author: SPATARO, J.,

text:
    Commonwealth v. Baker

      Douglas W Ferguson, for Commonwealth.

      J. Wesley Rowden, for defendant.
    January 13, 2010
   SPATARO, J.,

The defendant, Douglas J. Baker, was convicted after a jury trial of delivery of a controlled substance and possession with intent to deliver on June 17, 2009. The defendant was sentenced on August 24,2009 to aperiod of incarceration for a minimum term of 24 months to a maximum term of 48 months. On August 24, 2009, the defendant filed a timely post-sentence motion in which the defendant sought a judgment of acquittal or a new trial. Argument was held on the defendant’s post-sentence motion on September 28, 2009. At the time set for argument, defendant requested an opportunity to file an amendment to the post-sentence motion, which was granted. On October 5, 2009, the defendant filed an additional post-sentence motion and a brief in regard to the same.

The trial on June 8,2009 ended with the court declaring a mistrial after one of the Commonwealth’s witnesses, Brandon Greenawalt, provided a non-responsive and prejudicial answer to a question in which he alluded to prior drug activity of the defendant. Mr. Greenawalt was the confidential informant who made a controlled buy of three oxycodone pills from the defendant. Defendant asserts that the court should have done more than just declare a mistrial, and should, instead, have dismissed the case after defense counsel, Attorney Jeffrey Misko, moved for a mistrial. Defendant claims that the Commonwealth secured an advantage over him as a result of the mistrial because it was then able to correct the mistakes made in the first trial.

There were three mistakes made in the first trial. The first related to an inculpatory statement that the defendant made at the preliminary arraignment to the arresting officer, Brian J. Joseph; a statement that the assistant district attorney, Douglas Ferguson, did not know about until Attorney Misko informed him. The second mistake related to the aforementioned unexpected statement made by Mr. Greenawalt. The third mistake related to the failure on the part of the Commonwealth to provide defense counsel with a copy of Mr. Greenawalt’s written statement that was prepared as part of the police investigation.

Defendant raises several challenges in his post-sentence motion and additional post-sentence motion, all of which we find to be meritless. We will now address the various challenges raised by the defendant in seriatim.

(1) Defendant contends that the Commonwealth did not provide mandatory discovery prior to trial, and only provided it after the first trial concluded in a mistrial; therefore, defense counsel did not have the opportunity to completely review the evidence.

With respect to the inculpatory statement, it must be noted that Attorney Misko was the first to mention the inculpatory statement during a discussion between this court and counsel immediately prior to trial. (T.T. p. 9, June 8,2009.) Attorney Misko and Officer Joseph had a conversation at the defendant’s preliminaiy hearing. Id. Officer Joseph indicated to Attorney Misko that the defendant made a statement to him while he was being arraigned. Id. The statement was summarized as the defendant informing Officer Joseph that he had only been selling his own pills. Id. Attorney Misko informed the court that this statement was not present in any of the discovery material provided by the Commonwealth, and requested that this statement be precluded from evidence. Id. Assistant District Attorney Ferguson informed the court that he did not have prior knowledge of this conversation, and argued that because defense counsel was aware of this statement, it should not be precluded from evidence. Id. at 13-15.

This court determined that Officer Joseph should have filed a supplemental police report with the district attorney’s office indicating that the defendant had made this inculpatory statement. Furthermore, it was determined that this statement should have been included in the discovery packet given to the defendant if the Commonwealth wished to introduce this inculpatory statement into evidence. Attorney Misko’s motion in limine was granted, and Officer Joseph was precluded from testifying about the inculpatory statement at the first trial. Subsequent to the mistrial, Officer Joseph filed a supplemental police report, and defense counsel was provided this supplemental statement through discovery. The court permitted the admission of the inculpatory statement into evidence at the retrial.

We find that the defendant was not prejudiced with regard to this inculpatory statement being introduced into evidence at the retrial. Defendant’s counsel was aware of the inculpatory statement prior to Attorney Ferguson becoming aware of the statement, and this court properly precluded the statement from being entered into evidence at the first trial. Defense counsel was provided with Officer Joseph’s supplemental statement prior to the retrial and had more than enough time to review the statement, which contained nothing more than the information of which he was already aware. Given that defense counsel was aware of what Officer Joseph’s supplemental statement would contain, and had sufficient opportunity to review the statement prior to the retrial, we find no basis for relief with regard to this issue.

Turning to Brandon Greenawalt’s written statement, the statement prepared by Mr. Greenawalt was not mentioned during the Commonwealth’s direct examination of this witness at the first trial. Mr. Greenawalt mentioned writing a statement after he performed his controlled buy during cross-examination. (Testimony of Brandon Greenawalt, p. 33, June 8, 2009.) Attorney Misko appeared surprised to hear that a statement was prepared by Mr. Greenawalt, but did not engage in any further examination of the issue beyond asking what was in the statement and if he gave the statement to Officer Joseph. Id. at 33-34. The Commonwealth through discovery should have provided the statement, prepared by Mr. Greenawalt after the controlled buy, to the defendant; however, any prejudice defendant may have suffered was cured because the court declared a mistrial. The statement was provided to defense counsel prior to the retrial, and defense counsel had more than enough time to review the statement to sufficiently prepare for the retrial.

(2) Defendant contends that counsel for the defendant failed to request additional information that may have been important in challenging the officers ’ credibility, such as booking photos and fingerprints.

The Pennsylvania Supreme Court has held that “as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002). However, where a defendant acquires new counsel after the verdict, but prior to sentencing, as is the case in the present matter, new counsel may seek a new trial based upon the ineffective assistance of trial counsel in a timely filed post-sentence motion. Commonwealth v. Hudson, 820 A.2d 720, 725 (Pa. Super. 2003). At this procedural posture, we must then decide if a hearing is required to address the claim of ineffective assistance of counsel, or if the claim can be resolved by reviewing the existing record. Hudson, 820 A.2d at 725. We find that this issue is easily disposed of by reviewing the existing record and a hearing is not required to address the issue.

To prevail on this claim of ineffective assistance of counsel, the petitioner must be able to overcome the presumption that counsel was competent by showing that:

“(1) [petitioner’s] claim is of arguable merit;
“(2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and
“(3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceedings would have been different.” Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).

Petitioner’s failure to satisfy any one of the three prongs of this test requires that the claim for ineffective assistance of counsel be rejected. Hammond, 953 A.2d at 556.

Defendant claims that a new trial is warranted because Attorney Misko failed to request booking photos and fingerprints from the Commonwealth. Defendant contends that these items were necessary to challenge the officers’ credibility at trial. We find this claim to be meritless; furthermore, even if there was some merit to this claim, there is no basis for finding that a reasonable probability exists that the outcome would have been different had defense counsel acquired booking photos or fingerprints prior to trial. Attorney Misko effectively challenged the credibility of the officers during cross-examination, when he addressed issues surrounding the controlled buy, the reports filed by the officers, and their involvement with Mr. Greenawalt.

(3) Defendant contends that defense counsel was prevented from questioning the arresting officer about being on leave for alleged drug use prior to this trial, and was not provided the officer’s work files about this leave of absence. Defendant argues that this information was critical to the judge for pretrial issues and to the jury in deciding what weight to give the officer’s testimony.

Admission of evidence is within the sound discretion of the trial court, and a trial court’s decision about the relevancy of evidence will not be disturbed absent an abuse of discretion. Conroy v. Rosenwald, 940 A.2d 409, 417 (Pa. Super. 2007). The defendant sought the equivalent of a pretrial ruling to allow an examination of Officer Joseph into the defendant’s suspicions that Officer Joseph had undergone drug therapy and had been placed on leave of absence for that purpose. Even if true, the court could find no probative value to any such area of inquiry. Defense counsel was vague about the details and could not draw any nexus between these suspicions and a cognizable defense. This court properly ruled that any evidence pertaining to Officer Joseph receiving drug therapy, or being on a leave of absence for any period of time, was irrelevant. Defendant’s additional claim that he was entitled to Officer Joseph’s personnel files to investigate an alleged leave of absence for drug therapy is also meritless.

(4) Defendant contends that trial counsel improperly failed to appeal this Court s decision denying his motion to dismiss the case based upon double jeopardy.

We have addressed the issues surrounding ineffective assistance of trial counsel claims, and the standard for addressing such claims in the context of post-sentence motions, supra. Attorney Misko was effective in his effort to try and convince this court that Attorney Ferguson, on behalf of the Commonwealth, had intentionally engaged in prosecutorial misconduct in an effort to prejudice the defendant and deny him a fair trial. After careful review, this court properly concluded that the record did not reflect any intentional conduct by Attorney Ferguson. The Commonwealth’s witness, Mr. Greenawalt, offered a non-responsive statement that was prejudicial to the defendant. In an abundance of caution, this court declared a mistrial, although a curative instruction may have been sufficient to remedy the matter. There was no basis for finding intentional conduct on the part of Attorney Ferguson, so there is no merit to the contention that Attorney Misko was ineffective for failing to file an appeal of this court’s decision to deny his motion to dismiss based upon double jeopardy. Such conduct on the part of Attorney Misko would not have changed the outcome, as there was no reasonable basis for such an appeal.

(5) Defendant also filed an additional post-sentence motion contending that this court erred in handling the confusion juror no. 2 had during the polling of the jury.

