author: NEALON, J.,

text:
    Glodzik v. Whink Products Co.

      C.P. of Lackawanna County,
    no. 98 CV 4997.

      Lawrence J. Moran, for plaintiff.

      Gerald J. Hanchulak, for defendant.
    April 14, 2003
   NEALON, J.,

The manufacturer of a rust stain remover containing hydrofluoric acid which severely injured the plaintiff has filed a motion for summary judgment seeking the dismissal of: (1) all tort claims on the grounds that plaintiff allegedly misused the product without gloves; (2) plaintiff’s failure-to-wam claim which is purportedly preempted by the Federal Hazardous Substances Act (FHSA); and (3) plaintiff’s claim for punitive damages. Since reasonable minds could differ as to whether plaintiff’s actions constituted unforeseeable, outrageous or extraordinary misuse, the defendant is not entitled to judgment in its favor as a matter of law. With respect to defendant’s federal preemption argument, inasmuch as the plaintiff asserts that the defendant’s product warning did not comply with the labeling requirements of the FHSA, she does not seek to impose labeling standards higher than those set forth in the federal Act and her challenge to the adequacy of the defendant’s warning is not preempted. Additionally, triable issues of fact exist as to whether the defendant acted willfully, wantonly or recklessly in distributing a household product with known hazardous properties and, as such, the defendant is not entitled to summary judgment with respect to plaintiff’s punitive damages claim.

I. FACTUAL BACKGROUND

On October 22,1996, plaintiff, Margaret Mary Glodzik used a rust stain remover manufactured and sold by defendant, Whink Products Co., in an effort to remove rust stains from her tablecloths. Glodzik had not utilized Whink’s rust stain remover prior to that date and was apparently unaware of the fact that it contained hydrofluoric acid. As Glodzik was treating the tablecloths with the rust stain remover, she wore gloves during certain applications, but not at all times, and her hands, arm, neck and ears inadvertently came into contact with the stain remover. (See docket entry no. 1,¶¶5-8; docket entry no. 31, p. 33; docket entry no. 32, pp. 10-11.)

According to the expert report of Kenneth H. Brown Ph.D., hydrofluoric acid “is an insidiously dangerous chemical acid in that it can cause permanent bone and deep tissue damage without any prior warning of pain from the acid’s contact with a person’s skin.” (Id. no. 28, exhibit “B,” p. 4.) Hydrofluoric acid bums undergo a two-stage process of injury; an initial stage of dehydration induced necrosis of the skin, and a second stage whereby the corrosive acid is absorbed through the skin and penetrates into the deep subdermal layers of the skin with release of free fluoride ion and corresponding reaction with tissue calcium. (Id. at p. 14.) Hence, hydrofluoric acid bums do not cause symptoms until several hours after the onset of the two-stage process, and victims of its stealthy osmosis do not timely appreciate the urgent need for immediate, continuous rinsing with large quantities of water and prompt medical attention. (Id. pp. 21-24.)

As a result of her exposure to, and contact with, the hydrofluoric acid contained in Whink’s stain remover, Glodzik sustained severe hydrofluoric acid bums to her hands, arm, neck and ears causing epidermolysis, demarcation and necrosis of the skin, full thickness skin loss, compartment syndrome, web space granulation with contracture, adhesions of the flexor tendons, chronic web infection, contracture of the ligaments and joints, and permanent loss of sensation in both hands. Glodzik’s hydrofluoric acid bums have necessitated numerous surgical procedures, including multiple amputations of her fingers, syndactylus release of the fingers with a free flap due to skin loss, multiple nail ablations, debridements, skin grafts, and several surgical reconstmctions. (Docket entry no. 1, ¶¶22, 41, 59.)

In her complaint, Glodzik advances three causes of action against Whink. First, Glodzik maintains that the rust stain remover was defectively designed and formulated for consumer use since it contains hydrofluoric acid even though Whink could have developed an equally effective and less hazardous rust stain remover without that chemical. (Id. ¶¶15, 18-21.) Count II of the complaint asserts a strict liability claim predicated upon Whink’s failure to provide an adequate label warning that hydrofluoric acid is absorbed through the skin and “insidiously penetrates into the deep subdermal layers of the skin rendering rinsing or soaking in warm water an ineffective treatment to hydrofluoric acid exposure.” (Id. ¶37.) Last, Glodzik asserts a common-law negligence claim and alleges that Whink acted recklessly in producing and dispensing a rust stain remover for consumer use which contained an unnecessary and highly corrosive acid. (Id. ¶¶50-66.) In addition to demanding compensatory damages, Glodzik also seeks punitive damages and avers that Whink engaged in “outrageous conduct” and “acted with reckless indifference to the interests of others” by manufacturing and selling a household product containing hydrofluoric acid. (Id. ¶¶29,48, 66.)

