author: WRIGHT, S.J.,

text:
    PennDOT v. McGarvey
    January 9, 1990

      Richelle Sanders Fisher and Donald H. Poorman, for the commonwealth.

      Lawrence T. Foti, for defendant.
   WRIGHT, S.J.,

On May 12, 1989, Lorraine McGarvey was stopped by Officer Robert Gray of the Upper Chichester Township Police Department while she was driving northbound on Interstate 95. Defendant was subsequently placed under arrest for operating a vehicle under the influence of alcohol and refused to take a breathalyzer test, which resulted in an administrative suspension under the provisions of 75 Pa.C.S. § 1547(b). A timely appeal was taken to this court and resulted in a hearing on October 30, 1989. At the conclusion of the hearing this court sustained the appeal and the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing has filed an appeal to the Commonwealth Court, necessitating the writing of this opinion.

Officer Gray testified that he saw defendant’s vehicle traveling 75 miles per hour in a 55-mph zone and changing lanes without the proper signal. Officer Gray stopped the vehicle and said that he detected an odor of alcohol and saw defendant’s glassy, bloodshot eyes, and that defendant spoke with slurred speech. Officer Gray asked defendant to step out of the car and then administered several field sobriety tests. Defendant was then placed under arrest and taken to police headquarters. Although the validity of the field sobriety tests are questioned by the licensee, we find there was probable cause to make an arrest.

Officer Gray testified that he advised defendant that there was an implied consent that she submit to chemical testing of her breath, blood or urine, that defendant did not have to take this test, but if she did not, defendant would lose her license for a period of 12 months. Defendant responded that she wished to speak to her lawyer prior to taking the test. In response to the question, “How did you respond to her request to speak to her lawyer?” the officer testified, “Well, I told her that she didn’t — it wasn’t necessary that she speak to a lawyer before taking this test. Basically, that I wanted a yes/no answer whether she wanted to take it or not. I believe at one point, I told her that she could even make a call and call her lawyer, but I don’t believe she had one at the time that she. could call.”

The officer testified that he had not given defendant any Miranda warnings at this point. The officer testified that he told defendant that if she refused to take the breathalyzer test she would lose her license for a period of 12 months automatically, and even if she refused the test, she would still be under arrest for driving under the influence and could face possible suspension of her license or a conviction for drunk driving. Officer Gray testified that he did not recall if he had advised defendant what would happen if she took the test.

Defendant testified that she did poorly on the field sobriety tests because of her nervousness ; being in close proximity to numerous cars going at a high rate of speed; and because she was wearing high heels, which interfered with her ability to walk. Defendant also testified that when asked to take the breathalyzer test the officer told her she would definitely lose her license for a year if she did not take the test, but that if she did, it would only be suspended for three months, and if she took the test and passed it, she could leave. In response to the question, “What about this thing about a lawyer?” defendant said, “Well, I said I didn’t want to take it, I wanted to speak to a lawyer first, and he said I couldn’t speak to a lawyer, I had to answer yes or no then.” Subsequently, defendant said the officer told. her she could talk to a lawyer.

In license suspension cases, the commonwealth must first establish that the driver:

(1) Was arrested for driving while under the influence of alcohol;

(2) Was asked to submit to a breathalyzer test;

(3) Refused to do so; and

(4) Was specifically warned that a refusal would result in revocation of his driver’s license. Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989).

Once the commonwealth meets its burden it is the driver’s responsibility to prove that he or she was not capable of making a knowing and conscious refusal to take the test.

In Commonwealth, Department of Transportation v. O’Connell, supra, the Supreme Court was faced with the case in which a police officer advised a defendant, charged with driving under the influence of alcohol, of his Miranda rights and as soon as the defendant asked for an áttomey, advised him of his obligation under the implied consent law to provide a chemical test sample. The driver refused to consent and his license was suspended. In sustaining the driver’s appeal of the subsequent license suspension, the court stated:

“[Wjhere an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights [.Miranda rights] are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test.” Miranda, supra, (comment in brackets supplied)

In O’Connell, the court was faced with a somewhat different factual situation than we are faced with in this case. O’Connell was advised of his Miranda rights. Defendant was not advised of her Miranda rights but was under the belief that she had the right to ask for an attorney.

We have to take note of the fact that the litany prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), has become part of our popular culture. One can hear the Miranda rights read, with varying degrees of accuracy, in almost any television story or movie dealing with the police. The average citizen has some understanding of the fact that he or she has the right to a lawyer after he or she has been arrested.

We read the Supreme Court’s opinion in Commonwealth, Department of Transportation v. O’Connell, supra, as being intended to set forth flat instructions to police officers in this commonwealth as to how they are to explain to persons under arrest the lack of a right to counsel under the implied consent law. The Supreme Court was quite evidently disturbed by the indications that, “[M]any individuals are being deprived of their license because of their confusion over when they can or cannot ask for an attorney.” The Supreme Court does not say that where an officer has first read Miranda rights to a defendant, he must then instruct the arrestee that the rights are not applicable to the breathalyzer test. The court states that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police must instruct the ar-restee that the rights to counsel are inapplicable for the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test. A police officer who follows such a procedure cannot cause confusion, and an arrestee cannot be confused.

Factually, we find that no such information was imparted to defendant. Defendant may have been told that she could not speak to a lawyer, but she was not told that her right to speak to a lawyer did not extend to the breathalyzer test. Defendant was told by the officer that he wanted a yes-or-no decision whether she going to take the test or not and that she could not speak to a lawyer. That is not the same as telling her that she did not have the right to consult with an attorney nor anyone else prior to taking the test.

The confusion that this may have caused was, if anything, increased by the fact that the officer apparently advised her that she was going to lose her license for a year if she refused to take the test but would be suspended for three months if she took the test. The officer did not have any recollection of precisely what he said on the latter point, but this court finds defendant’s testimony credible that he did make such a statement and believes that this statement also increased defendant’s confusion and understandable desire to speak to a lawyer.

For these reasons, we feel that defendant was not able to make a knowing refusal to take the test and we sustained the. appeal.


source: Caselaw Access Project

author: BROWN, J.,

license: Public Domain

text:
    Commonwealth v. Hunt
    March 23,1989

      Robert W. Ferrell III, assistant district attorney, for the commonwealth.
    Defendant was not represented by counsel.
   BROWN, J.,

On July 25,1988, the above-named defendant was issued a citation for violation of maximum speed limits (Vehicle Code, 75 Pa.C.S. §3362(a)(2)) by Trooper John P. McDermott of the Pennsylvania State Police. On August 29, 1988, defendant was convicted of this offense before District Justice Gerald A. McGee. Defendant thereafter filed an appeal of this summary conviction and a trial de novo was heard before this court on December 16, 1988. At that trial the commonwealth presented the testimony of Trooper Thomas Brelsford of the Pennsylvania State Police who testified that he had timed defendant’s vehicle from an aircraft through the use of a certified stop watch along a certified course located in Fairfield Township, Lycoming County, Pa. Trooper Brelsford also testified to the method he utilized, the speed of defendant’s vehicle, and the speed limit in the area. Trooper John McDermott testified concerning his participation in this case, including his stop of defendant’s vehicle and issuance of the citation.

At the close of the case, defendant moved for an acquittal based on the commonwealth’s failure to present testimony that signs along the course utilized by the officers were properly posted. The court reserved its decision and now addresses the issue raised.

Defendant’s argument is based on 67 Pa. Code §211.914. This section of the Pa. Code gives the specifications for marked distance signs that:

“[S]hall be authorized for use to indicate the beginning of, intermediate check points, and ending of a section of highway where police officers measure the speed of vehicles by helicopter or other aircraft over a marked distance for enforcement purposes.”

As we read the Traffic Control Devices Code it is intended to standardize traffic signs. Section 211.914 merely “authorized for use” a particular type of sign. It does not require that this sign be used. We note the contrast of the above language with the language found in section 211.721, which states that “ [construction and maintenance guide signs shall be required at construction and maintenance sites. ...” Because we find that signs or markers were not required we do not find that the commonwealth was required to prove that they existed.

For the aforementioned reasons, we enter the following

ORDER

And now, March 23, 1989, defendant is found guilty of a violation of maximum speed limits and the court finds defendant operated a motor vehicle at the rate of 74.4 mph in a 55-mph zone. The sentence of the court is that defendant pay a fine of $73 plus court costs.

Defendant shall have 10 days from the date of this order to file post-trial motions. The sentence will be stayed if defendant files post-trial motions in this matter. Otherwise, defendant should pay the fine and costs within 30 days of this order.


author: KUHN, J.,

text:
    Kress v. Breighner
    March 13, 1990

      Roy A. Keefer, for plaintiff.

      Robert P. Reed, for defendant.
   KUHN, J.,

This litigation arises out of an alleged negligent sale of kerosene on November 11, 1986. On that date, plaintiffs wife purchased from defendants what she believed to be kerosene for use in a kerosene heater. Unfortunately, according to plaintiff the can was filled with gasoline which, when placed in the heater, caused a fire and burned plaintiff.

Plaintiff intends to call Harold Troné as a witness to testify that defendants also sold him gasoline instead of kerosene. He would testify that his incident occurred about one year before plaintiffs purchase and that he notified defendants of the error. In both instances defendants were selling and dispensing both gasoline and kerosene from the same dispenser. The purpose of Mr. Trone’s testimony is to show that defendants had notice of a potential danger and negligently failed to take adequate and appropriate measures to assure that the fuels would not be mistakenly dispensed.

Defendants filed a motion in limine challenging the relevancy of Mr. Trone’s testimony.

It is true, as defendants contend, that proof that a person has done an act on one occasion is not probative of the contention that he did a similar act upon another occasion. If the proffered testimony were offered for that purpose we would find it irrelevant. However, as noted, plaintiff seeks to introduce this evidence to show notice.