Defendant contends that after the jury returned a verdict of guilty, an issue arose during the polling of the jury. When juror no. 2 was polled about Count 2, possession with intent to deliver, juror no. 2 responded by saying “not guilty”. (T.T., pp. 96-97, June 17,2009.) The tipstaff then informed the court that juror no. 2 might have had trouble hearing the question, so this court provided a brief instruction to the jurors about the polling process. Id. After the instruction, juror no. 2 informed the court that he could not remember how the jurors voted on the charges. Id. at 98-99. Juror no. 2 was then shown the verdict slip to determine if he was in agreement with the findings of guilt or innocence with respect to all four counts. Id. After referring to the verdict slip, juror no. 2 was able to proceed with the polling process. Id.

The defendant contends that this was error by the court, and that the jury should have continued with their deliberations until the confusion of juror no. 2 was remedied. The defendant argues that by showing juror no. 2 the verdict slip, the polling process was ineffective.

Either party has an undisputed right to poll the jury, and the denial of the right to poll the jury constitutes reversible error warranting a new trial. Commonwealth v. Pacini, 224 Pa. Super. 497, 499, 307 A.2d 346, 347 (1973), citing Commonwealth v. Martin, 379 Pa. 587, 592-93, 109 A.2d 325, 327-28 (1954). “[A] juror’s initial ambiguous, inconsistent, or evasive answer to a poll does not vitiate unanimity so long as a subsequent answer or further interrogation indicates clear and unequivocal assent to the majority vote, and there is no evidence of involuntariness or coercion.” Commonwealth v. Hall, 267 Pa. Super. 204, 214, 406 A.2d 765, 770 (1979). The defendant was not denied his right to poll the jury, and the confusion of juror no. 2 does not indicate whatsoever that he disagreed with the majority. Juror no. 2 was temporarily confused by the verdict and this was remedied when he was shown the verdict slip and subsequently indicated in an unambiguous and unequivocal manner that he found the defendant guilty of Count 2, possession with intent to deliver. Nothing in the record indicates that juror no. 2 was in disagreement with the verdict, or had substantial doubt with regard to his determinations of guilt or innocence.

Accordingly, we enter the following order:

ORDER

And now, January 13, 2010, for the reasons set forth in the foregoing memorandum, the following is ordered:

(1) The defendant’s post-sentence motion and additional post-sentence motion are denied.

(2) The defendant is advised that he has a right to file an appeal to the Superior Court. Any such appeal must be filed within 30 days from this date or these matters become final.

(3) The defendant has the right to assistance of counsel in the preparation of an appeal if he chooses to engage in his right to appeal. If defendant cannot afford counsel of his own, he has the right to appeal in forma pauperis and counsel will be appointed for purpose of the appeal.


source: Caselaw Access Project

author: TERESHKO, J.,

license: Public Domain

text:
    Craft v. General Electric Co.

      Lee B. Balefsky and Charles L. Becker, for plaintiff.

      Scott R. Kipnis and DavidL. Birch, for defendants.
    March 22, 2010
   TERESHKO, J.,

Plaintiff Mary Craft, executrix of the estate of Robert Craft (decedent), appeals this court’s order granting summary judgment to defendant, General Electric Company (GE), dismissing all claims against defendant. For the following reasons, this court’s order should be affirmed.

I. BACKGROUND

Decedent Robert Craft worked as an electrician for approximately 40 years with International Brotherhood of Electrical Workers Local 98, in addition to the approximately three-years time he spent as an Electrician’s Mate in the US Navy. (Short form complaint ¶4.) As a member of Local 98, he worked for the Harry F. Ortlip Contracting Company at various sites. (Plaintiff’s answers to defendants’ general interrogatories — set I, exhibit E.) As an electrician with Ortlip, decedent admits to using asbestos paint, asbestos tape and asbestos cement at various worksites. (Id.) Decedent also identified some of the asbestos products that he previously worked with and their manufacturers names: asbestos block (Foster-Wheeler), asbestos cement (General Electric), asbestos insulating putty (Georgia-Pacific), asbestos pipecovering (Gould Pumps), asbestos spray (Westinghouse) and asbestos tape and wiring (manufacturer not listed). (Id., exhibit A.) Decedent acknowledges that there were further asbestos products that he was exposed to that he could not recall. (Id.)

Decedent recalled some, but not all, of the work sites that he was exposed while working for Ortlip. (Id., exhibit G.) Some of the work sites that he identified were: Arco Refinery, 30th Street Station, PECO Substation and Curtis Publishing Building. (Id.) During his tenure as an electrician, Mr. Craft admittedly encountered asbestos-containing products on numerous occasions. (Craft deposition, pp. 51, 54-55, 58-59, 67, 76-77, 80-81.)

Around September 29,2005, Mr. Craft was diagnosed with malignant mesothelioma by Dr. Daniel Woody. Plaintiff commenced this asbestos mass tort action on Januaiy 3,2006, alleging that decedent contracted mesothelioma as a result of his occupational exposure to asbestos products. (Short form complaint ¶¶4, 5.) (Report of Daniel DuPont D.O., p. 2.) The plaintiff specifically alleged that the decedent was exposed to asbestos products that were manufactured by defendants Melrath Gasket Inc., A. W. Chesterton Inc., Westinghouse Electric Company, Foster-Wheeler Corporation, General Electric Company, Metropolitian Life Insurance Company, Owens-Illinois Glass Company, Uniroyal Inc., Gould Pumps, IMO Industries, Georgia-Pacific Corporation, Rapid American Corporation and Garlock Incorporated. (Complaint, pp. 1-2.) Decedent passed away on March 2, 2007. Id. at 3. According to Dr. DuPont, the cause of decedent’s death was mesothelioma. Id. at 3.

By order dated Sept. 24,2007, this court granted summary judgment and subsequently dismissed defendants Garlock Inc., Gould Pumps Inc., IMO Industries Inc., and Melrath Gasket Inc. Plaintiff did not file an appeal from this court’s granting of summary judgment as to these defendants.

On October 14, 2008, GE moved for summary judgment, arguing that plaintiff failed to establish that decedent’s mesothelioma was caused by exposure to products manufactured or supplied by GE which allegedly contained asbestos. On November 7, 2008, plaintiff filed a response to the motion for summary judgment. Plaintiff claims that GE is liable to plaintiff based on two separate and distinct actions for recovery — premises liability and products liability. (Plaintiff’s response to GE’s motion for summary judgment, p. 1.) Plaintiff’s products liability claim alleges that decedent was exposed to asbestos-containing GE wires, motors, and breakers while working as an electrician and foreman for the Harry F. Ortlip Company. Id. at p. 1.

GE filed a reply on November 12,2008. After review of the motion, response, and reply this court granted summary judgment in favor of GE on December 4,2008, dismissing plaintiff’s claims against it.

On December 5,2008, the remaining eight defendants entered into a settlement agreement resolving plaintiff’s complaint against them.

On December 19,2008, plaintiff timely filed an appeal from this court’s order granting summary judgment for the defendant. On February 16, 2009, plaintiff filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), raising, inter alia, the following for our review:

“Whether this court committed an error of law or abused its discretion in finding that the plaintiff has failed to offer sufficient evidence that Mr. Craft was exposed to asbestos products manufactured by GE on a regular, frequent and proximate basis.” (Plaintiff’s concise statements of errors complained of on appeal, 2/16/09.)

II. DISCUSSION

“In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any doubts as to the existence of a genuine issue of material fact against the moving party.” Gilbert v. Monsey Products Company, 861 A.2d 275, 276 (Pa. Super. 2004). In reviewing a grant of summary judgment, an appellate court’s scope of review is plenary and the court “will reverse only upon finding that the trial court abused its discretion or erred as a matter of law.” Id. (citing Harahan v.AC & S Inc., 816 A.2d 296 (Pa. Super. 2003)).

Plaintiff complains on appeal that this court’s granting of summary judgment in favor of GE was error. However, the record in this matter fails to establish that decedent inhaled asbestos fibers from products manufactured and/or supplied by GE with the regularity, frequency, and proximity required under Pennsylvania law.

Our Superior Court, in Eckenrod v. GAF Corporation, 375 Pa. Super. 187, 544 A.2d 50 (1988), set forth the elements necessary to prove a prima facie case of products liability dealing specifically with asbestos:

“In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of the plaintiff’s injury.” Id. at 190-91, 544 A.2d at 52. (internal citations omitted)

Further, our Supreme Court in Gregg v. V-J Auto Parts Company, 596 Pa. 274, 943 A.2d 216 (2007) reiterated a lower court’s standard of review examining an asbestos-related motion for summary judgment based on product identification: “[w]e believe that it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury.” Id. at 292, 943 A.2d at 227. (emphasis added)

GE moved for summary judgment on the basis that plaintiff could not establish as a matter of law that any alleged exposure to a GE product caused decedent’s injuries. (GE’s motion for summary judgment 8/17/07, p. 8.) GE argued that plaintiff failed to establish decedent’s alleged exposure to asbestos dust “manufactured, distributed or supplied by GE on a regular, frequent, or proximate basis.” Id. at 7.

The discovery and videotape depositions of decedent were conducted on June 27,2006. The decedent did not identify any GE products during his deposition as contributing to his 40 years of asbestos exposure; however he admitted he encountered various asbestos containing products on numerous occasions. (Craft deposition, pp. 51, 54-55, 58-59, 67, 76-77, 80-81.)

Plaintiff was forced to base her products liability claim on the testimony of decedent’s co-worker, John Byrne. (Plaintiff’s response, p. 8.) Byrne worked with decedent as an apprentice during a five-year period from 1956 until 1961. (Byrne deposition, p. 15.) Byrne unequivocally testified that decedent worked with GE motors, wires, and breakers at points during his career.