On January 15, 2003, Whink filed the instant motion for summary judgment arguing that this action should be dismissed since Glodzik’s partial use of the stain remover without heavy duty rubber gloves allegedly constitutes product misuse as a matter of law. Alternatively, Whink contends that Glodzik’s failure-to-warn claim is preempted by the Federal Hazardous Substances Act, 15 U.S.C. § 1261 et seq., and is thereby subject to dismissal. Finally, Whink asserts that Glodzik’s claim for punitive damages should be stricken due to the absence of any outrageous, wanton, or recklessly indifferent conduct on its behalf. The parties have submitted their supporting and opposing memoranda of law, and following the completion of oral argument on April 9, 2003, this matter became ripe for disposition.

II. DISCUSSION

(A) Standard of Review

Summary judgment may be granted only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Cresswell v. Pennsylvania National Mutual Casualty Ins. Co., 820 A.2d 172, 177 (Pa. Super. 2003). In determining whether summary judgment is appropriate, the record must be viewed in the light most favorable to the non-moving party and all doubts regarding the existence of an issue of material fact must be resolved against the movant who bears the burden of proving the absence of a factual dispute. Al’s Café Inc. v. Sanders Insurance Agency, 820 A.2d 745, 748 (Pa. Super. 2003); Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 524 (Pa. Super. 2003). “[OJnly when the facts are so clear that reasonable minds cannot differ, may a trial court property enter summary judgment.” Cresswell, supra. Thus, “[sjummary judgment may only be granted in cases where it is clear and free from doubt the moving party is entitled to judgment as a matter of law.” David Pflumm Paving & Excavating Inc. v. Foundation Services Co., 816 A.2d 1164, 1167 (Pa. Super. 2003).

(B) Unforeseeable Misuse Defense

Pennsylvania has adopted section 402A of the Restatement (Second) of Torts which imposes strict liability upon the manufacturer or seller of a product in “a defective condition unreasonably dangerous to the consumer or user.” Craley v. Jet Equipment & Tools Inc., 778 A.2d 701, 705 (Pa. Super. 2001). To recover in a strict products liability case, a plaintiff must prove that: (1) the product was defective; (2) the defect existed at the time the product left the hands of the manufacturer or seller; and (3) the defect caused the injury. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430-31, 671 A.2d 1151, 1153-54 (1996), appeal denied, 546 Pa. 655, 684 A.2d 557 (1996). There are three types of defective conditions which may give rise to strict liability: design defect, manufacturing defect, and failure-to-wam defect. Walton v. Avco Corp., 530 Pa. 568, 576, 610 A.2d 454, 458 (1992); Weiner v. American Honda Motor Co. Inc., 718 A.2d 305, 307 (Pa. Super. 1998). Glodzik maintains that the rust stain remover was defective since (a) it was designed or composed to include an ultra hazardous chemical, i.e., hydrofluoric acid, and (b) its label failed to adequately warn consumers about the dangers associated with that acid. In a defective design case, “the question is whether the product should have been designed more safely for its intended use.” Schindler v. Sofamor Inc., 774 A.2d 765, 772 (Pa. Super. 2001), appeal denied, 567 Pa. 727, 786 A.2d 989 (2001). “A design defect will be found where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feáture that renders it unsafe for the intended use.” Commonwealth, Department of General Services v. United States Mineral Products Co., 809 A.2d 1000, 1027 (Pa. Commw. 2002). Plaintiff’s expert, Dr. Kenneth H. Brown, has opined that the unnecessary presence of hydrofluoric acid in Whink’s household rust stain remover renders it unsafe for its intended consumer use, as evidenced by the documented recommendations of hydrofluoric acid manufacturers that this highly toxic substance not be included in consumer products. (See docket entry no. 28, exhibit “B,” p. 22.)

Under a failure-to-wam theory, “[a] product may be deemed defective if it lacks adequate warnings or instructions necessary for safe use of the product.” Demmler, supra at 431, 671 A.2d at 1154. A warning defect will be found to exist if “the user was not adequately instructed on how to use the product as the product was designed,” Weiner, 718 A.2d at 309, or where the product was “distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product.” Davis v. Berwind Corp., 547 Pa. 260, 267, 690 A.2d 186, 190 (1997). In evaluating the adequacy of a warning, “[t]he jury should view the relative degrees of danger associated with use of the product since a greater degree of danger requires a greater degree of protection.” Nowak v. Faberge U.S.A. Inc., 812 F. Supp. 492, 497 (M.D. Pa. 1992) (Nealon, J.), aff’d, 32 F.3d 755 (3d Cir. 1994).