Generally, “the fundamental consideration in determining the admissibility of evidence is whether the proferred evidence is relevant to the fact sought to be proved. Evidence is relevant if it tends to make a fact at issue more or less probable.” Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983). Special problems of relevancy may arise when a party seeks to introduce evidence which is removed in time from the incident in dispute. Nevertheless, such evidence may be admitted it if is similar enough to have strong probative value. Packel, Pennsylvania Ev idence, §412. Packel suggests that evidence of similar occurrences is not admissible to establish a pattern of negligence, but'may be admitted to show that a party had notice of a dangerous condition. Section 412.2. See Farrell v. Bonner, 424 Pa. 301, 227 A.2d 683 (1967); Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956); Wyke v. Ward, 81 Pa. Commw. 392, 474 A.2d 375 (1984); Murphy v. Penn Fruit Co., 274 Pa. Super. 427, 418 A.2d 480 (1980).

Here, notice is relevant to the question of foreseeability and the degree of care exercised in light of that notice. Therefore, evidence of a prior sale of gasoline for kerosene out of the same dispenser when reported to the defendants tends to prove notice.

Prejudice might arise if the prior occurrence was too remote in time or if evidence of the prior occurrence would tend to confuse the jury. Defendants have not suggested that they were not the owners when the Troné incident was to have occurred or that a one-year passage of time is too remote to expect them to recall the circumstances. Furthermore, we believe the jury can be instructed, without confusion, regarding the limited purpose of Mr. Trone’s testimony.

Accordingly, we enter the attached

ORDER OF COURT

And now, March 13, 1990, defendants’ motion in limine as to the proffered testimony of plaintiffs witness, Harold Troné, is denied.


author: ECKELL, Member,

text:
    In re Anonymous No. 92 D.B. 86 and 59 D.B. 87
    Disciplinary Board Docket nos. 92 D.B. 86 and 59 D.B. 87.
    March 2, 1989
   ECKELL, Member,

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

HISTORY OF THE PROCEEDINGS

This matter arises out of two petitions for discipline filed by the Office of Disciplinary Counsel. The petitions concern five separate matters which shall hereinafter be referred to as [A], [B], [C], [D] and [E].

The first petition was filed on December 19, 1986 and related to respondent’s representation of [A]. The second petition was filed on August 21, 1986 and contained four separate counts each relating to the [B], [C], [D] and [E] matters respectively. Respondent filed answers to both petitions, and the proceedings were consolidated.

On November 24, 1987 a hearing was held before Hearing Committee [ ] which addressed the following disciplinary rules which respondent allegedly had violated:

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

(B) D.R. 1-102(A)(5), conduct prejudicial to the administration of justice;

(C) D.R. 1-102(A)(6), conduct that adversely reflects on her fitness to practice law;

(D) D.R. 6-101(A)(3), neglecting a legal matter entrusted to her;

(E) D.R. 7-101(A)(l), intentionally failing to seek the lawful objectives of the client through reasonably available means;

(F) D.R. 7-101(A)(2), failing to carry out a contract of employment entered into with a client for professional services; and

(G) D.R. 7-101(A)(3), prejudicing or damaging the client in the course of a professional relationship.

Both parties filed briefs in which they basically agreed on the facts. The committee filed its report on October 11, 1988 and recommended that respondent be suspended for a period of two years, from November 24, 1987, the hearing date. The matter was adjudicated by the Disciplinary Board on January 27, 1989.

FINDINGS OF FACT

The comprehensive findings of fact of the hearing committee are competently expressed and supported by the record. Accordingly, the board adopts those findings of fact as set forth herein.

[A] Matter

(1) From November 1, 1984, until July 30, 1985, respondent was a staff attorney with the [ ] office of [F].

(2) On December 26, 1984, [A] was separated from her husband, [G], and had physical custody of the couple’s two children. [A] lived in [ ], Pa., and [G] lived in Texas.

(3) On December 26, 1984, [G] obtained physical custody of the children under false pretenses, removed them from Pennsylvania and returned with them to his home in Texas. That same day, counsel for [G] filed an “original petition” for divorce, child custody, support, division of property, and other relief in the District Court of [ ] County, Texas.

(4) On December 28, 1984, [A] met for the first time with respondent at the [ ] office of [F] and respondent conducted an interview with [A] on the custody problem. A “client retainer agreement” was executed between [A] and [F] naming respondent as [A’s] counsel.

(5) Respondent discussed the custody problem with [A] again on December 31, 1984, and January 2 and January 3, 1985.

(6) In those interviews, respondent advised [A] that [F] would represent her in Pennsylvania custody proceedings. Respondent, advised [A] that respondent would attempt to obtain representation for [A] in the Texas proceeding through Legal Services in Texas.

(7) Respondent drafted a petition for custody addressed to the Court of Common Pleas of [ ] County, Pa., and secured [A’s] signature to the verification of that petition on January 2, 1985. However, the petition was never filed, and respondent never initiated any Pennsylvania custody proceedings on behalf of [A].

(8) On January 11, 1985, [A] received a copy of the “original petition” her husband had filed in the mail. The petition included a copy of a court order setting January 15, 1985 as the date for hearing on [G’s] request for a temporary restraining order.

(9) [A] brought the papers she received to the attention of respondent at a meeting on January 11, 1985, and respondent told her not to worry, as respondent had spoken to Judge [H] and the matter would be taken care of in [ ] County.

(10) On January 14, 1985, respondent contacted [I], Texas counsel for [G], and requested a continuance of the hearing to allow [A] to retain Texas counsel. [I] agreed and confirmed this agreement in a letter dated January 14, 1985. The hearing was rescheduled for January 24, 1985.

(11) Respondent made one or two attempts to call a Legal Services office in Texas about representing [A], but never successfully arranged such representation or spoke to anyone in a position to do so.

(12) On January 15, 1985, [A] received another copy of the Texas petition, endorsed with a notice to appear at the hearing. [A] consulted with respondent again, and respondent told [A] that the papers had been filed in Pennsylvania and the matter was being taken care of. At the time, the only thing that respondent had done on this matter was to obtain a continuance of the hearing to January 24, 1985.

(13) Respondent advised [A] that [A] would have to travel to Texas to appear at the hearing, and that she would be represented there by lawyers from Texas Legal Services. On January 21, 1985, [A] borrowed money to buy airline tickets to Texas for the hearing. Respondent called [A] on January 21 and advised her that the hearing was being postponed to February 7 or 8, and that [A] would not have to attend the January 24 hearing. In reliance on this, [A] canceled her reservations and did not travel to Texas.

(14) A hearing on the request for a temporary restraining order was held in Texas on January 24, 1985, without appearance by [A] either in person or by counsel.

(15) [A] met with respondent on February 4, 1985, and was advised by respondent that the Texas hearing had again been continued to an unspecified date. Respondent also advised [A] on that day that [A’s] petition had been filed in the Court of Common Pleas of [ ] County; that Judge [H] of the [ ] County Court was apprised of these events; that [G] was to be arrested in Texas or Oklahoma and extradited to Pennsylvania for a custody hearing; and that the children were to be picked up by a local social services agency in Texas and returned to Pennsylvania. None of this was true.

(16) On March 21,1985, the Texas court, without further notice to either respondent or [A], entered judgment against [A] by default on several issues, including custody. [A] received notice of this judgment on April 2, 1985.

(17) [A] brought the judgment to respondent’s attention on April 2, 1985. Respondent advised [A] that respondent had shown the default decree to Judge [H], that he was on top of the situation, and that the matter would be litigated in the Pennsylvania courts. These representations were not true. A second client retainer agreement between [A] and [F] was executed at this time. This agreement also named respondent as [A’s] counsel.

(18) At some point in April 1985, respondent told [A] to appear at the [ ] County Courthouse on April 24, 1985, for a hearing on her Pennsylvania custody petition, which in fact had never been filed.

(19) [A] came to the [ ] County Courthouse prepared for a hearing on April 24, 1985. At that time, respondent met with her and told her that the judge’s secretary had called to say that the hearing had been continued. Respondent told [A] to wait in the hall while she went into the judge’s chambers.

(20) When respondent emerged from the judge’s chambers, she advised [A] that Judge [H] had given her custody because her husband had not appeared; that a hearing would be held with the approval of the appellate court; and that [G] would have federal charges lodged against him for not appearing. None of this was true.

(21) On May 28, 1985, respondent presented several verification statements for [A] to sign in blank without documents attached. [A] signed these statements.

(22) On June 3, 1985, respondent wrote to [G], [A’s] husband, expressing [A’s] interest in exercising her rights of temporary custody allowed her in the Texas decree.

(23) [G] then retained [J], Esq., as his Pennsylvania counsel for purposes of arranging temporary custody.

(24) Respondent discussed the custody arrangements with [J] and agreed to draft a stipulation by which [A] would recognize the jurisdiction of the Texas court and the validity of the Texas decree. Respondent drafted this stipulation, and then met with [A] and recommended she sign it. Respondent advised [A] that the stipulation did not mean anything as Judge [H] would set it aside when the children arrived. Although respondent was aware that [A] still considered the custody issue under litigation, respondent did not explain to [A] the possible legal effect of the recognition of the jurisdiction of the Texas court.

(25) Respondent told [J] in July 1985 that she had discussed the case with a [ ] County judge and had been informed that there was very little chance of establishing jurisdiction in Pennsylvania.

(26) On or about July 4, 1985, tes^OYideilt told [A] that a warrant had been issued for the arrest of [G], that he would be arrested if authorities could catch him before he left for Oklahoma, that the Oklahoma state police were attempting to arrest him in Duncan, Oklahoma, and that the children were to be picked up and brought to Pennsylvania. None of this was true.

(27) On or about July 8,1985, respondent told [A] that the case had been scheduled for hearing in Texas before Judge [K]. Respondent further stated that there were Texas attorneys working oñ the case for [A]. None of this was true and Judge [K] was a fictional character invented by respondent.

(28) Respondent also told [A] that after this hearing, [A’s] children were to be taken to the airport by a caseworker and the sheriff, and from there would be flown to Baltimore to be returned to [A]. None of this was true.

