author: KOUDELIS, J,

text:
    Commonwealth v. Hadjar

      Michelle P. Hutton, for Commonwealth.

      Michael F. Gulp, for defendant.
    June 14, 2006
   KOUDELIS, J,

PROCEDURALHISTORYAND FACTS OF THE CASE

After a jury trial defendant was found guilty of possession with intent to deliver a controlled substance (PWID) and driving under the influence (DUI). Two months later the court sentenced the defendant to serve a term of incarceration of four to eight years (subject to certain mandatory minimums) and a concurrent sentence of 30 days to 23 months on the DUI. A direct appeal was perfected but no relief was secured.

Defendant filed a petition for post-conviction relief and asserts that he should be accorded the opportunity to adduce DNA evidence to undercut his conviction of PWID.

The facts of the case underscore the relationship of defendant’s legal effort as it relates to his conviction. The authorities were contacted about a suspicious vehicle parked in a medial strip in Edgemont Township, Delaware County, Pennsylvania. State Trooper Rebecca Ladd was dispatched to investigate. She discovered defendant’s vehicle partially perched and immobilized upon a tree stump, its taillights activated and the defendant asleep behind the wheel. As she knocked on the window of the car in an effort to rouse the defendant, she saw one opened and two unopened beer bottles in the car. Once she got the defendant to respond, Trooper Ladd witnessed specific manifestations of the defendant’s inebriation; she arrested him and transported him to a local hospital where blood was drawn on a consensual basis. The tests results, obtained later, revealed a blood alcohol content above the legal threshold.

After submitting himself for testing, the defendant was taken to the state police barracks for administrative processing and a preliminary arraignment. During his stay, defendant asked to use the toilet on three separate occasions. Each time the escorting trooper checked to assure that it was clear before the defendant was permitted to use the facility. The attending trooper discreetly kept watch over the defendant by holding the lavatory door open with a strategically placed foot. The first two trips to the toilet were uneventful; Trooper Ladd and Trooper Jeffrey Miller, respectively, provided escort. The third occasion was preceded by defendant’s complaint of stomach pain. When Trooper Ladd came to shepherd the defendant, he expressed discomfiture with a female’s assistance under the circumstances. Trooper Ladd had a male counterpart, Trooper James Fisher, attend the defendant’s visit to the restroom. After checking the lavatory, Trooper Fisher allowed the defendant to enter. Trooper Fisher heard unusual noises (akin to the sound of cellophane or plastic being crumpled) emanating from the lavatory. Shortly thereafter, the expected flush was followed by the unexpected and unwelcome sounds of a clogged toilet. Trooper Fisher escorted defendant back to the processing room, and, armed with a plunger, reentered the lavatory. He attacked the problem and plunged the toilet two or three times. When he removed the plunger he saw fecal matter along with an oblong package, white in color, about five inches in length and one inch in diameter, bobbing in the bowl. The trooper fished the package from the toilet and carried it into the processing room where the defendant spontaneously reacted, “Do you think that was up my ass . . . do you think I’m gay?”

The package’s contents were determined to be several hundred grams of cocaine. Defendant was subjected to a strip search. The results: defendant was found wearing under his slacks a lined bathing suit in addition to white brief-style underwear. The underwear was soiled and also marred with a red spot that appeared to be blood.

LEGAL ANALYSIS

This leads to the issue. Defendant seeks performance of DNA testing on the package retrieved from the facility in an effort to exculpate him from the PWID charge that emanated from its discovery and information flowing directly therefrom. While such scientific intervention may produce information regarding various users of the toilet, it does not meet the legal test which would mandate the employment of such technological applications. Should such testing be undertaken, it would not necessarily exonerate the defendant. If the DNA of others is identified on the wrapper, it does not prove anything other than that their DNA may be present because they too used the toilet at or around the time that defendant was being processed at the state police barracks. See 42 Pa.C.S. §9543.1(c)(3)(ii)(A). In short, the DNA testing defendant seeks may be used to imply alternative theories to the defendant’s guilt, however, it will not conclusively prove defendant’s actual innocence. See Commonwealth v. Heilman, 867 A.2d 542, 546-47 (Pa. Super. 2005) (no entitlement to post-conviction DNA testing where petitioner fails to establish prima facie case that favorable results would establish petitioner’s actual innocence). See also, 42 Pa.C.S §9543.1(c)(3) and (d)(2). Moreover, we are constrained by the trial record that underscores the propriety of the initial jury determination. Assuming the DNA results reflected the presence of genetic markers for other individuals, such evidence does not diminish the substantial body of information that would be consistent with attributing the package to the defendant. The defendant made several trips to the toilet. His last trip was punctuated by the sounds of crumpling plastic followed by the noises of a clogged toilet. These sounds were immediately followed by the unexplained appearance of the package in the toilet bowl. When Trooper Fisher appeared in the processing room and before there was any explanation of the package, the defendant (in a pre-emptive and ill-advised effort to distance himself from the package) expressed that he was being falsely accused of carrying the package in his body. Then it was discovered that the defendant was wearing several layers under his pants and that there were telltale signs that might be consistent with his efforts to secrete his holdings.

We cannot find any possibility (let alone a reasonable possibility) that DNA testing would furnish information establishing defendant’s actual innocence. Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005) (no DNA testing justified if, after a review of the trial record, there is no reasonable possibility that the testing would demonstrate actual innocence). In the complete absence of a justification for further proceedings, the court may dismiss the petition without a hearing. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001) (no absolute right to a PCRA hearing). See also, Commonwealth v. Lambert, 568 Pa. 346, 372-73, 797 A.2d 232, 248 (2001) (no right to hearing if underlying petition is meritless). Our decision to dismiss defendant’s PCRA petition without convening a hearing was the only proper outcome.

      . The Post Conviction Relief Act contains express provision for DNA testing under certain circumstances. 42 Pa.C.S §9543.1 (Post-conviction DNA testing). For purposes of this proceeding the following portions of the statute are germane.
      “(a) Motion.
      “(1) An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment or awaiting execution because of a sentence of death may apply by making a written motion to the sentencing court for the performance of forensic DNA testing on specific evidence that is related to the investigation or prosecution that resulted in the judgment of conviction.
      “(2) The evidence may have been discovered either prior to or after the applicant’s conviction. The evidence shall be available for testing as of the date of the motion. If the evidence was discovered prior to the applicant’s conviction, the evidence shall not have been subject to the DNA testing requested because the technology for testing was not in existence at the time of the trial or the applicant’s counsel did not seek testing at the time of the trial in a case where a verdict was rendered on or before January 1, 1995, or the applicant’s counsel sought funds from the court to pay for the testing because his client was indigent and the court refused the request despite the client’s indigency.
      “(c) Requirements. In any motion under subsection (a), under penalty of perjury, the applicant shall:
      “(l)(i) specify the evidence to be tested;
      “(ii) state that the applicant consents to provide samples of bodily fluid for use in the DNA testing; and
      “(iii) acknowledge that the applicant understands that, if the motion is granted, any data obtained from any DNA samples or test results may be entered into law enforcement databases, may be used in the investigation of other crimes and may be used as evidence against the applicant in other cases.
      “(2)(i) assert the applicant’s actual innocence of the offense for which the applicant was convicted;
      “(3) present a prima facie case demonstrating that the:
      “(i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant’s conviction and sentencing; and (ii) DNA testing of the specific evidence, assuming exculpatory results, would establish: (A) the applicant’s actual innocence of the offense for which the applicant was convicted;
      “(d) Order.
      “(2) The court shall not order the testing requested in a motion under subsection (a) if, after review of the record of the applicant’s trial, the court determines that there is no reasonable possibility that the testing would produce exculpatory evidence—that:
      “(i) would establish the applicant’s actual innocence of the offense for which the applicant was convicted;...
      “(iii) motion is made in a timely manner and for the purpose of demonstrating the applicant’s actual innocence and not to delay the execution of sentence or administration of justice.”

      . A record was already made on this issue. Only one other person was being processed on that date that was processed before the suspicious floating packet was discovered.


source: Caselaw Access Project

author: BUCCI, J,

license: Public Domain

text:
    Commonwealth v. Cepeda

      Kevin F Howard, for Commonwealth.

      John F. Cicilline, David R. Eshelman, and Allen J. Daringer, for defendant.
    October 29, 2008
   BUCCI, J,

PROCEDURAL HISTORY

On April 20, 2006, following a jury trial, Jeffery Cepeda (appellant) was convicted of murder of the third degree, aggravated assault, firearms not to be carried without a license, possession of instruments of crime and possession of a weapon.

On June 23, 2006, appellant was sentenced to incarceration for a period of not less than 15 years nor more than 30 years. Appellant did not file a timely appeal to the Superior Court. However, on November 30, 2006, appellant filed a pro se motion for post-conviction relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq. In consideration of appellant’s timely PCRA petition, the court granted appellant’s request for leave to appeal nunc pro tunc. On August 15, 2008, appellant filed a timely notice of appeal nunc pro tunc to the Superior Court. On August 18, 2008, the court ordered appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 8,2008, appellant filed a concise statement wherein he simply alleges that the evidence was insufficient to sustain the guilty verdicts and that the Commonwealth failed to prove that the defendant did not act in self-defense.

FACTUAL BACKGROUND

Rene Castro was 19 years old when he was shot and killed by the appellant on New Year’s Eve. At approximately 1 a.m. on December 31, 2004, the victim, Rene Castro, was walking in the 1600 block of Perkiomen Avenue, City of Reading, Berks County, Pennsylvania, which was approximately one block from his residence. The appellant lived at 1537 Perkiomen Avenue and the two men had been acquaintances. Several weeks prior to that fateful night of December 31,2004, the two men had an argument over the ownership of a dog as well as who was responsible for the care and feeding of the dog. A few days before the night of December 31, 2004, appellant invited Rene Castro to engage in a fistfight at a nearby mini-market. Rene Castro refused to engage in the fight at that time.