Even if a warning is substantively sound, it may nevertheless be inadequate if its location, size, coloring or prominence is not properly calculated to “catch the attention” of consumers or users. As the Third Circuit Court of Appeals has remarked:

“A manufacturer may be liable for failure to adequately warn where its warning is not prominent, and not calculated to attract the user’s attention to the true nature of the danger due to its position, size, or coloring of its lettering. A warning may be found to be inadequate if its size or print is too small or inappropriately located on the product. The warning must be sufficient to catch the attention of persons who could be expected to use the product, to apprise them of its dangers, and to advise them of the measures to take to avoid these dangers.” Pavlik v. Lane/Tobacco Exporters International, 135 F.3d 876, 887 (3d Cir. 1998) (quoting and expressly adopting Nowak, supra).

Furthermore, the plaintiff’s actual failure to read a warning label does not necessarily bar recovery “where the plaintiff is challenging the adequacy of the efforts of the manufacturer to communicate the dangers of the product to the buyer or user.” Pavlik, 135 F.3d at 886 (quoting Nowak, 812 F. Supp. at 498). “This is because manufacturers cannot rely upon a presumption that the victim read a warning to shield themselves from liability for warnings that are inadequate precisely because they are not presented in a manner sufficient to attract the user’s attention.” Pavlik, 135 F.3d at 887.

Dr. Brown has posited that Whink’s warning concerning the need to use “heavy duty household rubber gloves” is inadequate since a consumer wearing such gloves may nonetheless suffer hydrofluoric acid burns from the slightest spilling or splashing of the rust stain remover or the mere handling of the dripping bottle after it has been opened or used. See e.g., DeHaan v. Whink Products Co., 1994 WL 24322, *4 (N.D. Ill. 1994) (“a fairly regular user” of Whink Rust Stain Remover who “wore rubber gloves” while attempting to clean clothing with the stain remover “spilled one drop of the product on her thigh” which “soaked through her lightweight sweatpants and came into contact with her skin” and “ultimately caused a severe chemical bum over an area approximately 24 1/2 inches by 19 inches, across the thigh and crotch area”). According to Dr. Brown, “[I]n order to adequately protect oneself, the minimum protective equipment should include coveralls with long sleeves, a face shield, a cover for the top of one’s head and rubber gloves made of neoprene or other impervious material with long sleeves.” (See docket entry no. 28, exhibit “B” pp. 12, 16.) Since the warning does not notify the consumer of the need for such minimum protective equipment, Dr. Brown submits that it does not adequately instruct the consumer regarding appropriate precautionary measures for safe use of the product. See also, Weissman, A “Comment J” Parry To Howard Latin’s “Good” Warnings, Bad Products, and Cognitive Limitations, 70 St. John’s L.Rev. 629 (Fall 1996).

Dr. Brown further believes that the wording of Whink’s label relating to the prospect of bums “falls far short of telling the consumer of the insidious latent dangers of getting hydrofluoric acid on the skin.” (Id., p. 13.) With regard to the necessity for medical treatment following contact with the substance, Dr. Brown has reasoned that “[t]he omission from the label to warn or direct the consumer to get immediate attention is a failing of the label.” (Id.) (emphasis in original) Based upon the foregoing, Glodzik argues that Whink’s mst stain remover is defective in two respects: (1) a design defect attributable to the inclusion of hydrofluoric acid in a consumer product; and (2) a failure-to-warn defect for not adequately informing consumers about inherent dangers, indicated precautions and immediate remedial measures.

Whink contends that Glodzik’s strict liability and negligence claims must be dismissed on the grounds that she misused the product by neglecting to wear heavy duty mbber gloves at all times of product use. Although a plaintiff’s contributory negligence does not bar recovery in a strict products liability case, a plaintiff’s misuse of a product may negate the causation element of a strict liability claim. See Clark v. Bil-Jax Inc., 763 A.2d 920, 923 (Pa. Super. 2000). To demonstrate misuse of a product, the defendant manufacturer or seller must show that the use employed by the plaintiff was either unforeseeable or outrageous. Childers v. Power Line Equipment Rentals Inc., 452 Pa. Super. 94, 108, 681 A.2d 201, 208 (1996), appeal denied, 547 Pa. 735, 690 A.2d 236 (1997); Padillas v. Stork-Gamco Inc., 2000 WL 1470210, *6 n.5 (E.D. Pa. 2000). “The misuse must be extraordinary and ‘whether the act is reasonably foreseeable is to be determined by following retrospectively the sequence of events and looking back from the harm to the negligent act rather than by considering whether the defendant should prospectively have envisioned the events which unfolded and caused the accident.’ ” Nowak, 812 F. Supp. at 496 (quoting Baker v. Outboard Marine Corp., 595 F.2d 176, 183 (3d Cir. 1979)). “Normally, the issue of whether conduct involved in misuse is foreseeable is to be resolved by the jury.” Dougherty v. Edward J. Meloney Inc., 443 Pa. Super. 201, 224, 661 A.2d 375, 386 (1995), appeal denied, 544 Pa. 608, 674 A.2d 1072 (1996). See also, Petree v. Victor Fluid Power Inc., 831 F.2d 1191, 1195 (3d Cir. 1987) (“Under Pennsylvania law, only unforeseeable contributory conduct by the consumer will insulate the manufacturer from strict products liability, and the question of foreseeability is for the jury.”); Nowak, supra (same).