(29) Shortly after these conversations, respondent called [A] on the telephone and told her that the sheriffs car had been involved in an accident on the way to the airport, that the children were asleep in the following car and were not affected, but that they had missed their flight. None of this was true.

(30) On July 11, 1985, respondent asked [A] to sign additional verification statements with no documents attached, and [A] did so.

(31) [A] went to Texas on July 22, 1985, and returned with her children for temporary summer custody.

' (32) Respondent led [A] to believe that respondent would file petitions in Pennsylvania to allow [A] to keep her children on a permanent basis after the temporary summer custody.

(33) On or about July 30, 1985, the management of [F] was informed for the first time of many of the events set forth in the above-numbered paragraphs. Respondent was immediately suspended from her employment at [F], and on August 2, 1985, she resigned and temporarily discontinued her involvement in the practice of law.

(34) On August 1, 1985, [A], still thinking that legal action would be taken to keep her children in Pennsylvania prior to the time when they were to return to Texas, called [F] to inquire about what was happening. At this point, she was informed that there was a problem with her case and that another attorney would be handling it.

(35) [A] retained private counsel at that point. Days later, said counsel filed a complaint for custody containing a “petition for equity” in the Court of Common Pleas for [ ] County, seeking equitable relief to overturn the Texas decree and obtain jurisdiction Over the matter in the Pennsylvania courts, based in part on the misconduct of [G] and in part upon respondent’s failure to diligently represent [A].

(36) On October 15, 1985, after hearing, depositions, and briefing, the Court of Common Pleas of [ ] County entered an opinion and order finding that jurisdiction over the matter lay in Pennsylvania and awarding temporary custody to [A].

(37) After entry of the temporary order of October 15, 1985, primary custody was confirmed in [A] by an agreement signed by both parties and entered of record in both Texas and Pennsylvania.

(38) In the proceedings referred to in paragraphs 35,36 and 37 herein, respondent cooperated with [A] and her counsel in an attempt to secure a favorable outcome for [A]. In the course of such cooperation, respondent gave a deposition in which she testified as to her current recollection of the case.

[B] Matter

(39) Until September 10, 1984, [B] was employed at the [L] Company in [ ], Pa.

(40) On September 10, 1984, [B] was involuntarily terminated from his employment with [L] Company.

(41) [B] applied for unemployment compensation benefits. His application was denied by the [ ] Office of the Office of Employment Security on September 19, 1984.

(42) On September 27, 1984, [B] appealed the denial of his application, and on review, an unemployment compensation referee reversed the determination of the Office of Employment Security and awarded [B] benefits.

(43) [B’s] employer appealed the referee’s determination to the Unemployment Compensation Board of Review. On January 18, 1985, the Board of Review entered an adjudication reversing the referee’s decision and denying benefits to [B]. Under the Pennsylvania Rules of Appellate Procedure, [B] had 30 days from the entry of said adjudication, or to February 17, 1985, to file a petition for review with the Commonwealth Court of Pennsylvania if he desired appellate review of the adjudication of the Unemployment Compensation Board of Review.

(44) On February 4, 1985, [B] contacted the [ ] Office of [F] and applied for legal assistance in filing a petition for review with the Commonwealth Court. He was found eligible for services and case file no. [ ] was opened in his name.

(45) [B’s] case was assigned to respondent and a client retainer agreement retaining [F] and naming respondent as his counsel was executed on February 4, 1985.

(46) Respondent interviewed [B] on February 7 and February 15, 1985. On the latter occasion, respondent advised [B] that she would file a petition for review on his behalf, and she obtained [B’s] signature on a blank verification form without a petition attached.

(47) No petition on behalf of [B] was filed by February 17,1985, or any time thereafter by respondent.

(48) On respondent’s advice, [B] continued to report to the local Office of Employment Security. On June 18, 1985, the local caseworker advised [B] that there was no record of a petition for review having been filed on his behalf.

(49) [B] made an appointment with respondent for the following day, at which time respondent advised him that she had filed a petition for review, that she would give him a docket number for the petition as soon as she received it, and that the Bureau of Employment Security probably did not have a record of the petition because it took several weeks to show up on the computer.

(50) Approximately one week later, respondent called [B] and advised him to come to her office for information on the petition. When he arrived at her office, respondent informed him that a further hearing would be held and gave him a date for his alleged hearing.

(51) The day before the alleged hearing, respondent’s secretary called [B] and told him that respondent could not attend the hearing due to a death in her family, and that the hearing would be rescheduled. This was false, as there had never been a hearing scheduled at all.

(52) [B] called again the next day, and respondent advised him that the Office of Employment Security had requested that he testify by deposition due to a backlog of hearings, and that she would therefore take his deposition. Respondent knew that there is no provision in the Pa.R.A.P. for the taking of depositions in connection with a petition for review of a decision of the Unemployment Compensation Board of Review, and there had been no request for such deposition by the Office of Employment Security.

(53) On or before July 19, 1985, [B] met with respondent, at respondent’s request, at her office, at which time respondent asked [B] questions in a tape-recorded “deposition.” Respondent made an opening statement in [B’s] presence that: “This is the deposition of [B] for the purposes of the appeal filed on behalf of [B] to the Commonwealth Court of Pennsylvania requesting that the court overrule the decision of the Unemployment Compensation Board of Review entered to decision no. [ ].”

(54) Respondent never informed [B] that she had failed to file his petition for review. [B] was first notified of that fact on September 26, 1985, when he received a letter to that effect from the Executive Director of [F].

(55) [B] has never claimed that respondent’s conduct was the cause of his not receiving the several weeks of unemployment compensation benefits at issue.

[C] Matter

(56) In January 1984, while employed by [M] at its [ ] office, respondent was consulted by [C] concerning her interest in obtaining visitation with her son.

(57) At the time set forth in paragraph 56 herein, respondent agreed to file a custody/visitation petition for [C], who paid to the [M] office a deposit of $40 for filing fees.

(58) Over the next several months respondent repeatedly assured [C] that her petition had been filed and that she would be receiving a court date soon.

(59) In fact, handling of said petition was referred to the program’s [ ] Office as the matter had to be filed in [ ] County.

(60) Respondent’s original representation of [C] terminated in the fall of 1984 when respondent left [M] and relocated to [ ], where she was employed by [F].

(61) Thereafter, [C] was represented by another member of the staff of [M], and a complaint was filed on her behalf. She was subsequently represented by different [M] and private attorneys.

(62) Respondent resigned her position with [F] in August 1985 and returned to [ ] County.

(63) On March 31, 1985, [C], through other counsel, filed a complaint for custody/partial custody/visitation, which was docketed to no. [ ], Court of Common Pleas for [ ] County. She was represented in that matter by [N], and [O], at various stages of that litigation, but as of December 1985 had no counsel in the matter.

(64) In December 1985, respondent opened a private practice in [ ] County. On December 6, 1985, [C] again retained respondent to represent her in her custody case and paid a fee of $100.

(65) Between December 1985 and April 1986, respondent, on several occasions, represented to [C] that respondent had filed a petition for hearing or had taken other steps to obtain resolution of [C’s] case, and that respondent would have a court date soon.

(66) On several occasions in 1986, respondent advised [C] that respondent had court hearings set and had [C] bring witnesses to respondent’s office, only to inform [C] that the hearing had been canceled. In fact, no hearings had ever been scheduled.

(67) At some point between April 7 and April 15, 1986, respondent gave [C] a copy of a court “order” granting her visitation with her son. The “order” purported to bear the signature of Judge [P] of the Court of Common Pleas of [ ] County with the date April 7, 1986, typed on said “order.” Respondent represented to [C] that Judge [P] had signed this order.

(68) Judge [P] held motions court on April 7, 1986, but respondent did not present the motion nor did she file any order for signature on that date.

(69) On April 15,1986, [C] contacted an official of the court of common pleas about the “order” and learned that no such order had ever been entered.

(70) [C] questioned respondent about the “order,” at which time respondent informed her that her secretary must have made a mistake in typing in the signature.

(71) Respondent wrote to [C] on April 23, 1986, and acknowledged no order had been entered. The “order” was falsified by respondent.

(72) Respondent filed a petition for hearing on May 9, 1986, and hearing was set for June 25, 1987.

(73) [C] retained other counsel to represent her at the June 25, 1987 hearing and thereafter.

(74) [Q], deputy court administrator for the Court of Common Pleas of [ ] County, called respondent’s office six times to investigate the matter, but he did not receive a return call. He also wrote a memorandum summarizing his investigation to Judge [P] on April 17, 1986.

[D] Matter

(75) In November 1986, respondent was representing [D] in the custody matter of [D] v. [R], pending at no. [ ] in the Court of Common Pleas of [ ] County.

(76) Respondent told [D] that a hearing had been scheduled in his case sometime in November 1986. By letter dated November 10, 1986, she had requested scheduling of a hearing, but none had been scheduled.

(77) On December 19, 1986, the [D’s] drove to Pennsylvania to attend the hearing, but, when they arrived, respondent informed them that the other side had not appeared, and accordingly that the court was going to sign an order awarding custody to [D].

(78) When no order arrived by January 6, 1987, [D] contacted respondent, who told him that an order had been signed, but that the order was “snagged up in red tape” in the court. Respondent knew no order had been signed.

(79) About two weeks later, in mid-January, [D] called the court and spoke to [S], Esq., clerk of to Judge [T], demanding to know what was happening with the order that had been signed in his case. [S] checked the file and advised [D] that no hearing had been scheduled and no order was on record.

(80) [S] spoke to respondent about the matter, and respondent advised him that [D] was just mixed up and that she would take care of the problem.

(81) When [D] spoke to respondent about the matter, she admitted that she had misinformed him and that no hearing had been scheduled nor had any order been signed.

(82) [D] then obtained other counsel to represent him in the matter.