Byrne’s testimony that decedent worked with GE motors, breakers, and wires, nevertheless fails to establish whether decedent was ever exposed to asbestos dust specifically from these products. Id. at pp. 70, 86.

With regard to the motors, Byrne recalled decedent working on GE motors, but could not definitively state whether any of the GE motors decedent worked with contained asbestos:

“Q: Do you know whether Mr. Craft was exposed to asbestos from either his work with or his work around GE motors?'
“A: I wouldn’t know that.” Id. at 70.

Byrne further testified that decedent worked around breakers and switches that allegedly contained asbestos. (Id. at pp. 84-85.) However, Byrne stated that the asbestos was “sealed” in the breakers and decedent would only have been exposed to the asbestos from breakers if the breakers exploded. Id. at p. 84.

Byrne could only assert that breaker explosions occurred “periodically,” suggesting that it was not a common event and did not rise to the level of frequency required by the Eckenrod and Gregg tests. Id. at p. 86. Furthermore, no evidence exists to suggest that any of the breakers that exploded or switches were manufactured by GE:

“Q: As we sit here today, are you able to tell me the manufacturer of the breakers that exploded that Mr. Craft—
“A: No.
“Q: Do you know if GE manufactured any of the switches that Mr. Craft worked with or around?
“A: I have no idea which ones went bad.” Id. at 86.

The plaintiff also fails to establish decedent’s exposure to asbestos from GE wires with sufficient frequency, regularity, and proximity. Id. atp. 82; Gregg, at 292,943 A.2d at 227. Although Byrne believed that the decedent used both asbestos- and non-asbestos-containing wires that were manufactured by GE, he could not identify a specific location where he recalled seeing decedent work with asbestos-containing wire manufactured by GE. (Byrne deposition, pp. 71-83.)

Byrne also testified that decedent was exposed to insulation when stripping wires:

“Q: And when you took off the insulation, how did you take it off?
“A: With a knife. You skinned it with a knife and you just throw it on the floor.
“Q: Did you use your bare hands or did you wear gloves?
“A: Usually bare hands ...
“Q: Would any of the insulation get on your hands?
“A: I’m sure it did you know.” (Byrne deposition, 7/31/07 at 117-18.)

Though evidence may establish that decedent was exposed to insulation from wires, Byrne’s testimony fails to establish any indication that the wires decedent worked with were insulated with asbestos, as opposed to those insulated with fiberglass:

“Q: And when you say the three inches, three inches of what did you strip off?
“A: It was insulation .... Some of it was fiberglass, some was asbestos. You know, we didn’t know everything that was on it.” Id. at 117.

Although he alleges that some GE wires contained asbestos, Byrne cannot recall whether he ever saw any GE wires specifically marked as having such:

“Q: The asbestos wire that you associate with GE, did that have a trade name?
“A: I don’t know if it did.” /J. at 71.
“Q: Do you recall whether the word ‘asbestos’ appeared on any [GE wire] reels?
“A: I have no idea if it did.” Id. at 82.

Neither decedent nor Byrne testified regarding the frequency with which decedent was exposed to asbestos from GE wires. Byrne not only fails to identify how often decedent used asbestos-containing GE wires, but also fails to identify a single job

“Q: Do you know if he used any GE wire on [the Lankenau Hospital] job?
“A: I’m not sure.” Id. at 72.
“Q: Do you recall who manufactured the wire used at the Bell Telephone Glenolden job?
“A: No.” Id. at 77.
“Q: Are you able to tell me, as you sit here today, who the manufacturer of that wire was on [the Children’s Hospital building] job?
“A: No.” Id. at 78.

Under Pennsylvania law, evidence of the possibility of exposure to asbestos dust without additional evidence that such exposure occurred with sufficient frequency, regularity, and in proximity to a defendant’s identifiable product is simply insufficient to withstand summary judgment. Gregg, at 279, 943 A.2d at 219. Byrne’s testimony never definitively establishes specific instances during which the decedent was exposed to asbestos dust from GE wires.

Plaintiff argues that testimony from her expert witness should be accepted as proof that even de minimis exposure to GE products could have been responsible for decedent’s mesothelioma. (DuPont report, p. 4.) Plaintiff’s expert, Dr. Daniel C. DuPont, opines that “each and every breath of asbestos inhaled during the employment history described would have been substantial in the causation of this condition.” Id. at p. 4. However, our ■Supreme Court has held that “it is common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor . . . [yet] such generalized opinions do not suffice to create a jury question in a case where exposure to the defendant’s product is de minimis . . . .” Gregg, at 291, 943 A.2d at 226. Accordingly, this evidence also fails to establish GE’s liability. The decedent admitted to exposure to asbestos while in the Navy from 1942 to 1946. (Exhibit “E” of plaintiffs’ answers to defendant’s general interrogatories.) He also identified exposure to many other asbestos-containing products during his work as an electrician from 1948 to 1987. (Short form complaint ¶4; plaintiffs’ answers to defendant’s general interrogatories, exhibit A, G; Craft deposition, pp. 51, 54-55, 58-59, 67,76-77, 80-81.) Not only did the plaintiff identify numerous possible sources that he recalls may have exposed him to asbestos, he admits that there are further asbestos products that he has used or had been exposed to that he does not recall. (Plaintiffs’ answers to defendant’s general interrogatories, exhibit A, G; Craft deposition, pp. 51, 54-55, 58-59, 67, 76-77, 80-81.)

Our Supreme Court has recognized that de minimis exposure to asbestos from GE products cannot create a jury question “particularly in the absence of evidence excluding other possible sources of exposure (or in the face of evidence of substantial exposure from other sources.)” Gregg, at 291, 943 A.2d at 226. In light of decedent’s 40 plus years of exposure to many different sources of asbestos products, and the lack of evidence linking regular and frequent asbestos exposure specifically to GE products, plaintiff has failed to prove a prima facie case against GE.

III. CONCLUSION

For the foregoing reasons, this court’s order granting summary judgment in favor of defendant GE should be affirmed.

      . Plaintiff attempted to amend her complaint to add a premises liability claim. However, by order dated October 16, 2007 this court prohibited plaintiff from adding such a claim. Plaintiff has not filed an appeal as to this order, nor have they specifically raised this as an issue in their statement of errors. Therefore, is opinion does not contain any analysis addressing a premises liability theory.


author: SPRECHER, J.,

text:
    Ziemba v. DeWalt

      Eric E. Winter, for plaintiffs.

      Carl J. Engleman Jr., for defendants.
    March 18, 2010
   SPRECHER, J.,

This opinion is filed at the request of the plaintiffs. Both parties filed a motion for summary judgment. On March 19,2009, this court denied plaintiffs’ motion for partial summary judgment and granted defendants’ motion for summary judgment in part against plaintiffs. The order granted all of the defendants an irrevocable license to use the private road known as Crest Avenue (road) for ingress and egress to and from their properties. The following are the pertinent facts gleaned from the record, including the depositions of some of the parties and other witnesses.

FACTS

Defendants filed a motion for summary judgment to request a determination that they had earned an irrevocable license for the use of a road known as Crest Avenue which runs through or is adjacent to all of the parties’ properties. Plaintiff filed a motion for partial summary judgment to establish that no legal rights of use had been given to defendants.

The disputed road appears in approved subdivision plans dating back to August 27, 1913. It was identified as a potential road on unrecorded municipal planning documents. Approximately 50 years ago the land was subdivided along Hill Road in Lower Alsace Township, Berks County, Pennsylvania. The subdivision called for a road to be opened at a later date.

There is no evidence that the road was opened by any government authority as a public road. However, on December 11, 1985, the Board of Supervisors of the Township of Lower Alsace, enacted ordinance no. 125 which established the road as a fire access lane. Section 3 of the ordinance provides as follows: “No person or individual shall park a vehicle within the limits of the fire access lane hereby established, and/or no person, individual, firm, partnership, corporation or association shall construct and/or shall cause any obstruction of the within limits of the fire access lane hereby established.”

Defendants established that at least from the 1950s forward the road was used by vehicles and pedestrians to access properties adjacent to the road. Although there is another road defendants could use to access their properties, it is longer and gets completely washed out when it rains. Too, defendants can see traffic on Hill Road more easily from the disputed road.

Frederick Lubas had lived in his residence adjacent to the road since 1971. He has helped maintain the road by putting stone down ever since he has lived there. Presently, he uses the road weekly, although his use of the road has changed over the years according to his needs.

Defendant, Martin Rhoad, has lived in his residence since 1996. He uses the road on a regular basis, especially whenever the other road is completely washed out. He constantly maintains the whole road and fills it as needed. He never had discussed the use of the road with plaintiffs until plaintiffs started to harass him when he was using it. Mr. Rhoad used the road on the date of his deposition. In the past plaintiffs have attempted to have him arrested for using the road. Kathleen Eskey testified that the prior owners of defendant David DeWalt’s property did maintenance work on the road

Defendant, Carol Bertolet, has lived at her residence for three years. She uses the road daily. The prior owner did not tell her anything about the road. She and her husband plow the road, put stone on it, and mow it to keep it passable. Plaintiffs requested that that they not use the road and they harass her family daily for using it.