Evidence at trial showed that Rene Castro was carrying a 9-mm handgun and wearing a ballistic bulletproof vest on the night of his death. However, he did not have an opportunity to pull his weapon before he was shot by appellant and unfortunately the bulletproof vest failed him that evening. Witnesses described seeing appellant and the victim walking in the 1600 block of Perkiomen Avenue engaged in a verbal argument. The witnesses described seeing Rene Castro walk away from appellant as he went on the porch of 1622 Perkiomen Avenue where his friend Omar Serrano lived. N.T., jury trial, 4/21/06, at 175, 214. As Rene Castro stood on the front porch of 1622 Perkiomen Avenue, the appellant pulled the gun from his pocket, pointed it at Rene Castro and fired several times. N.T. at 185. Appellant then fled from the scene. Eyewitnesses who viewed the incident from their house on the other side of the street described the shooting and testified that the victim did not have a gun in his hand prior to being shot by appellant. However, after appellant fled the scene, they noticed the victim holding a gun.

A few moments after appellant fled the scene, the victim collapsed in the vestibule of 1622 Perkiomen Avenue and died as a result of the gunshots inflicted by appellant. The autopsy confirmed that the victim died as a result of a gunshot which penetrated his left abdomen below the bulletproof vest and which penetrated his iliat vein.

At trial, appellant did not deny fatally shooting Rene Castro, but claimed he did so in self-defense. N.T. at 482. He claims he saw Rene Castro reaching for a gun, but admits that he shot Rene Castro before Rene Castro had a chance to pull out his gun. N.T. at 482-84. Although the jury acquitted appellant of first-degree murder, they rejected his claim of self-defense and convicted him of third-degree murder.

DISCUSSION

The appellate courts have ruled that the trial court may not speculate or guess about the matters complained of in a 1925(b) statement. See Commonwealth v. Lemon, 804 A.2d 34, 36-37 (Pa. Super. 2002). The purpose of the concise statement is to aid the trial judge in identifying and focusing upon those issues which the appellant plans to raise upon appeal. Commonwealth v. Lorde, 553 Pa. 415, 419, 719 A.2d 306, 308 (1998). General or vague statements force the trial court to speculate or guess about the issues appellant plans to raise on appeal and make it difficult for the trial court to prepare a memorandum opinion addressing those issues. In re Estate of Daubert, 757 A.2d 962, 963 (Pa. Super. 2000).

The courts have, therefore, held a concise statement that is too general or too vague is the functional equivalent of no concise statement whatsoever in that such a concise statement results waiver of the issues for the purposes of appellate review. Lemon, 804 A.2d at 37.

Here, appellant’s concise statement is too vague and too general for the court to consider or understand. Therefore, the court considers all of the issues waived. Nevertheless, the court will attempt to address whether the Commonwealth presented sufficient evidence to undermine the self-defense claim and support the jury’s verdict.

Sufficiency of the Evidence

The well-established standard of review applied to a sufficiency of the evidence claim is:

“[Wjhether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. . . . [Tjhe facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. ... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence.” Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002). (internal citations omitted)
“This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. McFadden, 850 A.2d 1290, 1293 (Pa. Super. 2004). If a jury believes a witness, then the appellate court is bound by that determination where it is not wholly unreasonable. Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986).

Self-Defense

First, appellant asserts he acted in self-defense. When the defendant alleges a theory of self-defense under section 505 of the Pennsylvania Crimes Code, the Commonwealth bears the burden to prove beyond a reasonable doubt that the defendant’s act was not justifiable self-defense. Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa. Super. 2005). The Commonwealth meets this burden if it establishes at least one of the following: “(1) the accused did not reasonably believe that he was in danger of death or serious bodily injury; or (2) the accused provoked or continued the use of force; or (3) the accused had a duty to retreat and the retreat was possible with complete safety.” Id. at 1230. (citations omitted) “If the Commonwealth establishes any one of these three elements beyond a reasonable doubt, then the conviction is insulated from a defense challenge to the sufficiency of the evidence where self-protection is at issue.” Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000). Furthermore, “[ajlthough the Commonwealth is required to disprove a claim of self-defense arising from any source beyond a reasonable doubt, a jury is not required to believe the testimony of the defendant who raises the claim.” Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008). For example, it is long-standing precedent in Pennsylvania that jury may properly reject a defendant’s self-defense claim even if the victim was holding or reaching for a weapon. See Commonwealth v. Austin, 906 A.2d 1213, 1223 (Pa. Super. 2006) (given that appellant did not wait for [the victim to brandish his weapon], a jury could possibly conclude that [the victim] had not yet folly demonstrated an intent to shoot appellant, making appellant’s belief that he needed to shoot unreasonable); see also, Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310 (2007); Commonwealth v. Hammond, 953 A.2d 544 (Pa. Super. 2008); Commonwealth v. Jones, 886 A.2d 689 (Pa. Super. 2005); Commonwealth v. Baez, 759 A.2d 936 (Pa. Super. 2000).

The eyewitnesses and appellant’s testimony provided the jury with more than enough evidence to conclude beyond a reasonable doubt that appellant provoked and continued to use force against Rene Castro; appellant did not reasonably believe that he was in danger of death or serious bodily injury; and that appellant had a duty and the opportunity to safely retreat from Rene Castro.

Priscilla Rodriguez testified that she saw appellant and Rene Castro walking on Perkiomen Avenue when she heard appellant accuse Rene Castro of lying. N.T. at 145. She then saw appellant push Rene Castro real hard in the face. N.T. at 142-43, 148. Rene Castro did not defend himself after being pushed, but rather continued to walk away from appellant. N.T. at 146. She then overheard two other men tell appellant that the police were coming after him so he should leave. Appellant did not leave, but rather continued to follow Rene Castro. She saw Rene Castro throw up his hands indicating that he was finished with the conversation and then immediately thereafter watch appellant run up the porch steps towards Rene Castro. N.T. at 150-52. Although she could not see anything that took place on the porch, she heard multiple punches and three gunshots. N.T. at 152. Then, she watched appellant run towards Sixteenth Street. N.T. at 153.

Robert Cairens testified that, from his vantage point, he saw a bald Latino man follow Rene Castro down the street and up the steps of 1622 Perkiomen Avenue; hit Rene Castro three times; and then pull a gun from his waist and shoot Rene Castro at point blank range three times. N.T. at 213, 218-20. Robert Cairens did not see Rene Castro hit appellant. Further, Robert Cairens did not see a gun or anything else in Rene Castro’s hands when he was assaulted and shot by appellant. N.T. at 222.

Crystal Talarico observed the incident from the front porch of 1621 Perkiomen Avenue. N.T. at 239. She also saw the bald Latino man and Rene Castro arguing in the street. N.T. at 242. She then saw the bald Latino man’s hand go up and out and heard three shots and saw multiple flashes. N.T. at 247-48. From her vantage point, directly across the street, she did not see a gun in the victim’s hands before appellant shot him. N.T. at 246. She then saw appellant flee from the scene.

Erica Nowotarski also observed the incident from the front porch of 1621 Perkiomen Avenue. N.T. at 265. She saw appellant follow and yell very loudly at Rene Castro. N.T. at 269-70. She testified that Rene Castro walked away from the argument, and he appeared to not want anything to do with it. N.T. at 270. She then saw Rene Castro knock on the front door of 1622 Perkiomen Avenue directly across the street and make hand gestures indicating that he was going to enter the house. N.T. at 270-72. Thereafter, she watched appellant punch Rene Castro three times and then shoot Rene Castro three times. N.T. at 274,277. She did not see Rene Castro fight back or draw his weapon on appellant. N.T. at 278.

The appellant testified on his own behalf at trial. Appellant admitted to shooting Rene Castro before Rene Castro pulled out his weapon. Appellant’s testimony on direct examination highlights appellant’s rash, unjustifiable shooting of Rene Castro:

“Defense counsel: And, what then happens?
“Appellant: That’s when I noticed that [Rene Castro] was reaching for his gun.
“Defense counsel: Now when you say reaching for his gun, tell us what it was you saw him do.
“Appellant: I saw him reach inside of his coat.
“Defense counsel: So does he pull out a gun?
“Appellant: No. For some reason I don’t let him.
“Defense counsel: Tell us what you see happen.
“Appellant: Well, while I see him reaching for the gun that’s when I react. And I charged up at him.
“Defense counsel: All right. You run up on the porch and do what?
“Appellant: And I hit him in the head a few times.
“Defense counsel: And, what then happens?
“Appellant: He drops down to, like, about his knee. And then that’s when he’s, like, getting back up again. And he’s reaching for his gun. And, I asked him, I said, are you pulling out your gun? Are you pulling out your gun and—
“Defense counsel: Does he get it?
“Appellant: No. For some reason he can’t get it out. And that’s when I took my pistol, and fired at him.” N.T. at 482-84.

The Commonwealth met its burden to disprove appellant’s claim of self-defense. First, appellant’s belief that he was in danger of death or serious bodily injury is unreasonable because the victim did not manifest his intent to use his concealed weapon because he did not remove it from his jacket before he was shot three times by appellant. Although Rene Castro carried a concealed gun and wore a bulletproof vest that night, the eyewitnesses’ testimony clearly indicates that Rene Castro tried to retreat from appellant prior to the shooting and did not have a weapon in his hands until after he was shot by appellant, thereby proving that appellant did not reasonably believe that he was in danger of death or serious bodily injury. McClendon, 874 A.2d at 1230. Therefore, the appellant’s belief that he must shoot first was premature, unreasonable and unjustified.

Second, the Commonwealth proved that appellant provoked or continued the use of force towards Rene Castro because appellant was the initial aggressor. Appellant testified that he left his house that evening with a gun in his coat pocket. N.T. at 476-77. Appellant began the confrontation with Rene Castro by calling him a liar. N.T. at 480. Appellant then pursued, pushed and punched him. Rene Castro did not retaliate, but instead walked away from appellant. Yet, appellant continued to pursue, until he shot Rene Castro three times at close range on the steps of 1622 Perkiomen Avenue. Therefore, the Commonwealth proved that appellant was the initial aggressor and that he continued to provoke and use force against Rene Castro. McClendon, 874 A.2d at 1230.