[E] Matter

(83)On June 17, 1986, [U] filed a complaint to confirm custody against [E], which was docketed to no. [ ], Court of Common Pleas for the [ ] Judicial District, [ ] County Branch. By a rule to show cause issued upon presentation of the petition, hearing was set for July 13, 1986.

(84) [E] engaged respondent to represent him in the matter in June 1986.

(85) Respondent requested a continuance of a hearing scheduled in the matter on July 3, 1986, which the court granted to July 16, 1986. On July 16, the court, upon stipulation of counsel, entered an order which provided for a period of evaluation of [E] and his son by [ ] County Children and Youth Services, with no visitation being afforded [E] because of allegations of prior abuse of his son.

(86) [E] consulted with respondent several times during the months that followed and expressed his discontentment with the status quo under the court’s order. Respondent advised him that she would take certain acts to alter that status quo, including filing a civil rights action in federal court and seeking to require Judge [T] to recuse himself from the case.

(87) In or about October 1986, respondent specifically advised [E] that she had filed a federal civil rights action on his behalf with the U.S. District Court in [ ], and subsequently reported to him various events and meetings with regard to this civil rights action. No such action was filed.

(88) In other telephone conversations and conferences following October 1986, the following took place:

(a) Respondent represented to [E] that Judge [T] of the U.S. District Court had ordered that [E’s] son be examined by Dr. [V] of [ ]. On various occasions respondent gave [E] periodic reports on the progress of such examinations. No such examinations had been ordered or were taking place.

(b) Respondent represented to [E] that she had taken steps to have Judge [T] removed from the case and replaced with Judge [W] of [ ] County. Respondent had taken no such steps.

(c) Respondent represented to [E] that she had spoken to several individuals in [ ] County Children and Youth who felt that the finding of “indicated” abuse against [E] had been made improperly.

(89) On March 5, 1987, the case was scheduled for hearing on April 1, 1987.

(90) Respondent first advised [E] of this scheduled hearing date on the afternoon of March 31, 1987, when she called and left a message at his home in the late afternoon.

(91) When [E] called respondent in the evening of March 31, 1987, after just learning for the first time that the matter was scheduled for hearing, he advised respondent that he could not attend because he had business appointments the next day which he could not break. He further questioned the involvement of Judge [T], because he believed that Judge [T] would not be hearing the case as a result of respondent’s efforts.

(92) On April 1, 1987, respondent appeared before Judge [T] and advised him, first in chambers and later on the record in open court that [E] had left a message on her answering service that he was having car trouble and did not know when he would arrive. This was false.

(93) In reliance upon respondent’s statements, the court continued the matter until Monday, April 13, 1987 at 9:30 a.m.

(94) Respondent never contacted [E] to advise him of the events of April 1, 1987, or of the scheduling of the April 13 hearing.

(95) On April 10, 1987, [E] called [X] of the [ ] County Children and Youth Services and learned from her that there was a hearing scheduled the following Monday, as well as [X’s] understanding of the circumstances of the continuance of the prior hearing.

(96) The April 13, 1987, hearing was scheduled for 9:30 a.m. At 8:00 a.m., respondent called the court administrator at his home and advised him that she was ill and would not attend the hearing.

(97) [E] called respondent at 10:30 a.im, at which time she advised him that she was withdrawing from the practice of law, and that his file would be turned over to [Y], Esq. Respondent further advised [E] in this conversation that she was having a nervous breakdown.

(98) Although respondent forwarded [E’s] file directly to him on June 29, 1987, he has not obtained other counsel, and the matter remains in the same posture it was in when hearing was originally scheduled on March 5, 1987.

Additional Findings of Fact All Matters

(99) In committing the various acts in the above findings of fact, respondent knew that what she was doing was wrong.

(100) It will be approximately one to two years from November 1987, before respondent may be ready to practice law again.

(101) Respondent will require an evaluation at the end of that time to determine whether she has the mental health necessary to practice law.

DISCUSSION

The Disciplinary Board, after review of the record, affirms and adopts, in toto, the report of Hearing Committee [ ], with a modification of the committee’s recommendation of a two-year retroactive suspension.

The hearing committee report sets forth the standard for determining whether or not respondent violated the disciplinary rules. Violations are proved if established by a preponderance of clear and convincing evidence. Office of Disciplinary Counsel v. John A. Wittmaack, 513 Pa. 609, 522 A.2d 522 (1987); Office of Disciplinary Counsel v. John J. Keller, 509 Pa. 573, 506 A.2d 872 (1986). The Disciplinary Board concurs in the committee’s finding that the preponderance of clear and convincing evidence demonstrates that respondent violated the following disciplinary rules of the Code of Professional Conduct:

(1) D.R. 1-102(A)(3) - conduct involving dishonesty, fraud, deceit or misrepresentation ([A], [C], [D] and [E] matters).

(2) D.R. 1-102(A)(5), conduct that is prejudicial to the administration of justice ([A] and [E] matters).

(3) D.R. 1-102(A)(6), conduct that adversely reflects on fitness to practice law ([A], [B], [C], [D] and [E] matters).

(4) D.R. 6-101(A)(3), neglecting a legal matter entrusted to her ([A], [B], [C], [D] and [E] matters).

(5) D.R. 7-101(A)(l), intentionally failing to seek the lawful objectives of the client through reasonably available means ([A], [B], [C], [D] and [E] matters).

(6) D.R. 7-101(A)(2), failing to carry out a contract of employment entered into with a client for professional services ([A], [B], [C], [D] and [E] matters).

(7) D.R. 7-101(A)(3), prejudicing or damaging the client in the course of a professional relationship. ([A], [B], (prejudice only); [C], (prejudice only); and [E] (prejudice only) matters).

In determining whether respondent committed the aforesaid violations, the sole issue turned on respondent’s state of mind during the period she engaged in the acts of misconduct. The standard in Pennsylvania for determining whether one has sufficient mental capacity to violate a disciplinary rule is set forth in In re Anonymous No. 38 D.B. 80, 22 D.&C.3d 439 (1982). In that case, the disciplinary board stated:

“The fair preponderance of the evidence indicates that respondent, although then suffering from depression and some impairment of judgment and diminished capacity which occurred following the death of his wife, nonetheless knew that what he did hereunder was wrong, thus evidencing his having the necessary intent to violate said disciplinary rules. Accordingly, the board finds that respondent violated said disciplinary rules as indicated in its conclusions of law above.”

Thus, if respondent was aware that her actions were wrong at the time they were committed, then the requisite element of intent exists and demonstrates violations of the disciplinary rules at issue.

In the instant case, respondent’s misconduct took place between January 1984, when respondent agreed to represent [C], to April 13, 1987, when respondent informed [E] that she was withdrawing from the practice of law. Evidence was presented by three expert witnesses as to the state of respondent’s mental health during this period of time.

In reviewing the expert testimony directed toward respondent’s mental capacity, the board adopts the analysis of the hearing committee as follows:

“The deposition of [Z], M.D., was admitted into evidence as respondent’s Exhibit 1. Dr. [Z] specializes in general adult psychiatry and is board-certified in this specialty. Following his examination of respondent, Dr. [Z] diagnosed respondent as suffering from ‘adjustment disorder of adulthood,’ from late 1983 through August 1985. While this term and another term, which we shall discuss later, are important, the crux of Dr. [Z’s] testimony, as relevant, was brought out on his cross-examination.
“On cross examination, Dr. [Z] testified that during the entire period from early 1984 right through April 1987, respondent knew the difference between right and wrong. He further testified that it was well ingrained in respondent that it is wrong to lie and that she knew that it was inconsistent with her professional responsibility to lie to her clients about the status of their cases.
“[AA] is a doctor of philosophy. His degree is in clinical psychology and he has been in practice for 37 years exclusively in the clinical psychology field. He has been treating respondent and his diagnosis is that she suffers from a ‘dependent personality disorder.’ Dr. [AA] opined that the reason respondent made misrepresentations to her clients is because she made bad judgments because information was not processed properly by her when she was under stress. He testified that, in his opinion, at one point she did not know what she was doing and reacted as opposed to figuring out a proper response. However, he also testified that from 1984 through 1986 there were times when respondent may have known that she was doing the wrong thing, but did it anyhow.
“[BB] has an M.D. degree and specializes in psychiatry. He also completed a fellowship in forensic psychiatry. He agrees with Dr. [AA] that respondent suffers from a ‘dependent personality disorder.’ He testified that people with personality disorders do not have an impairment in their ability to know what they are doing. They are aware of their choices. However, because of their personality disorder, he stressed that they may not utilize the best judgment in choosing which, of the multitude of choices they may have, is the best one to make. Relating this to respondent, Dr. [BB’s] opinion is that respondent was aware of what she was doing but was not making the best judgments at the time. However, her personality disorder was not such as to overcome her awareness of right and wrong or her awareness that certain conduct is unacceptable, especially for a lawyer.
“Based on the testimony of the expert witnesses, we find that respondent, when committing the acts described in the findings of fact, knew what she was doing was wrong. Therefore, we conclude that she had the necessary intent to, and hence did, violate the disciplinary rules. In re Anonymous No. 38 D.B. 80, supra.”

Having fully concurred in the hearing committee’s conclusions with respect to respondent’s violations of the disciplinary rules, this board must now decide the appropriate measure of discipline.

First, we address respondent’s request for probation. The qualifications for probation are provided for at 204 Pa, Code §89.291 as follows:

“(a) Qualifications — A respondent-attorney may be placed on probation if the respondent-attorney has demonstrated that he or she:
“(1) can perform legal services and the continued practice of law by the respondent-attorney will not cause the courts or profession to fall into disrepute;
“(2) is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;
“(3) has a disability which is tempered or can respond to treatment and does not require transfer to inactive status; and
“(4) is not guilty of acts warranting disbarment.” Again this board agrees with the hearing committee’s finding that respondent is not mentally capable of practicing law at this time. Respondent is suffering from a personality disorder. Allowing respondent to perform legal services could easily be detrimental to the public, at least until her doctors agree that she has the mental capacity to do so.

