failure to comply with the order of August 7, 1990. All issues were joined for argument and following the submission of briefs and oral argument the matter is now before the court for disposition.

The Divorce Code provides in pertinent part as follows:

“A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or because of a fatal defect apparent upon the face of the record, must be made within five years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including peijury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.” 23 Pa.C.S. §602.

Since three years have elapsed since the entry of the divorce decree, our authority to vacate the divorce decree is limited to proof of extrinsic fraud. Thus we must determine the precise meaning of extrinsic fraud as set forth in the statute and examine the record to determine if defendant wife has sustained her burden of demonstrating that she was the victim of extrinsic fraud by plaintiff husband.

The distinction between extrinsic fraud and intrinsic fraud has been defined by our Superior Court as follows:

“By the expression ‘extrinsic or Collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise of compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose perjury then and there: Pico v. Cohn, 91 Cal. 129, [25 P. 970]. Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the jurisdiction of the court has been imposed upon, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial.” Fenstermaker v. Fenstermaker, 348 Pa. Super. 237, 502 A.2d 185 (1985), quoting McEvoy v. Quaker City Cab Co., 267 Pa. 527, 110 Atl. 366 (1920).

Generally, judgments regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court.” Simpson v. Allstate Insurance Co., 350 Pa. Super. 239, 504 A.2d 335 (1986); Klugman v. Gimbel Brothers Inc., 198 Pa. Super. 268, 182 A.2d 223 (1962). Therefore, our appellate courts have taken a narrow view of what constitutes “extrinsic fraud” in order to avoid unjustifiable disturbance of divorce decrees. In Foley v. Foley, 392 Pa. Super.9, 572 A.2d 6 (1990), our Superior Court held that the actions of the husband in intimidating the wife to the extent that she accepted less than one percent of the marital property in a property settlement agreement established the existence of extrinsic fraud. In Fenstermaker, supra, the court found extrinsic fraud where husband refused to complete settlement negotiations he had expressly promised to continue, and therefore had kept wife away from court by a promise of a false compromise.

In support of her claim of fraud, counsel for defendant wife cites three Pennsylvania cases. In Roach v. Roach, 275 Pa. Super. 320, 418 A.2d 742 (1980), the court vacated a divorce decree where neither the wife nor any attorney on her behalf had received notice of the hearing. In Duessing v. Duessing, 224 Pa. Super. 525, 307 A.2d 382 (1973), the court reversed a decree in divorce and remanded the action for further proceedings before the master where the defendant’s failure to appear before the master was the result of counsel’s oversight. Finally, in Teriberry v. Teriberry, 210 Pa. Super. 521, 232 A.2d 201 (1967) the court granted the opening of the decree where wife was unrepresented by counsel at the master’s hearing and was clearly under the impression there would be another hearing date prior to the entry of a final decree. In the case at bar, the record shows that the plaintiff had notice of the hearing, was represented by counsel throughout the proceeding, and engaged in further consultation with her lawyer after the master’s report was filed. Therefore, we reject defendant’s contention that she has been provided with less than a full and fair hearing on the merits.

In her further attempt to avoid compliance with this court’s decree, defendant wife raises two issues pertaining to plaintiff’s futile attempt to obtain a divorce in the Republic of Haiti. Defendant argues that plaintiff obtained a valid foreign divorce in Haiti on October 6, 1986 and further concealed the existence of said divorce from defendant and this court during Pennsylvania divorce proceedings. The evi-dentiary record fails to support either of the defendant wife’s contentions.

Our appellate courts have uniformly held that an absolute prerequisite to judicial recognition of a foreign divorce is that the plaintiff must have resided in the state or country for a minimum period of residency as determined by local authority and that the residency be accompanied by “domiciliary intent,” i.e., an intent to remain in foreign jurisdiction. Sargent v. Sargent, 225 Pa. Super. 1, 307 A.2d 353 (1973), citing DiMilia v. DiMilia, 204 Pa. Super. 188, 203 A.2d 382 (1964); Fishman v. Fishman, 167 Pa. Super. 428, 74 A.2d 682 (1950). This requirement is jurisdictional and cannot be waived by the acts of the parties. Yohey v. Yohey, 205 Pa. Super. 329, 208 A.2d 902 (1965). The Commonwealth also requires that in order for a foreign divorce to be valid, a defendant spouse must join in the proceeding. Sargent, supra. In the case at bar in support of his claim for divorce on the ground of indignities, the plaintiff presented the following testimony:

“Q: Did you take any steps to obtain a foreign divorce?

“A: What I did there, since we weren’t having any luck with this no-fault thing, I flew to Haiti. I did that for two reasons. The first reason was to give me peace of mind. I felt that in my mind I had to bring this to a conclusion because it was driving me nuts. Even though I realize it doesn’t have any authority in Pennsylvania, but Haiti is a member of the United Nations and has authority under God, and it’s a sovereign nation. So in my mind I’m divorced. So it helped me cope with what I’m going through. The main reason was for me. The second reason I did it was to tell Carol how serious this is and how serious I am. Those were the two reasons I flew to Haiti. Obviously it has no other reason.” (N.T. at 50.)

Applying the criteria set forth by our appellate courts, it is apparent that the absence of domiciliary intent on the part of plaintiff and the absence of any notice to or joinder by defendant in the Haiti proceeding, the Haitian divorce was not valid in Pennsylvania.

A review of the transcript of the master’s hearings also discloses the following:

“Mr. Zulick: I move for introduction of plaintiff’s exhibit 1.

“The Master: Any objection?

“Mr. Hensel: I guess I question the relevancy of that document.

“Mr. Zulick: Dr. Taylor is not here asserting that he is validly divorced pursuant to that decree, because as far as I am aware Mrs. Taylor never submitted herself to the jurisdiction of the Haitian court. However, we are offering it as evidence of Dr. Taylor’s state of mind on the steps he has taken to free himself of his marriage.

“The Master: All right. We will accept it on those grounds, but only for those purposes.” (N.T. at 52.)

Plaintiff’s exhibit 1 was the Haitian divorce decree. Clearly, therefore, wife’s assertion that husband concealed his futile attempt to obtain a Haitian divorce is without foundation in the record. It is apparent that defendant wife’s efforts to vacate the divorce decree are without any merit and clearly frivolous. Further, defendant wife’s failure to comply with the express provisions of the decree of this court constitute dilatory, obdurate and vexatious conduct justifying an award of attorneys fees.

ORDER

And now, December 12, 1990, it is ordered as follows:

(1) The petition of defendant, Carol A. Taylor, to vacate a divorce decree and the rule heretofore issued thereon are dismissed.

(2) The rule heretofore issued upon defendant, Carol A. Taylor, to show cause why she should not be held in contempt of the prior orders of this court is made absolute. Both parties are directed to be present for a hearing on the disposition of the contempt citation on January 29,1991 at 1:30 p.m. in courtroom no. 2, Monroe County Courthouse, Stroudsburg, Pennsylvania. Defendant may purge herself of this contempt by executing all documents necessary to effectuate the prior orders of this court.

(3) Reasonable counsel fees are assessed in favor of plaintiff, James A. Taylor, and against defendant, Carol A. Taylor, as a sanction for dilatory, obdurate and vexatious conduct in these proceedings. Counsel for plaintiff shall file a bill of costs as contemplated by 43 J.D.R.C.P. 252 and further proceedings, if any, shall be in accord with said rule.


source: Caselaw Access Project

author: BIESTER, Jr., J.,

license: Public Domain

text:
    PennDOT v. Cardellino

      Charles McCardell, deputy attorney generalfor the Commonwealth.

      Louis F. Floge, for defendant.
    November 8, 1990
   BIESTER, Jr., J.,

This is a license suspension appeal. The officer in this case was Officer Mark J. Taylor of the Upper Makefield Township Police Department who was on routine patrol on April 22, 1990 at about 3 o’clock in the morning. He testified that while on Taylorsville Road in his township he was following behind five other vehicles because the lead vehicle was driving at 35 mph in a posted 45-mph zone. The vehicles were unable to pass the subject vehicle because that vehicle was swerving over the yellow line. The officer got around the following vehicles and made a stop at Mount Airy Road and Taylorsville Road at which time he made his first contact with the operator, who is the appellant in this case, Ms. Cardellino.

He asked for her operator’s license and registration which she supplied to him. He smelled the odor of alcohol on her breath and requested her to turn off the engine, step out of her car and go to the rear of the car, which she did. The officer then asked her if she would take an alco-sensor test which she agreed to do. The test was administered and a reading of 0.16 was received. Based upon the results of that test and the officer’s observation of the appellant’s driving, he placed her under arrest and took her to Upper Makefield Township Police Headquarters for an Intoximeter 3000 breath test. No other field sobriety tests were offered at the scene.

At headquarters the appellant was advised of the implied consent law and a written form was supplied to her. She signed the form and she understood the implied consent law and was willing to take the Intoximeter 3000 breath test. There then followed a 20-minute observation period and the machine was set up and the test was administered. Ms. Cardellino blew into the tube and gave a result of 0.168. The second test for that particular strip was unsuccessful in that the appellant failed to supply enough breath for that test and the machine took it as a refusal. The officer then carefully explained to the appellant that if she did not supply enough breath the machine would abort and if it aborted three times, it would be considered a refusal. The machine was set up a second time and again Ms. Cardellino failed to supply sufficient breath at that time and the machine took it as a refusal. No Miranda warnings were given in this case. The appellant tried three times unsuccessfully. The machine aborted and listed her as refused.