Plaintiff, David Ziemba, has been on disability for approximately four years due to his disassociated disorder. He did not work for approximately two years before he received his disability income. Plaintiff purchased his property on July 25,1991. When he purchased the property, he did not inquire about the road. The road had been “scraggly” when he had purchased his residence because it had not been used on a regular basis. Since 1995 or 1996 the road started to be used by a “multitude of people” except for the year when he had put an unlocked gate on the road to restrict access. He removed the gate at the direction of the fire marshall.

On December 28, 2006, Mr. Ziemba had a new deed made to convey his property to himself and his wife. At that time he noted that the road was on his property. A survey in August 2007 confirmed that the road was entirely within his property.

Based on the foregoing facts, this court entered the order which is the subject of this opinion.

DISCUSSION

Ordinarily, a license is merely a personal or revocable privilege to perform an act or series of acts on land of another. However, in Pennsylvania, a license will become irrevocable if the licensee expends money or labor in reliance on the permitted use. Dailey’s Chevrolet Inc. v. Worster Realties Inc., 312 Pa. Super. 275, 458 A.2d 956 (1983).

This court found that the road was used by neighbors for ingress and egress prior to Mr. Ziemba’s purchase of his residence. The neighbors, including defendants, used the road to access their properties after Mr. Ziemba purchased his property. The neighbors expended their labor and money to maintain the road before and after Mr. Ziemba purchased his residence. Mr. Ziemba did little to maintain the road. All parties believed that the road was for everyone’s use. Only after plaintiff had learned that the road was deeded as part of his property did he attempt to block people’s access to it. By then it was too late because plaintiffs had already permitted the use of the road and defendants relied on that use. Defendants expended labor and money to use the road. Moreover, any attempts by plaintiffs to block defendants’ access to the road are violations of the township’s ordinance. For these reasons, this court found that defendants had acquired an irrevocable license to use the road for the ingress and egress of their properties.


author: RUEST, J,

text:
    Lux v. Lux

      Arthur S. Cohen for plaintiff

      Bernard F. Contorna, for defendant.
    June 2, 2010
   RUEST, J,

OPINION IN RESPONSE TO MATTERS COMPLAINED OF ON APPEAL

Appellant has filed a notice of appeal, indicating he is appealing this court’s order entered March 9, 2010, to the Pennsylvania Superior Court. Pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), appellant filed a concise statement of matters complained of on appeal. Upon review of appellant’s concise statement, this court respectfully submits the following opinion pursuant to Pa.R.A.P. 1925(a):

Appellant raises nine issues on appeal. The first eight issues are from this court’s opinion and order entered June 19,2009, which set forth the equitable distribution of the parties’ marital estate and awarded alimony to Wife. The ninth issue is from this court’s order entered March 9,2010, approving a qualified domestic relations order.

A. The Court’s Findings of Fact Are Supported by Credible Evidence of Record

The first six issues raised by appellant concern findings of fact in this court’s opinion and order entered June 19, 2009. When reviewing an order of equitable distribution, the standard of review is limited and the trial court’s order shall not be disturbed absent an abuse of discretion or error of law which is demonstrated by clear and convincing evidence. Wellner v. Wellner, 699 A.2d 1278, 1283 (Pa. Super. 1997). Absent an abuse of discretion, the lower court’s findings of fact, if supported by credible evidence of record, are binding upon a reviewing court. Id. at 1280.

The court has reviewed each finding of fact contested by appellant in the first six issues and determines that the record is replete with evidence supporting each finding. The court will, however, address several particulars of the issues in the hope that doing so will help clarify matters for the appellate court.

i. The Court Properly Concluded Wife’s Health Was Affected by Carbon Dioxide Inhalation Treatments

The first issue raised by appellant is that the court abused its discretion in finding of fact number 3(b) that a compounding, aggravating factor in Wife’s poor health has been psychological and physical effects of years of carbon dioxide inhalation sessions supervised by Dr. Julian Metier and appellant. The court heard extensive testimony regarding carbon dioxide “treatments” undergone by Wife, which involved systematic deprivation of oxygen and simultaneous inhalation of carbon dioxide. The court also heard extensive testimony regarding Wife’s present physical and psychological health. From these facts, the court concluded that Wife’s health was adversely affected by the carbon dioxide treatments. Nevertheless, it was the fact of Wife’s poor health and the physical and financial hardships attendant to her present condition that was given weight in the court’s equitable distribution determination, not the cause of her condition.

ii. The Court’s Conclusions Regarding Wife’s Ability To Work Are Supported by Substantial Evidence in the Record

The second, fourth and sixth issues raised by appellant concern the court’s determinations regarding Wife’s ability to work. The court concluded that Wife is capable of only limited, part-time employment and is not able to support herself through employment. The court is satisfied that these findings are amply supported by evidence of record and determines that no additional opinion regarding these issues is necessary at this time.

iii. The Court’s Finding That Appellant Was Involved in Litigation Against Dr. Metier Was Not in Error

Appellant’s third issue on appeal concerns the court’s finding that appellant is involved in litigation against Dr. Julian Metier. Appellant maintains that this finding was in error because appellant has not filed a pleading against Dr. Metier. Appellant did testify, however, that he filed a writ of summons against Dr. Metier. Additionally, the court found that the outcome of either parties’ litigation against Dr. Metier was undeterminable at that time, and therefore gave no weight to the possibility of a favorable' recovery by either party in fashioning the equitable distribution scheme.

iv. The Court Properly Accepted Evidence of ■ Appellant’s Abuse Against Wife

The fifth issue of which appellant complains concerns the court’s finding of fact number 14, that appellant abused Wife during the marriage. Appellant maintains the court abused its discretion in finding Wife’s testimony credible and in accepting a video recording as evidence of abuse.

“[T]he finder of fact is free to believe all, part, or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below.” Lee v. Lee, 978 A.2d 380, 382 (Pa. Super. 2009). (citation omitted) Wife offered testimony, which this court found credible, regarding numerous incidents of physical abuse and a pattern of emotional abuse inflicted by appellant. Additionally, Wife offered a photograph indicating bruising she sustained at the hands of appellant.

The court did not abuse its discretion in admitting into evidence a video recording of a carbon dioxide treatment undergone by Wife and videotaped by appellant, in which appellant ignored Wife’s pleas for help. The marital misconduct of either party, including the abuse of one party by the other, is a relevant factor in the determination of alimony. 23 Pa.C.S. §3701(14). Appellant objected to admission of the video as evidénce pertaining to the parties’ marital relationship. However, where Wife alleged appellant engaged in an ongoing pattern of abuse against her, the court found appellant’s acquiescence and assistance in the administration of carbon dioxide treatments was relevant evidence of the abusive nature of the parties’ relationship throughout the marriage.

B. The Court’s Findings Supported a 55/45 Division of Marital Property

In the seventh issue raised on appeal, appellant maintains that the court erred in awarding 55 percent of the parties’ marital equity to Wife because it did not offer a finding of fact to support this scheme of distribution. The trial court has broad discretion in determining equitable distribution of marital property. Twilla v. Twilla, 445 Pa. Super. 86, 89, 664 A.2d 1010, 1022 (1995). The court thoroughly discussed findings regarding the factors set forth in the Divorce Code at 23 Pa.C.S. §3502 in its opinion and order entered June 19,2009, and determined an award of 55 percent of the marital estate to Wife was necessary to effectuate economic justice between the parties. The court respectfully determines that no additional opinion regarding this issue is necessary at this time.

C. The Court’s Award of Alimony to Wife Was Reasonable and Necessary to Effectuate Economic Justice Between the Parties

Appellant maintains that the court erred in awarding alimony to Wife and abused its discretion in ordering that alimony be paid to Wife for eight years. This issue was addressed thoroughly in this court’s opinion and order entered June 19, 2009. The court respectfully determines that no additional opinion regarding this issue is necessary at this time.

D. The Qualified Domestic Relations Order Is Constitutional As Applied to Appellant

In his ninth and final issue on appeal, appellant maintains that the court erred in approving the qualified domestic relations order (QDRO) in its order entered March 9,2010, because the QDRO is unconstitutional as applied to appellant. While it is not possible, based on appellant’s concise statement, to discern why appellant believes the QDRO is unconstitutional, appellant averred at a hearing on October 15,2009, that the valuation method set forth in the QDRO improperly included non-marital property. Therefore, the court will address this issue.

The QDRO of which appellant complains concerns appellant’s retirement benefits with the State Employees’ Retirement System (SERS). Appellant’s SERS retirement benefit is a defined benefit pension fund. The QDRO directs that the marital property component of appellant’s retirement benefit shall be determined by multiplying appellant’s retirement benefit on the effective date of retirement by the coverture fraction. (QDRO, at 3 f7(a).) The coverture fraction is determined by dividing the number of months appellant contributed to the plan while the parties were married by the total number of months appellant contributes before entering retirement. (QDRO, at 3 ¶70>).) The QDRO further directs that appellant’s retirement benefit shall exclude formula enhancements arising from post-separation monetary contributions made by appellant. (QDRO, at 3-4 ¶8^).)

Prior to 2004, there was confusion among the courts as to the proper method of valuing the marital portion of a defined benefit plan. Compare Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (1993) (finding spouse’s share should be calculated based upon the salary at the time of separation), with Gordon v. Gordon, 545 Pa. 391, 681 A.2d 732 (1996) (coverture fraction should be used to determine spouse’s share of enhancements from employee-spouse’s election for early retirement), and Holland v. Holland, 403 Pa. Super. 116, 588 A.2d 58 (1991) (former spouse entitled to share in increase of marital share which may occur by employeespouse’s continued employment). This confusion was addressed by the legislature in 2004 with the addition of subsection (c) to section 3501 of the Divorce Code. 23 Pa.C.S. §3501(c). Finally, our Supreme Court examined section 3501(c) and concluded that the courts must “honor the legislature’s unequivocal intention to utilize the coverture fraction to provide economic justice between the parties.” Smith v. Smith, 595 Pa. 80, 938 A.2d 246, 258 (2007).