Furthermore, “[n]o attorney suspended for a period exceeding three months . . . may resume practice until reinstated by order of the Supreme Court after petition thereof ...” Pa.R.D.E. 218. Thus, respondent has the burden of proving that she has the mental capacity to resume the practice of law before she can be allowed to practice. Probation, therefore, is inappropriate.

In determining what term of suspension would be proper, the hearing committee focused on the medical testimony of Dr. [Z] and Dr. [BB]. Dr. [Z] believes monitoring is required before respondent will be able to practice again but was vague on the prognosis. Dr. [AA] opined that respondent’s prognosis is good, but he suggests that she refrain from practice for at least a year and that “[w]e take it just from there and we see what happens.” Dr. [BB] does not suggest that someone who has a personality disorder would never be able to practice law, but believes that it will probably take a good year of therapy to begin to assess respondent’s progress in order to determine if she can practice again. However, Dr. [BB] could not give the point from which the year would start.

Although, respondent had a fine record prior to her misconduct which gave rise to these proceedings, she has been, and still is, suffering from a personality disorder. This board finds that a two-year suspension of respondent would serve to protect the public interest and the integrity of the bar. In Office of Disciplinary Counsel v. John J. Keller, supra, at 579, 506 A.2d at 875, the Supreme Court of Pennsylvania stated:
“The primary purpose of our system of lawyer discipline is to protect the public from unfit attorneys and to maintain the integrity of the legal system. See In re Oxman, 496 Pa. 534, 437 A.2d 1169 (1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed. 2d 849 (1982); Office of Disciplinary Counsel v. Lewis, 493 Pa. 579, 426 A.2d 1138 (1981): Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981).”

The Disciplinary Board is of the opinion that the hearing committee’s recommendation of a two-year suspension applied retroactively should be modified. The hearing committee considered the order of the Supreme Court in In re Anonymous Nos. 54 D.B. 83 and 59 D.B. 83, 34 D.&C. 3d 606 (1985), a case very similar to the instant matter. The committee noted that in that case, the court imposed a two-year suspension. However, the suspension was not applied retroactively.

This board has determined that there are no compelling reasons to support the application of the two-year suspension retroactively. The record clearly demonstrates that respondent intentionally committed the aforementioned violations. Although her personality disorder is a mitigating factor, the evidence established that her offenses were deliberate.

Accordingly, the disciplinary board unanimously concludes that there is no basis for applying the recommended two-year suspension retroactively.

RECOMMENDATION

For the foregoing reasons the Disciplinary Board recommends that respondent, [ ], be suspended from the practice of law for a period of two years. The board recommends further that, pursuant to rule 208(g), Pa.R.D.E., respondent be directed to pay the necessary expenses incurred in the investigation and prosecution of these proceedings.

Messrs. Schwartzman and Tumolo did not participate in the adjudication.

ORDER

And now, March 31, 1989, upon consideration of the report and recommendations of the disciplinary board dated March 2, 1989, it is hereby ordered that [respondent] be and she is suspended from the bar of this commonwealth for a period of two years, and she shall comply with all the provisions of rule 217, PaR.D.E. It is further ordered that respondent shall pay costs to the disciplinary board pursuant to rule 208(g), PaR.D.E.


author: LEHRER, J.,

text:
    Reese v. State Farm Mutual Automobile Insurance Company
    March 28, 1989

      Joseph A. Monaco, for plaintiffs.

      Thomas B. Ringe III and John J. McGrath, for defendant.
   LEHRER, J.,

On February 1, 1989, this court entered an order striking plaintiffs’ appeal from a compulsory arbitration award, but denying defendant’s request for attorney’s fees. As plaintiffs have appealed this order and defendant has cross-appealed, this opinion is rendered to set forth the reasons therefor.

FACTS AND PROCEDURAL HISTORY

On December 31, 1987, plaintiffs filed this action against State Farm Mutual Automobile Insurance Company, each seeking less than $20,000 in damages. The Uniform Arbitration Act, 42 Pa.C.S. §7361(a), in conjunction with Philadelphia Local Rule 180(I)(A), mandates that plaintiffs’ case first be submitted to the Arbitration Program of the Philadelphia Court of Common Pleas and be heard by a board of three arbitrators.

On September 23, 1988, the date of the scheduled arbitration hearing, plaintiffs appeared with counsel at the Arbitration Center; however, when advised that State Farm intended to have a stenographic record made of the hearing (as permitted under Pa.R.C.P. 1304(c)), plaintiffs’ counsel advised her clients to leave. Consequently, neither plaintiff testified, or was present at the arbitration hearing. The arbitrators then entered an award in favor of State Farm against plaintiffs and in favor of plaintiffs against State Farm on the counterclaim. Thereafter, plaintiffs appealed.

DISCUSSION

The Uniform Arbitration Act directs that those matters specified by rule, in this case Philadelphia Local Rule 180, “shall first be submitted to and heard by a board of three members of the bar of the court.” 42 Pa.C.S. §7361(a). (emphasis supplied) This requirement for compulsory arbitration admits no exception for the present case. Nevertheless, appellants failed to appear at their own hearing upon instructions of their counsel. That deliberate disregard for the requirements for compulsory arbitration precludes appellants from now demanding a trial de novo.

In Hall v. Reeb, 136 Pitts. Leg. J. 299 (1988), the Court of Common Pleas of Allegheny County, under similar circumstances, quashed the plaintiffs’ appeal from the arbitrators’ award against them. In quashing that appeal, the court stated, and we agree, that:

“The legislatively mandated compulsory arbitration system was designed to help reduce the mass of civil litigation by diverting many cases away from the more time-consuming and costly judge and/or jury trials with beneficial effects on litigants, the court system generally and ultimately the taxpayers and general public in the efficient administration of justice;
“It would be absurd and unjust and a perversion of legislative intent evidenced by the General Assembly in enacting section 7361 of the Uniform Arbitration Act were a litigant permitted to short-circuit the carefully laid out compulsory judicial arbitrations scheme envisioned by the legislature.
“The act of deliberate refusal to first submit a case to a Board of Arbitrators before submitting it to a judge and/or jury is a far more conscious act. The conscious disregard of a legislative doctrine to ‘first submit’ the case to a Board of Arbitrators should equally constitute a waiver of a subsequent judge or jury trial.” 136 Pitts. Leg. J. at 300-1. See also in accord, under the federal local rules, New England Merchants National Bank v. Hughes, 556 F.Supp. 712 (E.D.Pa. 1983).

To allow appellants to appeal de novo would, in effect, provide a vehicle for avoiding compulsory arbitration in Philadelphia. This would defeat the will of the legislature and the rules of court which have the purpose of lessening the trial load of the common pleas courts and the speedy disposition of litigation.

The. right of appeal is not absolute in arbitration since the purpose of arbitration is to end litigation. Albright v. The Wella Corporation, 240 Pa. Super. 563, 359 A.2d 460 (1976). There has been no good cause shown for appellants’ failure to attend.

The Pennsylvania legislature has authorized an award of counsel fees as a sanction “against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter” or “because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.” 42 Pa.C.S. § §2503(7), (9). Plaintiffs’ deliberate failure to appear and testify at the compulsory arbitration hearing of their own case might, in futuro, constitute such dilatory, arbitrary and bad faith conduct, but not at this time. Prospectively and after an appellate order, if this decision is affirmed, such conduct must also result in the award of counsel fees.


author: SPICER, P.J.,

text:
    Rider v. Smith

      February 12, 1990

      Rob A. Krug, for plaintiff.

      Gary E. Hartman, for defendant Craig P. Smith.

      Jay W. Stark, for defendant Kenneth L. Hess.

      Walton V. Davis, for defendant Ila A. Keiner.
   SPICER, P.J.,

On September 5, 1989, the undersigned refused a request by defendants for summary judgment in this malicious prosecution case. The refusal was based upon lack of undisputed facts. The court said, however, it could dispose of the case if permitted to assume facts heard in a replevin action previously decided.

Counsel, ever resourceful, promptly made the transcript of the previous replevin case (88-S-606) a part of this case. Plaintiff admitted that the transcript was correct but contended that it was irrelevant to the present proceedings.

Neither party has addressed the effect of the court’s verdict on disputed facts in the first case. We will not address issues of collateral estoppel sua sponte. Rather, we examine the transcript to determine if any facts are in dispute which pertain to the central issue, of probable cause for the arrest of plaintiff on charges of theft.

Reviewing only plaintiff’s testimony, we learn that he was at a hunting camp with several other people on November 24,1987. He saw and shot a bear in the neck. The bear initially fell but regained momentum and ran toward Craig Smith’s tree stand. Plaintiff heard four more shots. He responded to a yell and found the bear, which was dead. Smith claimed ownership because he had shot it last. A more venerable hunter said, “Young man, it doesn’t matter who shot it last, it matters who killed the bear.”

When plaintiff also claimed the bear, the same spokesman without portfolio told Smith, “Regardless of whose bear it is, young man, would you please go get the truck? We need a truck to get it out of here.” According to plaintiff, Smith then left.

The replevin judgment conclusively established Smith’s ownership. That judgment, which cannot now be assailed by plaintiff, was based upon uncon-tradicted testimony that Smith inflicted a mortal wound which stopped the flight of the bear.

Hunting can be potentially a very dangerous sport. We deal with enough accidents without disputes over ownership becoming a concern. The Pennsylvania Game Commission is fully cognizant of this and periodically issues bulletins for the education of hunters. In one such bulletin issued November 2, 1987, the commission discussed ownership of slain game and continued the standards first established in the Game Law of Pennsylvania, 34 P.S. §728 (now repealed). In cases involving two hunters, the one who delivers a mortal wound which stops the flight of the animal is entitled to ownership. The present law combines two sections and less specifically provides that game becomes the property of the hunter who inflicts á mortal wound which enables the hunter to take possession. 34 P.S. §2304.