The officer described the conduct of the appellant in all particulars as cooperative. The officer did not make a determination of refusal. It was the machine which determined that her refusal had taken place because it found that not enough breath had been supplied to it. The officer then made his report and included the following language: “Subject tried but failed to supply sufficient breath.”

It is that determination which causes the difficulty in this case. The question which arises in this case is whether a subject who has been totally cooperative with the arresting police officer in all particulars and whom the arresting officer has found has tried to comply with the breath test, but despite her trying has failed to supply enough breath, can be deemed to have refused to have given a breath test.

Clearly Commonwealth v. Mumma, 79 Pa. Commw. 108, 468 A.2d 891 (1983), teaches us that the failure of a subject to produce enough air can be a refusal.

In the court’s discussion of the matter at our hearing we noted that all courts have seen cases where the subject was obviously dissembling and doing all sorts of things with the tube and we have all heard officers testify to the various things done by certain subjects to avoid blowing enough breath into the tube.

However, that is not the issue in this case. In this case the officer who was right next to the appellant made a finding that she tried to supply sufficient breath. We noted then and we affirm now that if a subject simply does not produce enough breath and we cannot make a finding whether she is trying or not trying, then it may constitute and be deemed a refusal, especially when as many opportunities are given as were given in this case. In this case the only human judgment in the matter was that of an experienced police officer, who has determined that the person he was testing was trying to comply with the test. However, the machine did not receive or the machine said it did not receive enough breath.

Section 1547(b) of the Motor Vehicle Code, 75 Pa.C.S., provides at (b)(1), “if any person placed under arrest for a violation of section 3731 is requested to submit to chemical testing and refuses to do so the testing shall not be conducted.” In the instant case, the subject consented to the test, signed a consent form and commenced the test process. The officer found that she was trying to complete and consummate the test but the machine found that she failed to supply sufficient breath. As a matter of fact we found that she was not dissembling. We found, consistent with the officer’s determination, that she was not deliberately trying to prevent the test from going ahead. We found that she was not deliberately withholding breath so that the machine could not operate. We could not make a finding why the machine was not satisfied by the breath that she supplied. Under those circumstances and with those findings we further found there was not a refusal within the obvious stated purposes of the act.

It was for those reasons we sustained the appellant’s appeal in this case. We found that the petitioner consented and tried within her capacities to achieve the test but for reasons unknown to the court and for reasons not related to any effort on her part to prevent the test, the test was not completed.

We recognize that a hazard which occurs in a determination of this kind is that a certain amount of subjectivity is introduced into the law. However, as we noted in our hearing, the only subjective analysis we were relying upon in this case was that of the arresting officer himself. We file this memorandum opinion explaining our reasons for sustaining the appeal in this case.


author: POWELL, Member,

text:
    In re Anonymous No. 22 D.B. 77

      August 15, 1990
    Disciplinary Board Docket no. 22 D.B. 77.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

POWELL, 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

By order of the Supreme Court of Pennsylvania dated December 5, 1978, petitioner, [ ], was suspended from the practice of law for a period of three years to commence on January 3, 1979. The term of this suspension expired on January 3, 1982.

On June 8, 1989, petitioner filed this petition for reinstatement with the Disciplinary Board. On June 9, 1989, the matter was referred to Hearing Committee [ ] consisting of [ ]. A reinstatement hearing was held on December 14, 1989, at which time the petitioner appeared pro se, and the Office of Disciplinary Counsel was represented by an assistant disciplinary counsel. By its report filed February 13, 1990, the hearing committee recommended petitioner be denied reinstatement to the practice of law. Petitioner thereafter requested an extension of time in order to confer with counsel and to file a brief on exceptions, which request was granted by the chairman. On May 29, 1990, [ ], counsel for petitioner, filed a petition to reopen the proceeding for the purpose of taking additional evidence. On June 4, 1990, Disciplinary Counsel filed an answer to petitioner’s request to reopen the record, arguing that said petition should be denied. The Disciplinary Board considered the petitioner’s request to reopen the record for the purpose of taking additional evidence at its executive session held on June 22, 1990. The board, at said session, denied petitioner’s request concluding that there were no material changes of fact or of law occurring since the conclusion of the hearing. In addition, the board felt that petitioner had the opportunity of a full hearing and had access to the evidence at that time.

FINDINGS OF FACT

Petitioner, [ ], age 63, was formally admitted to practice in the Commonwealth of Pennsylvania. He practiced law at [ ]. In the early 1960s, prior to his suspension, he worked as an attorney with the Department of Finance and considered himself an expert in state tax matters. He was not only licensed to practice law but also was a licensed real estate broker and active as a real estate broker in the Commonwealth of Pennsylvania under the corporate name “[A] Realty Inc.” In the 1980s, subsequent to his suspension, petitioner worked at various jobs not connected with the legal profession and made between $900 and $12,500 a year until three weeks prior to the reinstatement hearing, at which time he took up residency in [ ], becoming employed in a clerk position.

Petitioner’s suspension was as the result of his actions as a real estate broker and attorney, when in or about March 1971, he was engaged by owners of real estate in [ ] County, Pennsylvania, to seek for them a buyer of their unimproved land. The sellers’ asking price was $2,300, but they were willing to negotiate that price if a buyer were found. On or about June 19, 1971, one [B] contacted petitioner about the land in question and told him he would be willing to pay the asking price of $2,300. Petitioner then accepted a down payment from [B1 of approximately $500.

About a week thereafter, petitioner notified the sellers that petitioner’s mother and father were willing to purchase the land in question for $1,150, of which $150 would be a sales commission to petitioner, for a net consideration of $1,000 to the sellers. At the same time that petitioner conveyed this offer to the sellers, he enclosed a sales agreement between the sellers and his parents. The sellers accepted that offer and executed the agreement of sale without having any information conveyed to them by petitioner that, in fact, the said [B] was willing to pay the full asking price and that petitioner had accepted a down payment from [B].

Petitioner personally went to the sellers’ home in [ ] and had them sign a deed without telling them the name of the purchaser, which deed listed a consideration of $1. The sellers testified that they signed the deed without any knowledge that the conveyance was, in fact, to [B], rather than to petitioner’s parents. When petitioner recorded the deed in [ ] County, he filed an affidavit of value listing the actual consideration paid as being $1,150. The grantee on the deed was the said [B]. The testimony accepted at the hearing established that the said [B] did, in fact, pay petitioner $2,300 for the land in question and that petitioner gave to sellers a total of only $1,000.

In May 1974, the said [B] again retained petitioner to represent him concerning a tax sale for the same land acquired by [B] in 1971. Petitioner failed to pursue the matter on behalf of [B], who then had to retain other counsel to represent him. [B] had given $300 to petitioner for representing him in the tax matter and the money was never returned by petitioner to [B].

The hearing committee and subsequently the board concluded that such conduct clearly involved dishonesty, fraud, deceit and misrepresentation, reflecting adversely on petitioner’s fitness to practice law and recommended to the Supreme Court that petitioner be suspended for a period of three years.

The Supreme Court thereafter suspended the petitioner on January 3, 1979, for a period of three years expiring on January 3, 1982.

DISCUSSION

In order for petitioner to gain reinstatement to the practice of law before the bar of the Supreme Court of Pennsylvania, he has the burden of demonstrating, by clear and convincing evidence, that he has both the moral qualifications and the competency and learning in the law required for admission to practice in this Commonwealth. In addition, he has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. See rule 218(c)(3)(i) of the Pennsylvania Rules of Disciplinary Enforcement.

Moral Qualifications

Petitioner had the burden of demonstrating by clear and convincing evidence that he has the requisite moral qualifications to practice law. First, among all the moral qualifications to engage in such practice, is the obligation to obey the law itself. Petitioner, by his own admission, failed to file federal and state income tax returns from 1984 through 1988 and only filed them within one week prior to the hearing. While petitioner protested that he owed no taxes and, in fact, was entitled to refunds, he nevertheless admitted misdemeanors under both federal and state law. This is not the type of conduct which one would expect from an individual who is looking forward to the resumption of a profession which demands the highest moral standards. In addition, the committee felt and this board agrees that petitioner has totally failed to recognize the nature of his wrongdoing. His suspension from practice resulted from his appropriating at least $1,300 of his client’s funds. However, he denied misuse of the funds in the face of the finding of the Disciplinary Board as accepted by the Supreme Court of Pennsylvania. (N.T. 73, 74.) In addition, he never made restitution to the sellers, who were defrauded, and feels no moral compunction to do so. (N.T. 75, 76.) Petitioner has not shown that he has learned from his mistakes, since he doesn’t even acknowledge any wrongdoing. He therefore has not satisfied the hearing committee nor this board that this type of conduct will not be repeated.

Competency and Learning in the Law

Despite the fact that the petitioner participated in a basic legal practice course and met the minimum educational requirements for reinstatement established by Board Rule section 89.279, petitioner failed to demonstrate his competency and learning in the law.

The hearing committee found and the record reflects that the petitioner’s presentation, which was pro se, was disjointed, disorderly, and indicated a lack of knowledge on behalf of petitioner of the Disciplinary Rules and Procedures with respect to reinstatement. Petitioner seemed to lack knowledge with respect to his burden of proof. He presented the testimony of two witnesses who had no knowledge of his current competence or ethical habits over the last 10 years. He offered no specific knowledge of legal concepts, although he assured the committee that he was competent to practice and had an IQ of 156. Apart from the fact that he took a basic legal practice course for several days in 1988, he had no formal continuing legal education exposure since his suspension. He informed the committee that he only intended to practice in the area of state taxation by being employed in a state agency and yet, in no way demonstrated his knowledge of state tax concepts. On the contrary, he insisted that failing to file a state income tax return did not result in criminal penalties, when, in fact, such failure is a misdemeanor punishable by imprisonment not exceeding two years or a fine not exceeding $5,000, or both. 72 P.S. §7353. He further insisted that the failure to file a federal income tax return was also not a criminal offense notwithstanding the fact that such failure is a misdemeanor punishable by imprisonment not exceeding one year or a fine of not more than $25,000, or both. In addition, petitioner’s completion of the required reinstatement questionnaire was sloppy and failed to contain all the accurate information required. An example of this failure is the omission of at least six judgments entered against him under the section requiring the recitation of civil actions against the applicant. Petitioner’s argument that a judgment is not a civil action is, of course, erroneous and, again, demonstrated his lack of understanding of basic legal concepts. The committee and this board found that petitioner did not demonstrate particular knowledge of any area of the law at the hearing.

