author: ECKMAN, P.J.,

text:
    Commonwealth v. Nation

      Cheryl A. Ondechek, assistant district attorney, for the Commonwealth.

      Lyn R. Baity and D. Lynne Ferguson, for defendant.
    September 4, 1990
   ECKMAN, P.J.,

Presently before the court are post-verdict motions in arrest of judgment and for a new trial filed by defendant, Daniel Nation.

Defendant was charged with possession with intent to deliver cocaine in violation of the Controlled Substance, Drug, Device and Cosmetic Act on August 14, 1989. On December 28, 1989, defendant filed an omnibus pretrial motion in the nature of a motion to suppress physical evidence seized from his residence on August 3, 1989, pursuant to a search warrant.

An evidentiary hearing on the motion to suppress was held on January 9, 1990. The omnibus pretrial motion was dismissed on January 10, 1990, and defendant proceeded to a nonjury trial that same day. By stipulation of the parties, the evidence from the suppression hearing was incorporated by reference as part of the trial testimony and supplemented by additional testimony. Defendant was found guilty of possession with intent to deliver cocaine on January 11, 1990.

Defendant timely filed the instant motions on January 18, 1990. The parties having waived oral argument before the court en banc and briefs having been submitted, the motions are ready for disposition.

Defendant contends that the court erred in failing to suppress physical evidence seized from his residence pursuant to a search warrant issued and executed on August 3, 1989, because it was the fruit of a prior allegedly illegal search warrant for his residence issued and executed earlier that same day. Defendant contends that the initial search warrant was illegal because (I) it was not issued for a lawful purpose; and (II) the accompanying affidavit of probable cause fails to provide a basis to believe the evidence sought was located at the premises named in the warrant. All other issues are deemed waived or abandoned. Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983); Lancaster County Rule of Criminal Procedure 3ID.

Initially, we note that defendant’s brief frequently cites evidence which is not a part of the suppression record in this case and" must be disregarded in our discussion and analysis of the issues preserved for review.

A review of the evidence adduced at the suppression hearing reveals that during late July or early August 1989, Officer Donald Metzger of the East Hempfield Township Police Department received information from an unidentified tenant at the Covered Bridge Apartments, East Hempfield Township, Lancaster County, Pennsylvania, that an individual known to the tenant as Herbert Curtis was living in the apartment complex and was wanted by law enforcement authorities in the State of Maryland on a charge of murder. Officer Metzger contacted the management of the Covered Bridge Apartments and obtained a birth date for the individual known as Herbert Curtis from a lease agreement.

Officer Metzger made a computer check for any outstanding warrants issued for Herbert Curtis but did not find any warrants under that name. Officer Metzger again spoke to the unidentified tenant at the Covered Bridge Apartments and received information that the person known as Herbert Curtis may also be known by the surname Brown. Officer Metzger made a second computer check for warrants issued for persons with the surname Brown and with the same date of birth as the individual known as Herbert Curtis. The computer search revealed that Daniel Brown, having the same date of birth as Herbert Curtis, was wanted by law enforcement authorities in the State of Maryland for violation of parole on a conviction of second-degree murder.

On August 1, 1989, Officer Metzger telephoned Trooper First Class J.J. Johnson of the Maryland State Police, Fugitive Unit. Trooper Johnson transmitted by facsimile machine a copy of a photograph and fingerprints of the person known in Maryland as Daniel Brown and a list of aliases used by that person. The facsimile copy of the photograph and fingerprints were not usable due to deterioration of the image in the transmission. Officer Metzger also obtained a copy of a photograph and a set of fingerprints from the Lancaster City Bureau of Police for an individual listed in their files as Daniel Brown. Officer Metzger learned that this individual had recently, legally changed his name to Daniel Nation.

On August 2, 1989, at approximately 5:14 p.m., Officer Metzger and Detective Jan Walters of the Lancaster County Drug Task Force set up surveillance outside the residence of the person known as Herbert Curtis, N-2056 Swarr Run Road, Covered Bridge Apartments, East Hempfield Township, Lancaster County, Pa. Defendant arrived at that address and the officers approached him based on similarities between his physical appearance and the person pictured in the photograph of Daniel Brown or Daniel Nation from the files of the Lancaster City Bureau of Police. The officers told defendant that they believed he was wanted as a fugitive from justice in the State of Maryland and thereafter took defendant into custody and transported him to the East Hempfield Township Police Station. While in custody at the East Hempfield Township Police Station, defendant admitted to being Daniel Nation but did not admit that he had been convicted of second-degree murder in the State of Maryland.

On August 3, 1989, at approximately 2:30 p.m., Officer Metzger obtained search warrant No. F 20921 from District Justice Richard A. Sheetz to search defendant’s apartment for:

“Any documentation that tends to affirm the identity of Daniel Brown, also known as Daniel Nation, Daniel Sundel Nation, Gerald Sherrod, Herbert Curtis. Any documentation that tends to show the movements of the above subject while wanted on warrants by the State of Maryland.”

The affidavit of probable cause for the warrant reads as follows:

“(1) That Daniel Brown also known as Daniel Nation, Daniel Sundel Nation, Gerald Sherrod, Herbert Curtis is wanted by thé Státe of Maryland for Parole Violation and is wanted on a bail forfeture [sic] for failing to appear on charges in the State of Maryland. Daniel Brown has an extensive criminal histor [sic] that included a conviction for 2nd degree Murder and violations of the Maryland drug laws. Daniel Brown has been wanted by the State of Maryland on warrant(s) since Feb., 1989. An investigation by the East Hempfield Twp. Police Dept, revealed that Daniel Brown was living at N-2056 Swarr Run Rd., East Hempfield Twp. a unit of the Covered Bridge Apt. complex. Brown rented the Apt. using the name, Herbert Curtis, he indicated that he would reside there with a Terry Cohen, to date nothing is known about Terry Cohen. Daniel Brown was arrested by the affiant and others on 2 Aug., 1989 as he arrived in a vehicle at the.Hemp-field Twp. Apt. At the time of the arrest Brown had identification in the name, Herbert Curtis.

“(2) Although Brown has admitted his name, and is charged with Fugative [sic] from Justice, it is felet [sic] that additional documentation as to his variety of names, and his movements will assist in determining his intent as a fugitive and the extent that he went to remain so.”

The search warrant was executed on August 3, 1989, at approximately 2:45 p.m., at N-2056 Swarr Run Road, East Hempfield Township, Lancaster County, Pa. In the course of executing the search warrant and seizing personal papers and documents containing the names Daniel Brown, Daniel Nation and Herbert Curtis, a large quantity of drug manufacturing and distribution paraphernalia was observed. The search was immediately stopped in order to obtain a second search warrant to search for evidence of drug manufacturing and sales.

On August 3, 1989, at approximately 4 p.m., Officer Metzger obtained a second search warrant, no. F 20923, from District Justice Richard A. Sheetz to search defendant’s apartment for controlled substances and drug paraphernalia. The second search warrant was executed on August 3, 1989, at approximately 4:23 p.m., at N-2056 Swarr Run Road, East Hempfield Township, Lancaster County, Pennsylvania. During the execution of the second search warrant, approximately 254 grams of suspected cocaine were seized as well as approximately $108,934 in United States currency, $100 in counterfeit United States currency, a .25-caliber handgun and a substantial quantity of drug paraphernalia. Thereafter, defendant was charged with possession with intent to deliver cocaine on August 14, 1989.

I

Defendant contends that all of the evidence seized pursuant to the second search warrant, no. F 20923, should have been suppressed because the probable cause for that warrant was based on evidence and information obtained pursuant to the prior allegedly illegal search warrant, no. F 20921. Defendant contends that warrant no. F 20921 was illegal because “evidence that a person is a fugitive from justice as a parole violator is not evidence of a crime, and therefore not legally pursuable through a search warrant. A search warrant issued for such evidence is illegal.” (Brief for defendant, at 15.)

When detérmining whether a motion to suppress was properly dismissed, the reviewing court must:

“[D]etermine whether the evidence supports the court’s factual findings and whether the legal conclusions drawn from those findings were legitimate. This determination is made considering only the evidence of the prosecution’s witnesses and so much of the defense evidence as, fairly read in the context of the record as a whole, remains uncontra-dicted. Findings supported by the record and legitimate legal conclusions drawn therefrom will not be disturbed.” Commonwealth v. Rodriguez, 330 Pa. Super. 295, 298, 479 A.2d 558, 560 (1984) (citations omitted); Commonwealth v. Williams, 317 Pa. Super. 456, 463-4, 464 A.2d 411, 414 (1983).

The purposes for which a search warrant may be issued are controlled by Pa.R.Crim.P. 2002, 42 Pa.C.S.

“Rule 2002. Purpose of Warrant

“A search warrant may be issued to search for and to seize:

“(a) contraband, the fruits of crime, or things otherwise criminally possessed, or

“(b) property which is or has been used as the means of committing a criminal offense; or

“(c) property which constitutes evidence of the commission of a criminal offense.” Pa.R.Crim.P. 2002.

Whether documents relevant to the true identity and aliases employed by an individual arrested on an extradition warrant as a fugitive from justice constitutes “evidence of the commission of a criminal offense” appears to be an issue of first impression in this Commonwealth. Our research fails to provide any authority on this specific issue but does, however, reveal certain salient principles applicable to this case.