The valuation method set forth in the QDRO conforms to the valuation method set forth in section 3501(c) of the Divorce Code and effectuates the intent of this court as expressed in its opinion and order entered June 19, 2009. Pursuant to the QDRO, Wife shall share in enhancements resulting from appellant’s continued employment, but not in those resulting from appellant’s post-separation monetary contributions. This valuation method, set forth by the legislature and approved by our Supreme Court, is constitutional as applied both procedurally and substantively to appellant.


author: DANTOS, J.,

text:
    Commonwealth v. Elias

      Jeffrey D. Burd, deputy district attorney, for Commonwealth.

      Richard L. Orloski, for defendant.
    April 14, 2010
   DANTOS, J.,

Defendant, Ghassan Elias, has filed an appeal from the order of this court dated March 9, 2010, which found defendant guilty of maximum speed limits and imposed a $47 fine. Accordingly, we are issuing this opinion pursuant to the provisions of Pennsylvania Rule of Appellate Procedure 1925.

The relevant facts are as follows. On April 7,2009, at approximately 4:47 p.m., Officer Cory Reader of the Berks Lehigh Regional Police Department was performing a speed timing operation with the traffic unit on State Route 100, 222 bypass in Upper Macungie Township, Lehigh County. (N.T. 3/9/10, p. 5.) Officer Reader was utilizing the police department’s Enradd EJU-91 unit, which is a wireless infrared unit. (N.T. 3/9/10 p. 5.) Pursuant to the December 26,2009 Pennsylvania Bulletin, this unit has been approved and authorized by PennDOT for use by the police department. (N.T. 3/9/10, pp. 5-6.) Furthermore, this device was tested within the last six months for accuracy; specifically, on April 3, 2009, by Y.I.S. Cowden Incorporated, which is an approved testing agency pursuant to the December 26,2009 Pennsylvania Bulletin. (C. ex. 1: certificate of accuracy from the testing station); (N.T. 3/9/10, pp. 6-7). While performing the speed timing operation, Officer Reader observed a silver Nissan Pathfinder traveling southbound on the 222 bypass at 62 mph in a posted 45 mph zone. (N.T. 3/9/10, p. 9.) Consequently, Officer Reader advised Officer Steven Marshall via the radio of the make, model and color of the speeding vehicle so that he could effectuate a traffic stop. (N.T. 3/9/10, p. 9.)

Officer Marshall initiated the traffic stop by activating his overhead lights on his marked police cruiser. (N.T. 3/9/10, p. 12.) The operator of the vehicle, defendant Ghassan Elias, identified himself to the officer. (N.T. 3/9/10, p. 12.) The defendant was charged with violating maximum speed limits. (N.T. 3/9/10, p. 12.)

At the time of the summary appeal trial, the defendant testified on his own behalf. The defendant openly admitted that he was “rushing” home to retrieve his insulin because he was diabetic and was experiencing a high blood sugar level. (N.T. 3/9/10, pp. 14-15.) The defendant estimated the speed that he was traveling to be 55 mph. (N.T. 3/9/10 p. 15.) After the brief trial, on March 9, 2010, this court found defendant guilty of violating maximum speed limits and imposed a $47 fine. Defendant’s appeal followed on March 22, 2010.

In the instant case, this court carefully listened to the testimony presented and made a determination based on the sufficient evidence offered and this court’s finding that Officers Cory Reader and Steven Marshall were credible in their testimony. Officer Reader utilized an approved and authorized radar device that had been tested in accordance with guidelines and standards. See Commonwealth v. Kittelberger, 420 Pa. Super. 104, 616 A.2d 1 (1992) (holding that the Commonwealth need not produce a certificate from PennDOT which expressly indicates approval of a particular speed timing device; rather, the legislature has considerably lessened the Commonwealth’s evidentiary burden of enabling the courts to take judicial notice of the fact that the device has been approved by PennDOT, provided that the approval has been published in the Pennsylvania Bulletin). Consequently, the defendant’s appeal lacks merit. Accordingly, this court believes that its finding the defendant guilty of violating maximum speed limits is legal and appropriate. The defendant’s appeal must be dismissed.

      . 75 Pa. C.S. §3362(a)(3)-ll (Exceeding maximum speed limit established by 11 mph).

      . The December 26, 2009 Pennsylvania Bulletin was the most recent copy of the Pennsylvania Bulletin at the time of the summary appeal trial. (NT. 3/9/10, p. 6.)

      . Despite the defendant’s assertion to the contrary, the certificate of accuracy was submitted as Commonwealth’s ex. 1. (N.T. 3/9/10. pp. 9-10.)

      . The defendant acknowledged that the speed limit on the 222 bypass was 45 mph:
      “The Court: That’s a hard road to stay 45 on.
      “A: Yeah. And when I was in a rush to get my insulin, I was — ”(N.T. 3/9/10, p. 15.)


text:
    Kline v. Koppenheffer & Sons Trucking Co. Inc.

      Edwin L. Stock, for plaintiff.

      Joseph L. Haines, for defendant.
    March 22, 2010
   SPRECHER, J.,

Plaintiff filed an appeal to a verdict entered by this court on March 31, 2009, following a bench trial. Defendant filed a cross-appeal. This opinion is filed pursuant to Pa.R.A.P. 1925. '

FACTS

Plaintiff, Dennis R. Kline, filed the instant action alleging that he was wrongfully discharged because he had refused to participate in the 401(K) plan instituted by defendant, Koppenheffer & Sons Trucking Company Inc.., his employer, and that his termination was a violation of Pennsylvania public policy. He sought vacation pay, overtime wages for which he was compensated at his regular rate of $12 per hour, and damages for his wrongful discharge. At trial defendant stipulated that plaintiff was entitled to an additional eight hours of vacation pay. Defendant denied that plaintiff was entitled to overtime compensation pursuant to the Fair Labor Standards Act because plaintiff’s employment fell within the motor carrier exemption to the overtime requirement. The following evidence was gleaned at trial.

Jeffrey Koppenheffer is the president and owner of defendant. Defendant is in the business of hauling United States mail to post offices under 15 postal contracts with the United States Postal Service. Defendant is based in Fleetwood, Pennsylvania.

Plaintiff was defendant’s at-will employee. Plaintiff was hired sometime in December 1994. He was based at Jetson Direct Mail in Hamburg, Pennsylvania. Plaintiff was a shuttle driver/jockey person. He staged trailers in and out of docks and hauled mail to various post offices and other mailing plants located on his route. Plaintiff’s primary drop was from Hamburg to the Reading Post Office.

Defendant’s employees are paid biweekly. During his employment with defendant, plaintiff never requested overtime wages and was always paid his regular rate of $ 12 per hour for any overtime work. Plaintiff worked for defendant for over one year.

Defendant’s employees wanted some type of security for their future, such as a pension plan. In 1995 Jeffrey Koppenheffer contacted Pennsylvania National Bank to institute a defined benefit plan pursuant to section 401 (K) of the Federal Employment Retirement and Income Security Act of 1974, as amended. The plan went into effect on January 1, 1996, and was mandatory in that all employees were required to participate according to bank. No employee was to sustain any reduction in the gross wages; instead, defendant was redirecting $.89 per hour of each employee’s gross wage as a contribution to the plan. Meetings about the plan were held at various times on different dates. Plaintiff did not attend any of the meetings. Plaintiff told Mr. Koppenheffer that he chose not to belong to a 401(K) plan because he had been a teamster and had a pension plan from that job.

All employees received paperwork to fill out regarding the plan. Plaintiff accepted the documents but did not complete and return the enrollment form to defendant. Mr. Koppenheffer made a special trip to meet plaintiff at his dock on January 5, 1996, because he needed to obtain plaintiff’s enrollment form. Plaintiff was the only employee who had not returned the enrollment form. According to Mr. Koppenheffer, plaintiff informed him that he would quit before he would participate in a 401 (K) plan, turned, and walked away from him. That was the . last day plaintiff appeared for work.

Plaintiff testified that he had believed that participation in the plan was voluntary based on his reading of the plan. However, he had refused to return the enrollment form because he had not wanted to put his name on anything.

A blizzard started on Saturday, January 6, 1996, and ended on Monday, January 8, 1996. Defendant was not opened for business on January 8, 1996 and January 9, 1996. Defendant’s mail trucks were back on the roads on Wednesday, January 10,1996. Plaintiff did not report to work on January 10, 1996. Plaintiff testified that his apartment complex had not been plowed until the weekend after the blizzard, so he had not been able to report to work. Plaintiff stated that he had called defendant daily regarding his situation. Plaintiff was ready to report to work on Monday, January 15, 1996. However, Mr. Koppenheffer called him on Sunday, January 14, 1996, to inform him that he was no longer needed because participation in the plan was mandatory and he had not turned in his enrollment form.