Based upon the available record, we are unable to declare as a matter of law that reasonable minds could not possibly differ as to whether Glodzik’s use of the stain remover without gloves constituted an outrageous, unforeseeable or extraordinary misuse of the product. See Pavlik, 135 F.3d at 887-88 (denying summary judgment and rejecting the argument that an individual who died of self-administered butane inhalation from a butane can had “deliberately disregarded” the product’s warnings “in an attempt to misuse the product for the sole purpose of getting high” and finding that a “reasonable jury” could deem the warning inadequate because of its type, size and location). Whink obviously contemplated that consumers might use the rust stain remover without gloves since it recommended glove use, albeit in small print, on both the front and back panel of the bottle. Thus, Whink is hard-pressed to claim that it was unforeseeable that consumers may use the product while not wearing gloves. See Nowak, 812 F. Supp. at 496 (refusing to find misuse as a matter of law and holding that a jury could find a consumer’s puncturing of a hair spray can as foreseeable since “the warnings on the can specifically advised against puncturing and avoiding proximity to a flame and, consequently, it is difficult to understand how the manufacturer can claim that the puncturing in this case near a flame was unforeseeable.”) As stated above, Glodzik’s failure to read Whink’s label does not foreclose recovery since she is challenging the adequacy of that warning. Pavlak, 145 F.3d at 886; Nowak, 812 F. Supp. at 498.

Moreover, it was also foreseeable to Whink that a consumer wearing gloves while using the product could nevertheless suffer a hydrofluoric acid burn. See e.g., DeHann, supra. Glodzik’s hydrofluoric acid bums to her arm, neck and ears would have occurred despite the use of gloves to protect her hands. A reasonable jury could conclude that Whink’s product label should, therefore, recommend coveralls with long sleeves, a face shield and a head cover as minimum precautionary measures. Accordingly, under the facts of this case, it cannot be said as a matter of law that Glodzik’s actions clearly constituted unforeseeable, outrageous or extraordinary misuse and Whink’s motion for summary judgment on that basis will be denied.

(C) Federal Regulatory Preemption

Whink alternatively argues that Glodzik’s failure-towam claim is subject to the supremacy provisions of the FHSA which preempt state law claims premised on the failure to provide adequate warnings. The FHSA defines a “hazardous substance” as any substance or mixture of substances which, inter alia, is toxic, corrosive, or an irritant “if such substance or mixture of substances may cause a substantial personal injury . . . during or as a proximate result of any customary or reasonably foreseeable handling or use... .” 15 U.S.C.§ 1261(f)(1)(A). A “misbranded hazardous substance” is identified by section 2(p) of the FHSA as any hazardous substance failing to bear a label:

“(1) which states conspicuously (A) the name and place of business of the manufacturer, packer, distributor or seller; (B) the common or usual name or the chemical name (if there be no common or usual name) of the hazardous substance or of each component which contributes substantially to its hazard, unless the commission by regulation permits or requires the use of a recognized generic name; (C) the signal word ‘Danger’on substances which are extremely flammable, corrosive, or highly toxic; (D) the signal word ‘Warning’ or ‘Caution’ on all other hazardous substances; (e) an affirmative statement of the principal hazard or hazards, such as ‘flammable,’ ‘combustible,’ ‘vaporharmful,’ ‘causes bums,’ ‘absorbed through skin,’ or similar wording descriptive of the hazard; (F) precautionary measures describing the action to be followed or avoided, except when modified by regulation of the commission pursuant to 15 U.S.C. §1262; (G) instruction, when necessary or appropriate, for first-aid treatment; (H) the word ‘poison’ for any hazardous substance which is defined as ‘highly toxic’ by subsection (h); (I) instructions for handling and storage of packages which require special care in handling or storage and (J) the statement (i) ‘Keep out of the reach of children’ or its practical equivalent, or, (ii) if the article is intended for use by children and is not a banned hazardous substance, adequate directions for the protection of children from the hazard, and
“(2) on which any statements required under subparagraph (1) of this paragraph are located prominently and are in the English language in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the label.” 15 U.S.C. §1261 (p)(l)-(2).

Whink submits that its warning label affixed to the rust stain remover bottle clearly satisfies the federal labeling requirements of the FHSA which preempts Glodzik’s state law failure-to-wam claim. But, see Duplin v. Whink Products Co., 1994 WF 197612, *2 (Conn. Super. 1994) (consumer’s product liability claim that the Whink rust stain remover label “failed to provide adequate product warnings and emergency instructions” was not preempted by the FHSA).

