author: O’CONNOR, Member,

text:
    Office of Disciplinary Counsel v. Bentivegna

      Disciplinary Board Docket no. 88 D.B. 2005.
    November 21, 2006
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

O’CONNOR, Member,

— Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On June 10,2005, Office of Disciplinary Counsel filed a petition for discipline against Antoinette M.J. Bentivegna, respondent. The petition charged respondent with professional misconduct arising out of allegations that she submitted false and misleading documents to the Bankruptcy Court and that she perjured herself in testimony before the Bankruptcy Court judge. Respondent did not file an answer to petition.

A disciplinary hearing was held on October 18,2005, before a District II Hearing Committee comprised of Chair James J. Byrne, Jr., Esquire, and Members Dennis D. Brogan, Esquire, and Mark A. Kearney, Esquire. Respondent did not appear. A continued hearing was held on April 5,2006 before the Hearing Committee. Respondent did not appear.

The Hearing Committee filed a report on June 28, 2006, finding that respondent engaged in professional misconduct in violation of the Rules of Professional Conduct and recommending that she be disbarred.

This matter was adjudicated by the Disciplinary Board at the meeting on September 20, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said rules.

(2) Respondent, Antoinette M.J. Bentivegna, was born in 1941 and was admitted to practice law in the Commonwealth in 1991. The last Attorney Annual Fee Form submitted by respondent to the office of the secretary lists her registration address as: 70 West Oakland Avenue, Ste. 206, P.O. Box 942, Doylestown, Bucks County PA 18901 and the same P.O. Box for her residence.

(3) Respondent has a prior history of discipline consisting of a private reprimand administered in 2002 and a two-year suspension imposed by order of the Supreme Court dated July 15, 2004.

(4) By order dated January 28,1999, the United States Bankruptcy Court for the Eastern District of Pennsylvania, in case no. 98-36332, dismissed the Chapter 13 petition respondent filed on her own behalf, and prohibited her from filing future bankruptcy petitions without prior court approval.

(5) Respondent had previously filed five other bankruptcy petitions in the Eastern District of Pennsylvania on her own behalf, which were all dismissed — the first was filed in 1991 (Chapter 11); the second in 1995 (Chapter 7); the third in 1997 (Chapter 13); and the last two in 1998 (Chapter 13).

(6) In each of these six bankruptcy proceedings, respondent listed her Social Security number as ***-**-

(7) Respondent listed her Social Security number as ***.**_**** jn per annual attorney registration statements filed with the Office of the Secretary of the Disciplinary Board.

(8) In February of 2000, respondent purchased property located at 513 Portsmouth Court, Doylestown, Pennsylvania.

(9) The property deed recorded February 23, 2000, reflects that Antoinette Janis was the grantee, with a mortgage of $150,000 recorded against the property.

(10) Respondent’s maiden name is Janis; her full name is Antoinette Marie Janis Bentivegna.

(11) In November of 2000, respondent applied for financial assistance with the Homeowners Emergency Mortgage Assistance Fund.

(12) Respondent listed her name as “Antoinette Janis” on the application and her Social Security number as

(13) The Social Security Administration (SSA) does not list the Social Security number ***.**_**** as belonging to “Antoinette Janis”.

(14) On the financial assistance applications respondent listed her employer as Bentivegna Law Firm, 70 W. Oakland Ave., Doylestown, Pennsylvania, and also indicated that she was a self-employed attorney.

(15) In April of 2001, the application was approved and respondent obtained financial assistance from the Homeowners Emergéncy Mortgage Assistance Fund.

(16) Check no. *******5 dated April 16, 2001, was issued from the Homeowners Emergency Mortgage Assistance Fund directly to Clemons & Klimpl, a law firm in Doylestown, to pay fees owed to Westwyck Condominium Association on the condominium located at 513 Portsmouth Court, Doylestown.

(17) The 513 Portsmouth condominium was occupied by respondent in 2001.

(18) In July of2002, Westwyck filed a civil complaint against Antoinette Janis for non-payment of condominium assessments.

(19) On July 12,2002, respondent filed a Chapter 13 petition on behalf of a “Tony Janis” with the United States Bankruptcy Court for the Eastern District of Pennsylvania, which was assigned case number 02-19986.

(20) The July 2002 petition reflects two Social Security numbers for Tony Janis — the first social security number, ***-**-****, was typewritten, then crossed out by hand, and Social Security number ***-**-***, was handwritten on the application.

(21) The SSA verified that the number ***_**_**** does not belong to “Tony Janis”.

(22) The July 2002 petition listed Tony Janis’ address as 513 Portsmouth Court, Doylestown PA 18901.

(23) The July 2002 petition was dismissed on August 19, 2002 for failure to file all appropriate schedules and disclosures.

(24) On August 26, 2002 respondent filed another Chapter 13 petition on behalf of Tony Janis with the United States Bankruptcy Court for the Eastern District of Pennsylvania, which was assigned case number 02-31948.

(25) The August 2002 petition listed an invalid Social Security number 0f ***_**_**** for Tony Janis.

(26) The August 2002 petition listed Tony Janis’ address as 513 Portsmouth Court, Doylestown, Pennsylvania.

(27) On August 27, 2002, using letterhead that reflected her name as “Antoinette M. Bentivegna”, rather than “Antoinette M.J. Bentivegna”, respondent wrote to Stefan Richter, Esquire, attorney for Westwyck Condominium Association, purportedly on behalf of “Tony Janis”, and, among other things, stated that:

“(a) Ms. Janis had filed for bankruptcy on August 26, 2002;

“(b) Ms. Janis was entitled to the protection provided through the automatic stay provision set forth under section 263 of the Bankruptcy Code;

“(c) the automatic stay ‘is unconditional and nonnegotiable once the bankruptcy is filed’;

“(d) neither she nor her client ‘were permitted’ to attend the hearing scheduled for August 28; and

“(e) if Westwyck Condominium Association should proceed, her ‘client’ might seek sanctions including all fees and costs regarding the action.”

(28) In all other letters, including those sent to the Bankruptcy Court, respondent’s letterhead reflected her name as “Antoinette M.J. Bentivegna”.

(29) On August 28,2002, Westwyck obtained a judgment against Tony Janis.

(30) When Westwyck attempted to serve process on Tony Janis at the 513 Portsmouth Court address, they discovered that the premises were occupied by respondent.

(31) OnNovember 14,2002, respondent filed amotion styled “motion of debtor Tony Janis to be excused from attending section 341 meeting of creditors and for leave to file interrogatories.”

(32) In the motion, respondent alleged that the debtor, Tony Janis, was unable to appear at the meeting of creditors because she was attending a doctoral program in Wisconsin and teaching classes for the school year.

(33) By letter dated November 15,2002, the office of the Chapter 13 standing trustee wrote to respondent and explained that her motion would be denied as there was no notice to creditors and other parties of “intent [sic]”, and that the case would be scheduled for dismissal.

(34) By objection dated November 15, 2002, the trustee objected to debtor’s application to conduct the 341 creditors’ meeting by interrogatories because the debtor had failed to provide supporting affidavits demonstrating her inability to attend the scheduled meeting and failed to attach copies of a valid photo ID and Social Security card for verification of her Social Security number.

(35) On January 13,2003, the Bankruptcy Court issued an order dismissing the case because the debtor had failed to appear at the 341 meeting and payments to the trustee were not being made.

(36) On April 18,2003, respondent filed a Chapter 13 petition on behalf of Tony Janis in the United States Bankruptcy Court for the Middle District of Pennsylvania, which was assigned case number 5:03-bk-51873.

(37) The April 2003 petition listed an invalid Social Security number 0f ***_**_**** for Tony Janis.

(38) The mailing address for Tony Janis listed in the April 2003 petition was P.O. Box 942, Doylestown PA 18901 — a mailing address used by respondent.

(39) The April 2003 petition was dismissed by order dated May 30, 2003.

(40) On July 23, 2003, respondent filed a Chapter 13 petition on behalf of Tony Janis in the United States Bankruptcy Court for the Middle District of Pennsylvania, which was assigned case number 5:03-bk-53527.

(41) The July 2003 petition listed an invalid Social Security number 0f ***_**_**** for Tony Janis.

(42) The mailing address for Tony Janis listed on the July 2003 petition was P.O. Box 942, Doylestown PA 18901 — a mailing address used by respondent.

(43) On November 25, 2003, respondent appeared at a hearing before the Honorable John J. Thomas, chief judge of the United States Bankruptcy Court for the Middle District of Pennsylvania, with regard to the July 2003 petition.

(44) At the November 25, 2003 hearing, the United States Trustee advised the court of his belief that respondent and Tony Janis were the same person.

(45) Chief Bankruptcy Judge John J. Thomas then placed respondent under oath, where she testified:

“(a) Tony Janis was her cousin;

“(b) Tony Janis was about 13 to 18 months younger than respondent;

“(c) ‘every single piece of paper that I’ve ever signed from 1961 until now has always been my formal name, which is Antoinette M.J. Bentivegna’;

“(d) Tony Janis was hospitalized at a treatment center in Allentown for a bipolar condition, a suicide attempt, and a drug dependency; and

“(e) Respondent had filed only once for bankruptcy in 1988.”