Pursuant to the Uniform Criminal Extradition Act, police officers executing a governor’s warrant are given the limited authority to conduct an investigation for the purpose of “identifying the person held as the person charged with the crime.” 42 Pa.C.S. §9141. This purpose is consistent with the Commonwealth’s burden in an extradition hearing to prove by a preponderance of the evidence that the person arrested is the person named in the extradition papers. Commonwealth ex rel. Lattimore v. Gedney, 240 Pa. Super. 226, 363 A.2d 786 (1976). In order to meet this burden, the Commonwealth must be accorded the opportunity to conduct an investigation designed to uncover the true identity of an arrestee living in the asylum state under an alias or, as in the instant case, numerous aliases. Therefore, we have little trouble in finding that the police were justified in engaging in the type of investigation conducted in the present case. The disputed issue herein is the means used to investigate.

A search warrant issued in accordance with constitutional requirements and the Pennsylvania Rules of Criminal Procedure is one means by which this investigation can be conducted. It is undisputed by the parties that the search warrant was not issued for the purposes listed at Pa.R.Crim.P., rule 2002, subsections (a) or (b). Defendant alleges, however, that the warrant does not comport with rule 2002(c)’s requirement that it be issued for and to seize property which constitutes evidence of the commission of a criminal offense. However, upon careful consideration of the act, it becomes apparent that evidence relevant to the true identity and aliases employed by a fugitive from justice is evidence of the commission of a criminal offense by this particular person.

In defining the form of demand necessary for the issuance of an extradition warrant, the act states, inter alia:

“No demand for the extradition of a person charged with a crime in another state shall be recognized by the governor unless in writing, alleging . . . that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from the state, and accompanied by a copy of an indictment found . . . together with ... a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or broken the terms of bail, probation or parole. The indictment . . . must substantially charge the person demanded with having committed a crime under the law of that state, and the copy of indictment . . . judgment of conviction or sentence must be authenticated by the executive authority making the demand.” 42 Pa.C.S. §9124. (emphasis supplied)

It is evident, therefore, that when extradition proceedings are ostensibly based on a parole violation, the substance of the demand and the crime for which the accused is being extradited is the criminal offense upon which he has been convicted, sentenced and paroled. For purposes of extradition, “a charge of crime is not merged in the conviction .and sentence, but the criminal is still charged with the crime until completion of the sentence imposed upon him.” United States ex rel. Faris v. McClain, 42 F.Supp. 429 (M.D. Pa.) Moreover, there is no basis for distinguishing detainers based on parole violations from those based in criminal prosecutions. Commonwealth ex rel. Jacobs v. Digiacinto, 321 Pa. Super. 536, 468 A.2d 1118 (1983).

Instantly, the police officers requested and obtained a search warrant designed to search for and seize evidence that the person arrested was in fact the same individual found guilty of the commission of the crime of second-degree murder in the State of Maryland and a parole violator, as alleged in the form of demand filed pursuant to section 9124 of the act, supra.

The evidence sought was obviously not evidence which would serve to prove the corpus delicti of homicide, because the corpus delicti had previously been proven in the courts of Maryland. The evidence sought is evidence of defendant’s identity as the person who committed second-degree murder in Maryland and is a parole violator. Therefore, we are persuaded that the first search warrant, no. F 20921, was issued for a lawful purpose under Pa.R.Crim.P. 2002(c) and that we properly refused to suppress the evidence seized pursuant to the second warrant.

Defendant also argues that the warrant was unlawful because neither being a fugitive from justice nor a parole violator is a crime under the Pennsylvania Crimes Code. Therefore, the evidence sought was not relevant in any way to the commission of a criminal offense. From our discussion, infra, and reference to section 9125 of the act, supra, it is apparent that the crime for which defendant was being extradited was as a parole violator for second degree murder and that the evidence was relevant to his identity as the person who violated parole after having committed that crime. Therefore, we dismiss defendant’s arguments as meritless.

II

Defendant next contends that the affidavit of probable cause was insufficient to establish probable cause to search defendant’s residence in that it failed to provide a substantiated basis to believe the evidence sought was located in defendant’s residence. In essence, defendant asserts that the affidavit must contain a statement that an individual stores his or her personal papers and documents in his residence and the issuing magistrate cannot, through the use of common sense, lawfully assume that such papers- will be found there.

A search warrant is constitutionally valid if there are sufficient facts set forth in the affidavit to permit a neutral and detached magistrate to conclude with reasonable certainty that the evidence sought will be found in the place to be searched. Commonwealth v. Morris, 265 Pa. Super. 589, 402 A.2d 702 (1979); Commonwealth v. Smith, 453 Pa. 326, 309 A.2d 413 (1973).

The issuing authority may not consider any evidence outside the affidavits. Pa.R.Crim.P. 2003(a). However, when testing the sufficiency of an affidavit, the court should consider the affidavit in its entirety, Commonwealth v. Bable, 286 Pa. Super. 203, 428 A.2d 643 (1981), and view the information offered to demonstrate probable cause “in a common sense, nontechnical, ungrudging and positive manner.” Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984).

“[T]he issuing magistrate is not to be confined by restrictions on the use of his common sense, and his determination of probable cause should be given great deference by the reviewing court.” Commonwealth v. Burch, 248 Pa. Super. 8, 13, 374 A.2d 1291, 1293 (1977).

See also, Commonwealth v. Williams, 236 Pa. Super. 184, 345 A.2d 267 (1975). Doubtful or marginal cases should be resolved in favor of a finding of probable cause. Commonwealth v. Gannon, 308 Pa. Super. 330, 454 A.2d 561 (1982); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971).

Based on these principles, and the facts set forth in the affidavit or probable cause, infra, which includes a statement that defendant was living at the premises named in the warrant under the fictitious name of Herbert Curtis, we are persuaded that by the use of common sense a neutral and detached magistrate could conclude with reasonable certainty that defendant’s personal papers and documentation of his identity and aliases could be found at his residence. Commonwealth v. Burch, supra; Commonwealth v. Williams, supra; Commonwealth v. Morris, supra. Therefore, we dismiss defendant’s argument as meritless.

Accordingly, we enter the following

ORDER

And now, September 4, 1990, for the foregoing reasons, the motions in arrest of judgment and for a new trial filed by defendant, Daniel Nation, are dismissed. Defendant is directed to appear for sentencing at the call of the district attorney.

      . Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, no. 64, §1, as amended; 35 P.S. §780-113(a)(30).

       Act of July 9, 1976, P.L. 586, no. 142, §2, 42 Pa.C.S. §9121 et seq.

      . By application of the same section of the Extradition Act, the Commonwealth cannot justify the issuance of a search warrant as part of an independent investigation, complementing the investigation by Maryland authorities, of the crime underlying the extradition proceeding. Under 42 Pa.C.S. §9141, the governor is prohibited from inquiring into “the guilt or innocence of the accused of the crime of which he is charged.” Therefore, we reject the Commonwealth’s argument that United States v. Savoca, 761 F.2d 292 (6th Cir. 1985) (search warrant issued by federal authorities for evidence of fictitious identification employed by bank robbery defendants) in any way justifies the warrant in this case.


source: Caselaw Access Project

author: KUHN, J.,

license: Public Domain

text:
    Golibart v. Reamer

      Samuel E. Teeter, for plaintiff.

      Henry O. Heiser III, for defendants.
    August 31, 1990
   KUHN, J.,

In opinions dated April 24, 1989, and November 1, 1989, we had an opportunity to examine plaintiff’s complaint and amended complaint in response to defendants’ preliminary objections in the nature of a demurrer. The issue discussed in each opinion was plaintiff’s capacity to sue. If plaintiff was a broker within the meaning of the Real Estate Licensing and Registration Act of 1980, 63 P.S. §455, 101-909, he was precluded from suing defendants, otherwise, he was not so barred. Based upon the pleadings, the opinion dated April 24,1989, granted the demurrer while the opinion dated November 1, 1989, denied the demurrer.

Now plaintiff’s capacity to sue is raised in the context of defendants’ motion for summary judgment.

Summary judgment is. available under Pa.R.C.P. 1035 when the pleadings, record documents, affidavits and depositions, considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fender v. Hibbs, 30 Adams L.J. 153 (1988). The moving party has the burden of proving that no genuine issue of fact exists. All doubts on that issue aré to be resolved against the granting of the motion. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

Under the act, if one acts in the capacity of a broker he may not recover compensation for such service unless licensed. The term “broker” is defined in section 201, in part, as:

“[A]ny person who, for another and for a fee, commission or other valuable consideration: (1) negotiates with or aids any person in locating or obtaining for purchase, lease or acquisition of interest in'any real estate; (2) negotiates the testing, sale, purchase, exchange, lease, time share and similarly designated interests, financing or option for any real estate.”