The Game Commission warned, in the November 2, 1987 bulletin, that once a hunter inflicts a mortal wound and stops flight, it becomes larceny for another to take that animal. The commission commented:

“The ‘mortal wound’ definition of section 728 served the best interests of the hunting public and the Game Commission since enactment in 1937 (40 years) without problems and this same position should be applied today ...”

Plaintiff’s claim bore no relationship to this rule. His definition of mortal wound meant that the animal would drop, eventually. He said it didn’t matter how far the animal went because he believed “the bear was about to fall over.”

Basically, we have dealt with the scenario envisioned by the Game Commission bulletin. Plaintiff was charged with theft. We sympathize with him. So did, apparently, another judge who dismissed the charges. However, we think plaintiff was correctly (perhaps not “rightfully”) charged with theft. We summarized the elements of theft in our prior opinion. It is clear plaintiff took property of another with the intent to deprive Mr. Smith permanently of it. It might be also clear that plaintiff did so under a good-faith claim of right, but that is a defense and does not go to the issue of probable cause.

The case of Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), is instructive. In holding that a private complaint had been improperly dismissed, our highest state court taught that matters of defense are not to be considered when determining whether a prima facie case has been alleged. Issues in that case involved voluntary manslaughter and justification of excuse. “Thus,” the Supreme Court said, “evidence as to justification or excuse would not negate a determination of a prima facie case, but is a matter that is properly raised in defense at trial.” Benz, supra.

The issues are different but the principles are the same.

ORDER OF COURT

And now, February 12, 1M), mmmary judgment is entered in favor of defendants and against plaintiff.


author: LAWHORNE, J.,

text:
    Gureghian v. Autobahn Motor Cars
    May 31,1989

      Jeffrey M. Azpell, for plaintiff.
    . Donald M. Grimes, for defendant Metropolitan Insurance Co.
   LAWHORNE, J.,

The matter presently before this court for consideration arises from cross-motions for summary judgment filed by appellant, Gureghian and appellee, Metropolitan Insurance Company, based upon agreed stipulated facts.

In May 1984, Gureghian bought what turned out to be a stolen car. He immediately added this car to an existing automobile policy with Metropolitan. Two months later, the vehicle was confiscated by police as being stolen and title was later confirmed in the insurance carrier for the rightful owner. Appellant made claim for the loss as “confiscated.” Appellee denied coverage on the basis that confiscation does not constitute a loss under the terms of the policy and, additionally, that Gureghian never could acquire an insurable interest in a stolen car.

This court entered judgment for Metropolitan, and it is from this judgment that the instant appeal lies. Still outstanding is a claim by Gureghian against Autobahn Motor Cars, which organization was somehow involved in getting the title of the car transferred to Gureghian in the first place.

In the case of Shockley v. Harleysville, 381 Pa. Super. 287, 553 A.2d 973 (1988), the question of the insurable interest of the possessor of a stolen car was squarely met. The plaintiff there had purchased a car from a dealer, insured it and then had loss by fire. The court followed Luchansky v. Farmers Fire Insurance Co., 357 Pa. Super. 136, 515 A.2d 598 (1986), which had recited the generally accepted rule that anyone who will derive pecuniary benefit or gain from the preservation or continued existence of the property or who will suffer pecuniary loss from its destruction has an insurable interest. “Having perfect legal title is not necessary. Clearly under the authority appellant had an insurable interest in the vehicle.” Shockley, supra. Therefore, the defense of lack of insurable interest is not available to the defendant in the instant action.

Where the language in the policy of insurance is clear and unambiguous, that is, it uses words with common meanings which are clearly displayed, a court is to give effect to that language. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983).

The declaration page which is attached to plaintiffs complaint as well as to the stipulated facts lists two vehicles. As to loss to cover automobiles, there are two separate identifications of areas of coverage which include “collision” as well as a second area of loss indicated as “other than collision.” The policy which is attached to the stipulated facts reveals at page 7 what is to be considered to be a loss “other than collision.” There are 10 specifically enumerated items of coverage which are as follows:

(1) missiles or fallen objects;
(2) fire;
(3) theft or larceny;
(4) explosion or earthquake;
(5) windstorm;
(6) hail, water or flood;
(7) malicious mischief or vandalism;
(8) riot or civil commotion;
(9) contact with bird or animal; or
(10) breakage of glass.

The policy clearly is not intended to be an all-risk policy but instead, specifically enumerates those perils other than collision which are covered. Additionally, “loss means direct and accidental loss or damage.” None of the losses enumerated are applicable with the possible exception of number 3, theft or larceny.

The American College Dictionary defines theft as “the act of stealing; the wrongful taking and carrying away of the personal goods of another; larceny.” Further, larceny is defined as “the wrongful taking and carrying away of the personal goods of another from his possession with intent to convert them to the taker’s own use.” Title 18 of the Pennsylvania Crimes Code, section 3921(a), defines the offense of theft by unlawful taking or disposition as “movable property — a person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” The act of the state police in confiscating the stolen vehicle does not comport with the definitional requirements either from the common use as indicated in the dictionary nor from the Pennsylvania Crimes Code. The confiscation by the Pennsylvania state police was lawful taking. Plaintiffs loss occurred here when he engaged in a transaction and purchased a vehicle, the title of which he was unable to ever obtain. In asking for coverage, plaintiff is seeking what amounts to title insurance. His protection is the warranty of title from the seller, not his automobile insurance policy.

In Shockley, supra, the question before the court was whether the carrier must provide fire coverage on the stolen car and this was answered in the affirmative. However, in dicta, the court considered the question now at hand and by strong inference indicated that coverage would not be found:

“We hardly believe that appellee would have provided any kind of coverage had appellant suffered a loss related to a lack of good title. For instance, had the stolen nature of appellant’s vehicle been discovered and the vehicle repossessed by its owner, appellant would have suffered a title-related loss. Had appellee paid for this loss, then it would have had a equitable right or subrogation right to monies received from appellant’s breach of warranty of title action against Tometta. We are rather skeptical that appellee would have paid such a claim by appellant. We further suspect that appellee would have vehemently argued that coverage did not apply for such a loss under the policy.” Shockley, supra.

This precise legal question is novel in this commonwealth. It has arisen in a number of other jurisdictions and results have been split with some courts finding coverage: Reznick v. Home Insurance Co., 45 Ill. App. 3d 1058, 360 N.E.2d 461 (1977); Duncan v. State Farm Fire and Casualty, 587 S.W.2d 375 (Tenn. 1979); Phillips v. Cincinnati Insurance Co., 398 N.E.2d 564 (Ohio 1979); Butler v. Farmer’s Insurance Co. of Arizona, 126 Ariz. 371, 616 P.2d 46 (1980); Scarola v. Insurance Co. of North America, 31 N.Y.2d 41, 340 N.Y.S.2d 636 292 N.E.2d 776 (1972); Webb v. MFA Mutual Insurance Co., 44 Colo. App. 210, 620 P.2d 38 (1980). Other courts have found that there was no coverage: Hubbell v. Farmer’s Insurance Group, 200 Neb. 472, 263 N.E.2d 863 (1978); Raff v. Farm Bureau Insurance Co., 181 Neb. 444, 149 N.E.2d 54 (1967); Jackson v. Teacher’s Insurance Co., 30 Cal. App. 3d 341, 106 Cal. Rep. 208 (1973); Bohnen International Inc. v. Liberty Mutual Insurance Co., 120 Ill. App. 3d 657, 458 N.E.2d 644 (1983). This court believes that the logical position is that of the insurance company which could not have anticipated that it was writing coverage for loss sustained as a result of confiscation of a stolen car by the state police, the loss having actually been incurred by the insured before he placed the policy.

For all of these reasons, judgment was entered in favor of Metropolitan and against Gureghian.


author: TUMOLO, Member,

text:
    In re Anonymous No. 94 D.B. 87
    Disciplinary Board Docket no. 94 D.B. 87.
    April 25, 1989
   TUMOLO, Member,

HISTORY OF PROCEEDINGS

Respondent is a 34-year-old [ ] County attorney admitted to practice law in the Commonwealth of Pennsylvania in 1986.

On December 22, 1987 a petition for discipline was filed alleging a violation of the following Disciplinary Rules of the Code of Professional Responsibility:

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

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

(C) D.R. 6-101(A)(3), dealing with a lawyer neglecting a legal matter entrusted to him;

(D) D.R. 9-102(A), dealing with proper maintenance and use of a lawyer’s trust account for entrusted funds of clients; and,

(E) D.R. 9- 102(B)(4), requiring a lawyer to promptly pay or deliver to his client, as requested by the client, the funds, securities, or the properties in the possession of the lawyer which the client is entitled to receive.

After respondent filed his answer, on April 25, 1988, the hearing committee took evidence on those factual matters which were not stipulated.

On January 26, 1989, the hearing committee filed a majority report finding that respondent had violated all of the Disciplinary Rules charged and recommending that respondent be subject to a private reprimand. The dissenting hearing committee member recommended a dismissal of all charges.

On February 15, 1989, petitioner filed a brief on exceptions to the recommended discipline. The petitioner’s position is that the removal of a client’s money should require a discipline of at least a two-year suspension, if not a disbarment.

On February 17, 1989, respondent filed a brief on exceptions which requested that if discipline was to be imposed at all, it should be in accord with the majority recommendation of the hearing committee.

Arguments were heard before a panel of the Disciplinary Board on March 29, 1989, and the matter was adjudicated by the Disciplinary Board on April 7, 1989.

FACTUAL BACKGROUND

Respondent became the holder of escrowed monies pursuant to an escrow agreement entered into on or about April 18, 1987. The facts show that a mortgage had been given by a property owner named [A] to [Mrs. B], who subsequently assigned that instrument to her husband. The [Bs] then executed an assignment of that instrument to [C], and these parties deemed it necessary for [C] to escrow $2,100 of the consideration for the assignment to insure that certain real estate taxes were paid. That is, it might be that the property owner or the [Bs] might pay the taxes, in which case the [Bs] would be entitled to the $2,100; or it might be that [C] would decide in order to protect her interest to pay the taxes, and thereby be entitled to a refund of part or all of the $2,100. Respondent’s function as an escrow holder was to insure that those funds not be released for any reason other than to fulfill the purposes of the escrow agreement.