(46) The testimony of respondent was false.

(47) Respondent refused to provide the court with her Social Security number, claiming that she could not remember it.

(48) The Bankruptcy Court scheduled a hearing, set for January 22, 2004, for the purpose of giving respondent an opportunity to furnish proof that she and “Tony Janis” were not the same person.

(49) Respondent failed to attend the January 22,2004 hearing.

(50) Respondent failed to attend the pre-hearing conference on September 13, 2005 and she failed to attend the disciplinary hearings on October 18,2005 and April 5, 2006.

(51) Respondent received notice of the hearings by way of first-class mail to her last address of record with the Administrative Office. This is sufficient under Pa.R.D.E. 212. The first-class mail was not returned as undeliverable.

III. CONCLUSIONS OF LAW

By her conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 3.3(a)(1) — A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

(2) R.P.C. 3.3(a)(4) — A lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(3) R.P.C. 4.1(a) — In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.

(4) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act which reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as lawyer in other respects.

(5) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(6) R.P.C. 8.4(d) — It is professional misconduct for lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the Disciplinary Board for consideration of a petition for discipline charging respondent with submitting false and misleading documents to a Federal Bankruptcy Court and presenting perjured testimony to that court. Petitioner bears the burden of proving respondent’s misconduct by clear and satisfactory evidence. Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441 (2000). The record demonstrated that petitioner met its burden of proof.

In 1999 the United States Bankruptcy Court for the Eastern District of Pennsylvania prohibited respondent from filing future bankruptcy petitions without prior court approval. Respondent circumvented this order by filing bankruptcy petitions on behalf of “Tony Janis” in the Eastern District of Pennsylvania in July and August of 2002. “Janis” is respondent’s maiden name and “Tony” is a shortened version of her first name. The petitions also contained a false Social Security number. Both petitions were ultimately dismissed. Thereafter, respondent filed bankruptcy petitions on behalf of “Tony Janis” in the United States Bankruptcy Court for the Middle District of Pennsylvania in April and July of 2003. These filings also reflect the use of false Social Security numbers, as well as respondent’s attempt to use the name “Tony Janis” to mislead the court.

Respondent was placed under oath by Chief Judge John J. Thomas of the Middle District after the trustee advised Judge Thomas of a belief that respondent and “Tony Janis” were the same person. Respondent offered false and evasive testimony to the extent that Tony Janis was her cousin, and that respondent only filed for bankruptcy once since 1988. Judge Thomas gave respondent an opportunity, at a subsequent hearing, to provide documentation confirming her testimony, but respondent did not avail herself of this opportunity and failed to appear at the hearing. Respondent also failed to appear at her disciplinary hearings. The evidence, as set forth in the detailed findings of fact, is clear and satisfactory that respondent engaged in fraudulent and dishonest conduct in an effort to mislead her creditors and the court, and perjured herself before the Bankruptcy Court.

The position of the Supreme Court of Pennsylvania in cases where an attorney engages in acts of dishonesty which perpetrate a fraud on the court system has been made clear. The appropriate sanction is disbarment. Office of Disciplinary Counsel v. Raiford, 546 Pa. 628, 687 A.2d 118 (1997) (attorney who engineered a fraudulent scheme involving impersonation and false testimony in a criminal case was disbarred); Office of Disciplinary Counsel v. Holston, 533 Pa. 78, 619 A.2d 1054 (1993) (attorney who forged a court order and certificate and who subsequently lied to the judge about the origins of the documents was disbarred); Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981) (attorney who filed a false pleading was disbarred).

The board takes note of the recent matter of Office of Disciplinary Counsel v. DiAngelus, no. 1020 Disciplinary Docket no. 3 (Pa. Sept. 27, 2006), wherein during the course of the respondent’s representation of a defendant in a criminal matter, the respondent made a misrepresentation to the assistant district attorney about the existence of a plea agreement with the arresting officer. The Supreme Court viewed the dishonesty of the respondent as deceit to the court, but declined to impose disbarment on the respondent. The court recognized that the respondent’s misrepresentation to the assistant district attorney was a serious offense, yet determined that it fell short of the egregiousness of other acts of deceit to the court, such as forging court orders and lying to the court. The court found that Mr. DiAngelus presented credible testimony by eight character witnesses regarding his reputation for truthfulness, honesty and law abidingness. The court noted Mr. DiAngelus’ involvement with various local bar associations and activities. The court acknowledged the respondent’s prior disbarment, but viewed it as far-removed in time and circumstances, having occurred more than 20 years ago while respondent was addicted to cocaine. Based upon the totality of the circumstances, the court recommended a five-year suspension. The instant case is far more egregious than the cited matter, as respondent Bentivegna lied under oath while being questioned by a judge and actively perpetrated fraud and deceit on the court.

Further aggravating respondent’s egregious misconduct is her prior record of discipline. Respondent received a private reprimand in 2002 and was placed on suspension for two years by order of the Supreme Court on July 15, 2004. The suspension was based on respondent’s filing of bankruptcy petitions and pleadings without authorization from her clients in four separate matters, failing to make required payments of installment fees, misrepresentations to opposing counsel and failing to communicate her actions to clients.

Respondent did not appear at the disciplinary hearings and therefore offered no evidence or testimony providing any explanation or mitigation for her misconduct which could justify a lesser sanction than disbarment.

For the reasons as set forth above, the Disciplinary Board recommends that respondent be disbarred.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Antoinette M.J. Bentivegna, be disbarred from the practice of law.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Baer did not participate in the adjudication.

ORDER

And now, January 26,2007, upon consideration of the report and recommendations of the Disciplinary Board dated November 21, 2006, it is hereby ordered that Antoinette M.J. Bentivegna is disbarred from the bar of this Commonwealth, and she shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: HERMAN,/,

license: Public Domain

text:
    Borough of Shippensburg v. Kelley

      J. McDowell Sharpe and Charles E. Shields III, for plaintiff.

      Evan C. Pappas, for defendants Johnson.

      W. Scott Arnoult, for defendant Kelley.
    September 15, 2006
   HERMAN,/,

INTRODUCTION

Before the court are two separate but related motions for summary judgment to the complaint filed by the plaintiff, the Borough of Shippensburg. The defendants argue the borough filed this action beyond the statute of limitations. The borough answered the motions and the court has reviewed the available record and briefs of counsel.

BACKGROUND

Richard C. Kelley was employed as the borough’s water superintendent and was responsible for maintenance and oversight of a certain timbered tract of land encompassing a reservoir which belongs to the borough known as Gunter Valley. The land at issue is in northern Franklin County in a remote area of woodlands lying upstream from a reservoir which supplies water to the borough. Access to Gunter Valley was through a locked gate near the borough water treatment plant. Kelley had a key to the gate and exercised primary control over access, according to the borough.

In an effort to respond to DER (now DEP) concerns about problems caused by dead trees falling into the water supply, the borough decided to clear timber from the reservoir area. A meeting was held in March of 1991 attended by the borough’s then-Manager Kevin De-Febbo, the borough’s then-Solicitor Forest Myers, Richard C. Kelley, and Donald Johnson. Donald Johnson and his father Albert “A.C.” Johnson owned and operated a local sawmill. Donald Johnson received a key to Gunter Valley under an arrangement whereby the Johnsons would clear timber from a designated area in return for keeping the wood generated by the cleanup; no money was to change hands. The solicitor was to prepare a written contract to memorialize the scope of the intended timbering but unfortunately this was never done.

Donald Johnson eventually stopped work in Gunter Valley and removed his equipment, though there is a dispute about precisely when this occurred and what the reasons were for the work’s cessation. The record is conflicting as to whether Donald Johnson stopped work in late 1992 after the borough asked him to or whether he stopped work in April of 1993 once he was asked to by the then-Borough Manager Kevin DeFebbo. No written contract had ever been drawn up which defined the scope of the timber operations. There is also indication in the record the Johnsons continued removing timber after April 1993 and as late as April of 1994.

An article appeared in the Patriot News on April 18, 1993 entitled “Borough Seeks Probe Regarding Tree-Theft Rumors.” (Exhibit A, Kelley’s motion.) According to the article, the solicitor asked the Franklin County District Attorney to look into rumors which had been circulating in the community about unauthorized timber removal from Gunter Valley by an unnamed local lumberman with the help of at least one borough employee. The district attorney, by letter dated May 4,1993, asked the Pennsylvania State Police to investigate the matter. (Exhibit A, the borough’s answer to Kelley’s motion.)

Trooper Michael Gayman of the state police was assigned to the case on February 1,1995. On March 7,1995, he determined he had probable cause to file criminal charges against Kelley and thereafter notified borough officials of his findings. (Trooper Gayman’s affidavit, exhibit C, the borough’s answer to Kelley’s motion.) Upon learning its own water superintendent was the subject of criminal charges, Kelley’s employment with the borough ended. The borough hired forestry consultant David A. Sirna to perform a survey to determine the extent and value of the timber removed from Gunter Valley. Mr. Sima’s report was dated July 7, 1995 and delivered to the borough on or about that date.

