author: NANOVIC, P.J.,

text:
    Smith v. Carbon County Board of Assessment Appeals

      Francis J. Hoegen, for appellant.

      Daniel A. Miscavige, for appellee.

      Laura A. Schelter, for intervenor Jim Thorpe Area School District.
    May 29, 2009
   NANOVIC, P.J.,

By deed dated October 16, 2006, Christopher Smith purchased condominium unit no. F201 at Midlake on Big Boulder Lake for $275,000. At the time of purchase, the unit had an assessed value of $50,300. Thereafter, prompted by the recent purchase price, the Jim Thorpe Area School District filed a statutory appeal to the Carbon County Board of Assessment Appeals challenging the property’s assessed value for the 2008 tax year. The board sustained the appeal and increased the assessed value by over 75 percent to $88,141. On the basis of the county’s common-level ratio of 32.1 percent, this reflected a fair market value of $275,000, an amount equal to the price paid by Smith. Smith has appealed the board’s decision to this court.

FACTUAL BACKGROUND

Midlake is a residential condominium development formed in 1988 and located in Kidder Township, Carbon County, Pennsylvania. It consists of 132 two-bedroom condominium units located in nine separate buildings: five buildings with 12 units each and four buildings with 18 units each. The units are divided between those with 1,096 square feet of living space, located on the first two floors of each building, and those with a loft and 1,315 square feet of living space, located on the third floor of each building. There are a total of 88 smaller units and 44 larger units. The smaller units, which include the unit owned by Smith, and are the units Smith compares his property to, have identical floor plans and are mirror images of one another.

Forty-two of these smaller units, almost 48 percent of the total, have an assessed value ranging between $49,300 and $50,300. An additional five, approximately 6 percent of the total, have an assessed value ranging between $53,430 and $64,781. Of these 47 units, 43 were acquired prior to January 1,2004, and four since that date. For 24 of the units transferred prior to January 1, 2004, those which Smith’s real estate expert associated with bona fide purchase prices, the average assessed value is $51,991.67. The average sales price for these same 24 units is $118,395.83.

Since January 1, 2004, 36 units, including two of the four units referred to in the previous paragraph, have been transferred in what appear to be arm’s length transactions. The assessed value for the units transferred since January 1, 2004, range between $49,500 and $118,500, with the average being $83,122.69. This is a 60 percent increase in the average assessed value from those similar units acquired prior to January 1, 2004.

The most recent six sales of the smaller bedroom units occurred between July 1, 2007, and June 23, 2008 (the date of the most recent sale provided). The prices for these properties range from $225,000 to $275,000, with the average being $249,250. The average assessed value is $69,009.17.

Primarily on the basis of this information, Smith contends that the revised assessment for his property is excessive and discriminatory in relation to comparable properties in Midlake and should be set aside for one or more of the following reasons: (1) as a spot assessment; (2) because the same methodology for assessing comparable properties has not been utilized by the board; and (3) because the constitutional requirements of uniformity and equal protection have been violated. Each of these grounds is addressed below.

DISCUSSION

1. Spot Assessment

“As a general proposition, selective reassessment or ‘spot reassessment’ by a body clothed with the power to prepare or revise assessment rolls, value property, change the value of property, or establish the predetermined ratio is improper.” Vees v. Carbon County Board of Assessment Appeals, 867 A.2d 742, 747 (Pa. Commw. 2005), appeal denied, 595 Pa. 713, 939 A.2d 891 (2007). Spot assessments are those initiated by a body possessing the power to assess or reassess, which generally involve a limited or narrow group of properties, and which create such a disparity or disproportionality in the tax burden between the affected properties and other similar or comparable properties in the taxing district that there exists either a violation of the Uniformity Clause of the Pennsylvania Constitution or the Equal Protection Clause of the United States Constitution, or both.

As a matter of law, neither the taking of an assessment appeal by a taxing body nor the adjudication of such an appeal by an administrative agency is a spot reassessment. See Vees, 867 A.2d at 746-48. In neither case are the actions of the taxing body or the board an assessment. In the case of a municipal body filing an appeal, its appeal is the exercise of a statutory right to review an assessment made by the county assessor’s office of which it feels aggrieved, 72 PS. §5453.706; in the case of the board of assessment deciding the appeal, it acts in its statutory capacity to hear the appeal, 72 P.S. §5453.702. Accordingly, Smith’s challenge on this basis is misplaced and without merit.

2. Methodology

Under The Fourth to Eighth Class County Assessment Law, real property in the county is originally valued and assessed either by reference to the current market value at the time of assessment or by reference to a prior year upon which the market value of all property in the county is based. See 72 P.S. §5453.602(a). In Carbon County, the base year upon which real property market values are based is 2001, the year in which the county last conducted a countywide reassessment. In contrast, for an assessment appeal, the relevant market value is the property’s value as of the date the appeal was filed before the board. See 72 P.S. §§5453.702(b)(1), 5453.704(b)(1).

At this time, the assessed values for approximately half of the smaller units in Midlake have been computed by reference to the base year market value of each unit while the assessed values for the remaining units, those for which an appeal was filed, have been computed by reference to the market value as of the date of the appeal. Smith contends that by using the base year market value multiplied by the established predetermined ratio to assess some properties, and the current market value multiplied by either the established predetermined ratio or the common-level ratio, if the two differ by more than 15 percent, to assess those properties for which an appeal has been taken, two different methods of assessing real estate exist, with the result being disproportionate and unequal treatment of comparable properties. As stated by Smith: the county should not be permitted to use a base year valuation multiplied by a predetermined ratio for some properties and a current market value multiplied by the current STEB ratio for other properties without violating the constitutional requirement for tax uniformity. (Smith post-trial memorandum, p. 10.)

In denying this challenge, we find it significant first that the difference in valuation methods which Smith criticizes is that directed by The Fourth to Eighth Class County Assessment Law. Compare 72 P.S. §5453.602(a) with 72 P.S. §§5453.702, 5453.704. Neither in Smith’s petition to this court appealing the decision of the Board of Assessment nor in Smith’s post-trial memorandum does Smith challenge the constitutionality of any provision of The Fourth to Eighth Class County Assessment Law or of The General County Assessment Law.

Second, the same challenge made by Smith was rejected by the Commonwealth Court in Appeal of Armco Inc., 100 Pa. Commw. 452, 515 A.2d 326 (1986), appeal denied, 516 Pa. 643, 533 A.2d 714 (1987). In Armco, the county asserted that section 602 requires one method of assessing real estate, and section 704 requires a different method only as to those taxpayers who appeal. The Armco decision and its reasoning behind the two approaches to computing assessed values were recently explained by the Commonwealth Court in Vees as follows:

“An en banc panel of this court rejected the county’s argument. The court explained that section 602 provides an efficient administrative method of assessing real estate by allowing a county to apply the EPR to base year market value. However, the assessment method is imperfect because base year market value may not reflect current year market value. On the other hand, section 704 provides a method for reviewing administrative assessments so that they reflect the reality of appreciation or depreciation in property value. Although section 704 reassessments utilize current market values instead of base year market values, the STEB ratio converts current market values to equivalent base year assessed values. ... In other words, the constitutional goal is uniform assessed values, and the application of the STEB ratio to current market values under section 704 results in uniform assessed values.” Vees, 867 A.2d at 752 (Friedman, J., dissenting) (citation omitted) (footnote omitted) (emphasis in original); cf. Downingtown Area School District v. Chester County Board of Assessment Appeals, 590 Pa. 459, 475, 913 A.2d 194, 204-205 (2006) (holding that to the extent the statutory scheme for equalization set forth in 72 P.S. §5349(d.2), which is essentially the same as that found in 72 P.S. §5453.704, requires application of the EPR against the fair market value of the property as of the year of the appeal (i.e., to the extent the common-level ratio does not vary by more than 15 percent from the EPR), it creates a class of taxpayers who are subjected to a disproportionately high tax burden, thereby rendering the provision arbitrary and unconstitutional).

3. Uniformity

The third and final issue is whether the assessed value placed on Smith’s property by the board following the school district’s appeal results in an assessment which is unconstitutional for lack of uniformity. Smith contends that this assessment, while consistent with the property’s current fair market value, imposes a disproportionate tax burden when evaluated against the assessed value of similar property in relation to its current market value. See Fosko v. Board of Assessment Appeals, Luzerne County, 166 Pa. Commw. 393, 400, 646 A.2d 1275, 1279 (1994) (“Where a taxpayer claims that an assessment violates the principle of uniformity, the taxpayer admits that the fair market value assigned to his or her property is correct but that other comparable properties are assigned a substantially lower fair market value and when the ratio is applied to that lower value, the owners of the comparable properties pay less than the complaining taxpayer.”); see also, Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 29 (1931) (“Applying the same ratio to the same assigned values, when the actual values differ, creates the same disparity in effect as applying a different ratio to actual values when the latter are the same.”).

(a) Defining the Standard of Uniformity

The Uniformity Clause of the Pennsylvania Constitution, Article VIII, Section 1 states, “All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Similarly, the Equal Protection Clause of the United States Constitution provides that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution Amendment XIV Section 1. Significantly, in Downingtown the Pennsylvania Supreme Court reiterated that the protection afforded by the Equal Protection Clause is incorporated within the Uniformity Clause and imposes a floor for assuring uniform assessments. See 590 Pa. at 469, 913 A.2d at 200-201.