On June 10, 1987, respondent issued a check from his escrow account in the amount of $2,000 made payable to himself. These funds were used by respondent to pay his office expenses, a deposit on an engagement ring, and for a trip to Disney World in Florida. The only factual controversy in this adjudication arises at this point. Respondent contends he contacted [D], the husband, manager, and attomey-in-fact of [C], and asked for $2,000. At that time, the facts show that respondent was engaged to [D’s] daughter and that there was a very close personal and business relationship between the two. Respondent testified that [D] told him to use the money in the “[B] escrow account,” which respondent did. [D] has always denied this, contending he was never asked for any such permission, nor did he ever grant that authority. This might seem to raise the issue of [D’s] bias toward respondent, all of which is graphically illustrated in Judge [E’s] opinion in the United States District Court for the [ ] District of Pennsylvania at Civil Action no. [ ], but the board believes that this adjudication does not depend on the credibility of [D]. The trial testimony shows that respondent testified that [D] never indicated to him that he was going to pay the taxes. That is, even under respondent’s testimony, he at most was told by [D] that he could take the money from the “[B] escrow account.” Therefore, even accepting respondent’s version of the facts, the question would become whether an attorney governed by the Code of Professional Responsibility could under the facts of the escrow agreement accept the advice of one of the participants, without any proof that the reason for the escrow had been discharged (i.e., payment of the taxes) and take the money. The answer is clearly no. The reason for the escrow was to insure that both the [Bs] and [C] were protected against the failure to pay real estate taxes. Accepting the advice of either party to remove escrowed funds without the reasons for the escrow agreement having been met immediately presents the attorney with a very substantial likelihood that exactly what occurred herein would happen.

That is, respondent removed the funds from his trustee account on June 10, 1987. Within three weeks of that date, the [Bs] provided a tax receipt showing that the owner of the property, [A], had paid the taxes. This made the [Bs] immediately entitled to the escrowed funds. But the escrowed funds did not exist because they had been improperly disbursed.

When the [Bs] questioned why they had not received the $2,100 the respondent told them in late June 1987 that he needed [D] to approve the disbursement. In fact, there was nothing to disburse in late June 1987.

On August 7, 1987, respondent did issue a check from his regular business account in the amount of $2,149 made payable to [Mr. B]. This amount accounted for the escrowed funds, plus interest. However, respondent was clearly out of trust and in violation of the escrow agreement for a period of at least two months.

It would understate the factual background of this matter to delete any mention of the bias and hostility of the witnesses presented to prosecute this claim. There really could not be a better presentation of that bias than is shown in the opinion of Judge [E], supra. That opinion in part states:

“For approximately one year, the relationship between [D] and [respondent] was unassailable. Where amity and close business relationships existed, problems began and [respondent] threw [D] out of their shared offices. As a result, [D] became so displeased that in August 1987, he started a systematic avalanche upon [respondent’s] activities intended to destroy [respondent], his law business, his clients and all who associated with him; [D] even began to inflict suffering and obstructions to his own daughter and grandchildren. At first, [D] withdrew files of cases by the aid of [F] and others. [D] began a campaign of communicating with the clients concerning the dis-reputability and criminality of [respondent], in creating dissatisfactions by clients, creditors and busi-néss associates, in causing sufficient provocations in them to make grievance charges to the Pennsylvania Supreme Court Grievance Commission, as well, on a wholesale scale.”

In addition, Messers. [G] and [F] were former employees of [respondent] who were fired. There is no question that Judge [E’s] graphic description of [D’s] vendetta against his son-in-law is unfortunate. And there is no doubt that this board views with extreme scrutiny an allegation brought under such circumstances. But after careful review of the record, and even accepting respondent’s testimony,' the board finds that petitioner has met its burden of proof.

Conclusions as to Disciplinary Rule Violations

The board finds that in failing to promptly deliver to the [Bs] the money to which they were entitled in late June 1987, that the petitioner violated rule 9-102(B)(4).

The board finds that in representing to the [B] that he had to have the permission of [D] to deliver the escrowed funds to the [Bs], when at that time there were in fact no funds escrowed, respondent violated rule 1-102(A)(4).

The board finds that in violating the integrity of his trust account when respondent removed $2,000 for personal purposes he violated rule 9-102(A).

The board finds that respondent’s conduct adversely reflects on his fitness to practice law and violates rule 1-102(A)(6).

The board finds no evidence of neglect on this record. Rather, all of the conduct of respondent was intentional, and is encompassed within the far more serious violations for which he is liable, and which are set forth above. Therefore, the board dismisses the charged violation of rule 6-101(A)(3).

CONCLUSION

The board is not unmindful of the fact that respondent is a newly admitted attorney, with no past disciplinary history. The facts clearly show that his inexperience did not allow him to disengage himself from the entanglement with people who were very likely to lead him into disciplinary, if not other, violations. Fortunately, all of the escrowed money, together with interest, was properly delivered within a short period to the persons rightfully entitled to it. In fact, the [Bs] have made no charge against respondent to this board. Pertinent to that board’s adjudication of the discipline to be imposed are the following: all the money and accrued interest was delivered to the [Bs] within about one month of their demand; this was accomplished before any action by the Office of the Disciplinary Counsel; there is no past disciplinary history; and, respondent has had to conduct himself professionally under trying circumstances of his father-in-law’s vendetta yet has not otherwise gone astray. All of these factors indicate respondent is not a danger to the public, the profession or the court. The primary objective of the disciplinary system is to protect, not punish.

Under the unique facts of this case only, the board will accept the recommendation of the majority of the hearing committee and respondent shall receive a private reprimand.

Messrs. Mundy and Padova dissent and would impose public discipline.

ORDER

And now, April 25, 1989, upon consideration of the report and recommendation of Hearing Committee [ ] and dissenting opinion filed January 26, 1989; it is hereby ordered and decreed, that the said [respondent] of [ ] County, be subjected to private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in rule 204(a)(5) of the Pennsylvania Rules of Disciplinary Enforcement at the next session of this board. Costs are to be paid by respondent.


author: RAUHAUSER, J.,

text:
    Stein v. Red Lion Citizens for Decency Inc.
    October 9, 1989

      Lawrence S. Markovitz, for plaintiff.

      Hugh D. Manifold, for defendants.
   RAUHAUSER, J.,

This matter is before the court on motion for a protective order filed by the Red Lion School District. Defendants have requested discovery for numerous records of the school district. The school district is seeking protection against providing records. v^hich allegedly are not “public records” and therefore need not be produlfH^under the Right-to-Know Law.

The relevant pleaded facts are as follows: Defendants were involved in an action to attempt to have Red Lion remove plaintiff from her teaching and coaching positions in 1984. Their attempt failed. Plaintiff has now brought suit for false light against defendants. In preparing for their case, defendants served a subpoena and a notice of taking depositions on Dr. Dale H. Reinecker, superintendent of Red Lion. The subpoena requested that Dr. Reinecker bring with him “all records, files, papers, documents, memorandums, notes, complaints, payroll records and other writings on Marlene P. Stein.”

On February 14, 1989, Red Lion filed a motion for a protective order in order to withhold the personnel file of plaintiff and to prevent defendants from questioning Dr. Reinecker with reference to that file.

A subpoena and notice of taking depositions were also served on the records custodian of Red Lion. Defendants requested, inter alia, “all minutes, notes, transcripts, recordings or other documents of the meetings of the Red Lion school board in 1984 during which the subject of Marlene Stein was discussed; all minutes, notes, transcripts, records, or other documents of the meetings of the personnel committee of the school board of the Red Lion Area School District held in 1984 for the purpose of discussing the subject of Marlene Stein.”

On June 28, 1989, Red Lion filed a supplemental motion for a protective order.

Red Lion cites West Shore School District v. Homick, 23 Pa. Commw. 615, 353 A.2d 93 (1976) and 43 P.S. §§1321 and 1322 in support of its motion for protective order. Inspection of one’s own personnel file is the subject of 43 P.S. §§1321 and 1322 and thus not applicable in the instant case.

Homick was limited to one question'— whether or not a teacher’s personnel file is a public record under the Right-to-Know Law. The court ruled that the personnel file was not a public record.

Defendant would have the court believe that since Homick was not allowed to see his personnel file that the file then became a public record, and, therefore, could be examined by a third party.

In addition, 65 P.S. §66.1 statutorily supports the ruling in Homick:

“That the term ‘public records’ shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties or any record, document, material, exhibit, pleading, report, memorandum, or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment ofaperson’s reputation or personal security. . (emphasis supplied)

Defendant cites Pa.R.C.P. 4003.1 as support for discovery of the personnel file of plaintiff. However, Pa.R.C.P. 4003.1 states “ . . . a party may obtain discovery regarding any matter, not privileged,...” (emphasis supplied)

Defendant also cites Firschein v. Lafayette College, 7 D.&C. 3d 243 (1978) to support its position that the personnel files are not confidential. Fir-schein involves a part-time teacher who wished to examine his own personnel file. The court did not grant his request. In the instant case, a third party is seeking permission to examine a personnel file.

On the issue with reference to the personnel files of plaintiff, the court finds that Red Lion has a right to withhold plaintiffs personnel file from discovery by defendants.

Since the court affirms Red Lion on the first issue, it is not necessary to address the second issue discussed in the brief of Red Lion — that of a privilege of confidentiality existing by contract.

Red Lion’s supplemental motion for protective order was filed in order to prevent defendants from discovery of the minutes of meetings held by the personnel committee of the school board on April 24 and 30, 1984. Red Lion cites the Sunshine Law and the Open Meeting Law in support of the motion.