Last, appellant clearly had multiple opportunities to safely retreat from Rene Castro. For example, appellant could have retreated while he was on the open street of Perkiomen Avenue; when two unidentified men informed him the police had been called and were on their way; when Rene Castro walked onto the porch of 1622 Perkiomen Avenue and indicated that he was going inside and wanted nothing more to do with the argument; or when Rene Castro was, according to appellant, unsuccessfully reaching for his gun. Clearly, retreat with complete safety was possible when appellant had access to the open street and he had every opportunity to simply walk away. McClendon, 874 A.2d at 1230. Instead, appellant chose to stand his ground and use deadly force towards Rene Castro.

This court finds that the Commonwealth established sufficient evidence to prove appellant did not act in justifiable self-defense because appellant did not reasonably believe he was in danger of death or serious bodily injury; appellant provoked and continued to use force against Rene Castro; and appellant did not retreat even though safe retreat was possible.

Jury’s Verdict

Appellant claims the evidence was insufficient to support his convictions. However, appellant has failed to argue why the evidence is insufficient. Still, the court will briefly analyze the facts of this case to determine whether the jury’s verdict of guilty beyond a reasonable doubt of murder of the third degree, aggravated assault, firearms not to be carried without a license, possession of instruments of crime and possession of a weapon were properly supported by the evidence.

A. Murder in the Third Degree

“Third-degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice.” Commonwealth v. Morris, 958 A.2d 569, 576 (Pa. Super 2008) WL 4415656, quoting Commonwealth v. Tielsch, 934 A.2d 81, 94 (Pa. Super. 2007); see also, Commonwealth v. Santos, 583 Pa. 96, 102, 876 A.2d 360, 363 (2005). “Malice is not merely ill will but, rather, wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty.” Morris, 958 A.2d 569, 576 (Pa. Super 2008) WL 4415656 quoting Commonwealth v. Hardy, 918 A.2d 766, 774 (Pa. Super. 2007).

The Commonwealth presented several witnesses who testified they saw appellant argue with Rene Castro in the middle of Perkiomen Avenue, follow him up the front steps of 1622 Perkiomen Avenue, punch him in the face and then shoot him with a gun three times at point blank range. Rene Castro did not fight back after being pushed or punched by the appellant and was not seen holding a gun until after the shooting. Clearly, by pursuing Rene Castro with escalating violence until he maliciously shot Rene Castro at point blank range three times indicates a wickedness of appellant’s disposition and hardness of appellant’s heart sufficient to justify a conviction of third-degree murder.

B. Aggravated Assault

The appellant was convicted of two counts of aggravated assault. To support a guilty verdict for aggravated assaultunder 18 Pa.C.S. §2702(a)(l), the Commonwealth must prove beyond a reasonable doubt that appellant attempted to cause serious bodily injury to another or caused such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. §2702(a)(l). Serious bodily injury is defined as bodily injury which creates a substantial risk of death or which causes serious, pennanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. 18 Pa.C.S. §2301.

To summarize the facts briefly, appellant pushed Rene Castro very hard in the face, punched him several times and then shot him three times. Clearly, appellant’s treatment of Rene Castro proved his intention to cause serious bodily injury to the victim and demonstrates extreme indifference to the value of Rene Castro’s life.

C. Firearms Not To Be Carried Without a License

In order to prove appellant is guilty of carrying a firearm without a license, under 18 Pa.C.S. §6106(a) (1), the Commonwealth must establish that appellant carried a firearm either in a vehicle or concealed on or about his person; that the firearm was in operating condition; that appellant was not in his home or place of business; and that appellant did not have a license to carry a firearm.

At trial, appellant admitted that he did not have a license to carry a firearm. N.T. at 496. Furthermore, appellant admitted that he carried a firearm on his person that evening. N.T. at 484. Therefore, the Commonwealth established appellant’s guilt to this charge because the aforementioned testimony was sufficient to enable the jury to find appellant guilty of carrying a firearm without a license.

D. Possession of Instruments of Crime and Possession of a Weapon

Appellant was convicted of possession of instruments of crime and possession of a weapon. To be convicted of possession of instruments of crime, under 18 Pa.C.S. §907(a), a person must possess any instrument of crime with intent to employ it criminally. Likewise, under 18 Pa.C.S. §907(b), a person is guilty of possession of a weapon if he or she possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.

Here, appellant admitted carrying a weapon inside his coat pocket. N.T. at 513. He also admitted to pointing and firing his gun at Rene Castro. N.T. at 512. Additionally, four witnesses testified to seeing appellant or a man meeting appellant’s description pointing and firing a gun at the victim on the steps of 1622 Perkiomen Avenue. Therefore, the jury could reasonably find that on the night of the shooting, appellant possessed a gun with the intent to engage in the shooting of the victim.

After careful review of the entire record and considering the relevant facts and law, this court finds that in light of appellant’s testimony, the testimony from several witnesses and other circumstantial evidence, the Commonwealth proved every element of each of the convictions beyond a reasonable doubt. Therefore, this court requests that appellant’s allegations of error be denied.

CONCLUSION

For all the above reasons, the court respectfully requests that the defendant’s appeal be denied and his sentence affirmed.

      . 18 Pa.C.S. §2502(c).

      . 18 Pa.C.S. §§2702(a)(l), (a)(4).

      . 18 Pa.C.S. §6106(a)(l).

      . 18 Pa.C.S. §907(a).

      . 18 Pa.C.S. §907(b).

      . The Commonwealth presented the testimony of: Jarrad Hopgood, N.T. at 168-203; Robert Cairens, N.T. at 207-37; Crystal Talarico, N.T. at 239-63; Erica Nowotarski, N.T. at 265-80; and Eddie Schwambach, N.T. at 323-29, who witnessed the events unfold from 1621 Perkiomen Avenue directly across the street from where the shooting occurred. Additionally, Amy Smith, from her vantage point at 1606 Perkiomen Avenue, saw appellant and Rene Castro arguing on the street, heard gunshots and thereafter called 911. N.T. at 331 -39. Pricilla Rodriguez, N.T. at 139-55, testified to the events as she witnessed them from the third floor of 1610 Perkiomen Avenue.

      . 18 Pa.C.S. §2502(c).

      . 18 Pa.C.S. §§2702(a)(l), (a)(4).

      . 18 Pa.C.S. §6106(a)(1).

      . 18 Pa.C.S. §907(a).

      . 18 Pa.C.S. §907(b).


author: KWIDIS, J.,

text:
    Koller v. Rose

      Michael Rosenzweig, for plaintiff.

      Scott Millhouse, for defendants.
    November 24, 2008
   KWIDIS, J.,

Before this court is defendant Neely’s motion for summary judgment. There are material issues of fact regarding the defendant, Cynthia L. Neely’s liability as a landlord and/or social host.

On the evening of October 14, 2005 and extending into the morning horns of October 15,2005, a party was held at defendant Neely’s house. While defendant Neely was present at the time, the party was hosted by her nephew, Roth Neely, who is not named as a defendant, to whom she leased the basement of her home. Among others in attendance at the party was the defendant, Damian Rose, a minor, who consumed alcohol at the residence.

On his way home from the party in the early morning horns of October 15,2006, defendant Rose was involved in a car accident and struck the plaintiff, Terina Roller, a pedestrian. On August 7, 2006, plaintiff filed a complaint alleging, in part, that defendant Neely was negligent under the theory of social host liability.

On July 1, 2008, defendant Neely filed a motion for summary judgment alleging that there was no evidence that: (1) she knew a party was scheduled at her home on October 14, 2005; (2) she purchased, helped purchase, delivered, or distributed the beer which was consumed at the party; (3) she invited defendant Rose or any other individual to the party; or (4) she “knowingly furnished” alcoholic beverages to defendant Rose or any other individual at the party.

Under the Pennsylvania Rules of Civil Procedure, summary judgment may be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). The Supreme Court explained that “the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991) (citing Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970)). The Supreme Court further elaborated that “[wjhere the facts can support conflicting inferences, it cannot be said that the case is free and clear from doubt and thus ripe for summary judgment.” Washington v. Baxter, 553 Pa. 434, 447 n.10, 719 A.2d 733, 740 n.10 (1998) (citing Marks at 135, 589 A.2d at 206).

For purposes of determining whether the grant of summary judgment is precluded, the court must consider the following factors: (1) whether the plaintiff has alleged facts sufficient to establish a prima facie case; (2) whether there is any discrepancy as to any facts material to the case; and (3) whether granting summary judgment would result in the trial court usurping the role of the jury by resolving material issues of fact. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992); Swords v. Harleysville Insurance Companies, 584 Pa. 382, 883 A.2d 562 (2005).

Under these guidelines, this court has proceeded to analyze the controlling cases involving social host liability.

In Congini by Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983), the Pennsylvania Supreme Court determined that a social host is negligent per se in serving alcohol to the point of intoxication to a person less than 21 years of age. In Orner v. Mallick, 515 Pa. 132, 527 A.2d 521 (1987), the court explained its decision in Congini:

“In arriving at this conclusion we emphasized that in Pennsylvania ‘our legislature has made a legislative judgment that persons under 21 years of age are incompetent to handle alcohol,’ id., 504 Pa. at 161, 470 A.2d at 517; and we accepted that legislative judgment as defining a duty of care on the part of adults vis-a-vis their minor guests.” Id. at 136, 527 A.2d at 523.

In Congini and Orner, the Supreme Court employed the standard of “knowingly” furnishing intoxicating beverages to minors.

The Third Circuit Court of Appeals elaborated upon the Congini and Orner standard in Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir. 1986) and MacLeary v. Hines, 817 F.2d 1081 (3d Cir. 1987). In both cases, the Third Circuit held that a defendant who “knowingly” allows his or her premises to be used for the purpose of serving alcohol to minors may be liable even if the alcohol was provided by another individual.