The Uniformity Clause views all forms of real estate within the taxing district as comparable for purposes of calculating the appropriate ratio of assessed value to market value. In contrast, the Equal Protection Clause is narrower and requires only that similar properties, those having like characteristics and qualities located within the same taxing district, be treated the same. In analyzing this relationship further, our Supreme Court stated:

“At the outset, while we agree with the trial court that this court has interpreted the Uniformity Clause as precluding real property from being divided into different classes for purposes of systemic property tax assessment, we do not find that this general uniformity precept eliminates any opportunity or need to consider meaningful sub-classifications as a component of the overall evaluation of uniform treatment in the application of the taxation scheme. Indeed, this would represent an impermissible departure from federal equal protection jurisprudence, which sets the floor for Pennsylvania’s uniformity assessment.” Id. at 469, 913 A.2d at 200. Thus, Downingtown reaffirms “the prevailing requirement that similarly situated taxpayers should not be deliberately treated differently by taxing authorities.” Id. at 470, 913 A.2d at at 201.

(b) Proving Lack of Uniformity

Under both the Equal Protection Clause and the Uniformity Clause, “a taxpayer alleging that the administration of a tax violates its rights to be taxed uniformly with others of its class must demonstrate deliberate, purposeful discrimination in the application of the tax before constitutional safeguards are violated.” Armco, 100 Pa. Commw. at 458, 515 A.2d at 329. “It is the burden of the taxpayer alleging a violation of the Uniformity Clause to show that there is deliberate discrimination in the application of the tax or that it has a discriminatory effect.” City of Lancaster v. County of Lancaster, 143 Pa. Commw. 476, 486-87, 599 A.2d 289, 294 (1991), appeal denied, 530 Pa. 634, 606 A.2d 903 (1992); see also, Millcreek Township School District v. Erie County Board of Assessment Appeals, 737 A.2d 335, 339 (Pa. Commw. 1999), appeal denied, 563 Pa. 668, 759 A.2d 389 (2000).

“A taxpayer may prove non-uniformity by presenting evidence of the assessment-to-value ratio of ‘similar properties of the same nature in the neighborhood.’” Downingtown, 590 Pa. at 467, 913 A.2d at 199. In In re Brooks Building, 391 Pa. 94, 101, 137 A.2d 273, 276 (1958), the Pennsylvania Supreme Court found that a taxpayer satisfied his burden of proving a lack of uniformity by presenting “evidence of the market value of his property and of similar properties of the same nature in the neighborhood and by proving the assessments of each of these properties and the ratio of assessed value to actual or market value.” In Deitch Company v. Board of Property Assessment, 417 Pa. 213, 223, 209 A.2d 397, 403 (1965), the Supreme Court further stated: date. Thus, for example, the taxpayer’s expert witness or witnesses could select a number of recent representative sales and offer testimony with respect to such sales as proof of the ratio in the taxing district.” See also, Keebler Company v. Board of Revision of Taxes of Philadelphia, 496 Pa. 140, 143, 436 A.2d 583, 584 (1981) (permitting the use of sales data to compute the common-level ratio).

“The evidence supplied by the taxpayer in Brooks illustrates one method by which a taxpayer can meet his burden of proving a lack of uniformity, but we do not consider it to be the only method. It would be equally satisfactory to produce evidence regarding the ratios of assessed values to market values as the latter are reflected in actual sales of any other real estate in the taxing district for a reasonable period prior to the assessment

The Uniformity Clause “requires substantial uniformity, rather than mathematically precise uniformity ... Clifton v. Allegheny County, 969 A,2d 1197, 1226 (Pa. 2009). It permits practical inequities and, because taxation is not an exact science, “rough uniformity with a limited amount of variation is permitted so long as the taxing scheme does not impose substantially unequal tax burdens.”Beattie v. Allegheny County, 589 Pa. 113, 130, 907 A.2d 519, 529-30 (2006). Consequently, inequities in assessment, beyond the practical, which impose substantially unequal tax burdens, violate the Uniformity Clause.

(c) Applying the Standard

In this case, Smith’s condominium unit is one of 88 virtually identical units in Midlake. These units are clearly similar and comparable. A fair estimate of their current fair market value can be taken from the average of the six most recent sales, $249,250. Yet while 48 percent of these units have an assessed value ranging between $49,300 and $50,300, for a ratio of assessed to current market value of approximately 20 percent, the assessed value for Smith’s property as determined by the board, $88,141, represents a ratio of assessed to current market value of 35 percent, using the same fair market figure of $249,250.

The range of assessed valuations for all units of the type owned by Smith is between $49,300 and $ 118,500, a spread of more than 140 percent. The spread between Smith’s unit and the lowest of these assessments, $49,300, is 79 percent. These differences are not explained by any difference in the features of the units or their true values when compared to one another at the same point in time, but primarily because of differences in purchase price over time. The variance in assessments between those properties conveyed prior to January 1, 2004, and those after January 1, 2004, evidence a practice which systematically results in excessive assessments for properties conveyed after January 1,2004.

Under the standards set by our Supreme Court, a taxpayer’s burden is met once he shows non-uniformity in the assessment-to-value ratio between his property and other “similar properties of the same nature in the neighborhood.” Downingtown, 590 Pa. at 467, 913 A.2d at 199 (comparing the subject property assessed at 100 percent of market value with seven other shopping centers in the county whose ratio of assessed to market value ranged between 34 percent and 69 percent); see also, McKnight Shopping Center Inc. v. Board of Property Assessment, 417 Pa. 234, 239, 209 A.2d 389, 392 (1965) (taxpayer “produced uncontradicted testimony that its property was assessed at 88.5 percent of its market value while two other shopping centers were assessed at 57 percent and 76 percent of their market values”); Brooks, 391 Pa. at 98, 137 A.2d at 274 (taxpayer established that his property was assessed at 91.9 percent while similar properties were assessed between 40.2 percent and 57.2 percent of their market values). This Smith has done.

The assessed values in Midlake, as they exist today, evidence a widespread disparity in the assessed values of generally comparable properties which is pervasive, substantial, and arbitrary. If we were to allow the assessed value of Smith’s property as determined by the board to stand, Smith would be required to pay property taxes more than 75 percent greater than almost half the properties in Midlake which are virtually identical to his. The gross inequity and disproportionality which would result is unsupportable from a constitutional perspective. See Clifton, 969 A.2d at 1213-14. (An “[i]ntentional systematic undervaluation by state officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the foil value of his property.”); see also, Goodman, Assessment Law & Procedure, at 257 (quoted with approval in Downingtown, 590 Pa. at 474 n. 16, 913 A.2d at 204 n. 16) (“Failing to equalize on (new assessments) is an intentional violation of state law by the local assessing agency and is in direct violation of the United States Supreme Court holding in Allegheny Pittsburgh Coal.”).

(d) Remedy

Inherent in the requirement of uniformity is the principle that “a taxpayer should pay no more or no less than his proportionate share of the cost of government. Implementation of this principle [requires] that an owner’s assessment be reduced so as to conform with the common-level [ratio] of assessment in the taxing district.” Deitch, 417 Pa. at 220, 209 A.2d at 401. From this, the school district argues that because Smith has confined his analysis of comparable properties to one development, rather than to representative properties throughout the county, he has failed to establish that his property has been assessed at a percentage of value greater than that applied generally throughout the taxing district and, therefore, is entitled to no relief beyond that required by 72 P.S. §5453.704(c). See Baechtold v. Monroe County Board of Assessment Appeals, 804 A.2d 713, 717-18 n.5 (Pa. Commw. 2002), appeal denied, 572 Pa. 726, 814 A.2d 678 (2002). Nonetheless, in Brooks, our Supreme Court stated that it is erroneous to conclude that an “assessment cannot be changed [or] reduced unless [the taxpayer] proves that a uniform ratio of assessed value to actual value has been applied generally throughout the entire district . . . .” 391 Pa. at 101, 137 A.2d at 276.

Where a taxpayer’s property is assessed at a greater percentage than that of other similarly situated properties, the remedy is “to have the [taxpayer’s] assessment reduced to the percentage of that value at which others are taxed even though this is a departure from the requirement of statute. The conclusion is based on the principle that where it is impossible to secure both the standard of the true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law.” Brooks, 391 Pa. at 101, 137 A.2d at 276. Such result comports with the Supreme Court’s recent admonition in Downingtown, that notwithstanding the Commonwealth’s desire “to achieve overall uniformity by attempting to standardize treatment among differently situated property owners, its efforts in this regard do not shield it from the prevailing requirement that similarly situated taxpayers should not be deliberately treated differently by taxing authorities.” 590 Pa. at 470, 913 A.2d at 201. (footnote omitted)

Once non-uniformity has been proven, the taxpayer is entitled to a reduction of his assessment to that proportionate with similar properties of the same nature unless “the evidence shows that [such comparables] are not representative of the district as a whole, [or] that the taxpayer has, in fact, not been assessed at more than the common-level [ratio] in the district.” Deitch, 417 Pa. at 219, 209 A.2d at 401 (explaining the rationale behind Appeal of Rick, 402 Pa. 209, 167 A.2d 261 (1961) (holding that “a taxpayer is not entitled to have his assessment reduced to the lowest ratio of assessed value to market value to which he could point in the taxing district if such lowest ratio does not reflect the common assessment level which prevails in the district as a whole”)); see also, Green v. Schuylkill County Board of Assessment Appeals, 565 Pa. 185, 195, 772 A.2d 419, 425-26 (2001) (explaining that once the presumptive validity of the assessment created by the taxing authority’s presentation of the assessment record into evidence has been rebutted by credible, relevant evidence introduced by the taxpayer, the taxing authority bears the risk of having the taxpayer’s evidence accepted by the court if it fails to offer additional countervailing evidence). The alternative, as suggested by the school district, is to recognize that a core breakdown in the protection afforded by the Equal Protection Clause has occurred, yet provide no relief. This we will not do.