Plaintiff admits he is not a licensed real estate broker in Pennsylvania. Instead, he contends that he was hired to find an investor who would join with defendants for the purpose of developing a parcel of land known as “the Mallow Tract.” For this effort, he was to receive a $30,000 fee. The project, according to plaintiff, was to develop on the real estate 300 time-share condominium units. Plaintiff states that he believed defendants already owned the real estate, therefore, one would assume financing to purchase the real estate was not the issue. Plaintiff claims that he referred Alexander Ellioff to defendants. On October 23, 1988, defendants, Mr. Ellioff and others he brought' to the project formed a general partnership for the stated purpose of obtaining and developing the Mallow Tract. Defendants, as equitable owners of the Mallow Tract, then assigned their interest in the real estate to the general partnership and the partnership, in turn, acquired fee simple title to the real estate. Plaintiff contends that he was owed his fee when the partnership acquired title to Mallow Tract and was then in a position to carry out its purpose of developing the real estate.

Whether one is a real estate broker under the act is a question of law to be decided by the court. Alford v. Raschiatore, 163 Pa. Super. 635, 642, 63 A.2d 366, 369 (1949). However, the fact-finder must first determine the facts. For purposes of this motion for summary judgment we take as fact all evidence favorable to plaintiff.

Plaintiff argues that because he was hired to find an investor for the development of real estate, i.e. a business venture separate and apart from ownership of the real estate, he is not a broker. Plaintiff claims he was not hired to find a purchaser for the real estate although acquisition of title could occur. Plaintiff does not dispute whether he “negotiated” within the meaning of the act because the mere introduction of two willing parties comes within the purview of the act. Alford v. Raschiatore, supra, 163 Pa. Super. at 639, 63 A.2d at 367.

A contract to find a purchaser of a business is enforceable. In Schoenfeld v. Meckes, 166 Pa. Super. 101, 70 A.2d 377 (1950) plaintiff was hired by defendant to find a purchaser for his hardware business. The person procured by plaintiff not only purchased the business but also-approximately one month later purchased the real estate upon which it was located. Défendant’s attempt to invoke the protection of the act was rejected by the court which viewed the purchase of the business and the purchase of the real estate as separate transactions. Schoenfeld was distinguished from Burns v. Gartzman, 139 Pa. Super. 453, 11 A.2d 708 (1939) where the plaintiff sought to recover a commission for procuring a purchaser for a bakerysbusiness and for the leases of the real estate in which the business was conducted. The procuring of the purchaser for the business and the lease was the same transaction and fell within the parameters of the act.

Plaintiff suggests he “brought the parties together” in this case, to invest in the development of the real estate and that the actual transfer of the title, as in Schoenfeld, to the partnership was a detail not negotiated by him but by the investors and defendants. Stated differently, plaintiff argues that entitlement to his finder’s fee did not hinge upon the sale of the real estate but upon introduction of investors willing to develop the land.

With some reluctance we will deny the motion for summary judgment. We have some difficulty picturing a development scheme without acquisition of an interest in the real estate. Nevertheless, we will grant plaintiff his day in court.

This court is aware of Harrison v. Soffer, 221 Pa. Super. 275, 289 A.2d 752 (1972), wherein plaintiffs were hired “to interest an investor, that will invest with me in my project on Miami Beach, the sum of $12,000,000 or $15,000,000 . . . for an interest in the project ... as may be mutually agreed upon. . .” for which a fee of two and one-third percent of the amount invested would be paid. There, one Harrison and Griswold held an option on Florida real estate but they needed additional funds for development. The court held that the act precluded recovery of a fee without specifically stating how the transaction fit within the act. Therefore, at this state of the proceeding we decline to utilize Harrison in resolving the issue of capacity to sue.

Accordingly, we enter the attached

ORDER OF COURT

And now, August 31, 1990, defendants’ motion for summary judgment is denied.

      . Sections 301 and 302.

      . Actually the 1929 version of the Real Estate Brokers License Act.


author: BROMINSKI, J.,

text:
    Bales-Schumacher Associates Inc. v. Freeland Municipal Authority

      Pasco L. Schiavo, for plaintiff.

      Peter J. Fagan, for defendant.
    August 10, 1990
   BROMINSKI, J.,

This matter comes before the court upon the petition of Bales-Schumacher Associates Inc., for a rule to show cause why interest on a jury verdict in the amount of $74,200 against respondent, Borough of Freeland Municipal Authority, should not be computed at the New York prime rate for financial institutions on loans, plus 2.5 percent, compounded. Respondent’s answer to said petition incorporates a request that interest be computed at the rate of 6 percent.

Petitioner’s claim for a higher rate is based on its contention that respondent has benefited from, and been unjustly enriched by, respondent’s use of petitioner’s engineering work and services. On the other hand, respondent argues that the 6-percent rate is applicable because the jury’s award represents merely compensation or damages to petitioner pursuant to an agreement for engineering services between the parties dated January 27, 1981.

The sole question before us, therefore, is what, rate of interest should apply to the jury’s award from April 20, 1983 to the date of payment.

The trial court has discretion to award damages in the nature of prejudgment interest at a rate higher than the 6 percent permitted by statute, to wit, 41 P.S. §202, in circumstances involving restitution and unjust enrichment. Further, a claim based upon unjust enrichment or restitution, rather than upon compensation or damages, may include an award of compound interest. Peterson v. Crown Financial Corporation, 661 F.2d 287.

Generally, unjust enrichment occurs when a party performs under a justifiable belief that he is to be paid by the party sought to be charged, and, in so doing, confers a benefit on the other party. Samuels v. Hendricks, 18 D.&C. 3d 561 (1981).

We have carefully reviewed the entire record in this matter and conclude that an award of 6-percent interest to petitioner would not constitute just and complete restitution under all of the circumstances. On the contrary, we conclude that such record supports petitioner’s claim of unjust enrichment. Consequently, since it is'established in the record that respondent held and/or utilized petitioner’s work products and services for its own advantage, the objective must be to force disgorgement of respondent’s unjust enrichment by awarding to petitioner a rate higher than the statutory 6 percent. Peterson v. Crown Financial Corporation, supra.

Accordingly, we enter the following

ORDER

It is hereby ordered, adjudged and decreed that the jury’s verdict in the amount of $74,200 in favor of petitioner and against respondent in the above-captioned action shall bear interest at the New York prime rate of lending for financial institutions on loans, plus 2.5 percent, compounded for the period from April 20, 1983 to the date of payment.


author: HESS, J.,

text:
    Hepler v. Liberty Mutual Fire Insurance Co.

      Richatd C. Angino, for plaintiffs.

      Thomas J. Williams, for defendant.
    May 18, 1990
   HESS, J.,

On April 3, 1986, defendant issued to plaintiffs a motor vehicle insurance policy covering three vehicles. The policy provided liability coverage in the amount of $300,000 with a single limit, and uninsured and underinsured motorists (UM/UIM) benefits in the amount of $15,000 for each person and $30,000 for each accident. With regard to the UM/UIM coverage, the policy provided that these limits were to be reduced by any sums recovered from a responsible party.

The policy was renewed annually on its anniversary date in 1987 and 1988 and was in effect on May 19, 1988, when plaintiff, Diane E. Hepler, sustained serious personal injuries in a collision with a vehicle insured by Allstate Insurance Company. Allstate paid its liability policy limits of $100,000 and plaintiffs now claim underinsured benefits under their policy with defendant. Plaintiffs claim that, as to Mrs: Hepler, the court should disregard an election of $15,000/$30,000 for uninsured and underinsúred motorists benefits for the reason that Mrs. Hepler did not sign the form used to select the coverage limits. Plaintiffs also assert that the court should disregard the policy provision requiring that the UM/UIM coverage limits be reduced by the $100,000 recovered from Allstate. They are, in essence, seeking to reform the contract of insurance by raising the underinsured motorist limit to equal the liability limit of $300,000 and then stacking this limit for each of the three covered automobiles for a total of $900,000 without any reduction for the $100,000 received from Allstate.

Defendant filed preliminary objections to plaintiffs’ complaint which included a demurrer which, if granted, would have enforced the $15,000 underin-sured motorists limits provided in the policy. The demurrer was overruled by order and opinion dated March 2, 1989, this court holding that the election of the underinsured motorists limits was valid as to the husband but not as to the wife.

Subsequently, discovery was taken which included the deposition of both Mr. and Mrs. Hepler. By opinion and order dated October 19, 1989, the court continued to hold that the circumstances of the case were insufficient, as a matter of law, to support the conclusion that Mrs. Hepler was bound by the lower limits of underinsured motorists coverage. Plaintiffs have now filed a motion for summary judgment. Defendants have countered and raised, additionally, the issues of the stacking of underinsured limits to an amount higher than the liability limits and the question of the set-off of the $100,000 recovered from Allstate.

DISCUSSION

Under Pennsylvania Rules of Civil Procedure 1035(b), summary judgment may be granted:

“[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

In determining whether summary judgment should be entered, the following principles are applicable:

“The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Weiss v. Keystone Mack Sales Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. . . . Shacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). . . . Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Company, supra; Weiss v. Keystone Mack Sales Inc., supra.” Bertani v. Beck, 330 Pa. Super. 248, 252, 479 A.2d 534, 535 (1984).

The Pennsylvania Motor Vehicle Financial Responsibility Law, in effect at the time the Heplers’ insurance policy was issued to them, required insurance companies to provide underinsured motorist coverage in amounts equal to the coverage of bodily injury liability of the policy. Specifically, section 1731(a) states:

“(a) General rule No. motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage except as provided in section 1734 (relating to request for lower or higher limits of coverage). ” (emphasis supplied)

By language which is crystal clear on its face, our legislature has imposed a virtual prohibition against UM/UIM limits which are lower than liability limits. The exception to this prohibition is where there has been a written request for lower limits pursuant to 75 Pa.C.S. §1734, which provides:

“§1734. Request for lower or higher limits of coverage.