Following the Third Circuit’s decisions, the Pennsylvania Supreme Court again ruled on the standard of liability in social host cases in Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990). Even though the court in Alumni Association found that the defendant was not liable, it cited the Fassett and Mac-Leary opinions with approval. Specifically, the Supreme Court noted:

“The Third Circuit correctly determined in both instances that we would not restrict the application of the social host theory to solely those instances where the defendant was alleged to have physically handed an alcoholic beverage to a minor. MacLeary, 817 F.2d at 1081; Fassett, 807 F.2d at 1161. Upon the facts presented, we too, would have found that defendant met the ‘knowingly furnished’ requirement.” Id. at 364, 572 A.2d at 1212-13. (emphasis in original)

In the instant matter, a genuine question of fact exists as to defendant Neely’s liability as a social host. Neither party disputes the fact that defendant Neely did not supply any alcohol for the underage party. However, she was admittedly present at the party. Numerous witnesses saw defendant Neely interact with the underage children while they were drinking alcohol. Witnesses testified that defendant Neely talked with the minors and watched as they poured beer from the kegs. Defendant Neely was even seen carrying a cup of beer at one point. Furthermore, while the party originated in the basement apartment, it spread to the back porch and surrounding yard, which is part of defendant Neely’s property that is not solely inhabited by her nephew.

Therefore, sufficient evidence exists to support a jury’s conclusion that defendant Neely actually knew of alcohol consumption by minors on her premises. On that basis, summary judgment is not appropriate in this case.

This court enters the following order.

ORDER

And now, November 24, 2008, after argument and consideration of the briefs submitted by both parties in the above-captioned case, the motion for summary judgment of the defendant, Cynthia L. Neely is hereby denied.


author: WETTICK JR., J.,

text:
    Lustfield v. Milne

      Harry F. Kunselman, for plaintiff.

      Paul Yagelski, for defendant.
    October 29, 2008
   WETTICK JR., J.,

Defendants’ preliminary objections to plaintiff’s first amended complaint are the subject of this opinion and order of court. These preliminary objections raise an issue that the Pennsylvania appellate courts have never addressed: whether an arbitration clause that provides for arbitration pursuant to the Commercial Rules of the American Arbitration Association incorporates Rule 7 of the Commercial Rules which provides for the arbitrator to determine disputes over the scope of the arbitration clause.

PLAINTIFF’S FIRST AMENDED COMPLAINT

The facts, as described in plaintiff’s first amended complaint, are as follows: John Milne and plaintiff had multiple discussions in May and June 2004 about a new business venture. It was agreed that plaintiff would be a partner in the venture and that Mr. Milne and plaintiff would share management responsibilities over the new business.

In May 2004, John Milne arranged for the formation of Milne LLC, t/d/b/a JKMilne Asset Management (Milne LLC), but no membership interests were issued, no manager was elected, and no operating agreement was prepared.

Between June and August 2004, Mr. Milne decided, without determining percentages of ownership or control, that Harry Milne (defendant’s brother), Joseph Kotrozo and Steven Doyle would also be partners.

Milne LLC officially opened for business on August 2, 2004. While a determination as to percentages of ownership still had not been made, Mr. Milne advised plaintiff that she would have greater interests and a greater role than the individuals identified in the prior paragraph of this opinion.

Between August 2004 and November 4, 2004, Mr. Milne caused Milne LLC to retain the services of a law firm to prepare a proposed limited liability company agreement (LLC agreement) with terms and conditions established by Mr. Milne.

As of early November 2004, plaintiff had, based on her discussions with Mr. Milne, devoted five months of full-time professional effort and services toward the business. In early November, Mr. Milne furnished the proposed LLC agreement to plaintiff. Under the proposed agreement, Mr. Milne and plaintiff would be the only equity holders.

At a February 2005 meeting, plaintiff signed a subscription agreement under which she paid $10,000 (through a $10,000 promissory note payable to Milne LLC) for 14 Class A voting units and 20 percent of the Class B nonvoting units of Milne LLC. Mr. Milne received the remaining 86 Class A voting units issued by Milne LLC.

At this meeting, plaintiff informed Mr. Milne that she did not agree with the proposed LLC agreement. She disagreed with the nature of her ownership, the degree of control Mr. Milne could exercise under the LLC, and the restrictions on transfers of units. To persuade plaintiff to sign the LLC agreement, Mr. Milne promised plaintiff that if he decided to bring in new partners in the future, he would do so by selling his own voting units to the new partners rather than by issuing additional voting units. Plaintiff signed the LLC agreement in reliance upon this promise that Mr. Milne would not dilute her ownership interest.

Plaintiff alleges that beginning June 2004, Mr. Milne has regularly used Milne LLC funds for personal expenses. He hired his son-in-law for a position that was not needed and for which he had no qualifications. Books and records show loans made by Mr. Milne to Milne LLC that were actually payments of Mr. Milne’s personal expenses. Plaintiff also alleges that Mr. Milne improperly acquired Mr. Kotrozo’s Class B nonvoting units when Mr. Kotrozo resigned, rather than offering the units to Milne LLC or to any of the remaining holders of voting or nonvoting units.

In May or June 2006, Mr. Milne caused Milne LLC to issue 10 additional Class A voting units to his brother (i.e., these were newly issued units). His brother never paid for these units. Shortly thereafter, his brother left Milne LLC and these units were purchased by Mr. Milne.

On June 29, 2007, Mr. Milne requested plaintiff to sign a document purporting to ratify Mr. Milne’s acquisition of his brother’s Class A voting units. She refused. On July 23, 2007, Mr. Milne terminated plaintiff’s employment with Milne LLC.

Subsequently, Milne LLC furnished to plaintiff a second amended and restated LLC agreement, effective February 28,2008, which created a category of “passive owner” and permitted Milne LLC to purchase the Class A and Class B units of any passive owner for the fair market value of the units as of the last day of the end of the calendar quarter immediately preceding the date of the notice furnished to the passive owner of Milne LLC’s intentions to purchase the passive owner’s units. (Section 8.5(a).) At the same time, plaintiff received a letter notifying her of the intent of Milne LLC to purchase her units at their December 31, 2007 values.

Plaintiff’s first amended complaint raises the following counts:

Count I—Declaratory Relief—Both Defendants

Plaintiff requests this court (1) to declare that the February 2005 LLC agreement which she signed is not enforceable because it is a one-sided agreement that purports to give Mr. Milne the unilateral ability to amend the terms of the agreement and (2) if the February 2005 LLC agreement is enforceable in whole or in part, to declare that the February 29,2008 purported buyout letter is not enforceable.

Count II—Declaratory Relief—Both Defendants

Plaintiff seeks a declaration that Mr. Milne usurped corporate opportunities by obtaining the units of his brother and of Mr. Kotrozo.

Count III—Action for Accounting—Both Defendants

This count is based on allegations that Mr. Milne has engaged in numerous acts of self-dealing and usurpation of corporate opportunities. The relief sought includes an order that Mr. Milne disgorge to Milne LLC all funds and property determined to be assets of Milne LLC.

Count IV—Breach of Contract—Milne LLC

Plaintiff alleges that under her employment agreement, she has not been paid the full amount that she is owed.

Count V—Breach of Contract—Milne LLC

Plaintiff alleges that she was promised payments of $80,000 that were not made, on account of her status as an owner of Class A units.

Count VI—Quantum Meruit—Both Defendants

Plaintiff seeks the value of the services she provided in the startup and expansion of Milne LLC between its infancy and the present. This claim is based on an allegation that plaintiff provided these services under circumstances in which it was reasonable to expect plaintiff to be compensated for the services.

Count VII—Unjust Enrichment—Both Defendants

Plaintiff alleges that she provided services far in excess of what plaintiff received in the form of equity and monetary payments. This occurred because Mr. Milne shut plaintiff out of the business at a time when she would begin to reap the value of her ownership interests because of the business’ growth.

DEFENDANT’S PRELIMINARY OBJECTIONS ARBITRATION AGREEMENT

The February 2005 LLC agreement, the first amended LLC agreement effective July 1, 2007, and the second amended agreement effective February 28,2008 contain the following arbitration clause:

“10.10 Arbitration. Except as provided in sections 5.11 and 10.5 hereof, each of the members hereby waive any right to a court (including jury) proceeding and instead agree to submit any dispute over the application, interpretation, enforcement, or any other aspect of this agreement to confidential, final, and binding arbitration consistent with the Commercial Rules of the American Arbitration Association.”

Plaintiff contends that this clause is not enforceable because the entire February 2005 LLC agreement is unenforceable. Defendants contend that this is a matter for the arbitrator to decide.

Plaintiff contends that even if the arbitration clause is enforceable, the claims raised in plaintiff’s first amended complaint are outside the scope of the arbitration clause. Defendants contend that disputes over the scope of the arbitration clause are to be decided by the arbitrator.

I first consider the issue of whether this court or the arbitrator considers the claim that the entire February 2005 LLC agreement is not enforceable. In her complaint, plaintiff does not allege that the arbitration clause is unconscionable; she argues that the entire LLC agreement that includes the arbitration clause may not be enforced for the reasons set forth in paragraph 124(d)-(f) of plaintiff’s first amended complaint:

“(d) No consideration supported the one-sided tenns that favor defendant Milne;
“(e) The document lacks mutuality of obligation that would be necessary to make the document an enforceable contract; and
“(f) The document purports to give Milne the unilateral ability to amend the terms of the document without the consent of any other signatories thereto.”

Plaintiff contends that a court cannot enforce an arbitration clause in an agreement without first determining the claim that the entire agreement should not be enforced. This contention is not supported by the case law.

The February 2005 LLC agreement involves interstate commerce so defendants’ request to compel arbitration is governed by the Federal Arbitration Act. The Federal Arbitration Act holds that a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause, is a matter for the arbitrator. Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204 (2006); Salley v. Option One Mortgage Corp., 592 Pa. 323, 338, 925 A.2d 115, 124 (2007). Also, assuming that the Federal Arbitration Act does not apply, I agree with plaintiff that Pennsylvania law applies (i.e., the law that would apply in the absence of a jurisdictional clause within a contract should apply to a challenge to the contract as a whole containing a jurisdiction clause). Under Pennsylvania law the arbitrator, rather than the court, addresses a challenge to the validity of the entire agreement. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975).