“To ensure proportionality, all property must be taxed uniformly, with the same ratio of assessed value to actual value applied throughout the taxing jurisdiction.” Clifton, 969 A.2d at 1224. At what point the scale weighing the ratios of assessed to market values balances in favor of uniformity is never without controversy and will, more often than not, vary given the fluctuating nature of market values. To determine where that point lies in this case is better understood by a brief review of the assumptions underlying base year assessments.

Under the base year system of assessment, the initial assessment is determined by multiplying the base year market value by the county’s predetermined ratio. Thereafter, uniformity is maintained — at least in theory — by requiring that for all administrative reassessments (i.e., those initiated by the board), the board designates the new value in terms of base year dollars. See 72 P.S. §5453.102 (defining “base year” and stating that “[rjeal property values shall be equalized within the county and any changes by the board shall be expressed in terms of such base year values”). Consequently, a property’s base year assessment is not ordinarily changed with fluctuations in a property’s market value attributable to market conditions alone but “remains static, fixed at its base year level until the next countywide reassessment.” Clifton, 969 A.2d at 1203.

“This is so because a county utilizing a base year method of valuation typically does not consider market fluctuations subsequent to the base year when assessing ‘current value,’ or factor in variables such as improvements to a property that may increase its assessed value. If a building is constructed on a lot that was vacant during the base year, the property’s assessed value is determined by using either sales of comparable properties in the base year or base year construction schedules.” Id.

In contrast, the process of reviewing administrative assessments by appeal is premised on the assumption that where the current fair market values for a taxing district have appreciated and depreciated over time from their initial base year market values, the STEB’s common-level ratio acts as a means of equalizing a property’s actual ratio of assessed to current market value with the then prevailing ratio of assessed to market value in the district. Were no adjustments to be made, “[a] taxpayer could pay substantially more or less than his proportionate share of government by paying taxes based upon a predetermined ratio of a property’s base year value where the current market value is, in fact, substantially less or greater than its base year value.” Armco, 100 Pa. Commw. at 460, 515 A.2d at 330. Ultimately, the “inequities that inevitably result from the prolonged use of base year assessment values in a county where property values have changed at divergent rates” require a countywide reassessment to withstand a constitutional challenge. Clifton, 969 A.2d at 1226, 1231.

As applies to Unit no. F201, the base year assessment for this property was $50,300. This figure remained unchanged through the time of Smith’s purchase, with no triggering events occurring in the interim. The sole reason for the board reassessing the property in 2007 was the school district’s appeal, and the primary, if not the only, information upon which the board relied to change the actual value of the property from $ 100,600 (the base year valuation) to $275,000 was the purchase price paid by Smith in 2006.

At all times relevant to these proceedings, the county’s estimated predetermined ratio has remained constant at 50 percent. In 2007, the STEB common-level ratio was 32.1 percent and in 2008, 31.3 percent. Because the common-level ratio exceeded the estimated predetermined ratio by more than 15 percent, the board was required by statute to apply the common-level ratio, which it did, setting the assessed value of the property at $88,141. This assessment, as discussed above, is unequal, excessive, and unjust, and we are not bound by it. Downingtown, 590 Pa. at 476, 913 A.2d at 205 (holding that the constitutional requirement of tax uniformity prevails over the statutory scheme for tax equalization and that the legislature may not usurp the judiciary’s function of interpreting the Pennsylvania Constitution).

Instead, we find the initial base year assessed value of the property to be a solid reference point upon which to base a uniformity determination. The uniformity of assessed values immediately following a county wide reassessment is not only presumptively valid but likely to be as close to countywide uniformity as is reasonably possible. In this respect, the assessment which existed at the time Smith purchased the property postdated the county’s most recent countywide reassessment by five years, a relatively short period when reviewing the frequency of such assessments. See Clifton, 969 A.2d at 1225 n.39 (noting the correlation between a county’s coefficient of dispersion and its most recent countywide reassessment).

Absent the school district’s appeal, the assessment of this property would have remained at $50,300. The ratio of this assessed value to Smith’s purchase price, 18.29 percent, is roughly equivalent to the assessment ratio of 18.11 percent which exists for the 42 comparable units at Midlake with assessed values of $49,300 to $50,300 when measured against the same purchase price. These assessments are clustered within a narrow range of one another and bear a consistent ratio of assessed to market values. In contrast, the 32 units which have been transferred since January 1, 2004, have a wide range of assessed values with divergent ratios of assessed to market values for like property. The assessment set by the board intensifies this diversity while maintaining the assessment at $50,300 is consistent with the assumptions and premise of a base year valuation system. Given these considerations, to maintain equalization of the ratio of assessed value to current market value within the county requires that the property’s assessment remain at $50,300.

CONCLUSION

Fundamentally, it is unconscionable and unconstitutional to assess like or similar properties in the same neighborhood differently. When this occurs, it is the responsibility of the courts to detennine where uniformity lies and which properties have been unfairly burdened. “[A]ny system which results in the intentional or systematic undervaluation of like or similar properties is impermissible.” Fosko, 166 Pa. Commw. at 400, 646 A.2d at 1279.

Here, the board’s reassessment of Smith’s property on appeal has resulted in a substantial and unjustifiable disparity in the assessed value of Smith’s property and that of other properties in Midlake having like characteristics and qualities. While we accept and affirm the board’s determination that the fair market value of this property is $275,000, uniformity and equality in assessed value requires that the assessed value of the property remain at $50,300.

      . Carbon County is a county of the sixth class. Accordingly, Smith’s appeal is governed by The Fourth to Eighth Class County Assessment Law, 72 P.S. §§5453.101-5453.706, and, to the extent not inconsistent with such enactment, The General County Assessment Law, 72 P.S. §§5020-101 — 5020-602. The property is located within the Jim Thorpe Area School District.
      Section 102 ofThe Fourth to Eighth Class County Assessment Law, 72 P.S. §5453.102, defines the term “common-level ratio” as “the ratio of assessed value to current market value used generally in the county as last determined by the State Tax Equalization Board (STEB) pursuant to the Act of June 27, 1947 (P.L. 1046, no. 447), referred as the State Tax Equalization Board Law.”

      . The report submitted by Smith’s real estate expert states that the bona fide sales price for a number of the sales prior to January 1,2004, could not be determined for various reasons. According to the report, the public records indicate no sales price or deed dates for those units occupied by the original owners and several of the deeds (i. e., six) state only a nominal $ 1 consideration. Additionally, Smith’s expert described two of the sales as likely distress sales with sale prices of $75,000 and $40,000. These refer to Units El 91 and F207 respectively. Although criticized by the school district for excluding transactions which are not at arm’s length, this approach is similar to that taken by the State Tax Equalization Board, which develops and calculates an annual common-level ratio for each county based upon real estate transfers involving bona fide selling prices, supplemented by independent appraisal data and other relevant information. See 61 Pa. Code §603.31(b).

      . These two units, Units H228 and H234, each have an assessed value of $49,500. Unit H228 was sold on or about March 21,2006, for a price of $281,500; Unit H234 was sold on or about October 12,2007, for a price of $275,000. The two other units transferred since January 1, 2004, with assessed values less than $50,300 were not considered to be arm’s length transactions by Smith’s real estate expert. The deeds for these two sales each show a nominal consideration of $ 1: Unit G219 conveyed on or about December 7, 2005 and Unit B156 conveyed on or about January 27,2005.

      . Section 602 of the law reads in pertinent part as follows:
      “After there has been established and completed for the entire county the permanent system of records consisting of tax maps, property record cards and property owners’ index, as required by section three hundred six of the act herein amended, real property shall be assessed at a value based upon an established predetermined ratio (EPR), of which proper notice shall be given, not exceeding 100 percent of actual value. Such ratio shall be established and detennined by the board of county commissioners. In arriving at actual value the county may utilize the current market value or it may adopt a base year market value.” 72 P.S. §5453.602(a).

      . Section 704 of the law, governing appeals to the court, reads in pertinent part as follows:
      “(b) In any appeal of an assessment the court shall make the following determinations:

        “(1) The market value as of the date such appeal was filed before the board of assessment appeals....
      “(2) The common-level ratio which was applicable in the original appeal to the board....
      “(c) The court, after determining the market value of the property pursuant to subsection (b)(1), shall then apply the established predetermined ratio to such value unless the corresponding common-level ratio determined pursuant to subsection (b)(2) varies by more than 15 per centum from the established predetermined ratio, in which case the court shall apply the respective common-level ratio to the corresponding market value of the property.” 72 P.S. §5453.704.
      The common-level ratio referred to in subsection (b)(2) is the ratio of assessed value to market value as determined by the State Tax Equalization Board. See 72 P.S. §5453.102 (defining “common-level ratio”).

      . In Deitch Company v. Board of Property Assessment, the court explained why this is so:
      “In determining . . . whether the constitutional requirement with respect to uniformity has been complied with in a taxing district, all properties are comparable in constructing the appropriate ratio of assessed value to market value. This is because the uniformity requirement of the Constitution of Pennsylvania has been construed to require that all real estate is a class which is entitled to uniform treatment.... In establishing such ratio in a particular district, the property owner, the taxing authority, and the courts may rely on any relevant evidence.” 417 Pa. 213, 223, 209 A.2d 397, 402-403 (1965). (citation omitted)

      . In permitting uniformity challenges by examining sub-classifications of similar property within the larger class of real estate generally, the Pennsylvania Supreme Court also observed:
      “In this regard, it must be acknowledged that a tension remains between this court’s decisions which tend to analyze uniformity solely in terms of a single classification of all real property in a taxing district, and federal equal protection law, which clearly takes into account disparate treatment of comparable properties within the broader classification.” Downingtown Area School District v. Chester County Board of Assessment Appeals, 590 Pa. 459, 471 n.11, 913 A.2d 194, 202 n.11 (2006).