Whink has submitted an exemplar bottle of its rust stain remover which is 7 1/4 inches in height and 3 1/2 inches in width. Approximately 4 3/4 inches down from the top of the bottle appears a front label which is 2 1/4 inches wide and 1 3/4 inches high and reads:

“Danger: May be fatal or cause permanent damage. Causes severe bums which may not be immediately painful or visible. Vapor harmful. Contains hydrofluoric acid. Keep out of reach of children. Use only with heavy duty household rubber gloves. Read back panel for additional precautions.” (See docket entry no. 27, exhibit “A”.)

The back panel of the Whink bottle also contains labeling which is 4 1/2 inches high and 2 1/2 inches wide and displays the following language:

“Danger — Poison
“Avoid contact with skin or eyes do not taste, swallow or breathe
“Antidote: Medical care required. Physician Alert Specific antidotal treatment may be required. Product and/or emergency information — call (515) 858-3456 First Aid Immediately do the following: Skin — remove contaminated clothing. Flush skin with cool water for 15 minutes. Eyes — flush with cool water. Remove contact lenses, if any, and continue to flush with cool water for at least 15 minutes. Swallowed — rinse mouth with cool water. Drink large glass of water or milk. Do not cause vomiting. Then Get Immediate Medical Care.
“Directions: Wear heavy duty household rubber gloves. Do not use with other household cleaners. Avoid contact on any surface not stated in directions, including countertops, stainless steel sinks and bathtubs.
“Use On Clothing. Carpeting: Test for color fastness. Dampen stain with water. Apply a few drops of Whink to stain. When stain is gone, rinse stain area thoroughly with cold water and launder clothing as usual before wearing. Avoid contact with washer and dryer surfaces, sinks. Use only on white sinks. Wipe over stain area with damp pad containing Whink. Rinse immediately with cold water. Repeat if necessary. Rinse or discard pad. Toilet bowls: Use only on white bowls. Spray Whink around and above waterline. As Whink runs down the side, the rust stain will disappear. Flush. Repeat on deep stains.” Whink Products Co., Eldora, IA. 50627 © W.P.C. 1987. (Id.)

Glodzik concedes that the Whink label provides the information required by subsections (A), (B), (C), (D), (H), (I) and (J) of section 2(p)(l) of the FHSA. However, Glodzik maintains that Whink’s label does not satisfy subsections (E), (F) and (G) of section 2(p)(l). Glodzik submits, and Whink admits, that any hydrofluoric acid present in the rust stain remover can be absorbed through the skin. Therefore, Glodzik argues that although the foregoing warning references the prospect of severe bums, it does not properly reflect an affirmative statement that the chemical is “absorbed through skin” as required by 15 U.S.C. §1261(p)(l)(E). Furthermore, inasmuch as the label does not identify the need for “coveralls with long sleeves, a face shield, a cover for the top of one’s head and mbber gloves made of neoprene or other impervious material with long sleeves,” nor does it caution about the necessity of immediate medical treatment following contact with skin, Glodzik asserts that it is also deficient under section 1261(b)(1)(F) and (G) governing precautionary measures and instructions for first-aid treatment.

Whink’s preemption argument is predicated upon the Superior Court holdings in Romah v. Hygienic Sanitation Co., 705 A.2d 841 (Pa. Super. 1997), aff’d, 558 Pa. 378, 737 A.2d 249 (1999), and Coffey v. Minwax Company Inc., 764 A.2d 616 (Pa. Super. 2000). In Romah, the court considered whether a consumer’s strict liability claims against a pesticide manufacturer were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §136 et seq. Section 136v of the FIFRA contains an express preemption provision which states that no state may “impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” Romah, 705 A.2d at 847 (quoting 7 U.S.C. §136v (b)). Based upon this express preemption provision, the Romah court concluded that the consumer’s failure-to-warn claims seeking to impose additional or different labeling requirements than those set forth in the FIFRA were clearly preempted by the Act, but that any state law claims for negligent design, manufacture and testing and/or failure to disclose known toxic effects to the EPA were not preempted. Id. at 853-54. In so holding, the Romah court relied upon “the longstanding statutory canon that cautions ‘it is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.’ ” Id. at 854 (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984)).