“A named insured may request in writing the issuance of coverages under section 1731 (relating to scope and amount of coverage) in amounts less than the limits of liability for bodily injury but in no event less than the amounts required by this chapter for bodily injury. . .” (emphasis supplied)

Both Mr. and Mrs. Hepler are named insureds with respect to the insurance policy at issue. It is undisputed that the only writing requesting lower UM/UIM coverage is a document signed by Mr. Hepler. There is no evidence of such a request, in writing, from Mrs. Hepler. It is for this reason that, in our opinion dated March 2, 1989, in disposing of preliminary objections of defendant, we concluded that “the provisions of the policy, lowering the underinsured motorist coverage below that of the bodily liability coverage, is not effective as to Mrs. Hepler.” Hepler v. Liberty Mutual Fire Insurance Co., 3 D.&C. 4th 419, 423 (1989).

The matter is before us again; this time, on plaintiffs’ motion for summary judgment. We thus have an opportunity to revisit the question of whether defendant may hold Mrs. Hepler to lower limits of UM/UIM coverage even though her signature does not appear on the form requesting the lower limits.

Defendant has now filed an affidavit, dated February 8, 1990, of Joseph Duffy, the insurance agent who sold the subject policy of insurance to the Heplers. In pertinent part, the affidavit is essentially uncontradicted by the depositions of Michael and Diane Hepler, also filed in this case. Mr. Duffy indicates:

“(8) As to each type of coverage, after Mr. and Mrs. Hepler both indicated they understood and had no further questions, I recorded their decisions with a check mark next to the option choices. See exhibit B’ attached hereto. As to each such decision, both Mr. and Mrs. Hepler separately indicated their concurrence. Although there was often discussion between the two of them as to what coverage was most desirable, there was never any disagreement or objection as to the final decision which I then indicated on the form with a check mark.

“(9) After all the selections had been made, I went over them again with Mr. and Mrs. Hepler and again asked if that was. what they wanted. They both separately indicated, both verbally and by nodding their heads, that what was indicated on the form was what they wanted. At that point, with the form still in front of them (upside down to me), I stated that one of them would have to sign it. They glanced at each other and Mrs. Hepler said go ahead’ or words to that effect to Mr. Hepler and he then signed the form, exhibit ‘B.’ ”

The narrow question, brought into better focus by our re-examination of this case, is whether, in 75 Pa.C.S. §1734, the phrase “a named insured” should be interpreted as meaning “any named insured” or, as we have interpreted it in the past, to mean “the named insured whose coverages are affected.” In the only other case which we know of to deal with this issue. Liberty Mutual Fire Insurance Co. v. Raymond F. Lindsey, 3 D.&C. 4th 659 (1989), Judge Chronister has held that where a husband and wife were both named insureds, the signature of either was effective to elect lower limits. Our colleague in York County had little difficulty in reaching a conclusion tantamount to saying that “a named insured” in section 1731 means “any named insured.” We do not reach that result with the same apparent ease of the York County court. Nonetheless, we now believe that the case of Liberty Mutual Fire Insurance Co. v. Lindsey, supra, is correctly decided and that our previous holding, in this case, was not.

It is true that the various orders in this litigation have occurred at different stages in the proceedings and that our arriving at a different conclusion now is motivated, in part, by the amplified record which we have before us. However, “we prefer to be more intellectually honest than to rely on such tenuous distinctions. Better should we say, ‘[wjisdom should never be rejected merely because it comes late.’ ” Clevenstein v. Rizzuto, 439 Pa. 397, 403, 266 A.2d 623 (1970).

In discussing a factual scenario virtually identical to the one sub judice, the York County court noted:

“Even if wife and husband have equal status, it does not follow that when they make different elections that different limits are thereby established. This reasoning ignores the ‘one policy, one coverage’ reality. Even though there were two named insureds, there is only one policy. That policy has specified limits, and a premium based on those limits. If the two insureds cannot agree on those limits, their only option is to have separate policies. By electing to stay covered on a joint policy with her husband, a policy on which he elected lower limits, wife thereby confirmed and ratified that decision to elect lower limits. If wife did not accept husband’s election, upon receipt of the policy with the lower limit and lower premium, she could have contacted the insurance company, informed them of the mistake, and requested it be corrected. Instead, she accepted the policy with the lower limits without complaint, and permitted the payment of the lower premium with joint funds. To find under these facts that wife is not bound by her husband’s election, thereby creating a different limit for her, for which she has never paid an increased premium defies logic and reason.” Lindsey, 3 D.&C. 4th at 666-7.

Notwithstanding, it can also be argued that the insurance company, faced with the written request of only one of the named insureds for a lesser limit of UM/UIM coverage, could have assessed the Heplers an additional premium based on increased risk exposure by virtue of the failure of Mrs. Hepler to elect the lower limits. That there can be only one policy, one set of coverages and one premium becomes clearer, however, when we examine the problem of persons who are insured but not named insureds.

Husbands and wives may be named insureds on a policy of insurance which also covers a minor driver in their custody. If the husband has elected lower UM/UIM coverage and the wife has not, what is the coverage for the child? There is simply no answer to this question unless one construes 75 Pa.C.S. §1734 to permit any named insured to request lower limits and bind all insureds in the policy. We therefore conclude that defendants may argue that Mrs. He-pler is bound by the uninsured and underinsured limits of liability requested in writing by her husband. We will therefore deny the motion for summary judgment of plaintiff.

At the same time, we are not in a position to issue summary judgment in favor of defendant, notwithstanding the fact that they previously filed such a motion. Defendant’s previous motion for summary judgment raised issues of agency between Mr. and Mrs. Hepler and are different from the issues framed by plaintiffs’ motion now before us. We therefore apply the general rule that entry of summary judgment in favor of the non-moving party is improper. Bensalem Township School District v. Commonwealth, 518 Pa. 581, 544 A.2d 1318 (1988).

Also before us are motions for partial summary judgment filed by defendant. The first of these seeks from the court a declaration, as a matter of law, that plaintiffs may not stack their underinsured motorist benefits in excess of their liability policy limits. We will dismiss this motion for partial summary judgment, in essence deferring the resolution of this question until such time as it is squarely before us. The fact finder, at the trial of this case, may well find that the Heplers’ election of lower uninsured motorist coverage was valid. In that event, even with stacking, the amount of their underinsured motorist coverage is less than their liability coverage. The question would thus be rendered moot.

The other motion of defendant seeks a direction from this court that, inasmuch as the tort-feasor in the accident of May 19, 1988, has tendered policy limits in the amount of $100,000, any underinsured motorist benefits, payable in this case, should be reduced by that amount. In support of the propriety of such setoffs, defendant has cited Bateman v. Motorists Mutual Insurance Co., 377 Pa. Super. 400, 547 A.2d 428 (1988) and Geisler v. Motorists Mutual Insurance Co., 382 Pa. Super. 622, 556 A.2d 391 (1989). These cases recognize, generally, the validity of setoff provisions in insurance contracts. In Bateman, the Superior Court held that the amounts received in settlement must be set off against the limits of an insured’s liability, and not against the total amount of damages suffered by the insured. Id. at 404-5, 547 A.2d at 431. Geisler dealt with two plaintiffs, one whose actual injuries were substantially less than the underinsurance limits of his policy and another whose injuries were substan-, tially more. The court in Geisler held that when “the insured’s injuries are less than the policy limits, the insurer ... is responsible only for those actual damages minus any applicable set off.” Id. at 633, 556 A.2d at 397. The court went on to hold that in the event that actual damages exceed the policy limits, settlement amounts must be deducted from policy limits rather than from the amount of actual damages determined. We recognize that any setoff in this case will occur as a matter of law and that the practical result is the reduction of Liberty Mutual’s underinsurance liability exposure by $100,000. On the other hand, neither the policy limits nor the actual damages have been determined in this case. Thus, we prefer to wait before making any final pronouncements concerning setoffs to be applied in this case. We will therefore dismiss defendant’s motion for summary judgment without prejudice to defendant’s claim for setoff once the damages and policy limits have been determined in the matter.

ORDER

And now, May 18, 1990, the motion of plaintiff for summary judgment is denied. The motions of defendant for partial summary judgment are denied.

       Title 75 Pa.C.S. §1702 definitions define “insured” as including, in addition to an individual identified by name as an insured in a policy of motor vehicle liability insurance, a person residing in the household of the named insured, and specifically, “a minor in the custody of either of the named insured or relative of the named insured.”


author: UHLER, J.,

text:
    Murray Estate v. Love

      Douglas R. Bare, for plaintiff.

      Karen Durkin, for defendant.

      John R. Gailey Jr., for Ethel Coleman.
    September 27, 1990
   UHLER, J.,

Before the court is a petition for approval to compromise action in the above-captioned action pursuant to rule 2206 of the Pennsylvania Rules of Civil Procedure.