The committee and this board do not believe that petitioner has proven by clear and convincing evidence his ability to practice law either as a specialist or a general practitioner.

Resumption of the Practice of Law

This board finds that petitioner’s resumption to the practice of law will be detrimental to the public interest. Petitioner has not demonstrated rehabilitation in that:

(1) Petitioner has shown no remorse.

(2) Petitioner does not recognize the nature of his wrongdoing.

(3) Petitioner has not made restitution and does not feel the need to do so.

CONCLUSIONS OF LAW

(1) In a reinstatement proceeding, petitioner has the burden of demonstrating by clear and convincing evidence not only that he has the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth, but that his resumption of practice will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Pa.R.D.E. 218(3)(1).

(2) During his suspension, the petitioner, [ ], has committed misdemeanors under both federal and state laws, by failing to file federal and state income tax returns for a period of five years.

(3) Petitioner, [ ], has failed to establish by clear and convincing evidence that he has the competency and learning in the law required for admission to practice law in this Commonwealth and that his resumption of practice will neither be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest.

(4) Petitioner, [ ], has failed to demonstrate by

clear and convincing evidence that he has the moral qualifications required for admission to practice law in this Commonwealth.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that the petition of [petitioner] for reinstatement to the bar of the Supreme Court of Pennsylvania be denied.

Ms. Heh was absent and did not participate in the adjudication.

ORDER

And now, October 3, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated August 15, 1990, the petition for reinstatement is denied.

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: AMBROSE, J.,

text:
    Sewickley Township Volunteer Fire Company No. 3 v. First National Bank of Herminie

      Victor H. Pribanic, for plaintiff.

      Charles B. Jarrett Jr., for defendant.

      Robert M. Stef anon and John M. Campfield, for additional defendants.
    May 11, 1990
   AMBROSE, J.,

This matter comes before the court on the additional defendants’ (with the exception of Thomas H. McDonough) motion for judgment on the pleadings. This matter originated with plaintiff, Sewickley Township Volunteer Fire Company no. 3, filing a civil action against The First National Bank of Herminie, claiming damages based upon three alleged causes of action.

Plaintiff alleged that defendant bank improperly redeemed and paid over to the additional defendant, Thomas McDonough (not one of the additional defendants joining in the instant motion for judgment on the pleadings), the sum of $12,448.01, being the value of a certificate of deposit of plaintiff on deposit with* defendant bank. Secondly, plaintiff alleges that the bank breached its duty under a bailment for said money by virtue of the above-recited redemption and payment. Lastly, plaintiff alleges that the bank breached numerous provisions of the Uniform Commercial Code by virtue of its payment of the above-referenced money to additional defendant McDonough.

Defendant bank denied the allegations of plaintiff’s complaint in its answer and recited that it had paid the money to plaintiff fire company, not the additional defendant McDonough, and that the money was, in fact, deposited in a savings account that plaintiff fire company maintained with defendant bank. The bank further alleged in its new matter that the bank had acted in accordance with the written instructions and signature cards received from plaintiff fire company, authorizing the additional defendant McDonough to act on behalf of plaintiff without the necessity of a second signature. The bank further contended that plaintiff had not established and maintained internal controls relating to the additional defendant McDonough in his capacity as treasurer of plaintiff fire company and was, therefore, itself liable for any losses caused by the actions of additional defendant McDonough.

Thereafter, defendant bank joined the above additional defendants, alleging that said additional defendants were officers and fiduciaries of the plaintiff fire company and as such, failed “to exercise their fiduciary duties in not establishing internal controls and procedures” with regard to the money deposited in defendant bank, thereby causing the losses suffered by the plaintiff fire company.

The additional defendants, with the exception of Thomas H. McDonough, filed an answer and new matter to the complaint, claiming that as employees of a local agency as defined in 42 Pa.C.S. §8501 et seq., they were immune from this suit. Further, said additional defendants claim that they were not liable for civil damages pursuant to 42 Pa.C.S. §8332.2 because their alleged acts or omissions related solely to the performance of their duties as officers of the fire company, a non-profit corporation, and only fell just below the ordinary standard of care.

Plaintiff bank admits that the additional defendants are employees of a local agency as the same are defined under the above-referenced law, but denies that the additional defendants are entitled to the immunity provisions of the law because their alleged breach of their fiduciary responsibilities as officers met the standards as set forth in 42 Pa.C.S. §8332.2.

This court is first disposed to point out that the legislature has dealt directly with the immunity issue of volunteer fire fighters in 42 Pa.C.S. §8332.3 entitled “Volunteer firefighter civil immunity,” which provides as follows:

“Volunteer firefighters shall be treated as public employees as defined in section 8501 (relating to definitions). This section shall not be construed to reduce or eliminate any other immunity provided to volunteer firefighters by law.”

As the parties agree, there is no question that volunteer firefighters are employees of a “local agency,” and specifically mentioned in the immunity sections of the act.

We will first consider whether or not the additional defendants, all volunteer firefighters, are immune from civil liability pursuant to 42 Pa.C.S. §8332.2, because their alleged misconduct rises to a standard required pursuant to that section. Title 42 Pa.C.S. §8332.2(a) provides as follows:

“(a) General Rule — Except as provided otherwise in this section, no person who serves without compensation, other than reimbursement for actual expenses, as an officer, director or trustee, of any non-profit organization under section 501(c)(3) of the Internal Revenue Code of 1954 (68A Stat. 3, 26 U.S.C. §501(c)(3)) shall be liable for any civil damages as a result of any acts or omissions relating solely to the performance of his duties as an officer, director or trustee, unless the conduct of the person falls substantially below the standards generally practiced and accepted in like circumstances by similar persons performing the same or similar duties, and unless it is shown that the person did an act or omitted the doing of an act which the person was under a recognized duty to another to do, knowing or having reason to know that the act or omission created a substantial risk of actual harm to the person or property of another. It shall be insufficient to impose liability to establish only that the conduct of the person fell below ordinary standards of care. ” (emphasis supplied)

The sole allegations of defendant bank against the additional defendants concern breach of the additional defendants’ fiduciary duties for not establishing proper internal controls and procedures. The additional defendants’ argument is that the allegations simply give rise to a claim that the firefighters committed acts or omissions that would only constitute ordinary negligence. The additional defendants contend that no allegations have been pled of any gross negligence, intentional wrongdoing, wanton disregard of their duties, or any other allegations that the firefighters’ conduct fell substantially below the standards of similar persons performing similar duties, as the statute requires. The additional defendants contend that they neither knew or had reason to know that such misconduct would have created a substantial risk of harm to the defendant bank.

We agree with the additional defendants’ contentions and conclude that the allegations contained in the complaint to join the additional defendants are insufficient to impose liability upon them since the allegations only give rise to an inference that the conduct of the additional defendants may have fallen below ordinary standards of care. See 42 Pa.C.S. §8322.2(a). We believe that the above-referenced section was intended to absolve from responsibility people like the officers and directors of a non-profit fire company, who serve the public without compensation and who, therefore, should not be held to the same standard as those who serve profit-making entities and derive remuneration for their services. Even if defendant bank’s allegations are accurate that the additional defendants failed to properly supervise and manage the affairs of the plaintiff fire company, we conclude as a matter of law that such action would only amount to conduct which would fall just below the ordinary standards of care that are expected in such instances.

In addition to our conclusion that the additional defendants-firefighters herein are immune from civil liability pursuant to 42 Pa.C.S. §8332.2, we have also favorably considered the additional defendants’ argument that volunteer firemen are entitled to immunity under the provisions of 42 Pa.C.S. §8501 et seq. This immunity section of the law with regard to various governmental units specifically includes volunteer firemen in its definition of employees. In section 8542(b) of the act (42 Pa.C.S. §8501 et seq.), the legislature has enumerated eight acts by a local agency or any of its employees that may result in the imposition of liability on the local agency. As additional defendants have pointed out to this court, the alleged acts or omissions of the additional defendant firefighters are not such as to fall within these eight exceptions to immunity as contained in section 8542(b). These specifically stated exceptions exclude all others and we, therefore, conclude that under the facts of this case, the additional defendant firefighters are immune from suit. (See 1 Pa.C.S. §1924 with regard to statutory construction of exceptions specifically stated.)

ORDER OF COURT

And now, May 11, 1990, in accordance with the foregoing opinion, it is hereby ordered and decreed that the additional defendants’ motion for judgment on the pleadings is hereby granted, and that further, the additional defendants, with the exception of Thomas H. McDonough, are granted judgment in their favor.


author:
SCHAEFFER, P.J.,
     SMITH, J.
     ESHELMAN, W.R., S.J.

text:
    Geibel v. PennDOT

      Donald F. Smith Jr., for plaintiff.

      Jessie L. Smith, for defendant PennDOT.