The borough filed a praecipe for writ of summons against the defendants on March 22, 1996 which was served on all defendants on March 28, 1996. The complaint filed on June 6,1996 raised claims of conversion, breach of implied contract and conspiracy to defraud. The borough alleges the Johnsons, with Kelley’s knowledge, cut timber from Gunter Valley and paid Kelley money to allow or not to disclose they were cutting the timber in an unauthorized manner. The borough filed an amended complaint on March 21,1997, again asserting these causes of action. The Johnsons admit they cut the timber but deny any wrongdoing on the grounds they had the necessary permission to do the cutting. They also assert a counterclaim based on the doctrine of quantum meruit for the value of their services which went uncompensated once they complied with the borough’s demand to stop work in Gunter Valley.

The borough filed a praecipe on March 24,2006 to list this case for trial. The court held a pretrial conference on August 2 and set deadlines for the motions for summary judgment and also scheduled jury selection for September 11. The trial is set for October 9-13.

DISCUSSION

Summary Judgment

Pennsylvania Rule of Civil Procedure 1035.2 provides:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(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.”

The non-moving party, in this case, the borough, must come forward with prima facie evidence which shows they filed this action within the period required by the applicable statute of limitations. The court in considering the defendants’ motions must view the record in the light most favorable to the borough as the non-moving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the movants. Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159 (1997).

In addition, oral testimony alone, either through testimonial affidavits or depositions of the moving party or his witnesses, is insufficient to establish the absence of a genuine issue of material fact, even if the affidavits or depositions are uncontradicted. On the other hand, such affidavits or depositions may be sufficient to show the existence of a genuine issue of material fact. The question of whether or not such evidence is credible is one which must be resolved by the jury. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989); Nanty-Glo Boro v. American Surety Co., 309 Pa. 236, 163 A.2d 523 (1932).

Statutes of Limitations and the Discovery Rule

The statute of limitations begins to run when the right to institute and maintain a suit arises. Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 468 A.2d 468 (1983). Once the statutory period within which suit must be brought has passed, a complainant is barred from bringing suit unless it is established that an exception to this general rule applies which tolls the running of the statute. Id. The “Discovery Rule” is such an exception. Essentially, the rule provides that where a party does not know he has been injured and such knowledge could not have been reasonably ascertained within the statutory period, the limitation period does not begin to run until the discovery of the injury is reasonably possible. Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 (1981).

With regard to causes of action for conspiracies alleged to have been committed over an extensive period of time, where there are repetitive acts committed as part of continuing conspiracy, the applicable statute of limitations does not begin to run until after the commission of the last overt act in furtherance of the conspiracy. Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974). Where an underlying claim sounds in fraud, the running of the applicable statutory period is tolled by wrongful conduct until such time as the fraud should have been discovered by the victim through the exercise of due diligence. Beauty Time Inc. v. VU Skin Systems Inc., 118 F.3d 140 (3d Cir. 1997) (citations omitted); Rubin Quinn v. Kennel, 832 F. Supp. 922 (E.D. Pa. 1993).

Whether the statute of limitations has run is usually a question of law for the court. However, where the issue involves a factual determination, specifically, whether a plaintiff has exercised reasonable diligence in discovering the harm, such a determination must be made by the jury. Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959).

The Johnsons ’Motion

The tort of conversion is defined as “the deprivation of anther’s right of property in, or use or possession of, a chattel without the owner’s consent and without lawful justification. ... Specific intent is not required, . . . but rather, an intent to exercise dominion or control over the goods which is in fact inconsistent with the plaintiff’s rights establishes the tort.” Shonberger v. Oswell, 365 Pa. Super. 481, 484-85, 530 A.2d 112, 114 (1987). The statute of limitations for an action in conversion is two years.

The Johnsons contend the conversion claim was untimely filed because the borough knew or should have known of the alleged conversion before April 4, 1994, the date when the Johnsons assert this action was filed. In support, the Johnsons argue Donald Johnson stopped work in Gunter Valley and removed his equipment in late 1992 after he was asked to do so by the borough. The Johnsons cite to Donald Johnson’s grand jury testimony given in the Cumberland County criminal case.

Preliminarily we find this action was commenced, not on April 4, 1996, but on March 22, 1996, the date on which the borough filed a praecipe for a writ of summons. We therefore disagree from the outset with any argument the defendants make which is premised on April 4,1996 as being the date on which the action was commenced.

We have not been provided with a transcript from the Cumberland County grand jury proceeding. However, even if we had been, the Johnsons could not prevail in this motion as to the conversion claim. This is because they bear the burden of proving the statute of limitations has run, which is an affirmative defense they themselves have raised. Fine v. Ceccio, 582 Pa. 253, 870 A.2d 850 (2005).

Where the borough has produced prima facie evidence to contradict Donald Johnson’s assertion that he removed no timber from Gunter Valley after 1992, and indeed the borough has produced such evidence through the affidavit of one Thomas L. Holtry, the question of precisely when the Johnsons stopped timbering and therefore whether the borough filed this action in a timely manner is a factual question for the jury to resolve at trial. Penn Center, supra. Mr. Holtry’s affidavit (attached to the borough’s answer to the Johnsons’ motion) states:

“Troy L. Holtry, 9180 Newburg Road, Newburg, Pennsylvania, being duly sworn according to law, deposes and says:

“(1) He has spend a great deal of time in and around Gunter Valley in the area of the main gate into Gunter Valley near the Roxbury water treatment plant for Shippensburg.

“(2) He often saw trucks of Donald Johnson or A.C. Johnson coming out of Gunter Valley hauling cut timber.

“(3) He specifically recalls seeing Johnsons bring timber out of Gunter Valley not earlier than April of 1994 because he saw them hauling timber during fishing season.” (emphasis supplied)

Through this affidavit, the borough has produced prima facie evidence the alleged conversion of timber was ongoing at least as late as April 1,1994. This is sufficient in itself to raise a factual question which precludes us from finding as a matter of law that the borough, in filing suit on March 22,1996, did so beyond the two-year statute of limitations for conversion.

There is another, related reason why granting summary judgment in favor of the Johnsons as to the statute of limitations is inappropriate and this touches on the claim of conspiracy to defraud. A civil conspiracy is “a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose.” Baker v. Rangos, supra at 351, 324 A.2d at 506. The statute of limitations for conspiracy is the same as it is for the underlying action which forms the basis of the conspiracy. Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974). This would be two years under 42 Pa.C.S. §5524(7).

Where there are repetitive acts committed as part of a continuing conspiracy, the statute of limitations does not begin to run until after the commission of the last overt act in furtherance of the conspiracy. Baker, supra at 358. The borough was required to bring suit within two years of discovering the conspiracy, or the last act thereof. Here, there is a factual dispute about whether the John-sons collaborated with Kelley to prevent the borough from discovering allegedly unauthorized timbering which continued up through and including April of 1994. The borough asserts such collaboration was made possible by the landscape’s remoteness, Kelley’s control over access to the area, and statements Kelley made to borough officials to deceive them into believing Donald Johnson had already stopped work there at an earlier time. This deception prevented the borough from fully discovering what was being done and by whom until Trooper Gayman informed the borough in March of 1995 of the charges against Kelley.

The borough has produced sufficient evidence to withstand the Johnsons’ contention that they are entitled to dismissal of this case as a matter of law. There is a genuine factual dispute as to whether the borough knew or should have known of the alleged conversion by or before March 22, 1994. It is for the jury to determine when the borough acted in a reasonably diligent manner to discover the harm. Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 Smith v. Bell Telephone Company, 397 Pa. 134, 153 A.2d 477 (1959).

The Johnsons also argue the breach of implied contract claim is time-barred. While acknowledging the statute of limitations for breach of implied contract is four years under 42 Pa.C.S. §5525(a)(4), they maintain the complaint sounds primarily in conversion which has only a two-year statute of limitations. Because the borough was untimely in filing the action for conversion, it cannot fall back on its alternate claim for breach of implied contract.

The Johnsons’ argument fails for two reasons. First, as we found in our discussion above, there is a genuine issue of material fact as to precisely when the defendants stopped timber operations, and this issue, premised as it is on the credibility of testimony from key players, requires ultimate resolution by the jury. Second, breach of implied contract is an independent cause of action with different elements of proof and different measures of damages than conversion and is based specifically on the Johnsons’ assertion in their defense that they were performing services under an oral contract with the borough.

As to this second point, the breach of implied contract claim rests on the contention the Johnsons were unjustly enriched at the borough’s expense and must make restitution in an amount equal to the reasonable value of the benefit conferred on them by the borough, here, the cut timber. Schenck v. K.E. David Ltd., 446 Pa. Super. 94, 666 A.2d 327 (1995). Not only are the elements of proof different in implied contract and the tort of conversion, but the available remedies differ under each cause of action as well: the reasonable value of the benefit conferred for the contract claim versus possible treble damages for the conversion claim. Based on the foregoing, the borough is not barred as a matter of law from pursuing the breach of implied contract claim. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993).