The background of this proceeding is as follows: The decedent, Georgia L. Murray, while a pedestrian on the streets of York, died September 9, 1989, as a result of being struck by an automobile operated by defendant, Jessica L. Love.

The decedent, who was unmarried, was survived by three children, Quintín T. Murray, age three; Philip M. Murray, age two; and Falisha L. Martin, age one year. The late Georgia Murray was also survived by her mother, Ethel L. Coleman, and her father, George O. Walter. She resided in a meretricious relationship with Philip A. Martin, who was the biological father of Falisha, but not of Quintín and Philip.

Ethel Coleman filed a petition with the Register of Wills of York County for the grant of letters of administration on her daughter’s estate. George Walter renounced in favor of Ethel Coleman. Philip Martin filed a caveat to the grant of letters of Mrs. Coleman.

The caveator, Philip Martin, renounced his claim to letters of administration and requested that the York Bank and Trust Company be appointed administrator. The Register of Wills on November 20, 1989, after testimony and findings, granted letters of administration to the York Bank and Trust Company. An appeal to the Orphans Court Division was filed by Ethel Coleman whereupon a citation was issued upon the administrator to show cause why the relief prayed for in the appeal should not be granted. A hearing was held on February 16, 1990, before the Honorable John T. Miller. The hearing before Judge Miller focused upon issues of proposed fees intended to be charged by the bank fiduciary and appellant, as well as potential attorney’s fees, to be incurred on a contingent basis in that the primary asset of the estate is the cause of action generated by the untimely death of the decedent. Notwithstanding the representation made by Mrs. Coleman that she would not charge an administrator’s fee nor would she enter into a contingent fee in excess of 10 percent, the court found that, (based upon the animosity between Martin and Coleman, the Register’s decision was not an abuse of discretion. Testimony during the Orphan’s Court proceeding indicated that the bank had entered into a contingent fee agreement with the attorney who had represented Mr. Martin on a one-third basis (33 and one-third percent) bn November 20, 1989.

Judge Miller further provided in his order:

“The matter of fees to be charged is, indeed, a concern to those interested in the estate, and to those who assume the responsibility for caring for the minor children of decedent. However, the court is not without authority to supervise these aspects of estate administration. It is within the court’s discretion to regulate and approve the fees charged by fiduciaries and in the matter of the settlement of a wrongful death and survival claim involving minor beneficiaries, to regulate and approve counsel fees allowable out of that recovery. Probate, Estates and Fiduciaries Code section 3323, 20 P.S. §3323.”

The Honorable Sheryl Ann Dorney, in the interim, has appointed Ethel Coleman as custodian over Quintin and Philip, while Philip A. Martin was appointed custodian over the minor Falisha.

On August 16, 1990, a petition for approval to compromise action as to minor’s interest, designate persons entitled to recover damages, and allow deduction of expenses and counsel fees from minor’s share and direct payment of balance pursuant to Pa.R.C.P. 2206, was filed with the court.

The petition represents as was confirmed at the hearing before it that defendant’s liability insurance carrier has offered the aváilable policy limits to the estate in full settlement of the cause of action. The petition further alleges that the insurance coverage is a single limit policy of $305,000. Third parties are entitled to property and liability payments. The available coverage for purposes of the proposed settlement are as follows:

Policy single limits $305,000.00
Third-party property payments (1,374.83)
Third-party liability (30,000.00)
Available coverage to estate $273,625.17

Further charges are asserted against the estate’s share for advanced costs for which counsel seeks reimbursement:

Police report . $6.00
Coroner’s report 70.00
Filing fees for complaint 50.00
Service costs 26.20
Preliminary hearing transcript 74.00
Department of Health records 8.00
Asset search on defendant 140.00
Total amount advance $374.20

Counsel fees are claimed pursuant to the November 20, 1989 contingency fee agreement, in the amount of $92,108.

Additional charges for payment or reimbursement of the funeral expenses are sought by the bank in the amount of $3,170 from the settlement proceeds.

Neither the petition nor the proposed order delineate any allocation of the proceeds of the proposed settlement as between the wrongful death and the survival counts alleged in the complaint.

Ethel Coleman, guardian over two of the minors, has filed an answer to the within petition, challenging the settlement proposal, agreeing that the proposed settlement award is reasonable, but denying “that the contingent fee is the customary and normal fee in York County and that it represents a fair fee under all the circumstances.”

Testimony presented revealed that, the insurance carrier disclosed its policy limits as early as November 29, 1989, verbally advising counsel for the third-party complainant and petitioner that the policy limits were on the table only to be allocated between the potential claimants, before the filing of the complaint on February 20, 1990. This action encompassed the following pleadings: the complaint; petition for interpleader filed by defendant; answer filed by the York Bank and Trust Co.; petition by defendant to remit the settlement proceeds to the court; answer by the bank consenting to that process. No depositions or third-party discovery was pursued by petitioner which closely followed the criminal proceedings'scheduled before the court of common pleas. The bulk of the activity appears to have been negotiations between the third-party complainant and petitioner.

The bank concedes that it did not speak with either Ethel Coleman or Philip Martin as to whether the proposed resolution was acceptable. It should be further noted that first-party benefits were received by the estate in the amounts of $1,500 and $10,000 respectively, for funeral expenses and accidental death benefits coverage.

Obviously, the issue before the. court is whether the proposed settlement for and on behalf of the minor beneficiaries is “fair and equitable” and whether it should approve the agreement for the payment of counsel fees and other proper expenses out of the share of damages to which the minors are entitled. See rule 2206.

The court concludes that the proposed gross settlement of $273,625.17 is reasonable under the circumstances and finds further litigation between the third party litigants.would be counterproductive particularly when the minor children are in need of immediate financial support. Ethel Coleman does not contest the proposed tender of policy limits, less the third-party credit, as an appropriate resolution of the claim. Her principle complaint is with the reasonableness of the contingency fee arrangement under the circumstances.

An objective analysis of the proposed settlement is complicated in this matter, by reason neither the testimony of the administrator nor the petition and attached order provided the court guidance as to the allocation of the survival action and wrongful death action. In most cases, the wrongful death and survival claims are settled together. It is then necessary to allocate the settlement between the wrongful death and survival claims, which can affect not only who receives the money, but whether taxes are paid on the funds as well. The absence of a proposed allocation results in the court being called upon to allocate the same exercising its discretion in a reasonable fashion. It has been urged by other lower courts that a policy of the law exists favoring wrongful death beneficiaries over estate beneficiaries (the survival action). Krause v. B&O Railroad, 33 D.&C. 3d 458 (1983).

Adopting the articulated policy, the court is disinclined to charge the proposed settlement proceeds with the unpaid funeral bill of $3,170, wherein funds totaling $11,500 were earlier received by the estate in part earmarked for payment of the funeral bill. In a like manner, the court does not authorize the charge of $76.20 as a reimbursable cost to counsel for the petitioner in that filing; service, or otherwise docket costs are traditionally reimbursed by defendant who in this case agreed to accept responsibility for the same.

Addressing finally the issue of counsel fees, the court has given consideration to the following issues: the contractual rights of the administrator pursuant to 20 Pa.C.S. §3372 in that only the administrator can initiate suit under rule 2202, Pa.R.C.P.; the rights, if any, of a statutory beneficiary to object to the nature of the settlement of the wrongful death action. See Zielinski v. McGovern, 17 D.&C. 3d 16 (1980); the provision of rule 2206 which provides that the court “may also approve an agreement for attorneys’ fees. . (emphasis supplied); the policy of the local court to approve up to 25 percent for settlement involving minors when the same has not proceeded to trial; and the underlying circumstances of the case.

The court is well aware of the purpose of contingent fee agreements and the benefit as being “the poor man’s key to the courthouse.” See Romano by Romano v. Lubin, 365 Pa. Super. 627, 530 A.2d 487 (1987), wherein the contingency fee of 21 percent was adopted by the Superior Court as the appropriate fee. By approving contingent fee agreements, the Superior Court found such action avoids the likelihood of pitting attorney against client. Unquestionably, the contingent fee arrangement permits the poor injured plaintiff the means to pursue just claims with aggressive legal talent and not drain upon his or her financial resources.

In this case, however, it appears obvious that the contingent fee agreement entered into by the bank with counsel initially was the conduit for antagonism from the time of the appointment of the administrator. Ethel Coleman, the guardian of two of the minor beneficiaries, strongly objected to the one-third fee at the time of appointment. The Superior Court’s hope of stymieing antagonism over contingent fees was doomed in this case at the outset.

The issue is further complicated by the immediate tender of the policy limits to resolve the outstanding claims by defendant, coupled with exhibits describing services performed by counsel which included the estate proceedings. The statement of services does not set forth on a line item basis the time expended for each specific service, but only a grand total. The court agrees with petitioner that attempting to relate a contingency fee to an hourly rate is inappropriate. Nonetheless,.the court finds that it is duty-bound to analyze the amount of work performed, the character of the services performed, the difficulty of the problems involved, the importance of the litigation, the amount of money involved, as its basis as to whether the agreed-upon fee should be awarded. Applying these standards and since the primary focus was dividing the pot with the third-party claimant after agreeing to the interpleader action, the court finds 20 percent to be a fair and equitable fee under the circumstances as outlined above, given that minors are the primary beneficiaries. Attorneys’ fees thus approved are $54,725.03.