      November 16, 1990
   SCHAEFFER, P.J.,

The instant case raises the viability of the so-called “seat belt defense” as it may apply to persons who were injured in automobile accidents prior to the effective date of the Act of November 23, 1987, no. 82, 75 Pa.C.S. §4581, which eliminated the defense.

Plaintiff’s decedent in the above estate, Tiffany Geibel, died as a result of injuries suffered in an automobile accident which occurred on October 12, 1985. Ms. Geibel was a passenger in an automobile operated by her mother, defendant Frances E. Fies.

Defendant Pennsylvania Department of Transportation now wishes to amend its answer with new matter to set forth as an affirmative defense the alleged fact that plaintiff’s decedent was not wearing a seat belt at the time of the accident and that her injuries were, at least in part, caused by that failure.

This court first considered the “seat belt defense” in the case of Caroline A. Diebert v. Brian C. Engelhardt, no. 38 March 1987, and in the companion case of Norman G. Yeager and Theresa Yeager, his wife, v. Brian C. Engelhardt, no. 76 March 1987. A court en banc, consisting of President Judge Schaeffer, Judge W.R. Eshelman, Judge T.J. Eshel-man and Judge Calvin E. Smith, heard that case, and the court, President Judge Schaeffer dissenting, decided that there was no seat belt defense available in Pennsylvania prior to the Act of November 27, 1987, no. 82, 75 Pa.C.S. §4581.

The majority in that case did not write an opinion. Schaeffer, P.J., wrote a dissenting opinion in which he set forth the reasons why he believed that the seat belt defense was viable and should be allowed.

Since our decision in Yeager, supra, and Diebert, supra, the Superior Court of Pennsylvania has held that there is no seat belt defense in Pennsylvania, Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988), and the Commonwealth Court has held that there is, Stouffer v. Commonwealth, Dept. of Transportation, 127 Commw. 606, 562 A.2d 922 (1989).

In the case at bar, the Commonwealth is a defendant and, therefore, any appeal will go to the Commonwealth Court.

I find that under the law as it was on October 12, 1985, a defendant should have the right to raise, and an opportunity to prove, that a plaintiff’s failure to wear an available seat belt was causal negligence. I also believe that the failure to wear an available seat belt relates to liability and not to the mitigation of damages.

While legislative enactments provide valuable guideposts to assist a fact finder in determining whether particular conduct rises to the level of negligence, the test for contributory negligence is not so limited. Contributory negligence is any neglect of the duty imposed upon a person to exercise ordinary care for his own protection and safety. Restatement (Second) of Torts §§463, 464(1); Powell v. T. Bruce Campbell Construction Company, 412 Pa. 456, 194 A.2d 883 (1963); Mroz v. Dravco Corp., 429 F.2d 1156 (1970). In deciding what duties are imposed on an actor in a given set of circumstances, we must determine how a reasonably prudent person would act and judge whether the actor’s conduct falls below that standard. Jewell v. Beckstine, 255 Pa. Super. 238, 244, 386 A.2d 597, 599 (1978).

The empirical evidence I have examined persuades me that seat belts, when used, do prevent or mitigate injuries in motor vehicle accidents. In many cases seat belts can, and do, save lives. I take judicial notice of the fact that driving is a dangerous necessity in contemporary society. Reasonable drivers and reasonable passengers are mindful of the dangers all of us encounter every day we drive. For almost 20 years, the motoring public has been exposed to a concerted national public relations campaign advising seat belt use and showing, often dramatically, that seat belt use will minimize the danger of highway travel. Federal regulations require that all new cars manufactured in or imported into this country be equipped with seat belts. Moreover, the legislators of a majority of our states have concluded that seat belt use is required for the public safety and have replaced persuasion with mandatory legislation requiring seat belt use.

On the basis of this information and as a matter of common knowledge, I find that a reasonable person is aware of the added safety that seat belt use provides to occupants of motor vehicles. McKee v. Southeast Delco School District, 354 Pa. Super. 433, 512 A.2d 28 (1986). Therefore, an occupant of an automobile, being required to exercise reasonable care for his own protection at all times, should wear a seat belt if available, and his failure to do so can be causal negligence depending upon the circumstances. Smalich v. Westfall, 440 Pa. 409, 417-8, 269 A.2d 476, 482 (1970); Zavodnick v. A. Rose and Son, 297 Pa. 86, 91-2, 146 Atl. 455, 456 (1929); Schomaker v. Havey, 291 Pa. 30, 139 Atl. 495 (1927). Accordingly, I find that whether or not a plaintiff who fails to wear an available seat belt when riding in an automobile is guilty of conduct which falls below the standard of conduct to which a reasonable person would conform is a jury question. Evidence of a passenger’s failure to wear a seat belt, therefore, is admissible evidence of negligence in a civil action.

For the above reasons, I conclude that the standard of ordinary care can impose a duty on the motoring public, driver and passenger alike, to use seat belts independent of any statutory mandate. I also find that a jury in the case at bar could find that the plaintiff’s decedent’s failure to wear a seat belt was a substantial factor in bringing about her own harm.

We note that the failure to wear a seat belt need not be the cause of the accident. It is sufficient if it is the cause of the claimant’s harm. Therefore, it is not essential that the contributory negligence substantially contribute to the accident. It is only necessary that the negligence substantially contribute to the harm. Restatement (Second) of Torts §463 defines contributoiy negligence as conduct on the part of the plaintiff which is negligence “and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about plaintiff’s harm. ” (emphasis supplied)

Passenger injuries in automobile accidents result from the impact of the passenger’s body with some other object. The initial accident may create forces which tend to propel the passenger’s body toward a particular object, but it can be the lack of a seat belt which permits those forces actually to propel the passenger’s body into the object. Therefore, our concern is not whether the plaintiff’s decedent’s conduct caused the initial accident, but whether it is in some way related to the impact between the plaintiff’s decedent’s body and the other object, that is, to the impact which caused the plaintiff’s decedent’s harm. Failure to wear a seat belt obviously can be a substantial factor in causing this impact. If defendant can show, for example, that if plaintiff’s decedent had been wearing a seat belt, plaintiff’s decedent would not have struck the inside of the vehicle in which she was riding, or would not have been ejected from the vehicle and that some or all of the plaintiff’s decedent’s injuries resulted from that striking or that ejection, then the failure to wear a seat belt would be a substantial factor in causing that portion of her harm.

Thus, I find that a jury could conclude, in the case at bar, that if the facts which the Commonwealth wishes to allege in its proposed new matter are established, plaintiff’s decedent’s failure to wear a seat belt was (1) negligence, and (2) a substantial factor in causing her own harm. Thus, the defendant should be allowed to raise in its new matter the seat belt defense.

I find my conclusion is supported by Pennsylvania law and is governed by the decision of the Commonwealth Court in the case of Stouffer v. Commonwealth, Dept. of Transportation, 127 Pa. Commw. 606, 562 A.2d 922 (1989).

Since any appeal from the decision of this court will go to the Commonwealth Court, I agree that we are «bound by the Stoujfer case. Accordingly, I join in entering the following

ORDER

And now, November 16, 1990, it is hereby ordered that defendant Commonwealth of Pennsylvania, Department of Transportation, be, and it hereby is, granted leave to amend its new matter to assert a seat belt defense against plaintiff in this matter.

CONCURRING OPINION

SMITH, J.

I concur in the result and generally in the reasoning set forth by President Judge Forrest G. Schaeffer in his opinion.

CONCURRING OPINION

ESHELMAN, W.R., S.J.

I do not agree with the reasoning set forth by Judge Schaeffer in his opinion, but I concur in the result. I conclude that we are bound by the case of Stouffer v. Commonwealth, Dept. of Transportation, 127 Pa. Commw. 606, 562 A.2d 922 (1989), since the instant case will, on appeal, go to the Commonwealth Court. Therefore, based on the principle of stare decisis I concur that defendant Pennsylvania Department of Transportation should be allowed to amend its new matter to assert a seat belt defense against plaintiff’s claim for damages resulting from an automobile accident on October 12, 1985.

However, with all due respect, I am not persuaded by the majority opinion in Stouffer that failure to use a seat belt by injured claimants constitutes a valid affirmative defense if the accident occurred prior to the effective date of the Act of November 27, 1987, P.L. 399, §5, 75 Pa.C.S. §4581. This act, effective November 23, 1987, requires that the driver and front-seat occupants of automobiles four years old and older wear seat belts, but also provides that failure to comply shall not constitute contributory negligence and shall not be admissible as evidence in the trial of a civil action.

Stouffer cites Parisi v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979), which opinion stated that the court might have allowed the defendant a seat belt defense if he had introduced expert testimony showing a relationship between the plaintiff’s injuries and plaintiff’s failure to use a seat belt. Further, Stouffer relies primarily on McKee v. Southeast Delco School District, 354 Pa. Super. 433, 512 A.2d 28 (1986), but this case did not involve the question of affirmative duty of an injured claimant to wear a seat belt. Rather, McKee involved a claim on behalf of a six-year-old child who was injured on May 26, 1983, when the school van in which she was a passenger was brought to an abrupt stop by the defendant driver. The child was not restrained by a seat belt even though the school district had instructed the defendant van company to require that children riding its vans be restrained by seat belts, which same instruction had been given by the defendant van company to its employee-driver. Also, the injury was not caused by any collision of vehicles but by the abrupt stop of the van. The Superior Court granted a new trial, not because the trial court excluded evidence that the child plaintiff had failed on her part to use a seat belt, but because the trial court excluded evidence that the defendant driver of the van failed to fulfill his duty pursuant to instructions to require use of the available seat belt to restrain the child. Further, McKee held that the absence of expert testimony was not an issue in that the evidence tendered by plaintiff would have shown that the child’s injury was not caused by any collision nor was the injury exacerbated by failure to use a seat belt, but the injury was caused in toto by absence of the required seat belt, and the plaintiff’s evidence should therefore have been admitted at trial.