I now consider defendants’ position that the arbitrator rather than the courts shall decide the merits of plaintiff’s contention that counts within her complaint do not come within the scope of the arbitration clause. Case law holds that courts shall address disputes over the scope of an arbitration clause {i.e., what may be arbitrated) unless the parties have explicitly agreed to submit disputes over the scope of the arbitration clause to arbitration. See Howsam v. Dean Witter Reynolds Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 591 (2002) (“The question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability, ’is ‘an issue for judicial determination [ujnless the parties clearly and unmistakably provide otherwise.’ AT&T Technologies Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (emphasis added).”). Also see, AT&T Technologies Inc. v. Communications Workers of America, supra, 475 U.S. at 649, 106 S.Ct. at 1418. (“Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.”)

In First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920 (1995), the United States Supreme Court considered the role of the trial court in reviewing a ruling of an arbitrator deciding arbitrability. The court held that, unlike other rulings of arbitrators which can be set aside only in narrow circumstances, the review of a ruling on whether the parties have agreed to arbitrate the arbitrability questions shall be decided de novo. This review shall be governed by applying the standard enunciated in AT&T Technologies that there be clear and unmistakable evidence that parties agree to arbitrate arbitrability.

The court explained the reason for the difference in treatment where the court is reviewing arbitrability:

“But, this difference in treatment is understandable. The latter question arises when the parties have a contract that provides for arbitration of some issues. In such circumstances, the parties likely gave at least some thought to the scope of arbitration. And, given the law’s permissive policies in respect to arbitration, see e.g., Mitsubishi Motors, supra, at 626, 105 S.Ct. at 3353, one can understand why the law would insist upon clarity before concluding that the parties did not want to arbitrate a related matter. See Domke section 12.02, p. 156 (issues will be deemed arbitrable unless ‘it is clear that the arbitration 1925 clause has not included’ them). On the other hand, the former question—the ‘who (primarily) should decide arbitrability’ question—is rather arcane. A party often might not focus upon that question or upon the significance of having arbitrators decide the scope of their own powers. Cf. Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1508-1509 (1959), cited in Warrior & Gulf, 363 U.S. at 583 n.7, 80 S.Ct. at 1353 n.7. And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the ‘who should decide arbitrability’ point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. Id. See generally, Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-20, 105 S.Ct. 1238, 1241-42, 84 L.Ed.2d 158 (1985) (Arbitration Act’s basic purpose is to ‘ensure judicial enforcement of privately made agreements to arbitrate’).” 514 U.S. at 945, 115 S.Ct. at 1924-25.

In this case, the arbitration clause does not include language that clearly informs plaintiff that she could be forced to arbitrate arbitrability. In fact, it appears not to address the issue of who decides the scope of the arbitration clause, in which event the court does so.

However, defendants raise the following argument (defendants’ supplemental brief at 7-9): The arbitration clause refers to an agreement to submit those disputes described in the agreement to “confidential, final and binding arbitration consistent with the Commercial Rules of the American Arbitration Association.” Rule 7 of the AAA Commercial Rules states that the arbitrator “shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement.” Rule 7 is, by incorporation, a part of the arbitration clause.

I reject this argument because I cannot assume that plaintiff was aware of or even considered the possibility that the reference to the Commercial Rules of the American Arbitration Association expanded the scope of matters that must be arbitrated. The typical arbitration clause addresses two issues: it identifies matters that will be arbitrated and it identifies the entity or person that will serve as the arbitrator. It is reasonable to construe the arbitration clause as addressing these two issues separately. Where the first portion of an arbitration agreement addresses the scope of the agreement, a party to the agreement would have no reason to believe that a later portion identifying the entity that will serve as the arbitrator has anything to do with what is arbitrable.

In addition, what is arbitrable is a matter for the parties to decide. Thus, one would not anticipate that it would be addressed in the rules of an entity that will serve as the arbitrator.

I recognize that Federal Courts of Appeals and Federal District Courts have ruled that a clause in an arbitration clause stating that the claims shall be resolved by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association incorporates into the arbitration provision all rules of procedure of the AAA, including Rule 7. See Citifinancial Inc. v. Newton, 359 F. Supp.2d 545 (S.D. Miss. 2005), and cases cited therein. The rationale for the mling is that a party cannot sign a document which states that the AAA procedures will govern the dispute and later say the procedures do not apply.

This is not following this case law because it permits a party to obtain arbitration as to the scope of the arbitration clause without using language that clearly informs the other party that it is agreeing to arbitrate arbitrability. This case law is contrary to First Options of Chicago Inc. and other United States Supreme Court case law recognizing the principle that a party can be forced to arbitrate arbitrability only if there is clear and unmistakable evidence that both parties intended to arbitrate arbitrability.

If I rale in defendants’ favor, I am stating that plaintiff is bound by Rule 7 because plaintiff should have assumed (1) the AAA arbitration rales might discuss the scope of the role of the arbitrator vis-a-vis the court and (2) a court might construe the arbitration clause as incorporating any provisions in the AAA arbitration rales governing the scope of the arbitrator’s authority. This turns upside down the case law’s requirement that there be clear and unmistakable evidence that “the parties objectively revealed an intent to submit the arbitrability issue to arbitration.” First Options, supra, 514 U.S. at 944, 115 S.Ct. at 1924.

If a drafting party is seeking an agreement of the parties to an arbitration clause which provides for the arbitrator to decide arbitrability, it is a simple matter to expressly say so in the proposed arbitration clause. This provides clarity and the opportunity for another party to object if this other party is unwilling to have the scope of an arbitration clause decided by an arbitrator. There is no reason for courts to create a body of law that imposes a duty to arbitrate arbitrability where this may not have been the intention of one or more of the parties to an agreement, because the drafting party through one sentence can clearly state that the arbitrator shall decide arbitrability disputes.

In First Options, the court adopted a standard that was easy for the parties to an arbitration agreement and for the courts to apply: courts will decide the scope of an arbitration clause unless the language of the arbitration clause itself clearly states that the parties intend for the arbitrator to decide arbitrability. The case law finding an agreement to arbitrate arbitrability based solely on a reference to the AAA rules undermines the protections afforded parties to arbitrate arbitrability in the courts.

For these reasons, I agree with plaintiff that this court may decide whether or not the counts within her first amended complaint are within the scope of the arbitration clause.

I next consider what counts in plaintiff’s complaint come within the arbitration agreement which covers “any dispute over the application, interpretation, enforcement, or any other aspect of this agreement.” It is plaintiff’s position that each count in her amended complaint falls outside the scope of this agreement.

Count I—Request for Declaratory Relief

Plaintiff’s request for a declaration that the entire February 2005 LLC agreement is one-sided and unenforceable is governed by the arbitration clause because it involves the “enforcement” of the February 2005 LLC agreement. Also, the request that the court declare that the February 29, 2008 purported buyout agreement is not enforceable is covered by the arbitration clause because the merits of this request for relief involve an interpretation of the initial and amended LLC agreements and a determination as to the enforceability of these agreements.

Count II—Declaratory Relief

A declaration that Mr. Milne improperly obtained the units of his brother and Mr. Kotrozo involves an “interpretation” of the February 2005 LLC agreement and, thus, is covered by the arbitration clause.

Count III—Action for Accounting

Plaintiff alleges that Mr. Milne violated his duty to account accurately to the members of Milne LLC, that plaintiff requires full access to the financial records of Milne LLC to determine their accuracy, and that the inaccuracy of these financial records affects the value of plaintiff’s ownership interests and the amount of profits to which she is entitled. This count is covered by the arbitration clause because it is a dispute over Mr. Milne’s obligations under the LLC agreements and the enforcement of these obligations.

Count IV—Breach of Contract

Plaintiff alleges that under her employment agreement, she was not paid the full amount she was owed. The arbitration clause does not cover employment agreements between Milne LLC and plaintiff. Consequently, plaintiff may proceed with this claim.

Count V—Breach of Contract

This count is based on an alleged agreement between Mr. Milne and plaintiff as to payments that they would receive as owners of Class A voting units. Plaintiff alleges that the agreement provides for annual payments to continue as long as both plaintiff and Mr. Milne are members of Milne LLC. There is a dispute involving the interpretation of the initial and amended LLC agreements as to whether plaintiff is still a member. Thus, this dispute is covered by the arbitration clause because it involves the application and interpretation of the LLC agreements.

Count VI—Quantum Meruit

Plaintiff alleges that she is entitled to be compensated for the reasonable value of the services she provided in the startup and operation of Milne LLC from its infancy to the present. This is not barred by the arbitration clause because it is not based on any provisions within the initial or amended LLC agreements

Count VII—Unjust Enrichment

Plaintiff alleges that she provided uncompensated services to Milne LLC which far exceed what she has received in the form of equity and monetary payments. Her efforts added value to ownership interests in Milne LLC. When Milne LLC was reaching levels of success and performance that would make it a lucrative business, Mr. Milne shut plaintiff out of the business.

If this count is based on allegations that plaintiff was wrongfully forced out of the business, it is a dispute involving the interpretation, enforcement, or other aspect of the LLC agreements. Thus, it is covered by the arbitration clause.

However, it appears that plaintiff is not seeking relief in her capacity as a shareholder or employee. Instead, she appears to be alleging that if Mr. Milne chose to shut her out of the business at a time it was reaching levels of success and perfonnance that would make it a lucrative business, she is entitled to the reasonable value of her services that Milne LLC received and for which she has not been compensated. This latter claim is outside the scope of the arbitration clause because it does not involve any aspect of the LLC agreements.

In summary, defendants’ preliminary objections raising the obligation of plaintiff to arbitrate are sustained as to Counts I, II, III, and V and overruled as to Counts IV, VI, and VII.

DEFENDANTS’ PRELIMINARY OBJECTIONS—DEMURRER

Defendants have filed preliminary objections in the nature of a demurrer as to Counts VI and VII. Because of my ruling that these counts are not covered by the arbitration clause, I will now consider the merits of these preliminary objections.