Lastly, the Johnsons argue the conspiracy to defraud claim is likewise barred by the two-year statute of limitations. Their argument is based on the same premises put forth with regard to the claim for breach of implied contract and it fails for the same reasons discussed above.

Kelley’s Motion

Kelley argues the -two-year statute of limitations for conversion and conspiracy began to run on April 18, 1993, the date of the Patriot News article, making it incumbent on the borough to file suit no later than April 18,1995, not as it did 11 months later on March 22,1996. He argues the article shows the borough had actual knowledge of the alleged conversion and conspiracy as of April 18,1993. We disagree Kelley is entitled to summary judgment as a matter of law on this contention.

First, there are grounds in the record to indicate the borough did not have actual knowledge of any alleged wrongdoing by either the Johnsons or Kelley as of April 18, 1993. Instead what the borough had were mere rumors circulating in the community about unauthorized removal of timber by a local lumberman with the aid of a borough employee with access to Gunter Valley. The borough maintains it did not yet have substantive grounds in April of 1993 to definitively conclude anything illegal had taken place and in fact had reason to be circumspect about the rumors for two reasons: (1) the borough knew it had an agreement with a local lumberman to do timbering in a portion of Gunter Valley (although the scope of the work became a matter of dispute because the solicitor had never reduced the agreement to writing), and (2) the borough was relying on its long-time and trusted water superintendent to assist them with the inquiry and this superintendent provided what the borough now alleges was deliberately false information about the John-sons’ activities.

Second, there are grounds in the record to support the borough’s contention that not only did it lack actual knowledge of wrongdoing as of the article’s publication date, it acted promptly and with reasonable diligence to learn more about the matter and to remove the Johnsons from the Valley. Contemporaneously with the article’s publication, the Franklin County District Attorney, at the borough’s request, asked the state police in May of 1993 to devote resources to investigating the matter. The borough then awaited the results of that investigation, relying all the while on Kelley to oversee Gunter Valley as before.

As discussed above, there is a factual dispute as to exactly why and when Donald Johnson stopped timbering. Some evidence in the record suggests he may have voluntarily quit the work in 1992 because he was tired of hearing rumors that local residents suspected him of unauthorized timbering and also because his efforts were not financially worthwhile. Some evidence indicates Kelley told borough officials, in either 1992 or 1993, that Johnson had quit. Other evidence indicates Kelley was ordered by the borough to fire Johnson in 1993 when it was discovered no written contract had ever been drawn up defining the scope of the work to be done in Gunter Valley. (Deposition of Richard Kelley, June 8, 2005, p. 62.) This factual dispute, centered as it is on allegations of deception and concealment by the Johnsons and Kelley, is relevant to the question of when the borough knew of or should have been able to pinpoint the exact date on which the timbering ended. The answer to this question hinges on the jury’s assessment of the credibility of the witnesses and other supporting evidence. For this reason, we reject Kelley’s contention the record is settled on the question of whether the borough’s suit was untimely filed as a matter of law.

Lastly, Kelley argues the borough’s breach of implied contract claim, which is one in equity for unjust enrichment, must be dismissed as a matter of law because Cumberland County has already ordered him to pay restitution to the borough arising from his conviction for bribery in connection with the timber allegedly removed from Gunter Valley. (N.T. December 31,2002 sentencing hearing, exhibit B of Kelley’s motion.) Kelley argues the borough cannot obtain a civil judgment for that same timber under this equitable claim because this would constitute a double recovery. We disagree.

Section 1106(g) of the Pennsylvania Crimes Code provides: “Preservation of private remedies. — No judgment or order of restitution shall debar the owner of the property or the victim who sustained personal injury, by appropriate action, to recover from the offender as otherwise provided by law, provided that any civil award shall be reduced by the amount paid under the criminal judgment.” The court will mold any civil verdict or judgment the jury might assess against Kelley to ensure the borough does not receive a double recovery.

ORDER

Now this September 15, 2006, upon review and consideration of the defendants’ motions for summary judgment, the plaintiff’s answers, the record, written argument and the relevant law, the court hereby denies the motions.

Pursuant to Pa.R.C.P. 236, the prothonotary shall give written notice of the entry of this order, including a copy of this order, to each parties’ attorney of record and to each party and shall note in the docket the giving of such notice and the time and manner thereof.

      . Defendant A.C. Johnson died during the pendency of this suit. The borough intends to open an estate and have an administrator appointed so as to allow this action to proceed.

      . The Borough of Shippensburg is divided between Franklin and Cumberland Counties. Gunter Valley lies within both counties.

      . To support his claim that he stopped work in the valley in late 1992, Donald Johnson cites to his grand jury testimony of March 30, 2000 in a criminal case for bribery brought in Cumberland County against Kelley. This prosecution arose out of his employment with the borough and circumstances either the same or similar to the instant civil case. We do not currently have that court record before us but it appears the criminal action was filed in 2000 and resulted in a conviction in 2002 which was affirmed on appeal in 2005. Donald Johnson was not charged with any crime.

      . The time lapse between the close of the pleadings and the praecipe to list was due in part to the pending criminal action against Kelley in Cumberland County.

      . An action for taking, detaining or injuring personal property, including actions for specific recovery thereof must be commenced within two years. 42 Pa.C.S. §5524(3).

      . The court directs counsel to design a verdict slip with special interrogatories which will guide the jury in making its initial finding as to whether the borough filed this action within the statutes of limitations.

      . Mr. Sirna found the market value of the timber which had allegedly been converted was between $184,664 and $1,000,000 as of April of 1994.

      . The borough is proceeding under 42 Pa.C.S. §8311: Damages in actions for conversion of timber.
      “(a) General rule. — In lieu of all other damages of civil remedies provided by law, a person who cuts or removes the timber of another person without the consent of that person shall be liable to that person in a civil action for an amount of damages equal to:
      “(1) the usual and customary costs of establishing the value of the timber cut or removed and of complying with the erosion and sedimentation control regulations contained in 25 Pa. Code Ch. 102 (relating to erosion control);
      “(1.1) the cost of any surveys obtained in connection with the civil action; and

        “(2) one of the following:

        “(i) three times the market value of the timber cut or removed if the act is determined to have been deliberate. ..” (emphasis supplied)

      . 42 Pa.C.S. §5524(7): “The following actions ... must be commenced within two years: Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud ....”

      . There is also evidence in the record indicating that at least two persons connected with the borough in an official capacity hindered deeper inquiry into the rumors. According to Trooper Gayman’s affidavit, these were borough manager Kevin DeFebbo (who was no longer in that position and lived in another state by the time Trooper Gayman conducted his investigation) and Forest Myers, who was solicitor at that time but stopped acting in that capacity at some point thereafter. Trooper Gayman’s affidavit states both men refused to cooperate with his investigation. There might be evidence presented to the jury concerning these serious allegations.

      . Affidavit of W. Edward Goodhart, member of the Shippensburg Borough Council and the Water Authority at times relevant to this case, attached as exhibit B to the borough’s answer to Kelley’s motion.


author: KURTZ, J,

text:
    Commonwealth, Department of Environmental Protection v. Espy

      Dennis Whitaker, Margaret O. Murphy, Martha Smith, Laurie Shepler and Jason Oyler, for Commonwealth.

      Stanley Stein, for co-plaintiff Bright.

      Scott Gill, for defendant Espy.

      Charles Bierbach and Thomas Reed, for defendants Beaver, Hidden Hollow Enterprises Inc., Legacy Conservation Group LLC, Angling Fantasies LLC and Bell-wood Antis Enterprises Inc.

      June 13, 2007
   KURTZ, J,

— This case is before the court on defendants’ motion for post-trial relief. The motion was filed in response to the decision of the court filed January 29, 2007, concerning the navigability of the Little Juniata River in Huntingdon County, Pennsylvania. In the decision, we made 174 findings of fact concerning the Little Juniata River, discussed the applicable principles of law on the subject of navigability and reached the following conclusions of law:

“(1) In 1803, when the Commonwealth granted to Joseph Heister the three tracts of land that are owned today by Rural Partners, the grant was subject to the 1794 Act of Assembly that declared the Little Juniata River to be a public highway.

“(2) Therefore, Mr. Heister’s property extended only to the low watermark of the Little Juniata River.

“(3) By virtue of the public highway declaration, the Commonwealth of Pennsylvania retained ownership of the streambed adjacent to the land granted to Mr. Heister, and its ownership continues to today.

“(4) The Little Juniata River during the period following the Revolutionary War until the advent of the Pennsylvania Railroad was navigable-in-fact.”

Defendants disagree with all of the conclusions.

DISCUSSION

Initially, defendants challenge the first three conclusions on the ground that it was error to “declare the Act of 1794 as removing the equitable property interest established as early as August 1, 1766.” The argument is a rehearsal of defendants’ position at trial.

The factual foundation for the conclusions was not in dispute at trial; indeed, it was stipulated. Findings of fact 93, 94, 95 and 105-120 set forth the events that led to the conclusions. Nonetheless, succinct summarization is warranted.