As pointed out in the dissenting opinion in Stouffer, no appellate court in the Commonwealth has squarely addressed the question of whether a common-law duty ever existed to wear seat belts, and such a duty should not be retroactively created; and by the Act of November 1, 1983, P.L. 195, no. 53, §1, (which predates the Act of November 27, 1987), the legislature intended to create, not reaffirm, an affirmative duty to wear seat belts. The 1983 act, effective November 1, 1983, and which remains in effect as part of the amending Act of November 23, 1987, requires a parent or guardian of a child under four who transports the child in an automobile to fasten the child with a restraint system, but also provides that failure to comply shall not constitute contributory negligence and shall not be admissible in evidence in the trial of a civil action. If under the Act of 1983 evidence of failure to use a child restraint system cannot be used against the parent who violates a statutory duty, then a parent or any other person such as the plaintiff’s decedent in the instant case who was not in violation of any statutory duty should not be treated differently. See Jackson v. Pizza Hut of America Inc. v. Reed Gaffney, 133 Pitts. Leg. J. 441 (1985).

The Act of November 23, 1987, is a further manifestation of intent by the legislature to create, not reaffirm, an affirmative duty of drivers and front-seat occupants of automobiles to wear seat belts, but which act also provides that failure to comply shall not constitute contributory negligence nor be admissible in evidence in the trial of a civil action. In Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 365 (1988), involving claims by the driver and passengers, the Superior Court forbade the seat belt defense even though the accident in question occurred prior to the Act of November 27, 1987.

But for my concurrence in the result for reason that the instant case will, on appeal, go to the Commonwealth Court, I would otherwise deny defendant’s motion to amend its new matter to assert a seat belt defense.

      . In 1974 Secretary of Transportation Brinegar reported to Congress that:

        “Of the 56,000 people killed in highway crashes during 1973, 40,000 were occupants of motor vehicles. At least 30,000 of these vehicle occupants died as a result of being hurled against their dashboards or ejected onto the roadway. Our analysis indicated that as many as half of these 30,000 people could have been saved had they used a proper restraint system.” Legal Issues Presented by Motor Vehicle Restraint Systems, 17 Akron L.R. 781 (1984).
      In addition, scientific research has discovered that less than 1 percent of all persons killed in automobile accidents died because the vehicle which they occupied burned or was submerged, trapping them inside. The Seat Belt Defense: A Comprehensive Guide for the Trial Lawyer and Suggested Approach for the Courts, 56 Notre Dame Lawyer 272, 281 (1980). See also, The Seat Belt Defense — The Sophist’s Escape, 41 Temple L.Q. 126 (1967), 16 Am. Jur. P.O.F. 351.

      . These states have already passed legislation mandating the use of seat belts in motor vehicles: California, Connecticut, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah and Washington. Pennsylvania AAA Federation Bulletin 71, July 8, 1986. Gaettner v. Saloum, 70 Erie L.J. 65, 67 (1987).

      . The recent amendment to the Child Passenger Protection Statute, Act of November 27, 1987, P.L. 399, no. 82, §5 et seq., 75 Pa.C.S. §4581, creating a new statutory obligation for most front seat occupants of motor vehicles to wear seat belts, does not govern this particular cause of action. While the legislation specifically provides that a person’s failure to buckle up cannot be considered as evidence in the trial of “any civil action,” the legislature made no provision for the new amendment to have retroactive effect. Therefore, the amendment has prospective application only to those causes of action which arose after the new amendment’s effective date. 1 Pa.C.S. §1926; see also, Costa v. Lair, 241 Pa. Super. 517, 363 A.2d 1313 (1976). It is interesting to note that the legislature must have considered an occupant’s causal negligence. Otherwise, the legislature would have had no need to create by statute this limited area of immunity.


author: ENDY, J.,

text:
    Scott v. Scott
    C. Barry Buckley, for petitioner.

      William S. Huganir, for respondent.
    November 27, 1990
   ENDY, J.,

This matter comes before the court on a petition for special relief filed by petitioner, Richard G. Scott, against respondent, Virginia B. Scott, pursuant to section 301(a)(1) and section 401(c) of the Pennsylvania Divorce Code. The parties were married on November 27, 1976. On April 4, 1977 the parties executed a post-nuptial agreement, enforcement of which petitioner now seeks by special relief. The agreement provided, inter alia, as follows:

“If for any reason either husband or wife chooses to separate or to terminate their marriage, the parties agree that the real estate which they jointly own located at 1238 Spring Valley Lane, West Chester, Pennsylvania, or any other real estate which husband and wife jointly hold will be exposed to sale forthwith and the proceeds of sale divided as follows:

“(A) The greater of 70 percent of the net proceeds of sale or $26,000 to wife;

“(B) The remainder to husband.”

The parties were separated on January 29, 1988, and petitioner filed a divorce complaint on April 27, 1989, requesting that the parties be divorced pursuant to section 201(c) and (d) of the Divorce Code, and also requesting property distribution.

Respondent filed an answer denying an irretrievable breakdown of the marriage and also filed a counterclaim, in the event a divorce is entered, requesting ancillary relief including distribution of property, enforcement of agreements, alimony, alimony pendente lite, counsel fees and costs. Respondent has not signed a 201(c) affidavit of consent.

Petitioner now petitions this court for special relief directing respondent to expose the jointly held property to sale and distribute the proceeds in accordance with the terms of their agreement.

As petitioner points out in his memorandum of law, in this Commonwealth, postnuptial agreements are presumed valid and binding on the parties. Wolfe v. Wolfe, 341 Pa. Super. 313, 491 A.2d 281 (1985). However, the parties do not dispute the validity of this agreement. What is in dispute is whether this court should enforce the agreement in the context of a divorce action prior to dissolution of the marriage and prior to resolution of the remaining ancillary matters.

Petitioner also offers Laub v. Laub, 351 Pa. Super. 110, 505 A.2d 290 (1986), as support for his contention that the agreement is enforceable under the code. The issue in Laub was the validity of the agreement which, as a complete separation agreement, barred equitable distribution and other ancillary remedies. This is not the case with the issue at bar. Neither party has claimed that this is a complete agreement. In fact, both parties agree that there are remaining ancillary issues to be resolved.

Petitioner contends that the broad equity power of section 401(c) authorizes this special relief. Petitioner fails, however, to recognize the remaining provisions of the Divorce Code and the procedure provided to resolve all ancillary matters. The broad equity powers authorized by section 401(c) are to be utilized to “protect the interests of the parties” pending full resolution of other matters. Plaintiff has shown no circumstances which would justify intervention by this court prior to resolution of the remaining ancillary matters in a final decree. Ewing v. Ewing, 33 Chester Rep. 247, 248 (1984).

Petitioner must read the statute provisions together in construing what he interprets to be broad equity powers granted to the court. Section 301(a) grants the court power to determine “in conjunction with any decree granting a divorce. . . the following matters . . . (1) . . . rights created by any antenup-tial, postnuptial or separation agreement.” 23 P.S. §301(a)(l). (emphasis supplied) Furthermore, section 401(b) states that “any decree granting a divorce shall include after a full hearing . . . enforcement of agreements voluntarily entered into between the parties.” (emphasis supplied) The Superior Court in Dech v. Dech, 342 Pa. Super. 17, 492 A.2d 41 (1985), held that the entry of a divorce decree is a code prerequisite to an order of alimony or equitable division and distribution of marital property.

Both parties have admitted that there is a valid postnuptial agreement and it is not a complete agreement resolving all of the ancillary matters. Respondent has not signed an affidavit of consent required by section 201(c) and the issues raised in petitioner’s complaint for divorce are not cognizable until she does so or, pursuant to section 201(d), until January 29, 1991.

ORDER

And now, November 27, 1990, in consideration of the petition and answer, petitioner’s request for special relief, pursuant to section 301(a)(1) and section 401(c) of the Pennsylvania Divorce Code, is denied.

       “[T]he sections of the statute must be read together and construed with reference to the entire statute. ... A construction which fails to give effect to all provisions of a statute . . . must be avoided.” Deck v. Dech, 342 Pa. Super. 17, 492 A.2d 41 (1985), citing Wilson v. Central Penn Industries Inc., 306 Pa. Super. 146, 452 A.2d 257, 259 (1982).


text:
    Vinay Homes Inc. v. Pytosh

      Jeffrey J. Kash, for plaintiff.

      James V. Fareri, for defendant.
    November 29, 1990
   O’BRIEN, J.,

Defendants Gregory Cavallo and Rebecca Pytosh are the owners of Lot 168, Section 5, Birch Brier Estates, Chestnuthill Township, Monroe County, Pennsylvania. Defendants orally contracted with plaintiff, Vinay Homes, to install a septic system for a home under construction on the said lot. Plaintiff contractor commenced work on October 27, 1989 and completed the project on February 13, 1990. Subsequently, defendant homeowners refused to pay plaintiff contractor for both labor and materials and on May 8, 1990, plaintiff contractor filed a notice of intention to file mechanics’ lien claim. On June 8, 1990, plaintiff filed a statement of mechanics’ lien claim and a document entitled certificate of service indicating that on June 8, 1990 copies of the statement of mechanics’ lien claim were mailed to defendant homeowners Rebecca L. Pytosh and Gregory Cavallo, by U.S. mail, first class postage prepaid. Thereafter, on July 3 and 16, 1990, plaintiff contractor filed additional certificates of service indicating copies of the statement of mechanics’ lien claim were mailed to each owner. Finally, on August 1, 1990, a statement was filed by plaintiff contractor indicating the property was posted with a statement of mechanics’ lien claim on July 19, 1990.