The administrator is authorized to execute a release of defendant on the basis set forth herein allocating the net proceeds as follows as to the children.

Quintín $72,867.38
Philip $72,867.38
Falisha $72,867.38

These amounts shall be deposited in accord with rules 2206 and 2064 in a federally insured bank, pending appointment by the Orphans’ Court of a guardian or guardians over the estate of said minors.

An appropriate order will be entered in keeping with the memorandum.

ORDER

And now, September 27, 1990, upon consideration of the foregoing petition, this court modifies the one-third contingency fee arrangement between the parties and their respective counsel and approves the settlement of $273,625.17.

(1) The counsel fees will be reduced from a one-third contingency to 20 percent which is deemed to be a fair and equitable fee under the circumstances. Thus, counsel’s fees approved are $54,725.03.

(2) The administrator is authorized to execute a release on the basis set forth herein allocating the net proceeds as follows:

Quintín Terell Otis Murray $72,867.38
Philip Alexander Martin Murray $72,867.38
Falisha Mone-Lynne Martin $72,867.38

which shall be deposited in accord with rules 2206 and 2064 pending appointment by the Orphans’ Court of a guardian or guardians over the estate of said minors.

(3) Counsel shall be reimbursed advanced costs in the amount of $298.


author: GREENSPAN, J.,

text:
    Commonwealth v. Barnett

      George Shotzbarger, assistant district attorney, for the Commonwealth.

      Robert Dixon, for defendant Derrick Barnett.

      Paul Herzberg, for defendant Thomas Brown.

      Alan Yatvin, for defendant Manuel Rose.
    May 1, 1989
   GREENSPAN, J.,

On January 16, 1988, defendants were arrested and charged with robbery, criminal conspiracy and related offenses arising out of a gunpoint robbery earlier that same day at the Family Variety Store located at 4020 Lancaster Avenue in Philadelphia.

All three co-defendants waived their rights to a jury trial and were tried before this court. Trial commenced on June 2, 1988, and concluded on June 9, 1988, when all defendants were found guilty of all charges. Defendants timely filed post-verdict motions and supplemental motions particularly challenging this court’s refusal to allow defendant Brown to reopen in order to present a crucial witness whose testimony, as proffered, would seriously undermine the credibility of the Commonwealth’s eyewitness. On December 15, 1988, after hearing oral argument, this court granted new trials to each of the three co-defendants, finding that such relief was required in the interest of justice. The court’s finding that the interests of justice mandated a new trial was not based solely on the refusal to permit the proffered defense witness. Rather, this court found:

“[T]hat the way that the case was tried is deeply troubling to me . . . and that goes to the way that it was done, from the beginning to the end, trying to do it in the midst of [another ongoing] jury trial, where I was very concerned about the jury and their needs. That is no way to dispense justice.” (N.T. 12/15/88 at- 36.)

In response to the prosecutor’s adamant refusal to comprehend why the interests of justice mandated a new trial this court added:

“In the end, I have to examine, because I am presented with it, whether it was an appropriate, correct and just trial and I think that the denial of Mr. Herzberg’s request at the end was a manifestation of the problem in the way that this trial was tried in the first instance that is really where the trouble lies.

“That is why the interest of justice really is the standard that I have to look to, and when I view that standard, and I look at what occurred, in this case, I am deeply troubled; troubled enough such that I do think that the defendants in this case should be given a new trial.” (N.T. 12/15/88 at 37.)

After granting the new trials, the court permitted the Commonwealth to make a complete record by questioning the proffered witness, Gerald W. Spi-vack, Esq., who originally represented a fourth co-defendant who failed to appear in court for trial. (N.T. 12/15/88 at 40-57.) In sum, Mr. Spivack testified that, prior to the preliminary hearing in this case, the Commonwealth’s putative eyewitness, Ms. Kang, told him: “[S]he knew nothing about it. She said that she didn’t see anything and didn’t know anything about it.” (N.T. 12/15/88 at 45.) In response to the Commonwealth’s erroneous suggestion that this testimony “would not have changed your verdict one iota” (N.T. 12/15/88 at 62) this court answered:

“To tell you the truth, given Renee'King’s clear bias, the fact that she indicated that she didn’t see anything, does really shed light on the fact that she may well have been testifying to be helpful to the Commonwealth for her own benefit; the fact that she was on parole; that kind of thing. She may really have been pushed into it, and had a significant bias. . .” (N.T. 12/15/88 at 64-5.)

Still stubbornly refusing to comprehend the reason for the grant of a new trial, the. prosecutor completely misstated the court’s decision. This court then reiterated unequivocally:

“The single and sole reason why I am granting a new trial in this case is in the interest of justice, because these defendants, in my view when I reviewed the record in its entirety, were denied justice, and in the interest of justice, I am granting them [an opportunity to have] a fair trial. It is not solely because and it is not confined solely to the fact that I denied Mr. Herzberg the opportunity to present Mr. Spivack. I will say again: that is only one manifestation of the lack of a fair trial here, for which, in the interest of justice they get a new trial.” (N.T. 12/15/88 at 67.)

After a thorough review of the record in this case and a painstaking search of this court’s conscience, one conclusion was clear and compelling: these defendants had not been afforded a fair trial. The only relief available to remedy this grave error was to grant these defendants a new trial. To turn a blind eye to an injustice is to abrogate judicial responsibility. This court was deeply troubled by the piecemeal manner in which this case was tried. In an effort to be as efficient with courtroom time as possible, this court heard this case while presiding over a jury trial. In retrospect this court recognized that its quest for judicial efficiency had inexorably led to a rush to judgment in this case — a need to expedite for its own sake. The singular attention required of a fact finder in an individual criminal case was jeopardized for the sake of the broader goal to administer justice quickly. Challenged by defendants for having given them less than the Constitution and our system of justice guarantee them, the court admitted to its own misgivings about the manner in which the trial had been conducted.

It is beyond cavil that this court had the judicial authority to order new trials where, as here, such relief is compelled by the interest of justice. As the Pennsylvania Supreme Court stated in Wylie v. Powaski, 422 Pa. 285, 286, 220 A.2d 842, 842 (1966):

“This court has declared repeatedly and without modification or reservation that ‘[t]he granting of a new trial is an inherent power and immemorial right of the trial court and an appellate court will not find fault with the exercise of such authority in the absence of a clear abuse of discretion.’ ”

There is no doubt in this court’s mind that defendants did not receive a fair trial. This court takes its obligation to review challenges to its own verdicts just as seriously as it takes challenges to verdicts reached by a jury. Discretion and judgment are the cornerstones of judicial behavior. Humility, honesty and integrity are equally crucial judicial attributes. To be a fair and impartial jurist is to combine the best of all of these.

The people of this Commonwealth have placed their trust in the members of the judiciary — to dispense justice tempered by mercy. The appellate courts of this Commonwealth have vested broad discretion in the trial courts to do and see that justice is done. Here, justice was not done at trial. Justice was accomplished only when defendants were given a new opportunity for a fair trial.

Apparently the Commonwealth is more concerned with efficiency than with justice and has little regard for the value of its own evidence at a new trial. The Commonwealth merely argued that defendants got an undeserved windfall. Indeed, during post-verdict argument the Commonwealth, reduced to platitudes and generalities, twice profaned the “law [as] an ass.” (N.T. 12/15/88 at 62, 66.) The Commonwealth cannot and does not understand that it would have been an abuse of this court’s , discretion to refuse the new trial. For the Commonwealth to succeed on appeal, there must be a showing that this court “palpably” or “capriciously” abused its discretion. Niklas v. Zarnick, 411 Pa. 205, 191 A.2d 414 (1963); Burton v. Boland, 339 Pa. Super. 444, 446, 489 A.2d 243, 244 (1985). There was nothing capricious in this court’s decision as the record demonstrates. This court did not simply change its mind or' reconsider its verdict. Rather, the court firmly believed that the proceedings were impaired and unfair, mandating a reversal at the earliest possible stage.

The Commonwealth will ask that the verdicts be reinstated. Necessarily the Commonwealth must argue that defendants were given a fair, albeit not a perfect trial. It is for the Superior Court to decide. If the Superior Court finds that this court cannot admit error and can do nothing but give a fair trial, then the verdicts will be reinstated. Either defendants were given a fair trial or they were not and that wrong has now been rectified. This court believes that the grant of new trial was a correct and proper exercise of judicial discretion, entered in the sound interest of justice.

      . Only defendant Brown specifically raised this precise claim in the post-verdict motions. However, as this court stated during post-verdict argument: “The proffered evidence goes to all of the defendants equally, because Miss King’s testimony certainly went to all equally. . .” (N.T. at 26.) Defendant Rose generally sought a new trial in the interest of justice in his post-verdict motion. Moreover, all defendants joined in arguing this issue at the post-verdict stage.

      . Although not relied on by this court in its grant of a new trial, it may well be nevertheless that the refusal to permit the proffered witness to testify is, in and of itself, error requiring a new trial. Commonwealth v. Staten, 350 Pa. Super. 173, 504 A.2d 301 (1986), rev’d on other grounds, 514 Pa. 377, 524 A.2d 896 (1987); Commonwealth v. Mathis, 317 Pa. Super. 362, 464 A.2d 362 (1983). See also, King v. U.S., (D.C. Civ., November 17, 1988) (interest of justice test applies to request to reopen case; court abused discretion in denying defense motion).