Mr. Koppenheffer testified that plaintiff had not contacted defendant daily during the week of the blizzard. Defendant’s principals had attempted several times to reach plaintiff by telephone to ascertain his intentions regarding his employment at defendant. They spoke with plaintiff on only one occasion on January 10,1996, and plaintiff had told defendant that he was still snowbound. Plaintiff did not call on January 11,1996 or January 12, 1996, with any further updates or explanations even though he had not returned to work. Mr. Koppenheffer concluded from plaintiff’s conduct that plaintiff had voluntarily terminated his employment. Therefore, on January 14,1996, Mr. Koppenheffer had advised plaintiff that by virtue of his failure to report to work his position had been filled.

Based on this record this court entered the following decision:

Count — Verdict in favor of plaintiff and against defendant in the amount of $96, for an additional eight hours of vacation pay.

Count II — Verdict in favor of defendant and against plaintiff on the issue of overtime compensation.

Count III — Verdict in favor of defendant and against plaintiff on the issue of wrongful discharge.

Plaintiff filed the instant appeal. Defendant then filed its cross-appeal.

ISSUES

Plaintiff raises the following two issues in his concise statement of errors complained of on appeal.

(1) This court erred in entering a verdict in favor of defendant and against plaintiff on Count II on the issue of overtime compensation. Defendant failed to provide sufficient evidence that it comes within the purview of the motor carrier exemption of the Fair Labor Standards Act. Thus, pursuant to the FLSA, plaintiff is entitled to time and one-half for each hour of overtime he worked while he was employed by defendant. On this basis, plaintiff is entitled to receive damages in the amount of an additional $3,696 for his 616 overtime hours.

(2) This court erred in entering a verdict a favor of defendant and against plaintiff on Count III on the issue of wrongful discharge. Plaintiff was wrongfully terminated from his job as a truck driver with defendant. Plaintiff was fired in retaliation for exercising his rights under the Wage Payment and Collection Law and objecting to deductions from his wages that would have violated the Wage Payment and Collection Law, since the deductions that defendant was going to make for the plan were not authorized by plaintiff and were not authorized or required by law. In the alternative, this court should have found that plaintiff was constructively discharged in January 1996 because he was subjected to intolerable working conditions and was forced to resign. As a result of the wrongful termination, plaintiff is entitled to $198,575 in damages, which sum is the income he lost between the years 1996 and 2005 when his annual income was less than the amount of money he had made while working for defendant.

Defendant’s concise statement of errors complained of on appeal consists of the following:

(1) This court erred by denying defendant’s motion for an award of reasonable attorney’s fees and costs in that it failed to conclude that plaintiff’s conduct in initiating and prosecuting his litigation displayed a consistent pattern of conduct which was vexatious, obdurate, frivolous, dilatory, and arbitrary, falling clearly within the purview of 42 Pa. C.S. §2503 et seq. Plaintiff’s cause of action for overtime compensation and wrongful discharge were contrary to well-established law. Moreover, it was clear that plaintiff’s prosecution of the action since 1998 was dilatory in that three termination notices were issued on November 26, 1999, April 2, 2002, and April 5, 2004, the result of which extended the litigation for an additional six years. This court should have reasonably concluded, if not based upon the illegitimacy of the claims asserted by plaintiff, but also on the basis of plaintiff’s failure to have aggressively prosecuted his own action, that the said causes of action clearly lacked merit.

This court shall address these issues seriatim.

DISCUSSION

Plaintiff first raises the issue of overtime compensation. He believes that defendant failed to provide sufficient evidence that it comes within the purview of the motor carrier exemption of the Fair Labor Standards Act. This contention is without merit.

The motor carrier exemption provides an exemption from overtime compensation requirements if a driver is employed by a carrier whose duties, in part, affect the safe operation of motor vehicles in furtherance of interstate commerce. Defendant is primarily involved in the delivery of mail products which originate in other states and countries. Defendant has 15 contracts with the United States Postal Service to deliver the mail. Plaintiff was defendant’s employee who drove a truck to deliver the mail to post offices. Therefore, defendant was an integral part of an overall interstate commerce delivery system. As such, he fell within the motor carrier exemption.

Plaintiff never requested overtime compensation during the period that he was employed by defendant. This fact alone is a clear indication that plaintiff knew that he was not entitled to overtime compensation and did not expect it. Based on the above reasons, this court found in favor of defendant on the issue of overtime compensation.

Plaintiff’s second complaint concerns the issue of wrongful discharge based on two theories, retaliation for exercising his rights under the Wage Payment and Collection Law and constructive discharge due to intolerable working conditions. This complaint is meritless.

This court found Mr. Koppenheffer’s testimony to be more credible than that of plaintiff regarding the recitation of events that led to plaintiff’s termination. Therefore, this court found that plaintiff caused his own problems. Plaintiff did not appear for work and did not apprise defendant of the reasons for not appearing for work or his intentions to work in the future. He refused to sign the enrollment form and had stated that he would quit before he would participate in the plan. He refused to attend any information sessions on the plan and chose to block implementation of the plan by refusing to make an election and signing the form.

Plaintiff contends that he was fired in retaliation for exercising his rights under the Wage Payment and Collection Law. This argument is frivolous for several reasons.

First, if plaintiff had believed that the plan had not been mandatory as he testified, then he should have signed the enrollment form and marked it accordingly. Plaintiff did not do anything because he did not want to put his name on anything. Thus, he did nothing and did not exercise his right under the Wage Payment and Collection Law.

A more significant factor, however, is that plaintiff was an at-will employee. Generally, no cause of action exists for the termination of an at-will employment relationship unless the termination violates public policy. For example, an employer cannot require an employee to commit a crime, cannot prevent an employee from complying with a statutorily imposed duty, and cannot discharge an employee when specifically prohibited from doing so by statute. Donahue v. Federal Express Corporation, 753 A.2d 238 (Pa. Super. 2000).

In the case sub judice plaintiff’s termination did not violate any public policy. There was no contract between the parties. Defendant could increase or decrease plaintiff’s wages as he desired. Plaintiff said that he would quit before he enrolled in the plan. Defendant believed that plaintiff had done just that. Defendant did not violate any law. It simply exercised its prerogative as an employer. In hindsight plaintiff may now consider his actions improvident, especially due to his decreased earnings. However, defendant’s response to plaintiff’s actions was not against public policy and was reasonable under the facts as presented. Defendant had the legal right to terminate plaintiff.

Defendant’s claim for attorney fees is without merit. This court did not find plaintiff’s claims completely frivolous. It was determined during the pendency of this case that plaintiff was entitled to wages and vacation pay. Thus, the complaint had validity. This court did not agree with plaintiff’s theories of law, but it did not find that plaintiff’s conduct was obdurate, vexatious, or arbitrary in pursuing the theories.

Moreover, following plaintiff’s motion for summary judgment, the Honorable Stephen B. Lieberman, a prior judge assigned to the instant case, ordered that plaintiff’s claims for wrongful discharge and overtime pay proceed to trial. He did not find in favor of defendant and dismiss the claims as defendant requested.

Defendant also maintains that plaintiff’s conduct in the prosecution of his case was dilatory. This court was assigned to this case in 2007. This case has proceeded in a timely manner since then. Fees are awarded for dilatory conduct because a lack of diligence causes unnecessary delays and additional legal work. Gertz v. Temple University-Commonwealth System of Higher Education, 443 Pa. Super. 177, 661 A.2d 13 (1995). In the case sub judice this case sat in limbo with no action being taken by any party so no additional expenses were occurred. For this reason, this court did not award attorney’s fees for dilatory conduct.

In accordance with the foregoing opinion, this court submits that its verdict should be affirmed and the appeals dismissed.


author: SIBUM, J.,

text:
    Cardona v. Buchanan

      Brett J. Riegel, for plaintiff.

      Anne L. Kulesa, for plaintiff

      Marshall E. Anders, for defendant.

      Edward J. McKarski, for defendant.
    April 21, 2010
   SIBUM, J.,

This matter comes before the court on defendant Cecil J. Buchanan’s preliminary objections to plaintiff’s complaint. Plaintiff commenced this action against defendants seeking damages for injuries she sustained when she slipped and fell on black ice in her employer’s parking lot. Plaintiff claims that the premises were plowed but not treated.

Defendant, Cecil J. Buchanan filed preliminary objections raising a demurrer for failing to set forth a cause ■ of action against defendant. Buchanan filed a brief in support of preliminary objections, plaintiff did not. Both parties argued their respective positions before the court on April 5,2010, and this matter is now ripe for disposition.

DISCUSSION

Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including legal insufficiency of a pleading (demurrer). Pa.R.C.P. 1028(a) (4). In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 692, 638, 584 A.2d 403, 407 (1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995).

The plaintiff must state the material facts of a complaint “in a concise and summary form.” Pa.R.C.P. 1019(a). The allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support that claim.” Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 337, 690 A.2d 719, 723 (1997) appeal denied, 549 Pa. 716, 701 A.2d 577 (1997). The “lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” United Refrigerator Co. v. Appelbaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963).

Buchanan asks this court to dismiss plaintiff’s complaint against him based on the preliminary objection for insufficiency in a pleading (demurrer). The purpose of a demurrer is to test the legal sufficiency of a complaint or other pleading. In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330, Pa. Super. 216, 220, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also, Cianfrani v. Commonwealth, State Employees’ Retirement Board, 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

The relevant facts of this case as alleged by plaintiff are as follows. Prior to the alleged incident, plaintiff worked as an employee of Fed Ex as a dockworker. (Complaint, ¶6.) On December 19,2005, plaintiff allegedly slipped and fell on black ice in the parking lot of the property located in Coolbaugh Township and the Borough of Mount Pocono. (Complaint, ¶5.) The fall occurred as plaintiff was leaving work and walking to her car. (Complaint ¶8.) Plaintiff avers the parking lot was plowed but not treated. (Complaint, ¶9.) Plaintiff states in her complaint that at “all material times, the premises were under the exclusive control, management and maintenance of one or more of the defendants” or their agents. (Complaint ¶11.) Plaintiff contends that defendants were negligent in failing to properly maintain the parking lot, thus resulting in her injuries. (Complaint ¶12.)