A motion to strike the mechanics’ lien claim was filed by defendant homeowners with this court on August 27, 1990, whereupon a rule to show cause why the lien should not be stricken was issued upon plaintiff contractor. Following timely answer by plaintiff contractor, the submission of briefs and oral argument, the matter is now before us for disposition.

Defendant homeowners argue that the mechanics’ lien claim should be stricken because: (1) Plaintiff contractor did not properly perfect the lien pursuant to the Mechanics’ Lien Law, 49 P.S. §1502; (2) Plaintiff contractor failed to comply with section 1503(6) of the Mechanics’ Lien Law in failing to provide a “detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof.” The Mechanics’ Lien Law provides in pertinent part as follows:

“§1502. Filing and notice of filing of claim

“(a) Perfection of Lien. To perfect a lien, every claimant must;

“(1) file a claim with the prothonotary as provided by this act within four months after the completion of his work; and

“(2) serve written notice of such filing upon the owner within one month after filing, giving the court term and number and date of filing of the claim. An affidavit of service of notice, or the acceptance of service, shall be filed within 20 days after service setting forth the date and matter of service. Failure to serve such notice or to file the affidavit or acceptance of service within the times specified shall be sufficient ground for striking off the claim.

“(c) Manner of Service. Service of the notice of filing of claim shall be made by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement.” 49 P.S. §1502.

The filing of a mechanics’ lien is an extraordinary statutory remedy which must be strictly construed. Nicklas Plumbing Supply Co. v. Carlson, 109 Pitts. Leg. J. 458 (1962). It affords a workman the protection of a lien before proceeding to prove his entitlement to payment in an action in assumpsit. Compliance with the statutory provisions is a prerequisite to the validity of the lien and the failure to observe them invalidates the lien. Samango v. Hobbs, 167 Pa. Super. 399, 75 A.2d 17 (1950). A review of the record in the case at bar indicates the plaintiff contractor attempted to serve process by ordinaiy mail after filing a statement of Mechanics’ Lien Claim. Title 49 P.S. §1502(c) mandates service pursuant to Pa.R.C.P. 403 which reads in relevant part:

“Rule 403. Service by mail

“If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail.

“(1) If the mail is returned with notation by the postal authorities that the defendant refused to accept the mail, the plaintiff shall have the right of service by mailing a copy to the defendant at the same address by ordinaiy mail with the return address of the sender appearing thereon. Service by ordinary mail is complete if the mail is not returned to the sender within 15 days after mailing.

“(2) If the mail is returned with notation by the postal authorities that it was unclaimed, the plaintiff shall make service by another means pursuant to these rules.”

Plaintiff’s certificates of service assert that only ordinary mail was used in an attempt to serve process on defendant homeowners. However, the rule provides that a right to service by ordinary mail only accrues if service by certified or registered mail is ineffective.

Plaintiff’s failure to comply with the procedure set forth in the Mechanics’ Lien Law renders its attempt at perfecting the lien ineffective. In S.L. Shanaman v. Churgai, 84 Montgomery L. Rep. 24 (1964), the claimant filed an affidavit of service of the notice of filing a mechanics’ lien claim with the prothonotary 22 days after service was made, in non-compliance with the 20-day requirement of 49 P.S. §1502(2). The court held that where the claimant does not strictly adhere to the procedure for perfecting a mechanics’ lien claim, the lien must be stricken as a matter of law. In Day and Zimmerman v. Blocked Iron Corp., 15 D.&C. 2d 251 (1958), it was argued that the court had discretion to refuse to strike a mechanics’ lien. However, the court stated at page 257:

“We were of the opinion that defendant was entitled to have the lien stricken as a matter of law. However, if we had been of the opinion that claimant was correct in its contention, we would have exercised the discretion in its favor. Unfortunately, we consider the court to be without power to exercise any discretion in this matter.”

Plaintiff contractor also failed to comply with the provisions of Pa.R.C.P. 405 which provides in pertinent part:

“(a) When service of original process has been made the sheriff or other person making service shall make a return of service forthwith. . . .

“(c) Proof of service by mail under Rule 403 shall include a return receipt signed by the defendant or, if the defendant has refused to accept mail service and the plaintiff thereafter has served the defendant by ordinary mail,

“(1) the returned letter with the notation that the defendant refused to accept delivery, and

“(2) an affidavit that the letter was mailed by ordinary mail and was not returned within 15 days after mailing.

“(d) A return of service by a person other than the sheriff shall be by affidavit. If a person other than the sheriff makes a return of no service, the affidavit shall set forth with particularity the efforts made to effect service.”

In a mechanics’ lien proceeding, a faulty affidavit of service may not be amended, since under section 1504 only a “claim” may be amended. Hoffman Lumber Co. v. Geesey, 35 D.&C. 2d 200 (1965). Plaintiff contractor cites the holding in Sabo v. Leonard Development Corp., 36 North. 309 (1966) as evincing that the form of the affidavit is subject to reasonable amendment. However, in Sabo the affidavit was notarized and the “form subject to reasonable amendment” included, only the date sworn and the date of service. The holding in Sabo does not go so far as to infer that multiple non-compliance with Pa.R.C.P. 405 may be excused.

Although the deficiencies in plaintiff’s procedures may seem merely technical, the extraordinary nature of the mechanics’ lien remedy mandates strict adherence to the statutory requirements. Our decision to grant the motion to strike does not preclude plaintiff commencing an action in assumpsit to collect its claim.

ORDER

And now, November 29, 1990, the rule to show cause heretofore issued is made absolute and the mechanics’ lien claim of Vinay Homes Inc. against Rebecca L. Pytosh and Gregory Cavallo is stricken.


text:
    In re Anonymous No. 1 D.B. 90
    Disciplinary Board Docket no. 1 D.B. 90.
    August 28, 1990
   Letter to the Secretary of the Disciplinary Board,

This letter is written to you on behalf of Hearing Committee [ ] and pursuant to Disciplinary Board Rule 89.181 with respect to abbreviated procedure in connection with the captioned matter. Attached to this letter is a copy of Form DB-43 executed by the members of the hearing committee, respondent, counsel for respondent and Assistant Disciplinary Counsel.

This matter came before Hearing Committee [ ] pursuant to a petition for discipline filed on January 8, 1990 charging respondent with violating Disciplinary Rules 1-102(A)(6), 2-103(A) and 2-103(E). An answer to petition for discipline and request to be heard in mitigation were filed by respondent on February 1, 1990, and this matter was first heard before this disciplinary committee on March 29, 1990. Subsequently, pursuant to scheduling by the Office of the Secretary, the hearing was continued on June 26, 1990.

Inasmuch as the parties have agreed to proceed under Disciplinary Board Rule 89.181, the following is submitted as a brief summary of the case, together with the recommended disposition by the hearing committee.

Respondent, [ ], was born in 1938, admitted to practice law in the Commonwealth of Pennsylvania in 1963 and maintains his professional office at [ ]. On or about March 2, 1987, respondent caused approximately 257 applications for appeal from tax assessments to be filed with the [ ] County Board of Property Assessment, Appeals and Review on behalf of owners of small properties in the first and second wards of the City of [ ]. Concurrent and subsequent to the filing of such appeals, respondent made individual personal contacts with such owners and organized block meetings of such owners to expound on his views that the appeals of tax assessments should be filed on behalf of the property owners and that he would undertake such appeals as legal counsel for anyone interested therein. Respondent had obtained prior specific authorization for such appeals from only about 60 property owners involved, leaving nearly three-fourths of those appeals filed by respondent absent any specific authorization from the owners.

Since the conduct that is the subject of this matter occurred before March 31, 1988, such conduct was governed by the Disciplinary Rules of the Code of Professional Responsibility. Specifically, violations of Disciplinary Rules 1-102(A)(6), 2-103(A) and 2-103(E) were alleged by the Office of Disciplinary Counsel. The hearing committee found prima facie evidence of violations of D.R. 2-103(A) and D.R. 2-103(E) and did not conclude that there was any violation of D.R. 1-102(A)(6).

The seminal issue in this case is whether respondent’s activities constituted permissible attorney advertising, as he contended, or prohibited solicitation for employment to a non-lawyer. Respondent maintained that he had approached the Board of Appeals which indicated he was permitted to file appeals without express authority from individual taxpayers/property owners. Respondent argued that he was simply following the informal administrative agency rules, and hence, his conduct would not be in violation of the Disciplinary Rules. Further, respondent’s counsel articulately argues that all of respondent’s actions concerning his self-recommendation were proper because they were not effectively prohibited at the time as a result of Spencer v. Honorable Justice of the Supreme Court of Pennsylvania, 579 F.Supp. 880. The hearing committee found the Spencer case inapposite inasmuch as petitioner’s conduct did not raise itself to the level of permissible advertising. Rather, petitioner took it upon himself to begin an action on behalf of individuals for whom he had not been authorized, and subsequently contacted those individuals to recommend his employment in the matter using a form of power of attorney (copies attached) which would confirm his appointment as counsel. By filing the tax appeals first, and subsequently contacting the prospective clients, respondent’s activity constituted a recommendation of employment to a non-lawyer who had not sought his advice. (Ethical Considerations 2-2 and 2-4 are instructive in resolving this matter.)

Respondent further argued that inasmuch as the Board of Appeals permitted the filing of unauthorized appeals pursuant to their informal rules, he was simply following administrative agency rules. Clearly, respondent’s legal theory was not frivolous, and he did follow the informal administrative agency rules. However, respondent would have you believe that the precedent of the administrative agency should be controlling over his conduct as a professional; whereas, more appropriately, a lawyer is held to the Disciplinary Rules of the court established for his profession, not the informal rules of some administrative agency.