      . “In this context, the term ‘deliberate’ does not exclusively connote wrongful conduct, but also includes any intentional or systematic method of enforcement of the tax laws.” Id. at 470 n. 10, 913 A.2d at 201 n.10.

      . In Appeal of F.W. Woolworth Company, 426 Pa. 583, 586-87, 235 A.2d 793, 795 (1967), the Supreme Court held:
      “[A] valid study of the ratio of assessed value to market value covering the entire taxing district is the preferred way of determining a common-level ratio. Since uniformity has as its heart the equalization of the ratio among all properties in the district, ... a determination based upon the district as a whole necessarily is more conducive to achieving a constitutional result than one based upon a few properties.” (citation omitted) (emphasis in original)
      In qualifying this preference, the court in Keebler Company v. Board of Revision of Taxes of Philadelphia, 496 Pa. 140,143,436 A.2d 583, 584 (1981), explained that because “[practical considerations . . . prohibit the construction of a common-level ratio by way of an evaluation of the assessment and fair market value of each and every parcel of realty in the taxing district,” the common-level ratio may be constructed by “any relevant evidence.” Further, because Downingtown permits tax assessments to be .challenged based on a lack of uniformity in the assessment of properties having like characteristics and qualities in the same area, an evaluation of properties throughout the county and the consequent determination of the common-level ratio for the entire county is no longer necessary, at least so far as showing that a lack of uniformity exists. See also, Chartiers Valley Industrial & Commercial Development Authority v. Allegheny County, 963 A.2d 587, 592 (Pa. Commw. 2008) (discussing the conclusion in Downing-town that tax assessments can be challenged based on a lack of uniformity in the assessment of properties having like characteristics and qualities in the same area).

      . When measured against Smith’s purchase price, $275,000, this ratio is 18.11 percent.

      . As to what constitutes the common-level ratio, the Supreme Court, in Deitch, stated:

        “Where the evidence shows that the assessors have applied a fixed ratio of assessed to market value throughout the taxing district, then that ratio would constitute the common level. However, where the evidence indicates that no such ratio has been applied, and that ratios vary widely in the district, the average of such ratios may be considered the ‘common level’.... Furthermore, it may be that the evidence will show some percentage of assessed to market value about which the bulk of individual assessments tend to cluster, in which event such percentage might be acceptable as the common level.” Deitch, 417 Pa. at 220-21, 209 A.2d at 401. (footnote and citation omitted)

      . To justify a reassessment initiated by the board; one of three conditions must occur: (1) the property is divided and conveyed away in smaller parcels; (2) the county’s economy or a portion of it has depreciated or appreciated to such an extent that real estate values are affected in that area; or (3) improvements to a property are made, removed, or destroyed. See 72 P.S. §5453.602a; see also, 72 P.S. §5347.1.

      . The burden of correcting the inequity in assessed values which currently exists in Midlake cannot be passed to Smith by requiring him to challenge the assessments of his neighbors’property. See Allegheny Pittsburgh Coal Co. v. County Comm'n of Webster County, West VA., 488 U.S. 336, 342-43 (1989). To the contrary, the county has an implicit duty, imposed by the Uniformity Clause, to impose assessments that are reasonable and proportionate, and the taxpayer has a right, guaranteed by that same provision, to pay taxes that are not excessively burdensome when compared with those imposed on other properties similarly situated. Correspondingly, “[i]t is the duty of the courts in dealing with this subject to enforce as nearly as may be equality of burden and uniformity of method in determining what share of the burden each taxable subject must bear.” Clifton v. Allegheny County, 969 A.2d 1197, 1210 (2009).


source: Caselaw Access Project

author: McINERNEY, J.,

license: Public Domain

text:
    Ortiz v. Cruz

      MarcF. Greenfield, for plaintiffs.

      Thomas J. Bradley, for defendants.
    August 7, 2009
   McINERNEY, J.,

Plaintiffs Bezaida Ortiz and Jose Rivera appeal from this court’s order entering summary judgment in favor of defendant A Plus Family Movers Inc. On or about July 14,2006, plaintiffs sustained injuries when a truck owned by A Plus but operated by defendant Efrain Cruz collided with the vehicle in which plaintiffs were traveling. Plaintiffs brought suit alleging that A Plus was negligent in, inter alia, permitting an incompetent driver to operate its truck. Having presented evidence that Mr. Cruz was not an A Plus employee and, in fact, had stolen the truck, A Plus moved for summary judgment. Plaintiffs responded arguing “a question of fact can be raised as to whether Mr. Cruz actually stole [A Plus’] vehicle.” (Pis.’ resp. ¶16.) Because plaintiffs failed to produce any evidence that Mr. Cruz had not stolen the truck and no genuine issue of material fact existed thereupon, this court properly entered summary judgment in favor of A Plus.

I. BACKGROUND

This action arises out of a motor vehicle accident that occurred on or about July 14, 2006 in Philadelphia, PA. Plaintiffs, Bezaida Ortiz and Jose Rivera, claim to have sustained injuries when a truck owned by A Plus but operated by Mr. Cruz collided with the motor vehicle in which they were traveling.

On August 17,2007, plaintiffs commenced this action by way of a complaint against Mr. Cruz and A Plus. In their complaint, plaintiffs averred that Mr. Cruz, at all material times, “was acting individually and/or as a lessee, agent, servant, workman and/or employee of defendant, A Plus Family Movers, with defendant, A Plus Family Movers[] Inc. ’s express, apparent and/or implied permission, authorization and/or consent.” (Compl. ¶3 (emphasis added).) Plaintiffs asserted that A Plus was negligent in, inter alia, “[permitting an incompetent driver to operate the vehicle” and “[ajllowing [Mr. Cruz] to operate [APlus’] motor vehicle while intoxicated[.]” (Compl. ¶18(a), (d).) APlus denied the above averments in its answer to plaintiffs ’ complaint. (Def. ’s answer ¶¶3, 18(a), (d).)

On November 20, 2008, after the pleadings were closed, APlus moved for summary judgment. In its motion, A Plus averred entry of summary judgment was warranted in this case because plaintiffs cannot prove that Mr. Cruz was an A Plus employee or acting within the course and scope of such employment. (See def.’s mot. ¶¶18-22.) Rather, according to APlus, Mr. Cruz (1) was the employee of a subcontractor to whom A Plus occasionally subcontracted moving jobs and (2) had in fact stolen the A Plus truck involved in the collision from A Plus’ property. (See def.’s mot. ¶¶13, 16.) In support of its position, APlus provided the deposition testimony of A Plus’ vice president, Pamela Locke, whose duties involved general oversight of the office, office staff and daily activities. (Def’s mot., exhibit C, deposition of Pamela Locke, p. 6.) According to Ms. Locke, Mr. Cruz was not an employee of APlus and did not have permission to drive any A Plus truck. (Def’s exhibit C, pp. 6-9.) Rather, Mr. Cruz was the employee of a subcontractor, Christopher Amusco, to whom A Plus would occasionally subcontract a moving job, and was hired by Mr. Amusco as a laborer. (Def.’s exhibit C, pp. 11, 19-20.) Ms. Locke testified that she normally did not have contact with the laborers hired by the three subcontractors they had at the time, and that she does not remember that she ever actually saw Mr. Cruz. (See def.’s exhibit C, pp. 20-21.) According to Ms. Locke, on the day in question Mr. Cruz reportedly fell ill while out on a moving job subcontracted to Mr. Amusco. (See def.’s exhibit C, p. 9.) As such, the customer kindly brought Mr. Cruz back to A Plus’ warehouse. (Def.’s exhibit C, p. 9.) After having been brought back to the warehouse, Mr. Cruz proceeded to steal an A Plus truck out of the warehouse and then involve it in the accident in question. (Def.’s exhibit C, p. 9.) The truck that he stole was being worked on by an A Plus mechanic who left for lunch, leaving the truck unattended in the unlocked warehouse with the keys inside. (Def.’s exhibit C, pp. 9-10, 13.) It was this truck that was involved in the collision in question, not the one that was out on the moving job subcontracted to Mr. Amusco. (Def.’s exhibit C, p. 9.) According to Ms. Locke, no A Plus employee was even aware that Mr. Cruz had stolen the truck until the police called to say the truck had been involved in a motor vehicle accident. (Def. ’s exhibit C, pp. 9, 24-25.)