In Coffey, the Superior Court addressed whether the FHSA preempts a consumer’s state law claims regarding product warnings or labels. Unlike the FIFRA, which provides for specific regulatory approval of labels and express preemption of state law warning claims, the FHSA does not authorize specific approval of product labeling by the Consumer Products Safety Commission, nor does it include express preemption language. Compare Medtronic v. Lohr, 518 U.S. 470 (1996) (section 360k(a) of the Medical Device Amendments (MDA) to the Food, Drug and Cosmetic Act, 21 U.S.C. §360k(a), specifically preempted non-identical state law requirements); Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992) (Public Health Cigarette Smoking Act, 15 U.S.C. § 1334(b), expressly preempted state law requirements governing cigarette advertisements or labels). Nevertheless, the explanatory notes which accompany section 2(p) of the FHSA indicate that no state “may establish or continue in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the labeling requirement under [15 U.S.C. §§1261(p), 1262(b)].” 15 U.S.C. §1261, note (b)(1)(A) (1988). (emphasis added) Consequently, the Coffey court concluded that state law claims relating to product warnings or labeling are preempted by the FHSA unless the state law requirement is identical to the FHS A’s labeling mandate. Coffey, 764 A.2d at 619-20.

However, Glodzik is not attempting to impose additional or more elaborate labeling requirements than those set forth in the FHSA. Rather, she asserts that Whink’s labeling does not satisfy the requirements of section 2(p)(l)(E), (F) and (G) governing affirmative statements of principal hazards (i.e., absorption through skin), precautionary measures and first-aid treatment. Glodzik does not agree with Whink’s contention that its label fulfills Whink’s warning obligation under the FHSA. Since Glodzik is predicating her failure-to-warn claim on Whink’s failure to comply with the federal labeling requirements of the FHSA, her inadequate warning claim is not preempted by the FHSA. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 109-10 (2d Cir. 2001) (“we agree with [plaintiff], however, that a state cause of action alleging non-compliance with the FHS A would not be preempted by the Act.”) (emphasis in original); Torres-Rios v. LPS Laboratories Inc., 152 F.3d 11, 13 (1st Cir. 1998) (plaintiff may succeed in a state law products liability claim by demonstrating that defendant’s warnings failed to satisfy the FHSA labeling standards). As such, Whink’s motion to dismiss Glodzik’s failure-to-wam claim will be denied.

(D) Punitive Damages

Whink likewise challenges the viability of Glodzik’s claim for exemplary damages. To justify an award of punitive damages, the wrongful conduct of the defendant must be “outrageous.” Conduct is considered to be outrageous if it is intentional, willful, wanton, Slappo v. J’s Development Associates Inc., 791 A.2d 409, 417 (Pa. Super. 2002), malicious, oppressive, Jahanshahi v. Centura Development Co. Inc., 816 A.2d 1179, 1188 (Pa. Super. 2003), or “done with a bad motive or with a reckless indifference to the interests of others.” Judge Technical Services Inc. v. Clancy, 813 A.2d 879, 889 (Pa. Super. 2002). (emphasis in original) Willful or wanton conduct requires a state of mind in which the tort-feasor realizes the danger and disregards it to such a degree as to evince “a conscious indifference to the perpetration of the wrong.” Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A.2d 590, 592 (1988); Dean v. Community Medical Center, 46 D.&C.4th 334, 345 (Lacka. Cty. 2000). “Reckless indifference” refers to an intentional act “of an unreasonable character, in disregard to a risk known to [the tort-feasor] or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” McClellan v. HMO of Pennsylvania, 413 Pa. Super. 128, 145, 604 A. 2d 1053, 1061 (1992), appeal denied, 532 Pa. 664, 616 A.2d 985 (1992); Zazzera v. Roche, 54 D.&C.4th 225, 231-32 (Lacka. Cty. 2001).

Therefore, for conduct to be considered reckless, “[i]t must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence. ” Hall v. Jackson, 788 A.2d 390, 403 (Pa. Super. 2001) (emphasis in original); Zazerra, 54 D.&C.4th at 232. The determination of whether a defendant’s actions constitute outrageous or reckless conduct lies within the sound discretion of the fact-finder. SHV Coal Inc. v. Continental Grain Co. 526 Pa. 489, 495, 587 A.2d 702, 705 (1991); Trotman v. Mecchella, 421 Pa. Super. 620, 625, 618 A.2d 982, 985 (1992). For that reason, the court should decide the viability of a punitive damages claim under Pennsylvania law “only when no reasonable inference from the facts alleged supports a punitive award.” Anderson v. Nationwide Insurance Enterprise, 187 F. Supp.2d 447, 460 (W.D. Pa. 2002); Eagle Traffic Control v. Addco, 889 F. Supp. 200, 201 (E.D. Pa. 1995) (citing Trotman, supra).