Count VI is labeled Quantum Meruit and Count VII is labeled Unjust Enrichment. However, unjust enrichment is a synonym for quantum meruit. Northeast Fence & Iron Works Inc. v. Murphy Quigley Co. Inc., 933 A.2d 664, 667 (Pa. Super. 2007). Consequently, I look to the case law governing claims for unjust enrichment.

In Wilson Area School District v. Skepton, 586 Pa. 513, 520, 895 A.2d 1250, 1254 (2006), the Pennsylvania Supreme Court, citing a long line of rulings of the Pennsylvania Commonwealth and Superior Courts, ruled that the doctrine of unjust enrichment is inapplicable where the relationship between the parties is founded upon a contract:

“We begin our analysis by considering whether the school district is entitled to restitution of the permit fee refund pursuant to the doctrine of unjust enrichment. As this court has recognized, the doctrine of unjust enrichment contemplates that ‘[a] person who has been unjustly enriched at the expense of another must make restitution to the other.’ See e.g., Binns v. First National Bank of California, Pennsylvania, 367 Pa. 359, 372, 80 A.2d 768, 775 (1951) (quoting Restatement (First) of Restitution §1 (1937)). With that said, it has long been held in this Commonwealth that the doctrine of unjust enrichment is inapplicable when the relationship between parties is founded upon a written agreement or express contract, regardless of how ‘harsh the provisions of such contracts may seem in the light of subsequent happenings.’ Third National Bank & Trust Company of Scranton v. Lehigh Valley Coal Company, 353 Pa. 185, 193, 44 A.2d 571, 574 (1945); see also, Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 290, 259 A.2d 443, 448 (1969); Wingert v. T.W. Phillips Gas & Oil Company, 398 Pa. 100, 105, 157 A.2d 92, 94 (1959) (‘[The doctrine of unjust enrichment] applies only to situations where there is no legal contract’); Durham Terrace Inc. v. Hellertown Borough Authority, 394 Pa. 623, 148 A.2d 899 (1959). While it does not appear that this court has expounded upon this rule of law, it has been recognized that this bright-line rule not only has ‘a distinguished common-law pedigree, but it also derives a great deal of justification from bedrock principles of contract law.’ Curley v. Allstate Insurance Company, 289 F. Supp.2d 614, 620 (E.D. Pa. 2003). Moreover, as the Curley court noted, ‘ [this] bright-line rule also has deep roots in the classical liberal theory of contract. It embodies the principle that parties in contractual privity... are not entitled to the remedies available under a judicially-imposed quasi [-] contract [i.e., the parties are not entitled to restitution based upon the doctrine of unjust enrichment] because the terms of their agreement (express and implied) define their respective rights, duties and expectations.’ Id. at 520-21.”

Defendants contend that this case law governs plaintiff’s claims raised in Counts VI and VIL I agree.

Prior to February 2005, plaintiff perfonned services because Mr. Milne had promised to include her as an owner in the new business (which he did). After February 2005, plaintiff performed services for Milne LLC as an employee and an owner who would be compensated in accordance with the provisions of the February 2005 LLC agreement and, later, also in accordance with the provisions of an employment agreement. Thus, the relationship between the parties is founded upon express agreements.

Plaintiff did not anticipate that she would receive the full value of her services until the business grew. When this occurred, she expected her interests in the business to be of significant value. Plaintiff’s expectations will not be realized (unless she prevails on her other claims) because the February 2005 LLC agreement did not sufficiently protect her interests. However, an unjust enrichment claim cannot be based on harsh provisions in a contract.

For these reasons, I enter the following order of court:

ORDER

On this October 29, 2008, it is hereby ordered that:

(1) proceedings are stayed as to Counts I, II, III and V pending arbitration;

(2) defendants’ preliminary objections in the nature of a demurrer as to Counts VI and VII are sustained and these counts are dismissed; and

(3) in answering plaintiff’s amended complaint, defendants shall respond only to those paragraphs within the complaint that are clearly relevant to Count IV.

      . This agreement, executed in February 2005, was dated August 9, 2004. In this opinion, I refer to the agreement as the February 2005 LLC agreement.

      . The Federal Arbitration Act applies to any agreement affecting interstate commerce. Allied-Bruce Terminix Co, Inc. v. Dobson, 513 U.S. 265, 115 S.Ct. 834 (1995). This Act applies to the February 2005 LLC agreement because this involved a business affecting interstate commerce. Section 1.3(a) of the agreement provides that the purpose of the company shall be to act as a SEC 40 Act investment advisor, focusing on institutional client bond portfolio management, and act as marketer of other investment management services.
      Delaware law does not apply because a generic choice of law provision is insufficient to support a finding that the parties intended to opt out of the FAA standards. Roadway Package System Inc. v. Kayser, 257 F.3d 287, 296 (3d Cir. 2001), abrogated on other grounds by Hall Street Associates LLC v. Mattel Inc., 128 S.Ct. 1396 (2008).

      . LLC agreement does not attach Rule 7 to the agreement or describe its contents.

      . In the portion of the First Options opinion quoted at page 479 of this opinion, the Supreme Court described the question of who shall decide arbitrability as “rather arcane” and recognized that a party “might not focus upon that question or upon the significance of having arbitrators decide the scope of their own powers.”

      . Should the arbitrator determine that the entire February 2005 LLC agreement is unenforceable, the dismissal of Counts VI and VII may be reconsidered.


author: HODGSON, P.J.,

text:
    Robinson v. Yue

      RaymondM. Billy, for plaintiffs.

      Paul Gambone, for defendants.
    November 19, 2008
   HODGSON, P.J.,

Plaintiffs, Charles and Dorothy Robinson, appeal to the Superior Court from our order dated September 26,2008 granting defendant, Timothy Yue’s, motion for leave to appeal nunc pro tunc.

FACTS AND PROCEDURAL HISTORY

On November 21, 2007, an arbitration award in the amount of $10,000 was entered in favor of Dorothy and Charles Robinson (plaintiffs) against Timothy and David Yue (defendants). Soon thereafter, on December 18, 2007, within 30 days from the date the judgment was entered, defendants mailed their notice of appeal to the Montgomery County Prothonotary’s office, failing to include with it, however, stamped and addressed envelopes pursuant to Pennsylvania Rule of Civil Procedure 1308(b). As a result, the notice of appeal was never docketed. The prothonotary returned the notice of appeal to defendants, who subsequently received it on December 21. That same day, an administrative assistant for defendants’ attorney re-sent the notice of appeal, which was eventually docketed on December 26, 2007. Plaintiffs aver that this rendered the appeal untimely.

On January 17, 2008, defendants filed a motion for leave to appeal nunc pro tunc. In response, on March 19, 2008, plaintiffs filed a motion to quash said appeal. Ultimately, on September 26, 2008, this court granted defendants’ motion. On October 13, 2008, plaintiffs filed a motion for reconsideration, which was subsequently denied on October 17, 2008. Soon thereafter, plaintiffs filed this instant appeal to the Pennsylvania Superior Court and filed a concise statement of matters complained of with this court on November 3, 2008 in accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

DISCUSSION

On appeal, plaintiffs argue that by granting defendants leave to appeal nunc pro tunc, this court abused its discretion and committed an error of law. It is plaintiffs’ contention that the prothonotary is not required to file documents that do not comply with the Pennsylvania Rules of Civil Procedure. Further, plaintiffs aver that since defendants failed to supply stamped and addressed envelopes with their notice of appeal before December 21, 2007, they failed to comply with the Pennsylvania Rules of Civil Procedure, and as such, the prothonotary correctly refused to docket the appeal.

Regarding plaintiffs’ principal argument, this court’s order granting defendants’ motion for leave to appeal nunc pro tunc, was judicially proper. Rule 1308 of the Pennsylvania Rules of Civil Procedure provides in pertinent part:

“(a) An appeal from an award shall be taken by
“(1) filing a notice of appeal in the form provided by Rule 1313 with the prothonotary of the court in which the action is pending not later than 30 days after the day on which the prothonotary makes the notation on the docket that notice of entry of the arbitration award has been provided as required by Rule 1307(a)(3), and
“(2) payment to the prothonotary of the compensation of the arbitrators not exceeding 50 percent of the amount in controversy, which shall not be taxed as costs or be recoverable in any proceeding; provided that the court, in an appropriate case, upon petition may permit the appellant to proceed in forma pauperis.
“(b) The appellant shall provide the prothonotary with the required notice for mailing and properly stamped and addressed envelopes. The prothonotary shall give notice to each other party of the taking of the appeal. Failure to give the notice shall not invalidate the appeal.”

As clearly indicated by the rule, in order for an appeal from an arbitration award to be timely, the prothonotary of the court must receive notice of appeal within 30 days from the date it is noted on the docket that an arbitration award has been entered. Pa.R.C.P. 1308(1); Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001).

Where a party has filed an untimely notice of appeal, said party may be granted equitable relief in the form of an appeal nunc pro tunc in situations where the failure to file a notice of appeal was the result of fraud or a breakdown in the court’s operations. West Penn Power Co. v. Goddard; 460 Pa. 551, 556, 333 A.2d 909, 912 (1975). Such an appeal is permitted where the appellant proves the following: “(1) the appellant’s notice of appeal was filed late as a result of non-negligent circumstances, either as they relate to the appellant or the appellant’s counsel; (2) the appellant filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay.” Criss v. Wise, 566 Pa. at 442, 781 A.2d at 1159, citing Bass v. Commonwealth, Bureau of Corrections, 485 Pa. 256, 401 A.2d 1133 (1979). Plaintiffs argue that this court committed an error of law by granting an appeal nunc pro tunc because defendants’ untimely filing was not due to fraud or a breakdown in the court’s operation but rather was the result of negligence; an omission which indicated a blatant disregard for the procedural requirements governing the filing of an appeal.