On December 19,2008, plaintiffs responded to A Plus’ motion for summary judgment. In their response, plaintiffs admitted that Mr. Cruz was the employee of subcontractor Christopher Amusco. (Pis.’ resp. ¶13.) However, plaintiffs argued summary judgment was not appropriate because “a question of fact can be raised as to whether Mr. Cruz actually stole defendant’s vehicle.” (Id. ¶16.) First, plaintiffs argued “[sjince neither defendant ever responded to [plaintiffs’] request for admissions ... it is now admitted that [Mr. Cruz] had permission from [A Plus] to operate their vehicle when he had the accident. . . .” (Id. ¶¶6-10.) Next, plaintiffs provided a copy of the police report from the incident which they (erroneously) contended showed Mr. Cruz did not flee the scene, but rather provided the officer with the vehicle’s registration card, etc. (Id. ¶16; exhibit B.) Plaintiffs argued these actions of Mr. Cruz as established by the police report called “into question . . . whether the vehicle he was driving had been ‘stolen’. . . .” (Id. ¶16.) Citing deposition testimony of Ms. Locke, plaintiffs also suggested that the fact that a number of A Plus policies would have had to have been violated (e.g., leaving keys in an unattended truck) to allow the truck to have been stolen called into question whether it had in fact been stolen. (See id. ¶16.) Finally, and somewhat relatedly, plaintiffs also argued A Plus could be liable in this case in that its “actions were in contradiction of company policy so as to make it possible for Mr. Cruz to gain access to one of their trucks and cause this collision.” (Id. ¶20.)

A Plus filed a reply brief on December 30,2008. In its reply brief, A Plus first highlighted that “[p]laintiffs have admitted that Mr. Cruz was the employee of an independent contractor[,]” which it argued alone warranted summary judgment. (Pis.’ reply p. 2.) A Plus next addressed plaintiffs’ claim that there was “an issue of fact as to whether or not Mr. Cruz stole the truck as opposed to having the permission of A Plus to operate it.” (Id.) Addressing the requests for admissions, A Plus first noted that it had “no record of ever receiving these requests for admissions.” (Id. at 3.) A Plus, however, also argued that assuming arguendo it had received these requests they did not establish what plaintiffs suggested, stating:

“A review of the requests for admission ... indicates that the only request in any way arguably relevant to this issue is request no. 4 that states... ‘answering defendant had the permission of the owner of vehicle he/she was operating at the time of the accident. .. .’ Since A Plus was the owner of the vehicle and not the operator of the vehicle, this request would obviously be inapplicable to it and would not establish anything.” (Id.)

As for the request plaintiffs claimed to have served upon Mr. Cruz, A Plus first noted that there is no record of service on Mr. Cruz. (Id.) Further, A Plus argued even if it had, Mr. Cruz’ admission would not be binding upon A Plus. (Id.) Next, A Plus correctly pointed out that the police report upon which plaintiffs relied did not show what plaintiffs claimed. (Id. at 4.) A Plus argued “[tjhe suggestion by [pjlaintiffs that Mr. Cruz did not flee the scene and behaved as a normal driver when confronted by the police is contradicted by the very police report that [pjlaintiffs ... attached....” (Id.) A Plus noted that the police report (1) showed Mr. Cruz had fled the scene and was later stopped and identified and (2) gave no indication who supplied the police with the pertinent vehicle information, etc. (Id.)

Finally, A Plus addressed what it viewed as plaintiffs for the first time suggesting “another possible theory of liability against [A Plus]” — i.e., that it could be liable for violations of company policy (e.g., leaving keys in an unattended truck) that allowed Mr. Cruz to gain access to the truck. (Id.) Citing inter alia Roche v. Ugly Duckling Car Sales Inc., 879 A.2d 785 (Pa. Super. 2005), A Plus argued Mr. Cruz’ careless operation of the truck was the superseding cause of plaintiffs’ injuries and A Plus’ negligence, if any, was too remote to support a cause of action against it. (See id. 6-7.)

By order dated January 15,2009 and docketed January 22,2009, this court entered summary judgment in favor of A Plus and dismissed plaintiffs5 complaint as to A Plus. On April 17, 2009, plaintiffs took a default judgment against Mr. Cruz. After damages were assessed against Mr. Cruz, plaintiffs filed this timely notice of appeal and this court ordered plaintiffs to file a Pa.R.A.P. 1925(b) statement. In their 1925(b) statement, plaintiffs complained this court erred in granting A Plus summary judgment because:

(1) “the question of whether defendant, A Plus Family Movers Inc., was negligent should be made by the fact-finder [;]”
(2) “the question of whether defendant, A Plus Family Movers Inc., was negligent was not the clearest of cases where reasonable minds could agree[;]”
(3) “when viewing the evidence in a light most favorable to plaintiffs as the non-moving party, defendant, A Plus Family Movers Inc., may be determined by reasonable minded individuals to be negligent in their actions by allowing co-defendant to appear on their property and drive one of their vehicles[;]”
(4) “based upon existing case law and the facts of this case, summary judgment is not appropriate.” (Pis.’ 1925(b) statement ¶9.)

II. DISCUSSION

Pennsylvania Rule of Civil Procedure 1035.2 provides that after the pleadings are closed, a party may move for summary judgment in the following two circumstances:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

Where the non-moving party bears the burden of proof on an issue, they cannot merely rely on their pleadings or answers in order to survive summary judgment because “[fjailure of a non-moving party to adduce sufficient evidence on an issue essential to [their] case and on which [they] bear[] the burden of proof . . . establishes the entitlement of the moving party to judgment as a matter of law.” Murphy v. Duquesne University, 565 Pa. 571, 590, 777 A.2d 418, 429 (2001). (quotations omitted) Rule 1035.3(a) requires the non-moving party to respond to the motion by identifying either: “(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Pa.R.C.P. 1035.3(a).

The record may be supplemented by the non-moving party in order to controvert the evidence cited in support of the motion or to establish the facts essential to the cause of action or defense which the motion cites as not having been produced. See Pa.R.C.P. 1035.3(b).

“The entry of summary judgment is proper where the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650-51 (Pa. Super. 1999). “[I]n determining whether summary judgment should enter, the record is . . . viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Manzetti v. Mercy Hospital of Pittsburgh, 565 Pa. 471, 482, 776 A.2d 938, 945 (2001). Summary judgment is properly granted in cases which are free and clear of doubt. Kelly v. Ickes, ATI Pa. Super. 542, 547, 629 A.2d 1002, 1004 (1993). In this case, summary judgment was properly granted because contrary to plaintiffs’ assertion there was no genuine issue concerning whether Mr. Cruz actually stole A Plus’ truck.

First, A Plus provided evidence that Mr. Cruz stole its truck. Ms. Locke testified in some detail as to how Mr. Cruz stole the truck out of the A Plus warehouse after it was left unattended by an A Plus mechanic who had left for lunch; that this was not the truck provided to the subcontractor for the moving job Mr. Cruz was involved with; and that A Plus did not even know the track had been stolen out of the warehouse until it got a call from the police stating that the track had been involved in the accident. (Def.’s exhibit C, pp. 8-24.)

Second, plaintiffs did not controvert the evidence cited in support of the motion or provide or point to evidence establishing Mr. Cruz had A Plus’ permission to operate the vehicle in question. Initially, plaintiffs argued that because neither A Plus nor Mr. Cruz responded to the requests for admissions “which were served upon each defendant with plaintiff’s complaint[,] ... it is now admitted that defendant, Efrain Cruz, had permission from defendant, A Plus Movers, to operate their vehicle when he had the accident with plaintiffs].” (Pis.’ resp. ¶¶6-10.) Assuming arguendo A Plus was served with and did not respond to the request for admissions, which plaintiffs attached to their response to the motion for summary judgment (pis. resp., exhibit A), this request would not establish Mr. Cruz had permission from A Plus to operate the track involved in the accident. As A Plus argued, the relevant matter of which an admission was purportedly requested— “Answering defendant had the permission of the owner of the vehicle he/she was operating at the time of the accident with plaintiff as specified in plaintiff’s complainf,]” (Pis. resp., exhibit A ¶4) — was not applicable to it, as A Plus was the owner of the vehicle and not the operator. Further, assuming Mr. Cruz was served with and did not respond to this same request for admission, Mr. Cruz’ deemed admission cannot be used against A Plus.

With regard to the police report, it did not show what plaintiffs claimed. In this case, plaintiffs supplied the police report and used it as evidence from which they argued “a question of fact can be raised as to whether Mr. Cruz actually stole [APlus’] vehicle.” (See pis.’ resp. ¶16.) Relying on the police report, plaintiffs claimed that “after the accident, Mr. Cruz did not flee the scene.” (Id.) Plaintiffs also claimed that it was clear from the police report that it was Mr. Cruz who had provided the investigating officer with the vehicle’s registration card and insurance information. (Id.) Plaintiffs argued “[t]hese actions by Mr. Cruz certainly called into question . . . whether the vehicle he was driving had been ‘stolen’ as ... alleged by [A Plus].” (Id.)

Unfortunately for plaintiffs, their argument was contradicted by the very police report they provided. Foremost, the police report rather clearly indicated that Mr. Cruz had fled the scene. On the form pertaining to Mr. Cruz specifically, Mr. Cruz’ presence was marked as “3,” which equates to “driver fled scene.” (Pis.’ resp., exhibit B.) And the officer’s narrative description of the accident provided in pertinent part:

“The witness, and the drivers of veh. nos. 3, 4 stated they obs. a H/M, light complexion, bald w/glasses, wearing a blue A Plus Movers t-shirt and jean shorts, exit the d-side of veh. no. 1 and leave the scene S/B on 5 th Street. Flash info was provided and the male was stopped and positively id’d by the witnesses. He was completely incoherent and appeared to be under influence of a narcotic. He was transp. to Temple . . . and arrested for DUI.” (Pis.’ resp., exhibit B.)

Further, the police report gave no indication who supplied the police with the pertinent vehicle information, etc. And even if it did indicate that Mr. Cruz supplied the police with this information after fleeing the scene and being apprehended, this would not “call[] into question ... whether the vehicle he was driving had been ‘stolen’ ” as argued by plaintiffs.