It is apparent from the reproduced record that Whink was cognizant of hydrofluoric acid’s propensity to subtly cause catastrophic and disfiguring injuries to consumers. See DeHaan, supra; Duplin, supra. Indeed, Pennsylvania tort law is replete with instances of disastrous bums caused by contact with hydrofluoric acid. See e.g., Malitovsky v. Harshaw Chemical Co., 360 Pa. 279, 282, 61 A.2d 846, 848 (1948) (affirming verdict for plaintiff burned by hydrofluoric acid and describing that chemical as “a most dangerous substance.”); Levy v. Rosenblatt, 21 Pa. Super. 543 (1902) (upholding verdict for plaintiff who sustained “permanent wrist drop and paralysis of the wrist joint” and “bums that resulted in abscesses” from submerging opal glass eggs “into a tank containing a solution of hydrofluoric acid, consisting of 52 parts of hydrofluoric acid, 48 parts of water”). Accord Beck v. Woodward Affiliates, 226 A.D.2d 328, 330, 640 N.Y.S.2d 205, 208 (1996) (“The use of hydrofluoric acid to clean the facade of a building in a public place is an inherently dangerous activity, and it is foreseeable that pedestrians who come into contact with the exterior of a building on which this chemical has been applied or improperly removed would be injured.”). Notwithstanding that fact, Whink placed this ultra hazardous substance into the stream of consumer commerce even though, according to Dr. Brown, Whink’s mst stain remover could have functioned as effectively without hydrofluoric acid.

Other jurisdictions have recognized that Whink’s use of hydrofluoric acid in its household rust stain remover is tantamount to “willful and wanton conduct.” See e.g., DeHaan v. Whink Products Co., 1995 WL 27401, *3 (N.D. Ill. 1995) (holding that consumer had “sufficiently alleged a claim for willful and wanton conduct” based upon Whink’s “awareness that its product poses a danger or has previously caused injury coupled with a failure to act to reduce the risk...”). It is conceivable that a jury could regard Whink’s actions as willful, wanton or evincing a reckless indifference for the safety and rights of others. Since a punitive damages claim may be dismissed only if no reasonable inference from the facts alleged can support such an award, Whink’s motion to strike Glodzik’s claim for punitive damages will be denied.

ORDER

And now, April 14, 2003, upon consideration of the motion for summary judgment filed by defendant Whirik Products Co., the memoranda of law submitted by the parties, and the oral argument of counsel on April 9,2003, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that the motion for summary judgment of defendant Whink Products Co. is denied.

      . Plaintiff’s expert conducted a comparative performance-based analysis with 12 other rust stain removers which do not contain hydrofluoric acid and concluded that “there are other chemicals available to manufacturers such as Whink Product Co. which are equally effective, or even more effective, than hydrofluoric acid in rust stain removal but which do not pose the risk of injury and permanent damages inherent in the use of hydrofluoric acid.” (Id. no. 28, exhibit “B”, pp. 11-12.) Dr. Kenneth H. Brown further notes that other chemicals such as benzene and trichloroethylene with vapor exposure limits that are actually more tolerable than hydrofluoric acid have already “been banned from consumer products because they are considered too dangerous for direct consumer use.” (Id. pp. 19-20.)

      . In those instances in which state law tort claims have been found to be preempted by the FHSA, there was no dispute that the manufacturer’s warnings satisfied the FHSA’s labeling requirements. See e.g., Coffey, supra; Comeaux v. National Tea Co., 81 F.3d 42, 43 (5th Cir. 1996) (“it is undisputed that [defendant’s] lighter fluid is subject to the FHSA and that [defendant’s] warnings fully complied with the FHSA and the regulations thereunder.”); Jones Chemical Inc. v. Seier, 871 S.W.2d 611, 614 (Mo. Ct. App. 1994) (both parties agreed that defendant had complied with the labeling requirements of the FHSA).


source: Caselaw Access Project

author: DOERR, P.J.,

license: Public Domain

text:
    In re Clarke

      C.P. of Butler County,
    J.D. no. P150 of 2003.

      Gerald L. Cassady, for Commonwealth.

      Michael J. Pawk, for defendant.
    May 5, 2003
   DOERR, P.J.,

Before this court is the Commonwealth’s motion to transfer to criminal court.

BRIEF FACTUAL BACKGROUND

Cody Wayne Clarke, bom May 1,1984, is 17 years of age. On April 3, 2003, an allegation was filed with Butler County Juvenile Court Services alleging that Mr. Clarke, then 16 years of age, committed criminal acts in violation of 75 Pa.C.S. §3735, homicide by vehicle while driving under the influence (F2), 75 Pa.C.S. §3735.1, aggravated assault by vehicle while driving under the influence (F2) along with related misdemeanor and summary charges. On April 7, 2003, a delinquency petition was filed based on these allegations. The delinquency petition alleged that Mr. Clarke, on March 29,2003, was driving a 1998 Ford Expedition on SR 356, approximately 1/10 mile south of Marwood Road, Jefferson Township, Butler County, with a blood alcohol level of 0.02 percent or greater, specifically 0.097 percent. The petition further alleged that Mr. Clarke unintentionally caused the death of Jacob Lehnerd and negligently caused serious bodily injury to Tracy Lehnerd, the mother of Jacob.