Title to the real estate that is owned today by defendants passed from the Commonwealth into private ownership in 1803 when three patents were delivered to Joseph Fleister. Nine years earlier, on February 5,1794, the Pennsylvania Legislature had declared the Little Juniata River in Huntingdon County to be a public highway. The river flows past the defendants’ property.

The conclusion of this court was that since the Pennsylvania Legislature declared the Little Juniata River to be a public highway nine years before the grant of the land, the riparian rights of the original patentee, Joseph Heister, were effected in that he acquired title only to the low watermark of the river. In this regard, we relied on the decision of the Pennsylvania Supreme Court in Leaf v. Pennsylvania Co., 268 Pa. 579, 112 A. 243 (1920).

Defendants protest and claim that equitable title passed from the Commonwealth prior to passage of the public highway declaration. On this point, the facts are these:

(1) Mr. Heister in 1803 obtained from the Pennsylvania Land Office patents (deeds) for three adjacent properties that bordered the Little Juniata River in Huntingdon County.

(2) As to one of these properties (85 acres), a Peter Young applied for a warrant on August 1,1767. The land was surveyed for Mr. Young October 20,1767. Mr. Young did nothing more with respect to this property.

(3) As to the second of the three properties, an Abraham Sells obtained a warrant for 25 acres on February 22, 1785. This land was surveyed May 28, 1791. As to this parcel, Mr. Sells did nothing more.

(4) Finally, as for the third property, again Abraham Sells obtained of warrant for 100 acres on June 7,1792. This land was not surveyed until October 30,1798. Alike his first warrant, Mr. Sells did not return the survey to the land office.

Defendants rely on Keller v. Powell, 142 Pa. 96, 21 A. 796 (1891), in support of their argument. The decision is quite short and is set forth below:

“Per Curiam.

“The first assignment does not conform to the rules of court. The remaining assignments present a single question of law, viz., when does title begin under a descriptive warrant duly surveyed and returned? The appellant contends that it commences with the date of the return of the survey; the appellees contend that it begins with the date of the warrant. Its boundaries are fully set forth therein. A descriptive warrant gives a right of entry. Bechtel v. Rhoads, 3 Serg. & R. 333. The warrantee has an equitable title, commencing with the date of the warrant. His title bears a close analogy to that of a vendee under articles of agreement. A descriptive warrant, and payment of part of the purchase money, gives an equitable interest in the land from its date, which can only be divested by conveyance of 21 years’ adverse possession. Washabaugh v. Entriken, 34 Pa. St. 74. When the patent issues, the warrantee becomes possessed of the full legal title, and it relates back to the inception of his equitable title. We are of opinion the statute runs from the date of the warrant. Judgment affirmed.”

This decision provides no factual basis and does not address the issue of delay in the process of land acquisition. In 1854, the Pennsylvania Supreme Court focused on that issue in the case of Emery v. Spencer, 23 Pa. 271 (1854), and opined as follows:

“When it is said that a precisely descriptive warrant gives title from its date, and a vague one from the time of survey, the qualification is sometimes added and always to be understood, if it be followed up with reasonable diligence. Whether descriptive or vague, the warrant imposes on the holder the duty of having it surveyed and returned into the survey-general’s office in a reasonable time, and his supineness is punished by postponing him to a more diligent, though subsequent claimant. How long he may lie by and delay his survey, or, having made it, delay procuring return of it, has not been distinctly settled, unless Strauch v. Shoemaker, 1 W. & Ser. 173, be regarded as fixing the rule; but since the case of Star v. Bradford, 2 Penna. R. 397, a delay for seven years has been accounted ground of a legal presumption of abandonment. Ordinarily, abandonment involves a question of intention, and is for the jury on all the circumstances; but where it depends on lapse of time, and there are no repelling circumstances in proof, it becomes, after seven years, a conclusion of law, to be declared by the court.” (emphasis in original)

This decision we believe, compels the conclusion that as a matter of law Abraham Sells and Peter Young abandoned any interest they had in the real estate. Defendants ’ argument that equitable title passed prior to the passage of the public highway declaration is therefore baseless.

The conclusion that the Little Juniata River is navigable-in-fact is also assailed on the ground that this court failed to follow the “accepted test in the United States for a determination of navigability-in-fact.” On this issue, defendants point to the decisions of the United States Supreme Court in United States v. State of Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844 (1931), and, United States v. Rio Grande Dam and Irrigation Company, 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136 (1899).

We agree with defendants’ position that the standard in Pennsylvania for a determination of navigability is the federal test announced in The Daniel Ball, 77 U.S. 577 (1870). In our initial opinion, we said that the Pennsylvania Supreme Court adopted that test in Cleveland & Pittsburgh Railroad Co. v. Pittsburgh Coal Co., 317 Pa. 395, 397, 176 A. 7, 9 (1935). See p. 51 of opinion.

But, in this case, it is the application of the test that has separated the parties. On the one hand, plaintiffs have characterized as substantial and overwhelming the evidence of the commercial use of the Little Juniata River in the first two decades of the nineteenth century. Defendants, on the other hand, have marginalized the same evidence and argued that “the river was used for purposes of infrequent commerce,....” A quotation from the decision of the United States Supreme Court in Rio Grande Dam and Irrigation is set forth in defendants’ motion and reflects their view of early nineteenth century commercial activity on the Little Juniata River, and suggests their notion of an appropriate application of The Daniel Ball test to the evidence in this case.

The seminal decision of the United States Supreme Court on the question of determining navigability is United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940). According to the United States Court of Appeals for the Second Circuit, the United States Supreme Court in Appalachian Electric held that a stream is navigable if “(1) it presently is being used or is suitable for use, or (2) it has been used or was suitable for use in the past, or (3) it could be made suitable for use in the future by reasonable improvements.” Rochester Gas and Electric Corp. v. F.P.C., 344 F.2d 594, 596 (2d Cir. 1965). See also, Pennsylvania Environmental Council Inc. v. Bartlett, 315 F. Supp. 238 (M.D. Pa. 1970).

In Appalachian Electric, the issue was the navigability of the New River which flows through Virginia and West Virginia. The United States District Court for the Western District of Virginia in a comprehensive opinion concluded the river was not navigable. See 23 F. Supp. 83 (1938). The United States Court of Appeals for the Fourth Circuit in an equally comprehensive opinion affirmed the district court. 107 F.2d 769 (1939). The United States Supreme Court in an opinion authored by the late Justice Stanley Reed reversed.

The opinion of Mr. Justice Reed is significant for several reasons.

First, he rejected the idea that the test of navigability is a one size fits all formula. He wrote that “[T]he legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances and at all times.” Id. at p. 404. (emphasis added)

Next, he framed the issue in the case as follows:

“The navigability of the New River is, of course, a factual question but to call it a fact cannot obscure the diverse elements that enter, into the application of the legal tests as to navigability. We are dealing here with the sovereign powers of the Union, the Nation’s right that its waterways be utilized for the interests of the commerce of the whole country. It is obvious that the uses to which the streams may be put vary from the carriage of ocean liners to the floating out of logs, that the density of traffic varies equally widely from the busy harbors of the seacoast to the sparsely settled regions of the Western mountains. The tests as to navigability must take these variations into consideration." Id. at pp. 405, 406. (footnotes omitted) (emphasis added)

The Justice indicated that The Daniel Ball definition of navigability was “the basic concept” but also noted that “[Ejach application of this test, however, is apt to uncover variations and refinements which require further elaboration.” Id. at p. 406. He set forth the test:

“Those rivers must be regarded as public navigable rivers in law which are navigable-in-fact. And they are navigable-in-fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.” Id. atp. 406.

Mr. Justice Reed then parsed the test of navigability, and it is clear beyond peradventure from the explication of certain phrases in the test that the court strongly endorsed an expansive rather than a restrictive approach to determining navigability.

Thus, with respect to the phrase “susceptible of being used, in their ordinary condition,” the court held that “[A] waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken.” Id. at p. 407.

Justice Reed also addressed the question of the volume of commercial traffic — the hub of defendants’ argument. He wrote:

“Nor is it necessary for navigability that the use should be continuous. The character of the region, its products and the difficulties or dangers of the navigation influence the regularity and extent of the use. Small traffic compared to the available commerce of the region is sufficient. Even absence of use over long periods of years, because of changed conditions, the coming of the rail road or improved highways does not affect the navigability of rivers in the constitutional sense. It is well recognized too that the navigability may be of a substantial part only of the waterway in question. Of course, these evidences of nonnavigability in whole or in part are to be appraised in totality to determine the effect of all.” Id. at pp. 409, 410. (footnotes omitted) (emphasis added)

Mr. Justice then proceeded to a factual analysis of the case. From our perspective, his assessment of the evidence presented on the question of the navigability of the 59-mile stretch of the New River between Radford, Virginia, and Wiley Falls, Virginia, is most relevant since it is clear to us at least that the quantum of evidence which Justice Reed found sufficient to find the river navigable is far less than the evidentiary presentation made by the plaintiffs in this case. Also, with respect to the volume of evidence necessary to support a finding of navigability, Justice Reed found support for his opinion in the decision of the United States Court of Appeals for the Seventh Circuit in Economy Light & Power Co. v. United States, 256 F. 792, 797, 798, affirmed, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1919). In Economy Light, the issue was navigability of the DesPlaines River which flows from Wisconsin to the Kankakee River in Illinois. Justice Reed observed:

Use of a stream long abandoned by water commerce is difficult to prove by abundant evidence. Fourteen authenticated instances of use in a century and a half by explorers and trappers, coupled with general historical references to the river as a water route for the early fur traders and their supplies in pirogues and Durham or flat-bottomed craft similar to the keelboats of the New, sufficed upon that phase in the case of the DesPlaines. Nor is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation.” Id. at p. 416. (footnotes omitted) (emphasis added)

In this case, the evidence presented satisfied us that for a brief period in the history of Huntingdon County, the Little Juniata River was used commercially by the residents of the Juniata Valley. Indeed, until the opening of the Pennsylvania Canal in the 1830s and the construction of the Pennsylvania Railroad in 1850, the river was the only means residents had to ship their excess commerce east to market. Traffic on the Little Juniata was certainly not as heavy as it was on the so-called Great Rivers since the population of the Juniata Valley was relatively small. But, there is no doubt that the river was a highway for commerce, and therefore was navigable-in-fact.