There was no evidence presented that respondent had intended to deceive or misrepresent any matters in his self-recommendation of employment to the property owners by virtue of the appeals he filed with the Board of Appeals. Respondent argues that the Pennsylvania Supreme Court order issued on April 26, 1984 temporarily suspending D.R. 2-103(A) otherwise permits truthful advertising within the confines of Spencer. The Pennsylvania Supreme Court subsequently rescinded its suspension order and left D.R. 2-101(A) in effect to the extent that such conduct by a lawyer did not constitute permissible advertising. The Supreme Court, however, did not exempt in-person solicitation by self-recommendation. As the facts in this matter show, the respondent began an unauthorized action on behalf of clients, and subsequently made the contact recommending himself for employment. Although there may be no deceit or misrepresentation involved, this clearly does not constitute otherwise permissible advertising.

Accordingly, Hearing Committee [ ] found prima facie evidence that respondent was in violation of D.R. 2-103(A) and 2-102(E) and did not find respondent’s conduct to be in violation of D.R. 1-102(A)(6).

Hearing Committee Determination (Verdict and Recommendation) Under Abbreviated Procedure

And now, pursuant to Rule 208(c)(1) of the Pa.R.D.E. (section 89.181 of the Disciplinaiy Board Rules) following the conclusion of a hearing on the above-captioned matter, the hearing committee announces to the parties to the hearing their determination as follows:

Violation(s) of the following disciplinary rules have been determined:

(a) D.R. 2-103(A)

(b) D.R. 2-102(E)

(c) No violation of D.R. 1-102(A)(6) is found.

And the appropriate discipline, if any, recommended by the hearing committee is therefore:

Informal Admonition

This notice is herewith handed to the parties with the directive that they endorse their decision in regard to it and return to the chairman within five days hereof.

ORDER

And now, October 2, 1990, upon consideration of the report and recommendation of Hearing Committee [ ] filed August 30, 1990, pursuant to section 89.181 of the Disciplinary Board Rules, and there being no exceptions filed; it is hereby ordered that the said [respondent] of [ ] County be subjected to informal admonition by Disciplinary Counsel as provided in Rule 204(a)(6) of the Pennsylvania Rules of Disciplinary Enforcement. Costs are to be paid by respondent.


author: KOPRIVA, J.,

text:
    Commonwealth v. Glashauser

      David Gorman, assistant district attorney, for the Commonwealth.

      Terry Valko, for defendant.
    November 30, 1990
   KOPRIVA, J.,

Before this court for disposition are the post-trial motions of the defendant.

A jury trial was held in this matter commencing June 19, 1990 and concluding June 20, 1990. Defendant was convicted on two counts of aggravated assault, bodily injury; two counts of simple assault; disorderly conduct; driving under the influence of alcohol; and resisting arrest. Post-trial motions were timely filed and briefs being received from both Commonwealth and defendant, we will now move to disposition.

Defendant raises two allegations of error. The first allegation deals with the introduction into evidence of Commonwealth’s exhibits nos. 1, 2 and 7. The evidence objected to consists of two knives and one pair of nunchaks. Secondly, defendant charges the court with an improper instruction given to the defendant upon completion of his direct examination. We will address the allegations consecutively.

Did the Court Err When it Permitted Commonwealth Exhibits 1, 2 and 7 To Be Entered into Evidence?

Defendant objected to the introduction of the weapons as being unfairly prejudicial and of little probative value. The weapons were not used by the defendant as part of the criminal acts charged. The bali knife (Commonwealth exh. no. 2) was removed from the right rear pocket of the defendant during the course of his arrest. The sheathed knife (Commonwealth exh. no. 1) was found at or on the driver’s seat of defendant’s vehicle. The nunchaks (Commonwealth exh. no. 7) were found behind the seat of defendant’s truck during the inventory search. Defense counsel argues that presenting the weapons to the jury unfairly prejudiced defendant and was therefore improper in that said weapons in no way proved the elements of the crimes charged.

However, the Commonwealth argues that the weapons were properly admitted as tending to establish the intent of the defendant with respect to the crimes of simple assault, aggravated assault and resisting arrest. Inherent in those crimes is the element of intent to cause bodily injury. (See 18 Pa.C.S. §§5104, 2701 and 2702.) Although the weapons were not actually used at the crime scene, Commonwealth argues the weapons were within reach of defendant and could have been used against the officers had they not been confiscated.

The admissibility of evidence is a matter within the discretion of the trial judge and an appellate court may reverse only upon a showing of abuse of that discretion. Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989). In order for evidence to be admitted in a criminal trial, such evidence must be competent and relevant. Commonwealth v. Lumpkins, 324 Pa. Super. 8, 471 A.2d 96 (1984). Evidence is relevant if it reasonably tends to prove a material fact in issue or supports a reasonable inference regarding the existence of a material fact. Commonwealth v. Davis, 381 Pa. Super. 483, 554 A.2d 104 (1989). However, the trial court may exclude otherwise relevant evidence where such evidence may confuse, mislead or prejudice the jury. Lumpkins, supra.

We found the weapons to be probative of the element of intent to cause bodily injury with regard to the assault charges. Both simple assault and aggravated assault can be proven if it is shown the defendant attempted to cause serious bodily injury. (18 Pa.C.S. §§2701, 2702.) In the case at bar, the presence of the weapons on the person of defendant and in defendant’s vehicle tends to support the inference of an attempt to cause injury. For example, the testimony of Officer Cohn revealed that defendant was reaching for his pocket while the officer was attempting to subdue him. (Trial transcript at 93.) At that point, Officer Cohn noticed a bulge in the pocket and removed the bali knife. (Trial transcript at 93.) The sheathed knife was confiscated from the front seat of defendant’s truck and was within reach of defendant during a portion of the confrontation with the officers. Thus, the fact that weapons were present at the scene is relevant to the Commonwealth’s case in that such evidence tends to establish the material element of defendant’s intent to cause injury to the officers.

Additionally, we find the weapons are relevant to the charge of resisting arrest. The testimony shows that defendant was verbally and physically abusive at the time of arrest. The officers struggled with defendant in order to take him into custody. One of the elements of the offense is the requirement that the defendant employs means justifying or requiring substantial force to overcome the resistance. (18 Pa.C.S. §5104.) The display of the weapons to the jury helps to establish the fact that substantial force was necessary to overcome defendant’s resistance. As Officer Ellis stated, once a weapon is discovered, the officers are .trained to act under the assumption that other weapons are likely to be present. (Trial transcript at 26.) The fact that defendant had access to these types of weapons shows the potential danger the officers assessed and explains their actions that evening. In fact, the defendant’s line of defense was to challenge the nature and degree of the police officers’ conduct towards him. We therefore find the weapons were properly admitted and disagree with defendant’s assertion that he was unfairly prejudiced by the admission. He cannot argue against the police action taken and then prevent their testimony and evidence to challenge such defense. The probative value of the testimony regarding weapons being present at the scene is clearly relevant and goes toward proving elements of the crimes charged. The presentation of the weapons to the jury was not done in an inflammatory manner. The probative value of the exhibits on material facts of this case clearly outweighed any prejudice that may have resulted to defendant from the introduction of the weapons into evidence.

Did the Court Err by Instructing the Defendant Not To Discuss His Testimony with Counsel Upon Completion of the Defendant’s Direct Examination But Prior to the Commencement of Cross-Examination ?

Defense counsel completed his direct examination of defendant late in the day and the trial judge decided to adjourn and commence with cross-examination the following day. The judge instructed defendant as follows:

“I would advise Mr. Glashauser that you are not in any manner to discuss your testimony with your attorney or with anyone else. When you begin your testimony tomorrow, you should not have talked about it with anyone.” (Trial transcript at 229.)

Defendant asserts such instruction was in error and was a denial of defendant’s right to the effective assistance of counsel with regard to the style and substance of his cross-examination testimony.

We note that defense counsel made no objection at the time the instruction was given. Counsel did make passing reference to the instruction at an unrelated sidebar held the following morning. (Trial transcript at 235.) Our review of the trial transcript reveals that no timely objection was made to the instruction and additionally no prejudice was shown to have resulted from the instruction. It is particularly relevant to note that at the time of the instruction, counsel never claimed that he desired to speak with defendant and was prevented from doing so by the instruction.

Despite the timeliness of the obscure objection, at the heart of this issue is the defendant’s right to the assistance of counsel as established by the Sixth Amendment to the federal Constitution. The scope of this right has been the focus of much litigation both at the state and federal level, particularly with regard to an accused’s right to counsel during court recesses occurring in the midst of defendant’s testimony. The Supreme Court addressed the issue in the seminal case of Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed. 2d 592 (1976). In Geders, the trial court had ordered the accused not to speak with his attorney during an overnight recess occurring between the accused’s direct and cross-examination. A unanimous court held such order to be reversible error under the Sixth Amendment.

The case at bar is distinguishable on its facts from Geders. The order in Geders barred all communication between defendant and counsel. In the instant matter, the order applied only to discussions involving the ongoing testimony of the defendant. Counsel was permitted to discuss any matters with his client other than the content of cross-examination testimony. The obvious, salient and innocuous purpose of the order was to prevent any improper “coaching” of defendant, and most importantly, to maintain the integrity of the delicate testimonial process.