Plaintiffs’ argument is misplaced because defendants’ notice of appeal was timely. As such, the analysis articulated in Goddard need not be undertaken. In the explanatory comments that follow Rule 1308, the authors explain that the legislative intent behind Rule 1308 was to simplify the form of appeal. Specifically, the comment states: “a simple notice of appeal substantially in the fonn prescribed by Appellate Rule 904 is all that is now required. The form appears in Rule 1313.” Thus, Rule 1313 alone governs the form the notice of appeal shall take.

Specifically, Rule 1313 provides: “The notice of appeal shall be in substantially the following fonn: . . . .” The rule then goes on to supply a fonn template for litigants to use. Nowhere in Rule 1313 or the explanatory comments that follow it, is there any indication that stamped and addressed envelopes are a requirement of the notice of appeal itself. Pursuant to Rule 1313, all that is required is for the appellant to indicate whether a jury trial is demanded and to certify that the compensation for the arbitrators has been paid. A review of the record reveals that defendants complied precisely with Rule 1313, and thus, supplied the prothonotary with the correct notice of appeal during the requisite time period.

Furthermore, if envelopes are necessary to perfect an appeal, and not just a procedural addendum, arguably the legislature would have included this requirement as a separate subdivision under Rule 1308(a). Looking at the grammatical construction of the rule itself, subdivision (a) provides: “An appeal from an award shall be taken by,” then a list of requirements follow that correspond to subsection (a). The plain meaning of the rule’s language suggests that all that is required to appeal an arbitration award is what is listed under subdivision (a), namely: Rule 1308(a)(1) filling a notice of appeal in the form provided by Rules 1313 and 1308(a)(2) payment to the prothonotary of the compensation of the arbitrators. The envelope requirement, separately delineated by subdivision (b), is not a prerequisite to perfect an arbitration appeal as those requirements are listed under subdivision (a) as previously discussed.

The explanatory comments to Rule 1308 provide further enlightenment on this issue. Referencing subdivision (b) the authors noted:

“Subdivision (b) changes prior practice under existing local rules which require the appellant to serve a copy of the appeal on all other parties to the action. It requires the prothonotary to give the notice, which the appellant must furnish him, postage prepaid.” Pa.R.C.P. 1308 cmt. subdivision (b) (1981).

This clarification indicates that the legislative intent and purpose behind the envelope requirement is to supply all interested parties with proper notice of the appeal. Although defendants failed to provide envelopes with their first notice of appeal, the record indicates that they did personally notify plaintiffs of their intent to seek an appeal. During deposition, Alexandra Stauffer, an administrative assistant at defendants’ counsel’s firm, testified that she personally mailed the notice of appeal to opposing counsel. (N/T, deposition of Alexandra Stauffer, 4/16/08 at 15-17,42.) As such, the purpose behind Rule 1308(b), namely to supply notice of the taking of an appeal to all interested parties, was accomplished. Furthermore, Rule 1308(b) goes on to state that: “The prothonotary shall give notice to each other party of the taking of the appeal. Failure to give the notice does not invalidate the appeal.”

Regarding plaintiffs’ argument that defendants’ appeal was untimely filed because it was not docketed until December 26, 2007, Pennsylvania law provides that a document is filed when received by the prothonotary, regardless of when it is later time-stamped. The Pennsylvania Superior Court in Griffin v. Central Sprinkler Corporation, held:

“[T]he term ‘filing’ is not the equivalent of either the prothonotary’s time-stamping of a document or the recording of receipt on the docket.... [T]he term ‘file’ cannot be completely equated with the purely ministerial act of docketing the receipt of a legal document____ [Documents mailed to the prothonotary or other office are deemed filed when ‘received by the appropriate officer. ’... Clearly then, under Pa.R.C.P. 205.1, a document is filed when received by the prothonotary, regardless of when it is later time-stamped.” 823 A.2d 191, 196-97 (Pa. Super. 2003). (emphasis in original)

An analogous fact pattern, to the case before this court, can be found in Amicone v. Rok, 839 A.2d 1109 (Pa. Super. 2003). In Rok, plaintiff filed a complaint against defendant for vehicular damage and a district justice ultimately entered judgment in favor of defendant on October 15, 2002. From the date the judgment was entered, plaintiff had 30 days to file an appeal with the court of common pleas. On November 12,2002, the prothonotary’s office received plaintiff’s notice of appeal but did not docket it. Rather, it returned the filing on the basis that no cover sheet had been provided. Approximately four months later, on March 26, 2003, plaintiff filed a motion to appeal nunc pro tunc. The Superior Court found plaintiff’s original appeal timely since a “document is filed when it arrives at the prothonotary’s office, regardless of the date the document is time-stamped.” Id. at 1115, citing Nagy v. Best Home Services Inc., 829 A.2d 1166, 1169 (Pa. Super. 2003).

The Superior Court went on to hold, that although the prothonotary must inspect documents to ensure that they are in the proper form, “the power to reject such documents is limited to notifying the proper party that the document is defective so that the defect may be corrected through amendment or addendum.” Id. at 1115. To hold otherwise, “would be to confer on the prothonotary the power to ‘implement’ the rules governing the form of an appeal and to determine, based upon criteria other than the date they are received, which appeals are timely. Such a power is inconsistent with our Supreme Court’s pronouncement that a document is filed when the prothonotary receives it.” Id.

Similarly in the instant case, defendants’ notice of appeal was originally filed on December 18, 2007, yet returned to defendants’ counsel on December 21, 2007. (N/T, deposition of Alexandra Stauffer, 4/16/08 at 28.) This indicates that the prothonotary received the notice within the 30-day appeal period which expired on December 21, 2007. Therefore, notwithstanding the fact that the appeal did not include envelopes, said notice must be considered timely filed since it was physically received by the prothonotary.

Lastly, pursuant to Pennsylvania Rule of Civil Procedure 126, Rule 1308 should be “liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. 126. Thus, even if defendants’ failure to include envelopes with their notice of appeal was a procedural error, such error should be disregarded because it does not affect plaintiffs’ substantive rights.

      . Ultimately, plaintiffs’ petition to file an appeal nunc pro tunc was denied because the petition was not filed for four months after the prothonotary’s office rejected the first filing. In the case before this court, however, less than one month had elapsed between the date the prothonotary originally rejected the notice of appeal and the date defendants filed a motion to appeal nunc pro tunc.


author: DYCH, J,

text:
    Fatherly v. Barber’s Hall

      Gordon Gelfond, for plaintiff.

      Isaac H. Green Jr., for defendants.
    October 10, 2008
   DYCH, J,

On February 17,2008, a jury rendered a verdict for the plaintiff and awarded him $400,000. On June 19, 2008,1 denied defendants’ post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and entered judgment. Defendants take this timely appeal.

MATTERS COMPLAINED OF ON APPEAL

Defendants contend that I erred in denying their motion for judgment n.o.v. because the evidence:

(1) established plaintiff’s status as a trespasser or, if he was not a trespasser, he was a business invitee who lost his protected status when he exceeded the scope of his invitation onto the defendants’ premises.

(2) failed to establish that the defendants’ premises were known for violent acts before the shooting incident from which this case stemmed.

(3) established that defendants did not know that a patron was about to injure the plaintiff, that they took reasonable steps to protect persons lawfully on their premises and exercised reasonable care when they were informed that persons had entered without permission.

(4) failed to establish that the conduct that injured the plaintiff was foreseeable.

FACTUAL BACKGROUND

At about February 8, 2004, shortly after 1:30 a.m., plaintiff Samuel Nathanial Fatherly suffered a gunshot wound to the back while he was in the defendants’ establishment, Barber’s Hall. N.T., 02/12/08, at 76-77. Testifying on his behalf were his brother, David Jonathan Fatherly (Brother) and a friend, Kalongi Jones, both of whom were with him on the evening of the incident. Id. at 9-10, 63-64, 157. The other trial witnesses, each of whom was present during the shooting, were defendant Jacob Adams, Barber’s Hall’s proprietor, Clifford Reynolds, a Barber’s Hall employee. Detective Robert Kerwin, who came to the scene after the shooting, also testified. Id. at 34-50, 146-50,167, 175-78.

The testimony was that Fatherly, accompanied by his brother and his friend, went to Barber’s Hall to socialize and attend a party being thrown by someone named “Fudge.” N.T., 02/12/08, at 10, 18-19, 24, 27, 66. They did not have printed invitations, and although Fatherly did not recall being invited, Jones testified that Fudge had extended a verbal invitation. Id. at 18, 19, 27, 62, 66. When they arrived, a fire marshal was leaving the premises, announcing that the bar’s occupancy limit had been exceeded. Id. at 8,21,64-66. Nevertheless, the men paid an admission fee and were admitted. Barber’s Hall personnel conducted a pat-down search. Id. at 11,20,68. They were not searched with a wand, although they did observe that a wand was used for female patrons. Id. at 118-19. Brother and Fatherly checked their coats, but Jones did not, and there were others in the hall wearing coats. Id. at 93-94, 153, 157.

Fatherly moved to the back room on the first floor and began a conversation with a female patron. He saw a flash, heard a shot and dove to the floor. After the first shot, Brother dove under a pool table. Id. at 13-14, 76-79.

The establishment consists of several facilities. On the first floor there is a bar open to the general public. In the back there is a ballroom for invitation-only. The second and third floor rooms for private, invitation-only events. N.T., 02/11/08, at 43-45.

Adams’ testimony concerning the establishment’s security and the sequence of events differed from that of the three young men. He testified that as a matter of routine both men and women were subject to a search with the metal detecting wand, that the men were patted down, and that all patrons were required to check their coats in the coat room. Id, at 49-53. On the night in question, after the fire marshal’s visit around 11:30, he instructed staff to lock the doors and to let in only patrons with invitations to events on the second floor. Id. at 34, 35, 39, 43, 64. The fire marshal had detennined that the crowd in the back hall on the first floor exceeded capacity. Id. at 34. Adams and Reynolds recounted that sometime after the doors were locked there was a surge while security was either letting someone in or out and that he became aware there were patrons in the first floor back room with coats. Id. at 42,171 -74. Adams called 911 and the police arrived about 1:10 a.m. A little later he instructed Reynolds (the DJ) to play the last song after which the bar would shut down. Id. at 153-54,170. Adams did not witness the shootings that occurred immediately thereafter and did not know until later when he saw a police report that three people had been injured. N.T., 02/12/08, at 149-50.