For these reasons, the post-verdict motion of defendants will be denied.

ORDER

And now, June 13,2007, for the reasons set forth in a memorandum filed this date, it is the order of this court that defendants’ motion for post-trial relief is denied.

It is the further order of this court that:

(1) The declaratory relief sought by plaintiffs is granted. This court hereby declares that the Little Juniata River is navigable-in-fact such that the title of all riparian landowners of property along the river extends only to the ordinary low watermark with a public easement between the ordinary high and low watermarks, that the lands below the ordinary low watermark are submerged lands owned by the Commonwealth and held in trust for the public, and that the public has the right of use and enjoyment of the Little Juniata River, including the right to fish, boat, wade and recreate there.

(2) The court further declares that the 1.3-mile stretch of the Little Juniata River from its confluence with Spruce Creek downstream is navigable-at-law and that the 1803 grant of land to Joseph Heister by the Commonwealth was subject to the February 4, 1794, public highway declaration.

(3) As stipulated by the Commonwealth agencies and defendants in this matter, the following persons and entities, their agents and employees and persons acting in future concert with them are subject to the injunctive relief entered through this order (collectively, “stipulated defendants”): Connie Espy (if Mrs. Espy then still owns an interest in the Espy property); Bellwood Antis Enterprises (BAE) (if BAE then still holds an interest in the Espy property); Donald L. Beaver Jr., individually and in his capacity as: (i) the managing member of Pam-don (the managing member of Spring Ridge Club LLC, formerly Legacy Conservation Group LLC), and, (ii) the majority stockholder and chief executive officer of Hidden Hollow Enterprises Inc.; Spring Ridge Club LLC (formerly Legacy Conservation Group LLC); Cold Currents LLC (general partner of Rural Conservation Partners LP); and Rural Conservation Partners LP. Allen Bright, plaintiff in civil action no.2003-1297, which was consolidated with this action for purposes of discovery and the adjudication of issues relating to the navigability of the Little Juniata River is not a party to the stipulation.

(4) Stipulated defendants are permanently enjoined from interfering with the public’s rights in the Little Juniata River, including the posting and/or hanging of signs, advertising the Little Juniata River as private waters, and threatening, harassing and otherwise attempting to exclude the public from fishing, boating, wading and/ or recreating on and in the Little Juniata River and the submerged lands owned by the Commonwealth.

(5) A navigation servitude exists in favor of the public on all rivers and streams all or partly in the Commonwealth regardless of whether or not the bed of the river is owned by the Commonwealth. Stipulated defendants are permanently enjoined from interfering with the navigation servitude in the Little Juniata River, including the posting and/or hanging of signs, advertising the Little Juniata River as private waters, and threatening, harassing and otherwise attempting to exclude the public from boating in the Little Juniata River.

(6) Stipulated defendants are permanently enjoined from violating the Dam Safety and Encroachments Act, Section 514 of the Administrative Code and the regulations promulgated at 25 Pa. Code chapter 105, including the hanging of cables and signs over and across the Little Juniata River in the vicinity of the river’s confluence with Spruce Creek and 1.3 miles further downstream. Stipulated defendants are permanently enjoined from hanging cables and signs over and across the Little Juniata River without necessary permits, approvals and submerged lands licenses.

(7) Stipulated defendants are permanently enjoined from violating the Fish and Boat Code, including interference with members of the public who are engaged in lawful fishing and boating activities on or in the Little Juniata River.

(8) Stipulated defendants are permanently enjoined and restrained from interfering with or excluding members of the public, including advertising the Little Juniata as private waters, who are engaged in lawful activities on or in the Little Juniata River and the submerged lands owned by the Commonwealth.

      . Pa.R.C.P. 227.1.


author: CAMPBELL, J,

text:
    Buck v. Buck

      Denise M. Sebald, for plaintiff.

      John A. Hoffert Jr., for defendant.
    April 22, 2008
   CAMPBELL, J,

— A custody trial was heard in the above-captioned matter on March 28,2008. At issue was the primary custody of Alexa Buck, age 7, born July 25, 2000. The court finds as follows:

I. FINDINGS OF FACT

(1) Plaintiff William K. Buck III (Father) and defendant Christine M. Buck (Mother) are the natural parents of one child, Alexa Buck, born July 25, 2000.

(2) The parties were married October 27, 1999. They were divorced in December 2007. This was the second marriage for both parties. Mother admitted to certain actions which contributed to the dissolution of the parties’ marriage.

(3) Father resides at 396 Sioux Court, Sinking Spring, Berks County, Pennsylvania. He owns a four bedroom house, which is the former marital residence.

(4) Mother resides at 142 Bainbridge Circle, Sinking Spring, Berks County, Pennsylvania. Mother rents this three bedroom house. Mother, Mother’s sister Michelle Sparacio, the child, and Mother’s other child from a previous marriage live at this address. Mother’s current boyfriend, Jerry Burkhead, has lived at this residence in the past, but did not live at the house at the time of the trial.

(5)In June 2006, Father filed a divorce complaint with a custody count.

(6)In September 2006, the parties reached a custody stipulation whereby they would equally share legal and physical custody of the child. They have been equally sharing physical custody of the child ever since. Currently, they alternate weeks of custody, exchanging the child on Friday at 6 p.m.

(7)Father filed a petition to modify the custody order in December 2006. In September 2007, this court dismissed that petition for procedural reasons. Father immediately filed a new petition to modify, and that petition led to this custody trial.

(8) From the child’s birth until the child was 4 years of age, while the parties were married and living together, Mother was the child’s primaiy caregiver during the day.

(9) Father has a B.S. degree in computer science from Elizabethtown College.

(10) Father is employed by Metro Technology Services Inc. where he has worked for the last nine years. Father is a computer programmer/software developer. He earns $85,000 a year.

(10) Mother obtained a G.E.D. Additionally, she is a registered medical assistant, certified E.M.T., and C.P.R. instructor.

(11)Mother is employed by Y.T.I. Career Institute where she has worked since January 2008. She works as a medical assistant instructor. She is also a C.P.R. instractor at a Lancaster hospital. Mother’s current annual income is approximately $35,000.

(12) The child at issue, Alexa, has a biological half-sister who lives primarily with Mother. Alexa also has a biological half-brother, Brandon, who used to live primarily with Mother, but currently only visits.

(13) Mother has a history of mental illness including multiple suicide attempts.

(14) The parties live in the same school district.

II. DISCUSSION

Entering trial, Father seeks custody of the child Alexa Buck, born July 25, 2000. This court considered the testimony of Dr. Peter Thomas — the custody evaluator, William K. Buck III — Father, Christine M. Buck— Mother, Michael Carroll-Lugo — Mother’s ex-husband, Brandon Lugo — Mother’s son, Brianna Carroll-Lugo— Mother’s daughter, Alexa Buck — parties’ child, Steven Buck — Father’s brother, and Amanda Sparacio — Mother’s sister. This court considered the custody questionnaire that each party submitted; both parties stipulated the entry of the questionnaires into the record. Lastly, this court considered the exhibits proposed and admitted into evidence.

According to statutory law, in custody a trial court “shall consider the preference of the child as well as any other factor which legitimately impacts the child’s physical, intellectual and emotional well-being.” 23 Pa.C.S. §5303(a)(l). A trial is also to consider which parent is more likely to encourage the child’s relationship with the other parent, 23 Pa.C.S. §5303(a)(2), and any past violent or abusive behavior by either parent. Id. at (a)(3).

The Superior Court of Pennsylvania has held:

“It is settled law in Pennsylvania that a custody order is subject to modification without proof of substantial change in circumstances when it is shown that change is in the best interests of the child. Whenever a court is called upon to address the best interests of a child, traditional burdens or presumptions such as substantial change in circumstances, the fitness of one parent over another, or the tender years doctrine must all give way to the paramount concern; the best interests of the child. In determining best interests of the child, a court must consider all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” Jordan v. Jackson, 876 A.2d 443, 452-53 (Pa. Super. 2005).