The Geders decision left open the question of whether a court order forbidding the accused to speak with counsel concerning the accused’s testimony, but permitting consultation on other matters, violates the Sixth Amendment. However, in a recent decision, the court lends support to the proposition that orders barring only communications pertaining to the defendant’s testimony are not a violation of the “right to counsel.” See Perry v. Leeke, _ U.S. _, 109 S.Ct. 594, 102 L.Ed. 2d 624 (1989). In Perry, the court addressed the issue of whether a defendant is entitled to the Sixth Amendment protection during a brief recess taken during the course of the defendant’s testimony. The court found that the trial judge did not violate the accused’s right to counsel by preventing the defendant from speaking with his attorney during a 15-minute recess taken at the conclusion of the accused’s direct testimony.

The Perry court based its holdings on the premise that a defendant has no constitutional right to discuss his testimony with counsel while the testimony is in progress and because there is a “virtual certainty” that any conversation between defendant and counsel during a brief recess would relate to the ongoing testimony. Perty, supra. In order to maintain the integrity of the trial, the judge was permitted to take steps to insure uninfluenced testimony. Just as in Perry, the trial judge in the instant matter was attempting to prevent unethical coaching by barring discussions concerning defendant’s testimony as well as maintaining the integrity of the entire process. The distinguishing facts of the instant matter are that the order in Perry was for the duration of a 15-minute recess while the order in the case at bar related to an overnight recess. Admittedly, Perry does not address the issue of whether an order banning only communications regarding defendant’s testimony during an overnight recess is permissible under the Sixth Amendment.

However, the essence of Perry is the prevention of consultation regarding the defendant’s testimony while he is a witness. The instruction given to Mr. Glashauser did no more than what was deemed permissible in Perry; it prevented the defendant’s testimony from being improperly influenced.' There can be no “unjust deprivation” of the right to counsel where the defendant was deprived of a consultation to which he had no entitlement. “Once the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross-examination/'’ Perry, supra, quoting United States v. DiLapi 551 F.2d 140, 151 (2d Cir. 1981) (Mishler, J., concurring), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed. 2d 648 (1982). The instruction at issue was intended to accomplish the identical result as was the order given in Perry. Therefore, if the bar on communication in Perry did not violate the right to counsel, the instruction given to Mr. Glashauser should likewise be within the discretion of the trial judge. We find the sound reasoning of Perry to be compelling:

“Nevertheless, when the defendant assumes the role of a witness, the rules that generally apply to other witnesses — rules that serve the truth-seeking function of the trial — are generally applicable to him as well. Accordingly, it is entirely appropriate for a trial judge to decide, after listening to the direct examination of any witness, whether the defendant or a non-defendant, that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult with third parties, including his or her lawyer.

“In other words, the truth-seeking function of the trial can be impeded in ways other than unethical 'coaching/ Cross-examination often depends for its effectiveness on the ability of counsel to punch holes in a witness’ testimony at just the right time, in just the right way. Permitting a witness, including a criminal defendant, to consult with counsel after direct examination but before cross-examination, grants the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess. This is true even if we assume no deceit on the part of the witness; it is simply an empirical predicate of our system of adversary rather than inquisitorial justice that cross-examination of a witness who is uncounseled between direct examination and cross-examination is more likely to lead to the discovery of truth than is cross-examination of a witness who is given time to pause and consult with his attorney.” Perry, supra.

The courts of this Commonwealth have not addressed the issue of right to counsel since Perry v. Leeke was handed down. We acknowledge that there exists a substantial body of case law that would support the grant of a new trial for Mr. Glashauser. (See citations to footnote 2.) However, in light of the Supreme Court’s ruling in Perry v. Leeke, we believe the issue deserves reflection and reconsideration. The right to the assistance of counsel has been redefined by Perry. The right to counsel as guaranteed by the Sixth Amendment is no longer viewed as absolute, but rather must be considered in light of the role of the trial judge in maintaining the overall integrity of the trial. We do not advocate the position that a trial judge should be allowed to completely sever communications between counsel and defendant, but rather that a judge should have the discretion to prevent counsel from perhaps improperly influencing the testimony of an accused while the accused is in the midst of testifying.

While Pennsylvania has consistently applied a per se rule in reviewing claims of denial of assistance of counsel, the Third Circuit has unquestionably shifted from the per se rule as applied in United States v. Venuto, 182 F.2d 519 (3d Cir. 1950), to the view that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981), cert. den. 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed. 2d 310, reh. den. 455 U.S. 995, 102 S.Ct. 1624, 71 L.Ed. 2d. 857. In Bailey, the defendant was instructed not to discuss his testimony with anyone during an overnight recess. The defendant had been in the process of cross-examination when the court recessed for the day. The judge’s instruction was neither questioned nor objected to by defense counsel. In fact, the issue of denial of counsel was not raised until Bailey sought post-conviction relief.

The Third Circuit held that although the trial court’s instruction may have been improper, without a showing that the defendant had wanted to meet with counsel but was prevented from doing so by the trial court’s order, there could be no violation of the defendant’s Sixth Amendment rights. Bailey, supra. In reaching its decision, the court addressed both Geders and Venuto finding its holding not inconsistent with those decisions since the record in those matters indicated that absent the court’s instruction, the defendant would have met with counsel. Bailey, supra. The court was careful to delineate that a defendant need not prove the prejudice caused by the instruction; it is sufficient to show simply that a desire to consult existed and was interfered with by the judge’s order. Bailey, supra.

“We do not require a defendant to demonstrate the ‘prejudice’ to his case because we do not want to infringe on the confidentiality of attorney-client communications. However, a defendant need not disclose confidential information in order to prove that he has been ‘deprived’ of an opportunity to meet with counsel. To show a ‘deprivation’ of his Sixth Amendment rights, a defendant must merely demonstrate that he wanted to meet with counsel, but was prevented from doing so by the court’s instruction.” Bailey, supra at 24.

In one instance, the Pennsylvania Supreme Court arrived at a similar result by finding a waiver of the right to raise the issue of deprivation of counsel where no timely objection was made. See Commonwealth v. Scoleri, 432 Pa. 571, 248 A.2d 295 (1968), vacated on other grounds 408 U.S. 934, 92 S.Ct. 285, 233 L.Ed. 2d 747, reh. den. 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed. 2d 155. In Scoleri the accused was ordered not to confer with his attorney over a noon recess. Counsel’s failure to object to the instruction served to bar him from raising the issue on appeal even though he had informed the court after the recess that he had been unable to confer with the defendant during the recess. The Supreme Court refused to allow Scoleri to raise the issue, reasoning as follows:

“While we have in some few instances permitted an exception to this rule and have entertained questions raised for the first time upon an appeal, such cases have always involved errors of such substance and prejudice as to result in an unfair trial and a deprivation of justice.” Commonwealth v. Scoleri, supra.

Thus, the Pennsylvania Supreme Court did not find the complete bar on attorney-defendant communication over the lunch hour to be reversible error in the absence of an objection.

Essentially Scoleri and Redman support the view that there can be no violation of the right to counsel where the record fails to demonstrate an actual deprivation. In the case sub judice, defense counsel placed no objection on the record at the time the instruction was given. There is no indication that counsel had desired to speak with his client during the overnight recess. Given the fact that Mr. Glashauser was incarcerated at the time of trial, his attorney would have had to have gone to the prison in order to speak with the defendant. The records reflect no attempts by defense counsel to speak with Mr. Glashauser at the prison during the night. Even by way of the post-verdict motion counsel fails to claim that he had intended to talk to his client but was prevented from doing so.

Defense counsel takes the position that prejudice is to be assumed solely from the fact that the instruction was given. It is obvious that such an absolute position is not in keeping with current legal thought as set forth in Perry and Bailey. As we previously discussed, the Perry court permitted an actual deprivation of the right to counsel during a brief recess for the purpose of preventing coaching. Therefore, it cannot be said that the right to counsel is absolute. Courts may intervene for the purpose of preserving the truth-seeking function of a trial. Perry v. Leeke, supra. We note that in Perry, the deprivation was actual since the instruction was objected to and the record indicated that counsel would have spoken with the defendant but for the judge’s order.

We are not seeking the appellate courts of this Commonwealth to go beyond the decision of the court in Perry. A leap of that degree is not required in order to uphold Mr. Glashauser’s conviction. Instead we seek an application of the sound decision as pronounced in Scoleri, and as amplified by the Third Circuit in Bailey, be made. Where a trial court instructs a defendant not to discuss his testimony with anyone during an overnight recess, and such instruction is not objected to, nor is there any indication that counsel wanted to speak to the defendant, there can be no impermissible infringement on the right to counsel.

In summary, Mr. Glashauser was not deprived of a right that he sought to exercise. Therefore, no prejudice can be said to have resulted from the judge’s instruction such as would require the granting of a new trial.

We will therefore enter the following

ORDER

And now, November 30, 1990, after a thorough review of the record in this matter and upon extensive consideration of the issues raised by the post-verdict motions, it is hereby ordered, directed and decreed as follows:

The post-verdict motions of defendant are denied.

      . Trial counsel left the Public Defender’s Office after filing the post-trial motions. Subsequently another public defender took over the case and submitted a brief in support of the post-trial motions. In order to familiarize counsel with the matter and at the request of defense counsel, the trial transcript was typed. The transcript was completed August 16, 1990. Defendant’s brief was received September 24 and the Commonwealth’s brief was received October 9.

      . The holding of Geders is in keeping with the certain law of this Commonwealth that any denial of counsel is per se reversible error. Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 (1974); Commonwealth v. Werner, 206 Pa. Super. 498, 214 A.2d 276 (1965); Commonwealth v. Peetros, 206 Pa. Super. 503, 214 A.2d 279 (1965); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); Commonwealth v. Barber, 250 Pa. Super. 427, 378 A.2d 1011 (1977).