With no genuine issue concerning whether Mr. Cruz actually stole A Plus’ truck, summary judgment was properly entered in this case. We also rejected plaintiffs’ alternate theory of liability. Plaintiffs’ alternate theory of liability was that even if Mr. Cruz had stolen the truck, A Plus “would be responsible for plaintiff’s [sic] injuries since their actions were in contradiction of company policy so as to make it possible for Mr. Cruz to gain access to one of their trucks and cause this accident.” (See pis.’ resp. ¶20.)

“[T]he elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss.” Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003). “When considering the question of duty, it is necessary to determine whether a defendant is under any obligation for the benefit of the particular plaintiff . . . and, unless there is a duty upon the defendant in favor of the plaintiff which has been breached, there can be no cause of action based upon negligence.” Id. (quotations omitted) “Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time.” J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582, 584 (Pa. Super. 1997) (quoting Hoffman v. Sun Pipe Line Co., 394 Pa. Super. 109, 114, 575 A.2d 122, 125 (1990), in turn quoting Alumni Ass ’n v. Sullivan, 369 Pa. Super. 596, 600-602, 535 A.2d 1095, 1098 (1987)). “Where the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions.” Id.

Here, the summary judgment record showed plaintiffs and A Plus were strangers. Absent any special relationship between these parties, the only duty A Plus owed plaintiffs was the general duty imposed on all persons not to place others at risk of harm through their actions. “The scope of this duty, however, is limited to those risks that are reasonably foreseeable by the actor in the circumstances of the case.” Zanine v, Gallagher, 345 Pa. Super. 119, 123, 497 A.2d 1332, 1334 (1985).

In this case, even assuming A Plus (through its employees) was negligent in permitting the truck to be left in the unlocked warehouse unattended with the keys inside when the mechanic went to lunch, the record does not support finding A Plus could have foreseen this carelessness would result in the harm suffered by the plaintiffs. Therefore, plaintiffs’ alternate theory of liability fails as A Plus has not been shown to have violated any duty of care owed to plaintiffs under the circumstances of this case. In Liney v. Chestnut Motors Inc., 421 Pa. 26, 218 A.2d 336 (1966), the Supreme Court of Pennsylvania addressed a case where the plaintiff sued an automobile repair garage after being struck by a car that had been left with the garage for repairs, but was subsequently stolen. In that case, after the owner delivered his car to the garage for repairs, “the garage’s employees allowed the car to remain double-parked in the street outside the garage building with the keys in the ignition.” Roche, 879 A.2d at 791 (discussing Liney). “Three hours later, the car was stolen by an adult stranger who drove it carelessly, striking the plaintiff-pedestrian on a sidewalk.” Id. The “[djefendant’s garage was located in a Philadelphia area experiencing a high and increasing number of automobile thefts in the immediate preceding months.” Liney, 421 Pa. at 28, 218 A.2d at 337. On these facts, the trial court “sustained the defendant garage’s preliminary objections in the nature of a demurrer.” Roche, 879 A.2d at 791.

In affirming, the court concluded that, even assuming that the employees were negligent, the garage could not have foreseen that its employees’ carelessness would result in harm to the plaintiff and, therefore, the defendant garage violated no duty owed to the plaintiff. Liney, 421 Pa. at 28, 218 A.2d at 337-38. The court, however, further concluded that “even assuming that the defendant garage should have foreseen the likelihood of theft, nothing existed that would have put the garage on notice that the thief would be an incompetent driver.” Roche, 879 A.2d at 791-92 (citing Liney, 421 Pa. at 28, 218 A.2d at 338). Accordingly, the court also stated: “Under the circumstances, the thief’s careless operation of the automobile was a superseding cause of the injury suffered, and defendant’s negligence, if such existed, only a remote cause thereof upon which no action would lie.” Liney, 421 Pa. at 28, 218 A.2d at 338.

In this case, we concluded as in Liney that A Plus violated no duty owed to plaintiffs as even if it was negligent in permitting the truck to be left in the unlocked warehouse unattended with the keys inside while the mechanic went to lunch, it could not have foreseen this carelessness would result in the harm suffered by plaintiffs. The circumstances of this case support this conclusion even more so than those in Liney did. In this case, the truck was stolen out of a warehouse rather than off a street. And unlike in Liney, there were no facts/evidence in this case suggesting A Plus’ warehouse was in an area experiencing a high and increasing number of auto thefts. In short, the summary judgment record did not support charging A Plus with foreseeing the theft and plaintiffs’ resulting injuries.

Further, as in Liney, this court also concluded that even assuming A Plus should have foreseen the likelihood of the theft of the truck, there was nothing in the record to support putting it on notice that the thief would be an incompetent driver. Thus, under the circumstances, we also concluded Mr. Cruz’ careless operation of the truck was the superseding cause of plaintiffs’ injuries and A Plus’ negligence, if any, was too remote to support a cause of action against it. In this case, the record did not support finding A Plus knew or should have known that the truck would likely be stolen by an incompetent driver. Compare Anderson v. Bushong Pontiac Company Inc., 404 Pa. 382, 171 A.2d 771 (1961) (holding the plaintiff stated a sufficient cause of action against the owner of a used car lot where the owner had been put on notice that a car was likely to be stolen by an incompetent driver as keys to the car were stolen by a 14-year-old boy and the boy who stole the keys and other boys made a habit of playing around the cars in the lot). For example, there is no evidence that anyone from A Plus saw Mr. Cruz under the influence of a controlled substance, loitering around the truck. Rather, the record supported finding Mr. Cruz’ careless operation of the stolen truck was a superseding cause of plaintiffs’ injuries, for which A Plus cannot be liable.

In conclusion, it seems clear the underlying reason plaintiffs wanted A Plus to remain in the case is because they were the insured entity and Mr. Cruz, if he ever can be located, is more than likely judgment proof. While we can empathize with plaintiffs and acknowledge their likely frustration in Mr. Cruz’ escaping financial responsibility, that does not justify holding A Plus in this case. Discovery was closed and plaintiffs were not able to produce any evidence to meet their burden of establishing responsibility on the part of A Plus. Summary judgment exists to end a case when it is clear a party cannot demonstrate it will be able to meet its burden. We do not take lightly denying plaintiffs their day in court, but in this case it is not warranted and summary judgment was properly granted.

      . This vehicle was owned by Mr. Rivera but operated by Ms. Ortiz.

      . Ms. Locke explained that part of the subcontracting arrangement was that the subcontractor would get the use of a designated A Plus truck for the moving job. (Def.’s exhibit C, pp. 22-23.)

      . What the record does show is that service of original process (which plaintiffs assert was accompanied by the request for admissions) was not personal. Rather, plaintiffs filed a motion for alternative service, which was granted by the court. Nothing in the record suggests Mr. Cruz participated in this case or was ever physically located following the accident.

      . The note to subsection (a)(1) states:
      “If the moving party has supported the motion with oral testimony only, the response may raise the defense that there is a genuine issue of material fact because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testily at trial. See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).”

      . According to the police report provided by plaintiffs, the accident occurred at 12:35p.m. and the police arrived at 12:50p.m. (Pls.’resp., exhibit B.) Ms. Locke testified the mechanic’s normal lunch hour was 12 to 1, but that it could vary depending upon what he was working on. (Def.’s exhibit C, p. 15.)

      . In this case, plaintiffs did not cite any authority that would support binding A Plus with Mr. Cruz’ purported deemed admission. However, neither did A Plus cite to any authority in support of its proposition that “[t]o the extent that the requests are binding on Mr. Cruz because he did not answer them, they also are not binding on A Plus.” (Def.’s reply p. 3.) While the parties did not cite to any authority in support of their respective positions and we did not find any Pennsylvania case law on point, this court was persuaded by federal case law holding “[djeemed admissions by a party opponent cannot be used against a co-party.” Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997), accord Riberglass Inc. v. Techni-Glass Indus. Inc., 811 F.2d 565, 566 (11th Cir. 1987). In Becerra the plaintiff brought an action against a school district, three school administrators, and a music teacher following the teacher’s sexual molestation of the minor plaintiff. 105 F.3d at 1044. Following the grant of summary judgment in favor of all the defendants except the teacher, the plaintiffs appealed to the circuit court arguing, in part, that the district court “erred in not considering [the teacher’s] deemed admissions as evidence against the other defendants.” See id. at 1048. In affirming, the court noted the teacher failed to answer the request for admissions propounded upon him when he was in jail and representing himself. Id. The court, however, held “[t]here was no error in disregarding these admissions[,]” concluding “[d]eemed admission by a party opponent cannot be used against a co-party.” Id.

      . Vehicle number one, or “veh. no. 1,” referred to the A Plus moving truck involved in the accident.

      . In this case, plaintiffs did not raise a defense based upon Nanty-Glo, but rather relied on the record (including their supplementation thereof with the police report and the purported deemed admissions) in arguing there was a genuine issue of material fact concerning whether Mr. Cruz stole the A Plus truck involved in the accident (see pis.’ resp. ¶16); thus, any such issue is now waived. See e.g., Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006) (holding the plaintiff’s Naniy-Glo appeal argument waived where the plaintiff’s “opposition to summary judgment and Rule 1925(b) statement failed to mention the Nanty-Glo rule.”). Moreover, the summary judgment record supported entering judgment in this case. Rather than controverting A Plus’ evidence, plaintiffs’ evidence supported entering summary judgment in this case.


author: YATRON, J.,

text:
    Commonwealth v. Perez

      Jason R. Waterloo, for Commonwealth.