Mother has had a difficult life filled with abuse and depression and suicide attempts. This court has no wish to add to her sadness by analyzing her weaknesses as a parent. Unfortunately, the child’s best interests are this court’s responsibility, and Father’s request for primary custody is premised primarily on the weaknesses of Mother. Father presents as a solid, dependable parent. The only method by which to determine whether the child would benefit by being in Father’s custody more, and Mother’s less, is to contrast the strengths and weaknesses of the parents and how these traits affect the child.

A. Physical Well-Being/Physical Environment

The child is in good health. Mother’s medical knowledge and training make her a better candidate to treat any medical issues that could hypothetically arise for the child. On the other hand, Father’s attentiveness to the child demonstrates that any physical difficulties would be noticed and acted on promptly. Thus, the child appears to be in equally good physical care with either parent.

Mother’s house appears to have been crowded on occasion; recently, Mother and her boyfriend, her two daughters, her son, and her sister were all living in the three bedroom house. Since then, Mother’s son has been sent to live with his father, and Mother’s boyfriend has moved out, at least temporarily. The child does appreciate living with her sister.

At Father’s house there is plenty of room as only he and the child reside there, but less family company for the child. The child does have more friends in Father’s neighborhood, the former marital residence.

Basically, the two houses appear to offer approximately equal physical environments. One caveat to this assessment is that there has been a great deal of conflict, some physical, at Mother’s household. Physical injuries have occurred as a result of some of these conflicts in the household. While this conflict places the child at emotional risk, it does increase the child’s chance of physical harm as well.

Additionally, Father appears more motivated and able than Mother to help the child regularly participate in extracurricular physical activities.

Therefore, there is a slight advantage for the child’s physical well-being in Father’s custody.

B. Emotional Well-Being

Father and Mother both love the child, and the child loves them.

As stated above, there has been conflict at Mother’s household that negatively impacts the child’s well-being. Mother and her boyfriend have had frequent disagreements that included yelling. At trial, Mother acknowledged that she yells a great deal. Additionally, there have been physical conflicts in Mother’s household between Mother and son, Mother and boyfriend, son and sister: objects have been thrown; physical confrontations have taken place. The children have been fearful. This household violence is a strong negative for the child.

Mother is emotional and has a strong bond with the child. The child enjoys her time with Mother. Mother’s own emotional problems appear to affect her ability to focus on her children. Despite Mother’s strong nurturing abilities and bond, the evidence demonstrated that she has not always been there emotionally for the child; Mother has, somewhat frequently, focused her attention elsewhere.

Some of the child’s emotional needs are met by the child’s sister, but this behavior leads to another area for concern. In general, Mother appears to give the children responsibility beyond their years and to abdicate some parental responsibilities to her daughter, Brianna. At trial, Mother claims she has addressed this abdication of parenting problem. In Mother’s testimony, she placed more of the responsibility for Brianna’s taking on her parental duties on Brianna than she accepted for herself, which was not a positive parental action.

At Father’s household, Father has focused on the child, maximizing his parental abilities and providing the child with consistent, stable care.

A parent acting reliably and consistently as a parent, not a friend, is an important trait for a primary caregiver. King v. King, 889 A.2d 630, 635 (Pa. Super. 2005). Overall, Father’s household offers the child a superior emotional environment.

C. Intellectual Well-Being

The child appears to be doing satisfactory in school. Mother teaches medical assistants as part of her employment, so she has some knowledge of the teaching process. Mother has participated to some extent in the child’s education; however, overall, Father appears more knowledgeable about and involved in the child’s schoolwork than Mother. The child does receive homework help from her sister in Mother’s household.

In the end, Father’s more stable, more disciplined household where more attention is being given to the child’s schoolwork by a parent offers a slight advantage for the child’s intellectual well-being.

D.Spiritual Well-Being

Father is religious and takes the child to church. Father currently places a high-level emphasis on religion. The child appears to be enjoying her religious activities.

Mother did not testify as to any particular religious/ spiritual activities in which she seeks to involve the child, or any religious/spiritual activities which she seeks to instill in the child.

The child’s spiritual well-being is better served by being in Father’s custody.

E. Child’s Preference

The child loves both parents and loves her sister. She prefers for the custody schedule to remain the same. However, the child is only 7 years old, and she did not articulate logical reasons for her preference. Some of her testimony revealed facts why maintaining the status quo would not be in her best interest. For all of these reasons, the child’s preference is only a minor factor in favor of maintaining the equal physical custody division.

F. Parents ’ Credibility

Parts of Mother’s testimony were credible. Mother deserves credit for not alleging failings on Father’s part where she did not perceive any. At times, Mother’s demeanor and manner of testifying demonstrated credibility. On the other hand, some parts of Mother’s testimony were evasive, and some parts of her testimony contradicted information she had given in her custody questionnaire. Father’s testimony, including his demeanor and manner, was straightforward and consistent, and, therefore, credible.

G. Sibling

The Superior Court of Pennsylvania has held:

“[T]he policy in Pennsylvania is to permit siblings to be raised together, whenever possible (the doctrine of ‘family unity’ or ‘whole family doctrine’). Wiskoski v. Wiskoski, 427 Pa. Super. 531, 535, 629 A.2d 996, 999 (1993), appeal denied, 536 Pa. 646, 639 A.2d 33 (1994). Absent compelling reasons to separate siblings, they should be reared in the same household to permit the ‘continuity and stability necessary for a young child’s development.’ Pilon v. Pilon, 342 Pa. Super. 52, 56, 492 A.2d 59, 60 (1985). This policy does not distinguish between half-siblings and siblings who share both biological parents. Davis, [502 Pa. 110,] 124, 465 A.2d [614,] 621. However, this court has made clear that the policy against separation of siblings is only one factor— and not a controlling factor — in the ultimate custody decision.” Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004).

The child’s brother (biological half-brother) who previously lived in Mother’s household had created certain safety concerns. Mother testified that the brother “knocked her out” in regards to the child’s sister, and that Mother called the police to file assault charges. It was unclear at the custody trial whether the brother would return to live in Mother’s household in the future, or what danger he may or may not pose to his younger sister, the child at issue in this case.

Brianna, the child’s sister, is a great positive asset to the child. The child benefits from time spent with her sibling Brianna (biological half-sister).

Father testified that he would be willing to facilitate the child seeing her siblings by having them over at his house. Father, who served as these children’s stepfather for years, was credible in his testimony. Regardless, keeping the child together with her sister is a factor in favor of keeping the current custody order.

H. Expert Testimony

When deciding a custody case, a lower court is obligated to consider the testimony of experts. Rinehimer v. Rinehimer, 336 Pa. Super. 446, 453, 485 A.2d 1166, 1169 (1984).

Dr. Thomas testified regarding the custody evaluation that he conducted on the parties in May 2007. During his evaluation, Dr. Thomas discovered many of the same facts that came out through other sources at this custody trial. Dr. Thomas recommended that the child reside primarily with Father. Dr. Thomas’ recommendation was primarily based upon his finding that Mother was not properly involved as a parent. Dr. Thomas had some significant concerns regarding Mother’s emotional health and recommended that she receive more psychological treatment. Mother put too much responsibility on the children and did not provide them with enough supervision, guidance, and teaching, Dr. Thomas testified.

Dr. Thomas’ expert opinion appeared well-reasoned, and his views were supported by evidence that came out at trial. Dr. Thomas’ opinion is a strong factor in favor of the child spending more time in Father’s custody.

CONCLUSION

After reviewing all the evidence, and carefully weighing all the factors, it is apparent that the child’s best interest would be served by her being primarily in Father’s physical custody. Therefore, this court enters the following order:

ORDER

And now, April 22, 2008, after a custody trial in the above-captioned matter, and in accordance with this court’s accompanying opinion, it is ordered and decreed that:

(1) Plaintiff, William K. Buck III (Father) and defendant, Christine M. Buck (Mother) shall have joint legal custody of their minor child Alexa Buck, age 7, bom July 25, 2000.

(2) The parties shall share physical custody of the child as follows:

(a) Father shall have primary physical custody of the child. Father shall have physical custody of the child at all times not otherwise specified in this order.

(b) Mother shall have physical custody of the child every other weekend. Mother’s custody weekend shall begin from after school on Friday until Monday morning when Mother shall deliver the child directly to school.

(c) On the weeks preceding Father’s weekend of custody, Mother shall have physical custody of the child on Wednesday from 5:30 p.m. until Thursday morning when she delivers the child to school.

(3) The parties shall alternate custody of the child on the following holidays: New Year’s Day, Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving. Mother shall have custody New Year’s Day, Memorial Day and Labor Day in even-numbered years. Father shall have custody Easter, July 4th, and Thanksgiving in even-numbered years. In odd-numbered years, Father shall have custody New Year’s Day, Memorial Day and Labor Day. In odd-numbered years, Mother shall have custody Easter, July 4th, and Thanksgiving. Holiday custody shall be from 10 a.m. until 8 p.m.

(4) Mother shall have custody of the child on Mother’s Day and Father shall have custody on Father’s Day. Mother’s/Father’s Day custody shall be from 10 a.m. until 8 p.m.