      . The trial in this case was conducted between sessions of a jury trial over which this court was then presiding. As a consequence, the case was heard in a piecemeal fashion and only several hours a day, sometimes just during the luncheon recess of the jury trial.


author: SUBERS, J.,

text:
    Campanella v. Raymark Industries Inc.

      Larry Haft, for plaintiffs.

      Donald J. Matthews, for defendant Owens-Coming Fiberglas.

      Lawrence A. Ceisler, for defendant Center for Claims Resolution.
    September 27, 1990
   SUBERS, J.,

This action for damages for personal injuries allegedly caused by asbestos exposure was commenced by complaint on June 26, 1985, and was served on defendant, Owens-Corning Fiberglas, on July 9, 1985. Counsel appeared on its behalf on August 1, 1985. On November 29, 1989, this case, and others related to it, were placed on the 1990 Montgomery County asbestos trial list for a date in May 1990. On March 27, 1990, an order was issued setting May 31, 1990, as the trial date, and scheduling a settlement conference before the Honorable William W. Vogel, President Judge, on April 25, 1990.

Plaintiff Joseph J. Campanella Jr. was not deposed by any party to this action until April 5, 1990. During the course of that deposition he is alleged to have identified asbestos-containing products to which he was exposed, manufactured or sold by companies not parties to this action. On May 16, 1990, Owens-Coming Fiberglas filed a “motion to join third-party defendants.” Plaintiffs filed an answer, objecting to the joinder only if it would not delay the scheduled trial beyond December 1990.

Upon review of Owens-Corning’s motion we noted that it failed to set forth any reason for the delay of nearly five years before taking plaintiff’s deposition. Since a necessary element to allow late joinder, a reasonable excuse for the delay, had not even been alleged, and in consideration of the case’s rescheduled trial date of October 17, 1990, we entered an order dated July 9, 1990, denying the motion of Owens-Corning without prejudice to its rights to file actions for contribution or indemnification.

A petition for reconsideration on behalf of Owens-Coming Fiberglas was presented to this court, although it does not appear to have been filed of record. On August 7, 1990, we granted reconsideration, vacated our order of July 9, 1990, and scheduled oral argument on the motion for August 28, 1990. Because the disposition of this motion will have an important effect on the ability to bring asbestos cases to trial, and because the joinder of these additional defendants could bring parties who have already settled with plaintiffs back into the action for a determination of cross-claims, we allowed any present or former party to this matter to participate in briefing and argument. Counsel for the Center for Claims Resolution, who represents two parties who have settled with plaintiffs, has filed a brief and argued in opposition to the joinder. Counsel for plaintiffs, while recognizing that his proposed December 1990 trial date would now be an impossibility if joinder is allowed, continues to state conditional opposition. Plaintiffs do not oppose joinder if the delay in bringing the case to trial will not be undue, but do oppose the joinder if a considerable delay will be encountered.

We find that an extensive and unwarranted delay in the resolution of this case will be the result of allowing joinder of additional defendants at this-time. While Owens-Coming Fiberglas now presents “reasons” for delay, we judge those reasons insufficient and refuse to allow late joinder for the following reasons.

Pennsylvania Rule of Civil Procedure 2253 permits a defendant to join an additional defendant, as of course, within 60 days after service upon the original defendant of plaintiffs’ initial pleading. The court is also authorized to extend the time for joinder upon cause shown. In order to justify an extension of time, the original defendant has the burden of offering a reasonable excuse for the delay, showing facts alleged to render the proposed additional defendant liable, and demonstrating that the late joinder would not be prejudicial to the proposed additional defendant. Whether there is cause shown is within the discretion of the trial court, and its decision will not be reversed on appeal absent an abuse of discretion. Kovalesky v. Esther Williams Swimming Pools, 345 Pa. Super. 95, 497 A.2d 661 (1985). In Kovalesky the Superior Court upheld an order refusing to allow late joinder. Two individual defendants had actual knowledge of the alleged involvement of the proposed additional defendant, but relied unreasonably on their preliminary objections to venue as an excuse for not joining the additional defendant. Two corporate defendants were not aware of the third party’s involvement, but could have discovered his existence and potential liability easily by taking depositions of their co-defendants promptly.

In Zakjian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970), the Supreme Court upheld an order refusing late joinder where the involvement of a proposed additional defendant could have been ascertained by taking the deposition of a known witness to the accident. The Supreme Court explained that while a separate trial could be avoided with a saving of multiplicity of suits if joinder were permitted, joinder would also result in a delay in trial because the proposed additional defendant had not participated in the discovery proceedings. The court explained:

“Before the defendant can ask the court to help him secure a just, speedy and inexpensive determination of the suit by permitting late joinder, he must have acted expeditiously himself. ...” Zakjian, supra, (citation omitted)

Joinder has been refused in other cases where a reasonable investigation would have revealed the identity and involvement of the proposed additional defendant quickly. Thus, in NPW Medical Center of N.E. Pa. Inc. v. L.S. Design Group, P.C., 353 Pa. Super. 341, 509 A.2d 1306 (1986), a complaint averred that faulty workmanship resulted in premature corrosion of pipe used on a construction project, and that defendants approved certain materials notwithstanding that the incoming water supply was highly corrosive. The defendants waited more than 60 days to join the local water company as an additional defendant, even though its involvement would have been known from the simplest of investigations. The court explained that although one purpose of the joinder time limitations is to prevent plaintiff from suffering prejudice, plaintiff’s lack of objection does not foreclose the issue. A more general purpose is to insure the expeditious resolution of multi-party lawsuits, and this is not met by allowing a defendant to procrastinate and respond to the court at its convenience.

Owens-Corning Fiberglas avers the following as excuses for its near five-year delay seeking to join additional defendants:

“(12) The reason for the delay in taking plaintiffs’ deposition is the unique nature of asbestos litigation. As a rule, in asbestos litigation, depositions are not scheduled until a case is listed for trial. This is due to the fact that the vast majority of asbestos cases settle prior to the commencement of discovery depositions. In an attempt to save legal resources and preserve judicial economy, asbestos cases are many times settled in large groups. That is to say, numerous cases are settled at one time.

“(13) Due to the sheer volume of asbestos cases before this court and other courts, requiring defendants to depose plaintiffs and product identification witnesses within 60 days after the filing of a complaint for the purpose of filing a joinder motion would be extremely burdensome on the defendants.

“(14) Due to the sheer volume of asbestos cases in this jurisdiction and others, requiring defendants to depose plaintiffs and product identification witness within 60 days from the date of complaint for the purpose of filing joinder motions would lead to the filing of such motions in large numbers of cases, the majority of which will settle long before the case is ever scheduled for trial.” (Petition for reconsideration, §§12-4.)

We reject these reasons as not furthering judicial economy nor the purpose of Pa.R.C.P. 2253 requiring prompt joinder of additional defendants. Undoubtedly depositions are not taken promptly in many asbestos actions, but this has nothing to do with judicial economy. In fact, joinder under the present circumstances means an extraordinary waste of judicial time. The additional defendants will undoubtedly object to late joinder. They have a right to participate in the discovery process, and we cannot accept the assertion of counsel for Owens-Coming Fiberglas that those newly joined parties will accept the previous discovery, and not seek to conduct some on their own.

We then have the choice of delaying the entire trial, or conducting two trials, one for plaintiffs’ direct claims, and one for the claims against additional defendants. We traditionally enter orders severing cross-claims by and against defendants who have settled with plaintiffs. We have had asbestos litigation in this court since 1979, and have resolved more than half of the total cases filed, and never had a trial on cross-claims. If Owens-Corning Fiberglas wants to pursue claims for indemnity or contribution against these other parties it is free to do so, because those claims do not arise until it pays a settlement or a judgment is entered against it. NPW Medical Center of N.E. Pa. Inc. v. L.S. Design Group, P.C., supra; F.J. Schindler Equipment Company v. Raymond Company, 274 Pa. Super. 530, 418 A.2d 533 (1980).

While the volume of asbestos litigation may not always permit joinder within the 60-day time limit of Pa.R.C.P. 2253, it does not justify a failure to investigate possible additional defendants until after a five-year-old case has been listed for trial. To allow this turns our trial list into a suggestion that parties commence discovery.

What is unique about the asbestos litigation is the inordinate amount of time it takes to get these claims resolved. Some of this delay is the inevitable result of the volume and complexity of the litigation, but we will not contribute to further delay by allowing parties to wait until the eve of trial before they seek to join other parties. There is no judicial economy in that, nor is there any in holding multiple trials. We are not alone in this view of the asbestos litigation. In Lane v. Johns-Manville Corporation, 8 Phila. Rep. 553 (1983), the Honorable Hariy Takiff, then Administrative Judge for Philadelphia’s asbestos litigation, refused to permit joinder of additional defendants a year after service of the complaint when no reasonable justification or excuse for delay was offered. The Honorable Charles R. Weiner of the United States District Court for the Eastern District of Pennsylvania, that court’s Asbestos Administrative Judge, has recently refused joinder under similar circumstances. Schaab v. Owens-Corning Fiberglas Corporation, no. 88-9180, memorandum/order, (E.D. Pa., May 16, 1990).