      William R. Bernhart, for defendant.
    July 30, 2009
   YATRON, J.,

This matter is before us on defendant’s omnibus pretrial motion seeking dismissal of the charge against him. Hearing was originally scheduled for March 18,2009. Due to the unusual procedural nature of the case, the Commonwealth requested additional time to investigate the facts and circumstances of the defendant’s multiple arrests.

Hearing was rescheduled for May 12,2009. We heard testimony from Officer Nicholas Hine of the Cumru Township Police Department. Additionally, three exhibits were offered by the Commonwealth. Two of the exhibits designated exhibits 2 and 3 were admitted. Exhibit 1 which consisted of hearsay, double hearsay, triple hearsay, and quadruple hearsay, all contained within a single letter, was not admitted. The defendant offered one exhibit, designated defense exhibit 1, which was also admitted into evidence.

On June 5, 2009, we determined it was necessary to review the notes of testimony prior to adjudicating defendant’s motion. Accordingly, we ordered the transcription of the notes on that date, and they were lodged on June 12,2009. Thus, the matter is now ripe for disposition.

The narrative that follows constitutes our findings of fact and conclusions of law in disposition of defendant’s motion.

STATEMENT OF THE CASE

On July 6, 2007, Officer Nicholas Hine of the Cumru Township Police Department was on duty. Two days earlier, he received information from an unnamed person to the effect that the defendant drove a blue Jeep Liberty automobile and that defendant Perez “does give false information to police to protect his identity . . . .” The record is devoid of any information as to the identity of the “complainant,” whether he or she had previously provided information to the police, or the accuracy of any such information.

Hine staked out what he believed to be defendant’s residence on the morning of July 6 and observed him entering the blue Jeep Liberty automobile. He followed the defendant, who subsequently pulled into the Sunoco A-Plus Mini-Mart located at the intersection of Routes 625 and 724. The defendant exited the Jeep and entered the store, and Hine parked the patrol vehicle next to the defendant’s vehicle.

Prior to that morning Hine had retrieved from the information system known as JNET, copies of a photograph and biographical information on the defendant, which included his name and date of birth. This information is contained in Commonwealth exhibit 2. He determined that the individual in the photograph and the individual who entered the A-Plus store were one and the same.

When the defendant exited the store, Hine approached him, and identified himself as a police officer and told the defendant that he was conducting an investigation of Sergio Perez.

He then asked the defendant if he was Sergio Perez, and whether he was in the possession of any form of identification. The defendant responded that he was not Sergio Perez and that he did not carry identification.

When asked his name, the defendant identified himself as Almando Perez and gave a date of birth which was inconsistent with what Hine believed to be the defendant’s actual date of birth.

Hine then advised the defendant that he was not free to leave, because Hine was conducting an investigation. Hine then communicated with the dispatcher and requested information regarding Almando Perez.

Hine advised defendant that if he gave false identification information that he could he charged with a criminal offense. The defendant continued to assert that he was Almando Perez.

At that point in time, Officer Hine and Sergeant Griffith, who was also present at the scene, showed the defendant the documents they had obtained from JNET containing defendant’s photograph and biographical information. The defendant did not respond to being shown the information, other than to “put his head down.” Hine proceeded to arrest the defendant and ultimately charged him in a single count criminal complaint with a violation of 18 Pa.C.S. §4914(a), false identification to law enforcement authorities. A search incident to the arrest revealed defendant’s I.D. card, a copy of which was designated Commonwealth exhibit 3.

No other charge was lodged against the defendant. The only “investigation” that appears of record seems to be an investigation into whether the defendant would provide false information if asked to identify himself.

When the initial case reached the court of common pleas, it was dismissed by the Honorable Thomas G. Parisi on the basis that the affidavit of probable cause accompanying the original criminal complaint was neither sworn to by Hine nor executed by the magisterial district judge.

On March 27,2008, three days after Judge Parisi dismissed the original complaint, Hine refiled the complaint alleging the same offense. Preliminary hearing was set for August 11, 2008. On the date set for preliminary hearing, Hine failed to appear and the case was dismissed a second time, by the magisterial district judge.

At the May 12 hearing, the Commonwealth proffered an exhibit which was apparently intended to explain Hine’s failure to appear. The exhibit, designated Commonwealth exhibit 1 at the hearing while identified, was not admitted into evidence. Additionally, it is clear from the face of the exhibit that it contains no competent evidence explaining Hine’s failure to appear; information in the exhibit constitutes hearsay, double hearsay, triple hearsay, and quadruple hearsay. Most tellingly, Hine, during his testimony, offered no explanation whatsoever for his failure to appear on August 11, 2008.

On September 25, 2008, a third identical complaint was filed by Officer Hine which was bound over to this court and is now the subject of these proceedings. The defendant’s omnibus pretrial motion seeks dismissal of the case based on violations of Pa.R.Crim.R 130-133 and Rule 544(B), suppression of evidence seized from the defendant and the statements made by him at the time of his arrest, and dismissal based on the authority of Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 (1997).

CONCLUSIONS OF LAW

A. The Application of Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 (1997)

In Thorpe, the defendant was initially arrested and charged with robbery, conspiracy and related offenses. Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 (1997). However, the Commonwealth was unable to proceed at several preliminary hearings and the charges were dismissed and the defendant was released after having spent two months in jail. Id. at 345, 701 A.2d at 489. Seven months later the Commonwealth reinstituted the charges and rearrested the defendant. The Commonwealth was again unable to proceed after four aborted preliminary hearings and the charges were dismissed. Id. As a result, the defendant was forced to spend an additional three months in jail. Id. The charges were re-filed a third time. Id. A preliminary hearing was finally held, at which time the district justice dismissed the case with prejudice because the Commonwealth had failed to present prima facie evidence supporting the arrest on the charges. Id. As a result, the Commonwealth filed a motion requesting the temporary assignment of a new magistrate to preside over a new preliminary hearing. Id. The trial court initially granted the Commonwealth’s request, but then reversed itself after a subsequent hearing on the issue. Id. The Commonwealth appealed.

In its opinion, the Supreme Court noted that in order for the Commonwealth to successfully enforce the law it must be given the opportunity to perform additional investigation and gather additional evidence to reassert a prima facie case even after a case has already been dismissed at the prehminary hearing. Thorpe, 549 Pa. at 347, 701 A.2d at 490. However, the court also recognized that an individual’s right to due process protects one from “unnecessary and unreasonable government coercion.” Id. Therefore, when determining whether to award the Commonwealth a new preliminary hearing, a court must balance a person’s due process rights against the Commonwealth’s need to re-present its case. Id. After applying this test in Thorpe, the Supreme Court held that the Commonwealth’s actions constituted impermissible harassment and clearly violated the defendant’s due process rights. Based on this finding, the Supreme Court affirmed the trial court’s dismissal of the charges. Id.

After reviewing Thorpe, we do not believe that the facts of this case justify dismissal of the charges. In Thorpe, the defendant was arrested on three separate occasions, jailed for a total of five months, subjected to five abortive preliminary hearings owing to the Commonwealth’s failure to go forward, and the Commonwealth ultimately failed to carry its burden at the preliminaryhearing. Whereas, in this case, the Commonwealth did ultimately prove a prima facie case, and the charges were bound over for trial. Furthermore, while the defendant in the instant matter was subjected to three preliminary hearings, only one of these — the second, resulted in dismissal. While this court is not pleased with the Commonwealth’s handling of this case, we do not believe that the inconvenience experienced by the defendant justifies a dismissal of his charges.

B. Dismissal of the Charges Based Upon a Violation ofPa.R.Crim.P. 544(B)

The defendant also asks us to dismiss the charges because the Commonwealth violated Pa.R.Crim.P. 544(B) as well as other related procedural rules. At the suppression hearing the Commonwealth conceded that it had violated these rules. (N.T., 5.12.09, p. 4.) However, after reviewing this issue, we are compelled to recognize that the relief requested is not supported by the text of these rules or any pertinent case law. Therefore, we are powerless to dismiss the charges on this basis.

C. The Defendant’s Motion To Suppress

Lastly, the defendant asks us to suppress all evidence in this case because the police illegally stopped and detained the defendant in this matter. After reviewing the testimony, we hold that the police action in this case was absolutely unreasonable and violated the defendant’s constitutional rights. First, we hold the police illegally detained the defendant without the necessary reasonable suspicion to believe that he was engaged in any criminal activity. Also, we hold that Officer Mine acted beyond the scope of the authority granted to him under the law. Accordingly, we grant the defendant’s motion to suppress evidence.

“Both the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures.” Commonwealth v. Key, 789 A.2d 282, 287 (Pa. Super. 2001). (emphasis added) As a result, “[warrantless searches and seizures are . . . unreasonable per se, unless conducted pursuant to a specifically established and well-delineated exception to the warrant requirement.” Id. “To secure the right of citizens to be free from such intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interaction with citizens as those interactions become more intrusive.” Key, 789 A.2d at 288. Accordingly, our courts recognize three categories of police-citizen contact — a mere encounter, an investigatory detention and an arrest, which are aptly described by the court in Commonwealth v. Jones when it stated:

“A mere encounter can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it carries no official compulsion to stop or respond.
“In contrast, an investigative detention, by implication, carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest. Since this interaction has elements of official compulsion it requires reasonable suspicion of unlawful activity. In further contrast, a custodial detention occurs when the nature, duration and conditions of an investigative detention become so. coercive as to be, practically speaking, the functional equivalent of an arrest.” 874 A.2d 108, 116 (Pa. Super. 2005).