Plaintiff allegedly sustained injuries to her right knee, including a torn ACL and bruising. (Complaint, ¶13.) She further alleges that as a result of defendants’ negligence, plaintiff has and may continue to expend various sums of money for medicines and medical treatment as well as suffered lost wages and loss of earning capacity. (Complaint, ¶¶17-19.) Plaintiff has further undergone physical pain and mental anguish and her injuries are expected to restrict her recreational, parental and work related activities for the rest of her life. (Complaint, ¶21.)

Defendant Buchanan argues that he was not the owner of the real property on December 19, 2005 at the time of the alleged incident and therefore owes no duty to the plaintiff. (Defendant’s preliminary objections, ¶3.) Buchanan further avers that The Dominion Group Inc., an entity not named as a defendant in this suit, owned the property at the time in question. As such, Buchanan contends that plaintiff cannot sustain a cause of action against him for her injuries. We agree.

Pursuant to Pennsylvania Rule of Civil Procedure 1019(a) “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a). “As a minimum, a pleader must set forth concisely the facts upon which [a] cause of action is based. Such a requirement is reasonable because, where the complaint lacks facts which are crucial to recoveiy, it would be unjust to require the defendant to undergo the expense of a trial.” Line Lexington Lumber & Millwork Co. Inc. v. Pennsylvania Publishing Corp., 451 Pa. 154, 162, 301 A.2d 684, 688 (1973). Furthermore, in the context of a negligence action, it is essential that the plaintiff establish the duty owed by the defendant, the breach of which may give rise to injuries alleged to be suffered by the plaintiff. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1978).

It has long been recognized in this Commonwealth that a shareholder or officer of a corporation is not liable for the negligent acts of the corporation. McKenna v. Art Pearl Works Inc., 225 Pa. Super. 362, 310 A.2d 677 (1973). In that case, the Pennsylvania Superior Court stated:

“Under the law, there is no authority to look through the corporate Appellee to the individual Appellee. We have said that the equitable doctrine of piercing the corporate veil [should be employed] to prevent the perpetration of wrong; to prevent its use as a shield for illegal and wrongful conduct; or where its use, as a technical device, brings about injustice or an inequitable situation so that justice and public policy demand it be ignored. However, we have not done so where the rights of innocent parties are involved and the corporation is used for legal purposes, as otherwise the entire theory of the corporate entity would be made useless.” Id., at 366, 310 A.2d at 679-80.

The mere fact that stock is closely held or even held by one stockholder should not, in itself, alter the proposition that a corporation is a separate and distinct entity from that of its shareholder. Homestead Borough v. Defense Plant Corp., 356 Pa. 500, 52 A.2d 581 (1947).

Applying the above reference legal principles to this matter, the court finds that plaintiff is unable to state a cause of action against Buchanan for which relief may be granted. In this case, paragraph 2 of the complaint alleges as follows:

“2. Defendant, Cecil J. Buchanan, is an adult individual who is believed to reside at 9 Manor Drive in East Stroudsburg, Monroe County, Pennsylvania.”

Paragraph 11 alleges:

“ 11. At all material times, the premises were under the exclusive control, management and maintenance of one or more of the defendants, their agents, servants, workmen, or employees, then and there engaged in defendants’ business and acting within the course and scope of their employment or authority.”

The complaint does not allege that Buchanan was the owner of the property, how it was under his exclusive control, what duty Buchanan owed to plaintiff, or why Buchanan was named as a defendant. Furthermore, a deed recorded in the Monroe County Recorder of Deeds Office demonstrates that at the time plaintiff fell and was injured, the property was owned by the Dominion Group Inc., a corporate entity not named as a defendant. (Monroe County Recorder of Deeds, Book 2304, Page 5068.) Therefore, defendant was not the owner of said property at the time of the alleged incident and plaintiff has failed to aver any material facts upon which to predicate any duty extending from Buchanan to plaintiff.

Moreover, plaintiff has failed to demonstrate or even allege how Buchanan could be liable for the negligence of the corporate owner of the property. Although defendant may have been the sole stock holder of The Dominion Group Inc. as provided on the Realty Transfer Tax Statement of Value incorporated in the deed, plaintiff has not averred such facts or made an argument to substantiate that position. Defendant Buchanan’s preliminary objection will be sustained.

Accordingly, we enter the following order.

ORDER

And now, April 21, 2010, upon consideration of defendant’s preliminary objections to plaintiff’s complaint, defendant’s demurrer is sustained. The plaintiff’s complaint as to defendant Cecil J. Buchanan is dismissed without prejudice. Plaintiff is granted 20 days leave to file an amended complaint.

      . Monroe County Record of Deeds, book 2304, page 5070.


author: MOTTO, P.J.,

text:
    In re N.M.

      Luann Parkonen, assistant district attorney, for Commonwealth.

      Stanley T. Booker, for defendant.

      May 12, 2010
   MOTTO, P.J.,

Before the court for disposition is the Juvenile’s motion to suppress evidence, wherein NM. seeks the suppression of physical evidence seized from his person, as well as statements made by him following a stop and subsequent arrest of the Juvenile. The Juvenile contends that the police officers had neither reasonable suspicion nor probable cause to effectuate a stop of him nor to subsequently arrest and search him in connection with that stop. The Juvenile further contends that his subsequent statements were the result of the illegal stop and arrest and, in part, were statements made as the result of police questioning of him while in custody and without being afforded Miranda warnings.

The facts found by the court are derived from the evidence presented at the suppression hearing.

On January 13,2010, Deputy Sheriff Joseph Mangino was on duty when he was dispatched to Union Township in the area of Sunny Avenue and Atlantic Avenue, the dispatch stating that multiple gunshots had been fired in that area by black male subjects. Deputy Sheriff Mangino proceeded to the area of Sunny Avenue and Atlantic Avenue, and upon arrival at that area, he observed three black males, running. Deputy Sheriff Mangino stopped his patrol car, exited and directed the three black males to stop. Two of the males continued running and were never- apprehended; however, the Juvenile herein did stop. Deputy Sheriff Mangino held the Juvenile at gunpoint and asked him if he had any weapons on him. The Juvenile responded that he did have a gun. While Deputy Sheriff Mangino held the Juvenile at gunpoint, New Castle Police Officer Conti arrived and placed the Juvenile in handcuffs and retrieved the gun from the Juvenile’s right front pocket. The Juvenile was at that time taken into custody. The place of detention was approximately 100 to 150 yards from the residence where the gunfire was reported to have occurred. After retrieving the gun, and after arrest, Officer Conti also retrieved from the Juvenile’s pockets a prescription bottle with multiple pieces of suspected crack cocaine.

The Juvenile was then brought to the New Castle Police Station. At the New Castle Police station, Union Township Police -officer Michael Mrozek conducted an interrogation of the Juvenile. He was questioned after having been first advised of his Miranda warnings and in the presence of his parent or guardian. The Juvenile stated he had found the gun behind the Harbor Heights Projects and that he did have the gun in his possession for his protection.

The foregoing facts require an examination of two levels of inquiry: first, inquiry into the legality of the initial stop of the Juvenile, and secondly, the propriety of immediately seizing the firearm from the Juvenile subsequent to the stop. Where police have a reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest. Commonwealth v. Capers, 340 Pa. Super. 136, 141, 489 A.2d 879, 881 (1985). The initial stop of a person is legitimate if the investigating officers can point to specific and articulable facts which, in conjunction with rational inferences deriving therefrom, reasonably warrant the intrusion. Com monwealth v. Prengle, 293 Pa. Super. 64, 68, 437 A.2d 992, 994 (1981). A subsequent frisk for weapons is authorized only where a police officer observes unusual conduct which leads him reasonably to conclude, in light of his experience, that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous. Although Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1969) authorizes a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information, the search or frisk of a suspect incident to such stop must meet a higher threshold of justification. Thus, where a stop of a suspicious individual has been made pursuant to Terry, a limited search of the individual’s clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others may be made only if the police officer observes unusual and suspicious conduct reasonably leading to the conclusion, not only that criminal activity is afoot, but also that the person with whom he is dealing may be armed and dangerous. Commonwealth v. Hicks, 434 Pa. 153, 158-159, 253 A.2d 276, 279 (1969). Apolice officer need not personally observe unusual or suspicious conduct reasonably leading to the conclusion that criminal activity is afoot and that a person is armed and dangerous, and may rely upon information which is broadcast over a police radio in order to justify an investigatory stop. Commonwealth v. Prengle, 239 Pa. Super. at 68, 437 A.2d at 994. Factors to be considered in justifying an investigatory stop and subsequent frisk include the specificity of the description of the subject in conjunction with how well the subject fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed. See Commonwealth v. Whelton, 319 Pa. Super. 42, 50 n.4, 465 A.2d 1043, 1049 n.4 (1983). There are various factors which may cause a police officer to believe that a person they have stopped and intend to frisk may be armed and dangerous, and that they may be in danger. An expectation of danger may arise if the crime reported to have been committed is a violent crime, Commonwealth v. Prengle, supra, 239 Pa. Super. at 69, 437 A.2d at 995; where the perpetrator is reported to possess or to have used a weapon, Commonwealth v. Capers, supra, 340 Pa. Super. at 141, 489 A.2d at 881; where the police officer observes suspicious behavior or the presence of suspicious bulges in clothing, Commonwealth v. Carter, 334 Pa. Super. 369, 373, 483 A.2d 495, 497 (1984).