(5) The Christmas holiday shall be shared as follows: In even-numbered years Mother shall have custody from 6 p.m. Christmas Eve until 1 p.m. Christmas Day, and Father shall have custody from 1 p.m. Christmas Day until 8 p.m. December 26. The parents shall alternate the schedule in odd-numbered years.

(6) The parties shall each have the right to two nonconsecutive weeks of vacation with the child each year. Notice of such a vacation shall be given to the other party by May 15 of each year. (In 2008 only, the deadline shall be June 1.) In the event of a conflict, Father’s vacation plans shall have priority in even-numbered years and Mother’s vacation plans shall have priority in odd-numbered years.

(7) The vacation custody schedule takes precedence over regular custody time. The holiday custody schedule takes precedence over vacation time and regular custody time.

(8) Both parties shall cooperate in helping the child participate in any extracurricular activities (e.g., soccer/ cheerleading) that the child wishes to participate in. Either party may attend any activity that the child participates in. Either party should try to help with transportation, etc. if an activity falls during his/her custody time.

(9) The parents shall share transportation with the parent receiving custody providing transportation of the child.

(10) The parties may modify the custody schedule through mutual agreement. Any such informal agreement can later be voided by either party unless the agreement is placed in writing and made a court order.

(11) The attached appendix [not published herein] is incorporated and made a part of this court order. The appendix’s provisions must be followed as part of the court order except that if any part of the appendix conflicts with part of the above delineated court order the explicit court order provisions trump the appendix provisions.

(12) This case shall be scheduled for a status conference on Tuesday, October 21, 2008 at 11 a.m. in Courtroom 4A of the Berks County Services Center. Parties and counsel shall be present for the status conference. Either counsel may request an additional status at an earlier date in the event the parties request assistance with his order.

      . Neither Mother’s sister who lives in the home, nor Mother’s boyfriend testified at trial despite being listed as witnesses in Mother’s pretrial memorandum. An employment conflict was offered as the reason why the sister did not appear on the day of trial.

      . There were a number of matters raised at trial which reflected poorly on Mother’s judgment-making ability, yet Mother rarely took responsibility.


author: RUEST, J.,

text:
    Commonwealth v. Sharkey

      Yvette L. Wilson, for Commonwealth.

      Thomas J. Sharkey, for defendant.
    April 21, 2008
   RUEST, J.,

— Before the court is defendant’s motion to suppress. Defendant was charged with violating 18 Pa.C.S. §6308(a), purchase, consumption, possession, or transportation of liquor, malt or brewed beverages. A hearing was held on the motion on April 14, 2008. Upon consideration of the arguments at the hearing and briefs submitted by both parties, the court denies defendant’s motion.

FINDINGS OF FACT

(1) On October 27,2007, defendant Erik Sharkey was arrested on a non-traffic citation/summons issued by Liquor Enforcement Officer Michael Nicholson on a charge of violating 18 Pa.C.S. §6308(a), purchase, consumption, possession, or transportation of liquor, malt or brewed beverages.

(2) Liquor Enforcement Officer Michael Nicholson was taking part in an undercover operation during a Penn State football game at Beaver Stadium, in University Park, Centre County, Pennsylvania.

(3) Officer Nicholson was working in parking lot number 13 at Beaver Stadium.

(4) The defendant was walking with a group of friends and a family member when the group was approached by an officer working the underage drinking enforcement detail.

(5) The officer, who was not the arresting officer in this case, spoke with the defendant’s sister. Upon incorrectly stating her brother’s birth date, placing his age at 19, the officer determined that defendant may be less than 21 years of age and instructed him to see one of the other officers taking part in the detail several yards away.

(6) The defendant walked toward this other group of officers and was spotted by Officer Nicholson.

(7) Based on his experience as a liquor enforcement officer and as a police officer, and on his observation that the defendant had a youthful appearance, Officer Nicholson approached the defendant and asked for identification.

(8) The defendant admitted to Officer Nicholson that he was under 21 years of age.

(9) Officer Nicholson testified that no other officer assisted him with this defendant and that he initially saw the defendant, evaluated his appearance as youthful, and saw the beer in his hand.

(10) Officer Nicholson observed that the defendant was holding an open, partially full 12-ounce bottle of Michelob Ultra Light beer.

(11) Upon his determination that the defendant was under 21 years of age, Officer Nicholson seized the bottle of beer, poured the contents out, and issued defendant a citation.

(12) The court took judicial notice that Michelob Ultra Light is listed on the PA Bulletin at 26 Pa Bulletin Number 15, 1996.

CONCLUSIONS OF LAW

(1) Contacts between a police officer and the general public fall within three categories: mere encounter, investigative detention, and custodial detention and arrest. Commonwealth v. Wood, 833 A.2d 740 (Pa. Super. 2003).

(2) A “mere encounter” requires no level of suspicion. Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372 (2000).

(3) An “investigative detention” requires reasonable suspicion. Reasonable suspicion requires that an officer be able to point to “specific articulable facts and reasonable inferences drawn from those facts in light of the officer’s experience.” Wood, supra at 745, citing Commonwealth v. Jackson, 548 Pa. 484, 489, 698 A.2d 571, 573 (1997).

(4) In order to determine if a mere encounter has risen to the level of an investigative detention, the court must determine whether a seizure of the person occurred. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117 (1998).

(5) “A police officer may, short of an arrest, conduct an investigative detention if he has reasonable suspicion, based upon specific and articulable facts, that criminality is afoot.” Commonwealth v. Blair, 860 A.2d 567 (Pa. Super. 2004).

(6) An investigative detention occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Hayes, 898 A.2d 1089 (Pa. Super. 2006).

(7) In spite of his mere encounter with another officer just prior to encountering Officer Nicholson, the defendant was not subject to an investigative detention at the time Officer Nicholson first saw him and determined, based on Officer Nicholson’s experience and the defendant’s youthful appearance, that he was under the age of 21.

(8) The defendant was subject to an investigative detention while Officer Nicholson was speaking with him and was not placed under arrest until he was cited for violating 18 Pa.C.S. §6308(a).

DISCUSSION

In his motion to suppress evidence, the defendant argues all evidence obtained in the October 27,2007 incident should be suppressed due to the illegality of the search conducted by Officer Nicholson. Specifically, the defendant alleges the stop was not valid.

The defendant argues it was not his youthful appearance, but was instead the youthful appearance of his sister, that led to the stop. As the defendant also points out, however, no attention was paid to the defendant until his sister misstated his birth date. At that point, without saying anything more to the defendant or asking any questions of him, the officer directed the defendant to see another officer at a group nearby. No one in this group, which included the arresting officer, Officer Nicholson, knew the defendant was being sent to speak with them.

The first officer’s encounter with the defendant was a mere encounter. A “mere encounter” requires no level of suspicion. Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372 (2000). Although he was instructed to go to another group of officers, the officer made no effort to ensure the defendant did as he said. He made no effort to hand him over to Officer Nicholson. No words or other communication was exchanged between the officer and Officer Nicholson. Officer Nicholson’s contact with the defendant was therefore also a mere encounter, effectively restarting the incident with a different officer. Because the initial contact was a mere encounter, no Miranda warnings were required. When Officer Nicholson spotted the defendant and made his independent evaluation of his probable age based on his own experience as an officer and on the defendant’s youthful appearance, Officer Nicholson had reasonable suspicion that criminal activity was taking place and therefore the contact elevated to the level of an investigatory detention. An “investigative detention” requires reasonable suspicion. Reasonable suspicion requires that an officer be able to point to “specific articulable facts and reasonable inferences drawn from those facts in light of the officer’s experience.” Wood, supra at 745, citing Commonwealth v. Jackson, 548 Pa. 484, 489, 698 A.2d 571, 573 (1997).

An investigative detention occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Hayes, 898 A.2d 1089 (Pa. Super. 2006). In order to determine if a mere encounter has risen to the level of an investigative detention, the court must determine whether a seizure of the person occurred. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117 (1998). “[A] police officer may, short of an arrest, conduct an investigative detention if he has a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot.” Commonwealth v. Blair, 860 A.2d 567, 573 (Pa. Super. 2004). The defendant was not in custody or under arrest as the contact between himself and Officer Nicholson was based on reasonable suspicion of criminal activity and was supportable by the articulable facts of the defendant’s youthful appearance and possession of a beer bottle. What was taking place was an investigative detention, which was fully supported by the facts and circumstances of the incident. Furthermore, although it is not dispositive of whether the defendant was in custody, Officer Nicholson did not yet have probable cause to arrest the defendant.

The court determines the defendant was only temporarily detained. Officer Nicholson observed him to be of youthful appearance and holding a beer bottle. Based on these observations, Officer Nicholson had reasonable and articulable suspicion to approach the defendant and ask for identification. The detention was brief and investigatory in nature. The defendant was at no time taken into custody and was merely issued a citation. Miranda warnings were not required as the defendant was never subjected to a custodial interrogation.

Accordingly, the following is entered:

ORDER

And now, April 21, 2008, defendant’s motion to suppress is denied.