When analyzing whether a police-citizen contact “rises to the level of an investigative detention . . . the court must examine all the circumstances and detennine whether police action would have made a reasonable person believe he was not free to go and was subject to the officer’s orders.” Id. Because an investigative detention constitutes a seizure, it implicates the protections of the Fourth Amendment and Article I Section 8 of the Pennsylvania Constitution, and must be supported by a finding of reasonable suspicion. See id.

“Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of intrusion warrant a man of reasonable caution in the belief that the action taken was appropriate.” Jones, 874 A.2d at 116.

The actions of Officer Hine in this instance are clearly unreasonable. To begin, the officer received an anonymous tip that was neither corroborated nor verified. This tip alleged that the defendant, if questioned, would lie about his identity to police officers, thus committing the crime of false identification to law enforcement authorities. 18 Pa.C.S. §4914(a). At this point, it is important to highlight the fact that the very nature of this statute means that a crime is not committed until a person, who is under investigation by the police for a criminal act and is told so, provides false identity to the police. Consequently, at the time the officer received the anonymous tip, no crime had yet been committed nor was there evidence that criminal activity was afoot. In fact, the only possible commission of this crime hinged upon the initial actions of the officer.

Nevertheless, Officer Hine was determined to follow this unverified lead. In doing so, he printed out a copy of the defendant’s picture and got his name. He then staked out the defendant’s house and followed him as he drove to a local gas station. Once there, the officer testified that:

“Officer Hiñe: As [the defendant] was walking towards his vehicle I approached him, identified myself as Officer Nicholas Hiñe Sr., Cumru Township Police Department, and that I was conducting an investigation with an individual named Sergio Perez.” (N.T., 5.12.09, p. II.) (emphasis added)

This situation is analogous to that found in Commonwealth v. Key, 789 A.2d 282 (Pa. Super. 2001). In Key, the police were approaching people in a “high crime area” of Reading, Pa. to learn what they were doing there. Key, 789 A.2d at 286. During one specific interaction, the police approached two males who were speaking with one another. The officers told the defendant that because it is a “high drug area” they were stopping people to see what they were doing. Id. An officer on the scene asked if the defendant was in possession of any drugs or drug paraphernalia. Id. The defendant said he was not, and consented to being patted down to confirm his denial. Id. During the pat down, the officer discovered a small amount of heroine and placed the defendant under arrest. Id.

The defendant moved to suppress the evidence as the fruit of an illegal search. In response, Commonwealth argued that the interaction was a mere encounter and that the defendant consented to the pat down. The Superior Court held that the actions of the police officers:

“[Wjould tend to lead any reasonable person to believe that he or she was the express target of a police investigation into criminal activity and, as such, to feel that his or her liberty was being restrained as a result of the investigation. Thus, the [defendant in this case] was subject to an investigative detention by [the police].” Id. at 289.

Furthermore, the police had no reasonable suspicion to believe that the defendant, who was merely seen in a high drug area, was involved in criminal activity. Id. Consequently, the Superior Court ruled that the police violated the defendant’s constitutional rights and suppressed the evidence.

In this case, Officer Hine testified that he approached the defendant, identified himself as a police officer, and explicitly told the defendant that he was the subject of an investigation. Consistent with the holding in Key, a reasonable person would not feel free to leave once the police inform them that they are under investigation. Therefore, there can be no question that this interaction must be characterized as an investigative detention, which must be supported by reasonable suspicion that criminal activity is afoot. See Jones, supra.

As already noted above, Officer Hine merely had an unconfirmed tip that the defendant may give false information if baited to do so by the officer. No other information was provided that tended to show that the defendant was involved in any criminal activity. Therefore, the officer lacked the reasonable suspicion necessary to detain the defendant. In fact, we note that had the officer taken no action, this crime would never have been committed. Therefore, the officer violated the defendant’s constitutional rights and all evidence obtained must be suppressed as fruits of an illegal search and seizure. See Commonwealth v. Myers, 728 A.2d 960, 964 (Pa. Super. 1999) (citing Wong Sun v. United States, 371 U.S. 471 (1963)).

The officer also exceeded the scope of his authority allowed to him under the law. The applicable statute in this case reads as follows:

“(a) offense defined. — A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law.” False identification to law enforcement authorities, 18 Pa.C.S. §4914(a). (emphasis added)

This statute requires the police to inform an individual that they are the subject of an official investigation of a violation of law before an infraction can be committed. We believe a logical reading of this statute, pursuant to the Statutory Construction Act, 1 Pa.C.S. §1921(a), requires that an actual investigation be underway when a person is approached by the police. Any other reading creates an absurd result which would allow the police to approach anyone of their choosing, lie regarding the existence of an investigation and trap an otherwise innocent person into violating this statute. We do not believe that the legislature contemplated a law that gives the police unfettered discretion and allows them to lie in order to catch an individual providing false identification. See Malt Beverages Dist. Ass’n v. Pa. Liquor Control Board, 914 A.2d 1144 (Pa. 2009) (“[I]n ascertaining legislative intent, the Statutory Construction Act ‘requires a presumption that the General Assembly did not intend a result that is absurd or unreasonable.’”).

This conclusion is also supported by the Pennsylvania Supreme Court’s decision in Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698 (2005). In this case, game officers approached the defendant and asked him to produce identification. He refused. The officers then cited the defendant for violating 34 Pa.C.S. §904, “which requires a person to produce identification upon demand of a game officer.” Id. at 564, 873 A.2d at 700. The court, relying on the recent United States Supreme Court’s decision of Hiibel v. Sixth Judicial Dist. of Neveda, Humboldt County, 542 U.S. 177 (2004), recognized that the state can pass a law requiring the subject of an investigation to identify himself or herself to the police, so long as the police have detained that person pursuant to a valid investigative detention. Ickes, 582 Pa. at 565, 873 A.2d at 701. The court went on to note that section 904 allowed the game officers to demand identification without reason, which infringed “upon a citizen’s right to be free from [the] demands of law enforcement officials who have no articulable suspicion of wrongdoing by the citizen whatsoever.” Id. at 568, 873 A.2d at 702. Thus, the court held section 904 to be invalid because it was vague and overbroad on its face.

Based on the above, in order for section 4914(a) to comply with our law, an actual ongoing investigation into a criminal violation, and a valid investigatory detention are required before a police officer can charge an individual under this statute. Because we have determined that there was neither an actual investigation into a criminal offense nor a valid investigative detention in this case, the defendant cannot properly be charged under section 4914(a) of this statute.

In closing, we feel compelled to highlight the unreasonableness and unfairness of the police action in this case. The police essentially baited the defendant into committing this crime, even though there was no articulable reason to do so. When dealing with such situations, our courts have censured such action.

For example, in Commonwealth v. Spennato, 318 Pa. Super. 532, 465 A.2d 681 (1983), the Superior Court admonished the Commonwealth for setting what has now become known as a “perjury trap”. In Spennato, the Pennsylvania Crime Commission was questioning the defendant under oath. The majority of the Commonwealth’s questions focused on the defendant’s handling of his business accounts as the manager and proprietor of a pizza shop. However, in the middle of the proceeding the Commonwealth asked a single ambiguous question about whether he had ever made deposits into a bank account other than his own. He answered in the negative, reasonably believing that they were still questioning him regarding the business transactions. The Commonwealth subsequently charged the defendant with perjury after they uncovered evidence that he had made several personal deposits into the bank accounts of two other individuals. On review, the Superior Court vacated the defendant’s sentence, and held that:

“The interrogation tactic of the Crime Commission investigator reeks of unfairness in that it deprived the appellant of any opportunity to be apprised of the impact of the question; a question so patently ambiguous that to allow it to serve as the basis for a perjury prosecution is contrary to all notions of fairness and justice.” Id. at 537, 465 A.2d at 684.

Much like in Spennato, the police in this case manufactured a situation which baited the defendant, by the mere utterance of several words, to commit this crime. A crime that would have never been committed had the police not acted. Acceptance of this conduct is tantamount to giving the police unfettered discretion to challenge anyone that simply annoys or offends them, regardless of whether that person is actually involved in any type of criminal activity. See Ickes, 582 Pa. at 566-67, 873 A.2d at 702. Such a result is an anathema to our Fourth Amendment jurisprudence which protects people from unreasonable searches and seizures. Moreover, it clearly violates our societal expectations of fairness and justice. For these reasons, the actions of the police in this matter, as revealed in the record, require the suppression of all statements and evidence obtained by Officer Hine at the Sunoco A-Plus Mini-Mart.

      . During his testimony, Hine made reference to the status of the defendant’s driver’s license, to which an objection was sustained. The documents provided by the Commonwealth and admitted as exhibits 2 and 3 do not substantiate any contention that the defendant’s license was under suspension.

      . The defendant’s motion cites Rule 554(B) for authority; however, after reviewing the Pa.R.Crim.R we believe that this is a typo and that the defendant intended to raise Pa.R.Crim.R 544(B) which is relevant to these proceedings.

      . “[I]f police receive unverified information from an unknown person, which consists solely of a generalized description of a person allegedly engaged in criminal activity at a. particular location, that information, in and of itself, does not provide the police with the requisite reasonable suspicion to detain and search an individual who merely happens to be at the specified location and who matches the general description given by the informant. Some other independent corroboration of the individual’s involvement in criminal activity is required. Mere presence alone of an individual at a particular place, as described by the anonymous informant, does not establish that the individual is engaged in criminal activity.” See Commonwealth v.

      . To the extent that the Commonwealth would classify the stopping of the defendant as a mere encounter, such does not require any response from a citizen, and thus cannot be the proper subject of a charge under this section.