The court finds the case of Commonwealth v. Jackson, 359 Pa. Super. 433, 519 A.2d 427 (1986) to be instructive in resolving the issues in this case. In Jackson, the defendant was subject to a stop and subsequent search of a gym bag in his possession at the time of the stop in which a loaded revolver was found. As the result of the stop and search of his gym bag, defendant was convicted of carrying a firearm without a license and carrying a firearm on a public street. The Superior Court found that although the initial stop of defendant was proper as an investigatory stop, the subsequent search of his gym bag, incident to the stop, was improper as the police officers did not have a reasonable suspicion that the defendant was armed and dangerous at the time of the investigatory stop.

The facts in Jackson were that two Philadelphia police officers responded to a radio call ordering them to investigate a burglary at 317 North 63rd Street in Philadelphia. The officers met with the complainant who advised them at 3:20 p.m. two males had tried to kick in his front door, and that one of them, a black male wearing a gray sweat suit, ran east on Vine Street. Within two or three minutes of responding to the radio call, and approximately two blocks from the complainant’s home, the officers had spotted the defendant, a black male wearing a gray sweat suit, and carrying a blue gym bag, running west on Vine Street, towards the scene of the crime. When stopped, this individual did not attempt to flee. Without questioning defendant, the officers patted him down and then searched his gym bag from which was retrieved the loaded revolver. A subsequent on-sight identification was conducted and the complainant did not identify the defendant as one of the perpetrators.

The Jackson court concluded that although the police justifiably stopped the defendant, the immediate frisk of his person and search of his bag was improper. The court, noted that it was not holding that the police must always question a suspect before frisking him, but concluded that based upon particular facts of the case, the police should have attempted to elicit some clarifying information from defendant before frisking him and searching his closed bag.

In view of the foregoing, it is clear that the initial stop of the Juvenile in this case was justified. Deputy Sheriff Mangino heard a radio call relative to shots fired in the area of Sunny Avenue and Atlantic Avenue. The call indicated that multiple black male subjects were responsible for the multiple shots that were fired. Deputy Sheriff Mangino observed three black males running in the area in close proximity to the area where the shots were fired. The three black males were running away from the area from where the call indicated the shots were fired. When Deputy Sheriff Mangino ordered the three black males to stop, two of the males continued to run. These facts provide even more reasonable suspicion justifying an investigative detention than did the facts in Jackson. In Jackson, the police officers responded to a radio call ordering them to investigate a burglary. The complainant indicated a black male wearing a gray sweat shirt running on Vine Street was involved. Jackson was stopped two blocks from the complainant’s home running towards the scene of the crime. When the defendant in Jackson was stopped, he did not attempt to flee. Thus, here, as in Jackson, the Juvenile was observed running in an area in close proximity to the scene of the crime. He matched a very general description given over the radio in that a group of black males who were responsible for the shooting were running away from the scene of the crime. The investigative detention was justified by the close spatial and temporal proximity of the suspect to the scene of the crime, and the general description of the perpetrator as black males running from the crime scene.

Facts which support the justification for a stop by way of an investigative detention do not necessarily justify a frisk of the person stopped for weapons nor a search of his person or belongings. To justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating that the person they intend to frisk may be armed and dangerous. The police must reasonably believe themselves to be in danger. It is held that the police may reasonably believe themselves to be in danger when the crime reported to have been committed is a violent crime or when the perpetrator is reported to possess or have used a weapon and whether the police observed suspicious behavior. The court finds such factors to exist in this case, while such factors did not exist in Jackson. In Jackson, the report of the offense related to a burglary, while here the report was that multiple shots were being fired. In Jackson, the perpetrator was not reported to possess or to have used a weapon, while the opposite is the case here where multiple perpetrators were reported to have fired gunshots. In Jackson, the defendant did not engage in any suspicious behavior, and in fact was running towards the crime scene, while here, the Juvenile and two other black males were running away from the crime scene, and further suspicious behavior was evident when the two black males with whom the Juvenile was with continued to flee after being ordered to stop. Thus, the court here finds that Deputy Sheriff Mangino reasonably believed himself to be in danger at the time that he effectuated the stop of the Juvenile, and therefore had a right to retrieve the firearm from the Juvenile.

The Juvenile contends that once the stop was effectuated, and the Juvenile was being held at gunpoint, Deputy Sheriff Mangino did not have the right to ask him if he had a firearm as the Juvenile was not read his Miranda warnings before being asked that question. Upon being asked if he had a weapon, the Juvenile answered in the affirmative, which lead to the firearm being removed from him.

The court finds that this circumstance did constitute custodial interrogation and that Miranda was required. As stated in Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. 2002), the standard for determining whether an encounter with the police is deemed “custodial” is an objective one based on a totality of the circumstances, with due consideration given to the reasonable impression conveyed to the person interrogated rather than the strictly subjective view of the officer or the person seized. The test is whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by said interrogation. Commonwealth v. Gonzalez, 519 Pa. 116, 124, 546 A.2d 26, 29 (1988). Custodial interrogation does not require that the police make a formal arrest nor that the police intend to make an arrest. Commonwealth v. Meyer, 488 Pa. 297, 307, 412 A.2d 517, 521 (1980). Miranda warnings are required where a suspect is subject to custodial interrogation. Custodial interrogation has been defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way. Commonwealth v. Hoffman, 403 Pa. Super. 530, 545, 589 A.2d 737, 744 (1991). Here, after defendant was stopped, and was being held at gunpoint, the police asked him if he had a weapon to which the defendant responded that he did. These facts constitute custodial interrogation made without Miranda warnings, therefore the statement of the defendant that he possessed a firearm must be suppressed. However, the failure to give Miranda warnings, although requiring that the statement be suppressed, does not require that the firearm eventually removed from the defendant nor the cocaine discovered as the result of a search incident to arrest be suppressed. The failure to give Miranda warnings relative to the eventual search of the defendant is irrelevant, because pursuant to the lawful Terry frisk, the officer would have discovered the gun in defendant’s pocket. The defendant would have then been arrested for the firearms violation and then a search incident to arrest would have been conducted. At that point, the officer would have discovered the cocaine. This result is an application of the Inevitable Discovery Doctrine. Pennsylvania courts have recognized the Inevitable Discovery Doctrine. “In Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), our Supreme Court held evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence.” Commonwealth v. Hoffman, supra, 403 Pa. Super. at 541, 589 A.2d at 743. The Inevitable Discovery Doctrine is based upon the united states supreme court decision in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), which stated:

“It is clear that the cases implementing the exclusionary rule ‘begin with the premise that the challenged evidence is in some sense the product of illegal government activity.’ United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). (emphasis added) Of course, this does not end the enquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means — here the volunteers’ search — then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.”

Here, the Commonwealth has met its burden of proving the inevitable discovery of the firearm and the cocaine. As above indicated, the police had sufficient facts upon which to base a Terry stop allowing for a stop and frisk of the defendant. A frisk of the defendant following the stop would have revealed the firearm which would have allowed the arrest of the defendant leading to the search of his person, thus allowing for the discovery and subsequent search and seizure of the cocaine. The question of the Deputy Sheriff was unnecessary, but an obvious reaction to the likelihood that the individual in his custody would have a firearm and therefore the Deputy Sheriff’s heightened sense of the need to act for his own security to discover the firearm. Although Deputy Sheriff Mangino was not justified in questioning defendant about his possession of the firearm without giving him Miranda warnings, the police were authorized to frisk the defendant in order to locate the firearm. Once the firearm was retrieved and a basis to arrest the Juvenile existed, any subsequent search of the Juvenile was justified as a search incident to an arrest. Commonwealth v. Williams, 390 Pa. Super. 493, 568 A.2d 1281 (1990). This search yielded a quantity of crack cocaine.

The Juvenile was subsequently taken to the police station, Mirandized and questioned in the presence of his parent or guardian. As the result of this questioning, the Juvenile admitted that he had possessed the firearm, had found it, and had kept it for his protection. Since the Juvenile was Mirandized and gave the statement in the presence of his parent or guardian, the statement is not suppressible unless it was the product of an illegal arrest. Since this court has already explained how the stop and subsequent arrest of the Juvenile was lawful, it necessarily follows that the subsequent statement of the juvenile, after having been Mirandized and with a parent or guardian present, is not suppressible.

For the foregoing reasons, the court finds that the defendant’s motion to suppress evidence must be denied, except as to the statements made by the juvenile at the time he was stopped by Deputy Sheriff Mangino, which statements are suppressed.

ORDER

And now, May 12, 2010, in accordance with the accompanying opinion of even date herewith, it is ordered and decreed that the Juvenile’s motion for suppress evidence is granted in part and denied in part.

The Juvenile’s statement to Deputy Sheriff Mangino that he had a gun, made at the time of the initial stop suppressed. In all other respects, the motion to suppress is denied.

An adjudication hearing is hereby scheduled for June 29, 2010 at 9 o’clock a.m. in courtroom no. 4.