Owens-Corning Fiberglas can pursue actions for indemnification or contribution if and when it pays a judgment or settlement in this matter. It is not prejudiced by our determination. But two trials are not inevitable. Owens-Corning may prevail at trial, or it may settle for so little that a second action would not be worth pursuing.

The expeditious resolution of asbestos litigation requires that if defendants wish to bring additional defendants before the court, they do so in a timely manner. Waiting until the case is listed, for trial cannot satisfy that requirement.

       In our experience asbestos cases do not settle until we list them for trial. Counsel often appear at settlement conferences scheduled after we list the case without settlement authority because they have not deposed the plaintiff, or had plaintiff examined, or had medical reports reviewed by an expert.


author: SNYDER, P.J.,

text:
    Commonwealth v. O’Brien

      Mark A. Wallisch, district attorney, for the Commonwealth.

      Robert M. Hanak, for defendant.
    September 18, 1990
   SNYDER, P.J.,

This case is presently before the court on defendant’s motion to suppress.

ISSUE

The issue in this case is whether the warrantless arrest of a non-resident defendant is invalid where the arresting officer is not in uniform at the time of the arrest. If the arrest is invalid the evidence obtained by virtue of the defendant’s unlawful arrest is, of course, inadmissible.

FACTS

On June 6, 1990, at 2:45 a.m., Officer Serafini of the Reynoldsville Borough Police Department received a call to investigate a single-vehicle accident. Responding to the call Officer Serafini, who was off duty and not in uniform, observed a 1990 Ford truck flipped onto the driver’s side at East Main Street in Reynoldsville.

Upon arrival at the accident scene Officer Serafini approached defendant who was sitting on the ground near the vehicle. Officer Serafini asked the defendant if he was the driver and sole occupant of the vehicle and the defendant responded affirmatively. When Officer Serafini requested an operator’s license from the defendant, the defendant produced a valid Nevada license.

Defendant was then transported to the DuBois Hospital. At the DuBois Hospital, Officer Serafini requested defendant submit to a blood test to determine defendant’s blood alcohol content. Defendant refused said test indicating his concern regarding the use of needles. Officer Serafini then advised the defendant of his rights and the consequences of failure to comply with the requested testing. When defendant again refused, Officer Serafini placed defendant under arrest.

ANALYSIS

Defendant argues that his arrest is invalid as a matter of law because Officer Serafini was off duty and not in uniform at the time defendant, a nonresident, was arrested. Defendant cites section 6304(b) of the Vehicle Code in support of his contention. Section 6304(b) of the Vehicle Code provides:

“(b) Other police officers — Any police officer who is in uniform may arrest without a warrant any non-resident who violates any provision of this title in the presence of the police officer making the arrest.”

The Commonwealth argues the arrest of the defendant is valid because, even though Officer Sera-fini was off-duty and not in uniform, section 3731(c) of the Vehicle Code provides an exception to section 6304(b) or, at the very least, provides police officers with expanded powers of arrest in driving under the influence arrests. Alternatively, the Commonwealth argues the evidence of all the facts and circumstances indicate that the arrest, even though possibly initially invalid, may be saved. Section 6304(b) of the Vehicle Code provides:

“(b) Other police officers — Any police officer who is in uniform may arrest without a warrant any non-resident who violates any provision of this title in the presence of the police officer making the arrest.” 75 Pa.C.S. §6304(b). June 17, 1976, P.L. 162, no. 81, §1, effective July 1, 1977.

Section 3731(c) of the Vehicle Code provides:

“(c) Certain arrests authorized — In addition to any other powers of arrest, a police officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer. This authority to arrest extends to any hospital or other medical treatment facility located beyond the territorial limits of the police officer’s political subdivision at which the person to be arrested is found or was taken or removed to for purposes of emergency treatment, examination or evaluation provided there is probable cause to believe that the violation of this section occurred within the police officer’s political subdivision.” 75 Pa.C.S. §3731(c). As amended December 15, 1982, P.L. 1268, no. 289, §9, effective in 30 days; February 12, 1984, P.L. 53, no. 12, §5, effective in 120 days; June 30, 1984, P.L. 473, no. 99, §2, effective imd.; July 10, 1984, P.L. 704, no. 148, §1, effective imd.; May 9, 1986, P.L. 158, no. 51, §1, effective in 60 days.

Neither this court nor the parties’ counsel has been able to find any case law interpreting the specific language of section 6304 at issue in the instant case. For guidance we look to those cases which discuss the predecessor to section 6304. See Commonwealth v. Wernosky, 68 Schuylkill L.R. 171 (1972); In re Johnson License, 52 D.&C. 2d 577 (1971); and Commonwealth v. Arnold, 86 D.&C. 154 (1953).

All of the above-noted cases reflect the importance of the arresting officer being in uniform at the time of arrest. In Johnson and Wemosky the respective courts restored the driver’s licenses of the defendants because there was no evidence on the record that the arresting officer in either case was “in uniform and displaying a badge or other sign of authority.” Johnson at 580; Wernosky at 174. In Arnold the court dismissed the proceedings against the defendant because the Commonwealth failed to aver in the information or prove at trial that the officer making the arrest was in uniform and exhibited a badge or other sign of authority. Arnold at 158. As Judge Farr in Arnold writes, “If the officer was not in uniform it is perfectly apparent that the arrest was invalid.” Id.

While we note that these cases rely upon the predecessor to section 6304, we also note the clear language of the statute at issue. See 1 Pa.C.S. §1921(b). If the legislature wanted to expand a police officer’s power to arrest a non-resident it could have easily deleted the language “when in uniform” just as it deleted the language “displaying a badge or other sign of authority.” See Commonwealth v. Buzak, 197 Pa. Super. 514, 179 A.2d 248 (1962) (stating the general principle that where words of later statute differ from those of previous one on same subject, they presumably are intended to have a different construction).

We turn now to the Commonwealth’s argument that section 3731(c) of the Vehicle Code is an exception or, at least, expands the arrest powers given police officers in section 6304(b). In support of it’s argument the Commonwealth cites Commonwealth v. Collini, 264 Pa. Super. 42, 398 A.2d 1044 (1979). However, Collini does not stand for the proposition that section 3731(c) provides an exception or expansion of the requirement in section 6304(b) that police officers be in uniform when making an arrest of a non-resident. Thus, we find this argument unconvincing in the case sub judice.

We note, however, that section 3731(c) does expand the arrest powers of police officers in two ways. First, the officer may arrest “without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer.” Second, the officer has the authority to arrest any person for a violation of section 3731 in “any hospital or other medical facility located beyond the territorial limits of the police officer’s subdivision.” However, nowhere in this section is there a provision or reference which authorizes the arrest of a non-resident when the officer is not in uniform. Thus, while the section 3731(c) does expand the officer’s authority to arrest, there is no expansion or exception to the requirement in section 6304(b) that the arresting officer be in uniform.

We find equally unconvincing the Commonwealth’s contention that even if the arrest is initially illegal there is other independent evidence of sufficient quality to “save” the arrest. The Commonwealth’s reliance on Commonwealth v. Mancini, 340 Pa. Super. 592, 490 A.2d 1377 (1985), is misplaced. In Mancini the defendant was initially arrested for the summary offense of underage drinking by an off-duty, plainclothes police officer. Mancini, at 597, 490 A.2d at 1380. While the Superior Court recognized that the defendant’s initial arrest was illegal because, just as in the case sub judice, the police officer was off-duty during the time of arrest, the court concluded that other independent evidence existed which could sufficiently “purge the taint” of the initial illegal arrest to allow the use of the defendant’s confession to a burglary and additional evidence seized pursuant to the defendant’s subsequent consent to search the vehicle the defendant was driving. Mancini at 600-2, 490 A.2d at 1381-2.

In the instant case, unlike in Mancini, there is simply a lack of independent evidence upon which to “purge the taint” of the initially illegal arrest.

In passing we note that Pennsylvania Rule of Criminal Procedure 55 reads:

“When a criminal proceeding in a summary case is instituted by issuing a citation to the defendant, the law enforcement officer who issues the citation shall exhibit some sign of authority.”

Prior to the amendment to rule 55, rule 51(A)(1) required the officer issuing a citation to be in uniform. The Procedural Rules Committee comment following rule 55 indicates that it is preferable that a law enforcement officer who stops a defendant for a traffic violation be in uniform.

However, we emphasize that the foregoing is only applicable to summary cases and that while the Procedural Rules Committee disposed of the requirement that the police officer be in uniform, the legislature continues such a requirement in section 6304(b) of the Vehicle Code. In such circumstances a non-resident motorist should be made aware of the authority of the person who is attempting to make an arrest. As Judge Cercone of the Superior Court stated, “A motorist is apprised of the veracity of the person who stops him by all of the indicia of the . . . police uniform.” Commonwealth v. Turner, 337 Pa. Super. 564, 571, 487 A.2d 404, 408 (1985).

CONCLUSION

Accordingly, we must conclude that the arrest of a non-resident defendant by a municipal police officer who is off duty and not in uniform is invalid and that the evidence obtained against the defendant by virtue of that unlawful arrest must be suppressed.