For his part, Reynolds, the DJ, testified that the first floor back room was packed during the two hours prior to the shooting. N.T., 02/11/08, at 169. He took note that there were people wearing coats which, he said, was unusual because Barber’s Hall policy required that every patron had to check his or her coat. Id. at 174. He said that there had been a surge of people entering the premises sometime after 11:30 p.m. when the fire marshal left. According to Reynolds, the shooting occurred about 1:40 a.m. at which time he saw flashes and heard shots. Id. at 175.

Det. Kerwin said his investigation revealed that three people were shot. Id. at 150. He was unaware of the presence of any police at the premises prior to his appearance and he had no knowledge of a surge occurring earlier in the evening. Id. at 147, 163.

During the charging conference, defendants’ counsel demurred on the ground that the evidence showed that the plaintiff was a trespasser and that defendants owed him no duty of protection. In response, I ruled that there was sufficient evidence to put the matter to the jury. N.T., 02/12/08, at 138-40. Over defendants’ objection I charged the jury with the task of determining from the evidence whether the plaintiff was a business visitor or a trespasser and, in so doing, was guided by Pennsylvania Standard Jury Instructions 7.00 (owner or land—duty of care), 7.01A (owner of land—business visitor defined) and 7.01C (owner of land—trespasser defined). N.T., 02/13/08, at 5-6, 72-73. I instructed that if they found that the plaintiff was a trespasser, they need deliberate no further. If, however, they determined that he was a business visitor, they were obliged to proceed to the questions of negligence and causation. Further, I instructed them that a business person “has a duty to use reasonable care to find out if a customer is being harmed or is likely to be harmed by others on the premises and to warn or protect him or her.” N.T., 02/12/08, at 74. The verdict sheet was drafted accordingly. N.T., 02/13/08, at 71-73, 74. Upon these instructions, the jury returned a verdict for the plaintiff, having determined that the plaintiff was a business visitor, that the defendants were negligent and that the negligence was a factual cause of the plaintiff’s injuries. N.T., 02/14/08, at 4-5.

DISCUSSION

Upon consideration of the defendants’ motion for judgment n.o.v., this court was obliged to determine whether the facts were such that no two reasonable minds could fail to agree that the verdict was proper. Trude v. Martin, 442 Pa. Super. 614, 623, 660 A.2d 626, 630 (1995). The propriety of that determination turns on whether there was sufficient evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be drawn therefrom. Id. My decision to deny the defendants’ motion may be reversed only if the reviewing court finds an abuse of discretion or error of law that controlled the outcome of the case. Id.

Fundamentally, defendants have two complaints. First, they contend that I should not have charged the jury with the task of determining the status of the defendant as a trespasser or a business invitee. Second, they contend that the evidence was insufficient to support a finding that the defendants were on notice of any danger to the plaintiff while he was on their premises.

Preliminarily, I note that the plaintiff’s status—whether he was a trespasser or invitee—ordinarily is a question of fact for the jury. Id. Defendants’ arguments on this point assume a view of the facts favorable to them, a view I am prohibited from accepting on a motion for judgment n.o.v. Trude, supra. Plaintiff and his companions testified that they had a verbal invitation to a birthday party, that they paid entrance fees and were admitted without printed invitations, and that they were permitted to go to the ballroom at the back of the first floor. This is sufficient to support a conclusion that they were business invitees to whom defendants owed a duty of care. The question properly was put to the jury.

On the question of notice, Adams testified that it was his awareness of shootings around the city that prompted the security measures adopted at Barber’s Hall. Those measures, according to Adams, included checking patrons’ identities, requiring printed invitations, pat-downs, metal detection with a wand, and requiring that everyone check his or her coat. This testimony was sufficient to support the conclusion that defendants were aware of the risk that weapons would be brought onto the premises. There was conflicting testimony about whether (a) the plaintiff, his brother and friend actually were subject to the search that the defendants claimed they normally conducted; (b) if there actually had been a “surge” or if, instead, patrons were admitted regardless whether they had the proper ID or a printed invitation; and (c) whether the defendants acted promptly, properly or at all, in response to the fact that there were patrons on the premises with coats, contrary to the defendants’ policies. The jury was free to resolve these conflicts in the plaintiff’s favor and to reach the conclusion that even though the defendants were aware of a substantial risk of harm in their establishment, their security measures either were inadequate or were not implemented on the night of February 8,2004. On these facts, I find no basis on which to second-guess the jury’s determination.

CONCLUSION

There was sufficient evidence of record to charge the jury with the question whether the plaintiff was a trespasser or a business invitee. Further, the record properly permitted the jury to conclude that the defendants had sufficient notice of the danger that weapons would be used on their premises and that they were negligent in preventing harm to the plaintiff. For these reasons, defendants’ appeal should be rejected.


author: STEINBERG, J„

text:
    Commonwealth v. Piskanin

      Michael Piskanin, pro se.
    October 28, 2008
   STEINBERG, J„

On July 10, 2008, the appellant, Michael Piskanin, filed a pro se “petition to open and/or set aside, appeal juvenile adjudications nunc pro tunc,” seeking to have his juvenile records expunged. The appellant has taken this pro se appeal from this court’s order of July 16,2008, dismissing that petition.

DISCUSSION

The appellant initially filed a “pro se preliminary motion in anticipation of filing motion for expungement/ destruction of juvenile record,” which was denied on February 14,2008. Thereafter, the appellant filed his pro se “petition to open and/or set aside, appeal juvenile adjudications nunc pro tunc,” which is the subject of this appeal, on July 10,2008. This court denied that petition on July 16, 2008.

In the appellant’s request for expungement he contends that he was unaware that his juvenile record had not been expunged. The appellant asserts that “[b]y operation of law, five years after petitioner reached the age of 18, without new convictions, he was entitled, as a matter of right to expungement.” This court concludes that the appellant is not entitled to have his juvenile record expunged.

The Criminal History Record Information Act, (C.H.R.I.A.), 18 Pa.C.S. §9123, governs the expungement of juvenile records. Its purpose “is to provide an opportunity for children who crash upon the reef of criminal behavior to leave behind the damaging effect of such collision upon a showing that they had exercised sufficient restraint as to reasonably assure the authorities that total redemption was justified.” In Interest of Jacobs, 334 Pa. Super. 613, 618, 483 A.2d 907, 909 (1984). The legislature never intended to permit those who continue to shipwreck their lives the opportunity to disguise their criminal history. Section 9123 of C.H.R.I.A., provides, in pertinent part, the following:

“(a). . . [Ejxpungement of records of juvenile delinquency cases ... shall occur... whenever the court... upon the motion of a child or the parents or guardian finds: ...
“(3) five years have elapsed since the final discharge of the person from commitment, placement, probation or any other disposition and referral and since such final discharge, the person has not been convicted of a felony, misdemeanor or adjudicated delinquent and no proceeding is pending seeking such conviction or adjudication; or
“(4) the individual is 18 years of age or older, the attorney for the Commonwealth consents to the expungement and a court orders the expungement after giving consideration to the following factors:
“(i) the type of offense;
“(ii) the individual’s age, history of employment, criminal activity and drug or alcohol problems;
“(iii) adverse consequences that the individual may suffer if the records are not expunged; and
“(iv) whether retention of the record is required for purposes of protection of the public safety.”

It is evident from a reading of this statute in conjunction with the appellant’s criminal history, that an ex-pungement would be inappropriate in this case. Five years have elapsed since the appellant’s discharge from “commitment, placement, or any other disposition” as a juvenile, but he has been convicted of numerous felony and misdemeanor offenses throughout his adult life. Section 9123(a)(3) was intended as an initial starting point for requesting an expungement. The failure to make that request for decades, while accumulating a significant criminal record, does not require the courts to grant an undeserved expungement.

Section 9123(a)(4) permits a juvenile record to be expunged subject to the discretion of the court after consideration of the enumerated factors. Although a juvenile record may be harmful to a person’s reputation and hinder opportunities for advancement in life, in this case, there is minimal, if any, harm in maintaining the appellant’s juvenile record. The appellant is, without fear of overstatement, a career criminal. His most recent convictions involved charges of theft by deception, receiving stolen property and identity theft (60 counts), and he is currently serving a seven- to 14-year sentence. His extensive prior adult criminal history, which began in earnest in 1977, contains offenses that could best be described as “crimen falsi” or “grift” offenses. The appellant’s attempt to now have his juvenile record, which includes adjudications for burglary, larceny of motor vehicles, robbery and vandalism, expunged is frivolous. While not as sophisticated as his adult record, his juvenile record is also comprised of crimes involving falsehood and dishonesty.

In light of the appellant’s extensive criminal history, maintaining his juvenile record outweighs any claims he could possibly create to warrant an expungement. The only adverse consequences to the appellant would be the ability of a court to observe the appellant’s complete criminal history. Even though the appellant’s adult record provides ample information for sentencing purposes, this does not require the courts to ignore the juvenile record or permit an expungement.

For all the foregoing reasons, the pro se “petition to open and/or set aside, appeal juvenile adjudications nunc pro tunc” should be dismissed.

ORDER

And now, October 28, 2008, it appearing that the appellant has filed a notice of appeal in the above-captioned matter; and it further appearing that the attached opinion satisfies the requirements of Pa.R.A.R 1925(a); it is hereby ordered that the clerk of courts, criminal division, shall transmit the record in the above-captioned matter to the Superior Court forthwith; it is further ordered that the clerk of courts shall include with the transmittal of the record the following documents:

(1) Acopy of the appellant’s pre-sentence investigation report for review by the Superior Court, and that said report shall be sealed to preserve its confidentiality pursuant to Pa.R.Crim.P. 703.

      . “Petition to open and/or set aside, appeal juvenile adjudications nunc pro tunc,” ¶3.

      . See Lehigh County docket number 2072-2004; 2072 EDA 2005.

      . 202 Pa. Code §303.6(c)(2).