The Open Meeting Law, Act of June 21, 1957, P.L. 392, as amended, 65 P.S. §251 et seq., repealed, Act of July 2, 1986, P.L. 3388, 65 P.S. §271 et seq., delineates an exception to public meetings:

“[T]he term — ‘public meeting’ shall not mean any meeting, the publication of the facts concerning which would disclose the institute, progress or result of an investigation undertaken by a board in the performance of its official duties.” (emphasis supplied)

Using this definition, the court finds that the two personnel committee meetings held on April 24 and April 30, 1984, were not public meetings since the meetings were convened to gather information regarding plaintiffs teaching and coaching in Red Lion.

The Right-to-Know Act, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §66.1 et seq., describes those reports and records of meetings which must be open to public inspection. The act specifically exempts:

“Any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by its official duties ... it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person’s reputation or personal security ...”

Since the committee meetings were not public meetings as defined in the Open Meeting Law and since the minutes of those meetings are exempt under the Right-to-Know Act, the minutes of those meetings are not public records. Therefore, the minutes are not discoverable.

The Sunshine Act, Act of July 19, 1974, P.L. 486, 65 P.S. §261 et seq., repealed, Act of July 3, 1986, P.L. 388, 65 P.S. §271 et seq., provides that meetings of every agency at which formal action is scheduled or taken are public meetings and shall be open to the public at aU times. A public meeting is one in which discussion is held and some official action is taken. No action was taken at either committee meeting. Both meetings were exploratory in nature — one was held with concerned parents; the other was held with plaintiff. The vote concerning plaintiff’s employment was taken at a public school board meeting on July 21, 1984.

Red Lion cites Mellin v. City of Allentown, 60 Pa. Commw. 114, 430 A.2d 1048 (1981) to support the contention that the personnel committee meetings were rightfully closed meetings. In Mellin the Commonwealth Court held that a private disciplinary hearing held by the city council to hear charges of misconduct against a police office “clearly falls under the specific exclusion” spelled out in the Open Meeting Law quoted above.

In the instant case, the personnel committee meetings were held in order to gather information from all concerned parties to present to the board in order that a discussion and vote could be held at the formal open board meeting held on June 21, 1984. The minutes of that meeting have already been offered to defendants.

No briefs were filed by defendants in opposition to the supplemental motion for a protective order.

Defendant raises the issue of the right to privacy of plaintiff stating that plaintiff has relinquished her right to privacy by commencing suit against defendants. The protective order is being sought by Red Lion, not on behalf of plaintiff, but as a public school entity which has a fiduciary duty to protect not only plaintiffs records but those of past, present, and future employees. Otherwise, the Right-to-Know Act would create a mockery and no records would be unassailable.

In conclusion, in accordance with Pa.R.C.P. 4012(a), the court grants the motion for a protective order and the supplemental motion for a protective order to the Red Lion Area School District in connection with the instant case.

Accordingly, we enter the following

ORDER

And now, October 9, 1989, the motion for a protective order and the supplemental motion for a protective order filed by the Red Lion Area School District in the above matter is hereby granted.


author: FRAMPTON, J.,

text:
    Kurelko v. Sharon Herald Company

      February 21, 1990

      Andrew P. Kurelko, in propria persona.

      William C. Kuhn, for defendants.
   FRAMPTON, J.,

Currently before the court for disposition is defendant’s preliminary objection in the nature of a demurrer to plaintiffs complaint. Defendant alleges in his demurrer that plaintiffs complaint fails to set forth any cause of action and that plaintiffs complaint fails to state a cause of action against defendants and that plaintiffs complaint alleges insufficient facts from which any liability on the part of defendants may be found.

On Friday, November 3,1989, prior to the November 7, 1989, general election, the Herald, a daily newspaper of general circulation owned by the Sharon Herald Company, a division of Ottaway Newspapers Inc., published an election guide as a part of its daily paper which summarized certain basic information with respect to all the candidates on the ballot for public office in Mercer County, Pennsylvania. There were.two candidates for the office of mayor of the City of Sharon: Robert T. Price, the incumbent candidate, and plaintiff, Andrew P. Kurelko.

The statement which gives rise to this action is contained on page 19 of the Herald and stated, “Long-time Sharon mayor, Robert T. Price, has a Republican opponent this year. Political hopeful, Andrew P. Kurelko, switched party affiliation to make certain that he would be included on the general election ballot for mayor.” In paragraph 5 of plaintiffs complaint he alleges that the segment of the statement which states, “switched party affiliation to make certain that he would be included on the general election ballot for mayor” was erroneous and published knowingly, willingly, and with malice aforethought by defendants.

DISCUSSION

A preliminary objection in the nature of a demurrer should be sustained only in cases where the facts clearly and without a doubt fail to state a claim under any theory of law for which relief may be granted. Allegheny County v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). Additionally, clearly pleaded material, factual averments and all inferences fairly deducible therefrom are considered to be true. Abarbanel v. Weber, 340 Pa. Super. 473, 479, 490 A.2d 877, 880 (1985). Finally, any doubts about sustaining a preliminary objection should be resolved against the objecting party. Goodheart v. Thornburgh, 104 Pa. Commw. 385, 522 A.2d 125 (1987).

In ruling on preliminary objections in a defamation case the court must first determine whether the communication complained of can be construed as having the defamatory meaning ascribed to it by the complaining party. Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399 (1987); Veno v. Meredith, 357 Pa. Super. 85, 515 A.2d 571 (1986). In reaching such a conclusion the court must view the statements in context. Id.; citing Thomas Merton Center v. Rockwell International Corporation, 497 Pa. 460, 442 A.2d 231 (1981), cert. denied 457 U.S. 1134 (1982). In determining whether a communication has a defamatory meaning the court must “determine whether the statement was maliciously written or published and tended to blacken a person’s reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession. ” Id. Corabi v. Curtis Publishing Company, 441 Pa. 432, 441, 273 A.2d 899, 904 (1971). The test to be applied in evaluating any statement is the effect the article is fairly calculated to produce and the impressions it would naturally engender, in the minds of the average persons among whom it is intended to be circulated. Id. In addition, the courts recognize that a communication is defamatory which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 489 A.2d 1364(1985). Finally, if the court determines that the statement is capable of defamatory meaning, it is for the jury to determine whether it was so understood by the recipient. Veno v. Meredith, 357 Pa. Super, at 92, 515 A.2d at 575.

In the present case, it is necessary under the law as previously stated for the court to determine whether or not the statement complained of by the plaintiff has a defamatory meaning. If the court finds that the statement complained of by the plaintiff has a defamatory meaning then the defendant’s preliminary objections in the nature of a demurrer must be denied and the case will proceed and the jury will determine whether or not the statements complained of by the plaintiff were understood by the recipients in a defamatory context. In the present case the statement complained of by the plaintiff is that he “switched party affiliation to make certain he would be included on the general election ballot for mayor.” In order to determine whether such a statement concerning a political candidate is defamatory it is helpful for this court to look at examples of other statements in this commonwealth and other states which were construed by courts not to have defam'Sto^

In Clark v. Allen, 415 Pa. 484, 204 A.2d 42 (1964), the court found that a sentence contained in a letter circulated to several persons which read, “we are shocked at Joe Clark’s record on Senate absenteeism and his ADA-approved voting record with its communist tendencies” was not libelous and did not have a defamatory meaning and therefore the complaint filed by the plaintiff based on this statement was dismissed. Of particular relevance to this case, in Cabrey v. Cameron, 55 D.&C. Í27 (1945), a state-, ment in a letter that the plaintiff, a former magistrate and candidate for that office, was a “turncoat” to his party Was determined not to be libelous.

Examples from several other states are illustrative in helping the court to determine whether the statement in the present case has a defamatory meaning and is therefore libelous. In Rustgard v. Troy, 6 Alaska 338 (1921), the court held that an article stating that, the plaintiff, a candidate for attorney general, was not the candidate of the Republican party, but of some other party or faction could not be held to be grave or serious enough to be deemed libelous. Also, in Robbins v. Evening News Association, 373 Mich. 589 (1964), the court held that a statement in the newspaper which read that the plaintiff represented thinking of the ultra-old-guard group which complained that President Eisenhower had made socialism reprehensible was held not to be defamatory. In addition, the court noted that wide latitude is given to a writer or speaker in expressing opinions with regard to one who becomes a candidate for public office. Id. The court also recognized-the rule that when one becomes a candidate for public office he deliberately places his conduct or character before the public for their discussion and consideration and that within the limits that the statement must be made with an honest regard for the truth, speakers may indulge in criticism on the character, habits, mental or moral qualifications of official candidates.

Based on these examples from Pennsylvania and other states we now turn to the consideration of whether the statement made by the Herald that plaintiff “switched party affiliation to make certain he would be included on the general election ballot for mayor” has a defamatory meaning in the present case.

Although the statement in the present case may be erroneous and may be offensive to plaintiff we find that it does not meet the definition of defamation as enunciated by our Supreme Court. The test for defamatory meaning is not whether the statement was erroneous, annoying, embarrassing or even insulting, the test is whether the statement was maliciously written or published and tended to blacken a person’s reputation or to expose him to public hatred, contempt or ridicule or to injure him in his business or profession. Baker v. Lafayette College, 516 Pa. at 296, 532 A.2d at 402. Although we sympathize with plaintiff in the present case and understand that the statement made in the Herald was most likely erroneous, offensive and embarrassing to plaintiff personally, the law does not recognize a cause of action in defamation based on such a statement which produces such result. In addition, in light of the fact that plaintiff was a candidate for political office, and opened himself up to public criticism and scrutiny by running for such a political office, the court finds as a matter of law that the statement contained in the Herald on November 3, 1989, and set forth in plaintiff’s complaint at paragraph no. 5 does not have a defamatory meaning.

ORDER

And now, February 21, 1990, defendant’s preliminary objection in the nature of a demurrer is hereby granted and plaintiff’s complaint is dismissed.