On April 23,2003, the Commonwealth filed a motion to transfer to criminal court and requested that a hearing be scheduled to determine whether transfer would be appropriate. The Commonwealth also requested that the pre-adjudication hearing scheduled for April 24, 2003, be cancelled. By order of April 23,2003, this court scheduled the transfer hearing for May 2, 2003.

LEGAL STANDARD

A court may determine that transfer of the offense to criminal proceedings is appropriate where all of the following exist:

(1) The juvenile is 14 years old or older at the time of the alleged delinquent act;

(2) A hearing on whether the transfer should be made is held in conformity with this chapter;

(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian or other custodian at least three days before the hearing;

(4) The court finds:

(i) that there is a prima facie case that the child committed the delinquent act alleged;

(ii) that the delinquent act would be considered a felony if committed by an adult;

(iii) that there are reasonable grounds to believe that the public interest is served by the transfer of the case for criminal prosecution by considering all the relevant factors; and

(iv) that there are reasonable grounds to believe that the juvenile is not committable to an institution for the mentally retarded or mentally ill. See 42 Pa.C.S. §6355.

LEGAL ANALYSIS

The foundation of Pennsylvania’s Juvenile Act consists of five principles: community protection, accountability, competency development, individualization and balance. Each principle is designed to implement a balanced approach for restorative justice. Restorative justice focuses on repairing the harm done to victims and communities. Offender accountability, under a restorative justice theory, is defined in terms of assuming responsibility and acting to repair harm. “Restorative justice emphasizes the importance of elevating the role of crime victims and communities in the process of holding offenders accountable for their behavior, while offering offenders the opportunity to make amends directly to the people and community they violated.” Therefore, victim and offender restoration are viewed as goals of community justice with the intent of improving the quality of life and increased safety.

This philosophy served as the basis for Legislative Act 33 which provided for one of the most important provisions of Pennsylvania’s Juvenile Code and is considered to have redefined the mission of Pennsylvania’s juvenile justice system:

“Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community.” 42 Pa.C.S. §6301(b)(2).

This provision demonstrates the juvenile justice system’s realization that equal attention to the offender, victim and community is essential for goal achievement, unlike that of a retributive justice system where the crime is treated as against the government, punishment is imposed and the victim has a passive voice. Equal attention to those involved is necessary because of the group of individuals directly affected by these laws, the children.

Children and adults differ significantly in many ways. The line between childhood and adulthood is not one that can be measured by an objective standard as every individual reaches a level of maturity and responsibility at a different time. Responsibility cannot be defined by life events, such as having passed a driver’s test or graduating from high school. Responsibility in terms of wrongdoing means “that juveniles know right from wrong, have developed a social conscience, feel guilt or remorse for their actions, are mentally aware enough to know the rules, do not have any disease that reduces their ability to get along in society, fully understand that their actions are harming others and are emotionally mature.”

Laws, such as Pennsylvania’s Juvenile Justice Act, that are rooted in an understanding of the importance of maturity and responsibility, provide the necessary means for determining whether a child who committed a delinquent act should be treated in the juvenile system or subjected to criminal prosecution as an adult. The Juvenile Act makes it clear that the preference is to treat the juvenile delinquent whenever possible in accordance with procedures specifically designed for the juvenile offender. Commonwealth v. Greiner, 479 Pa. 364, 370, 388 A.2d 698, 701 (1978). The Juvenile Act then creates a presumption that the errant juvenile can best be supervised, directed and rehabilitated under its provisions absent evidence to the contrary. Id.

With the above principles in mind, this court now considers the applicable law and circumstances of this matter. Two phases exist in a transfer hearing: the prima facie phase and the public interest stage. During the transfer hearing, this court ruled that a prima facie case was established. This court noted that Mr. Clarke was over the age of 14 at the time of the alleged conduct. Furthermore, this court found, based on the testimony presented, that sufficient evidence was presented to establish that on March 29, 2003, Mr. Clarke operated a 1998 Ford Expedition while under the influence of alcohol, with a blood alcohol content of 0.02 percent or greater, that is, 0.097 percent. This court further found that sufficient evidence was presented establishing that Mr. Clarke’s vehicle collided with the vehicle driven by Tracy Lehnerd and that the collision caused injury to Tracy Lehnerd and the death of Jacob. In addition, this court notes that the parties stipulated to the fact that Jacob Lehnerd’s death resulted from injuries incurred from the collision.

During the transfer hearing, this court also found that the delinquent acts committed by Mr. Clarke would be considered a felony if committed by an adult. Mr. Clarke was alleged to have committed delinquent acts in violation of 75 Pa.C.S. §3735, homicide by vehicle while driving under the influence (F2), 75 Pa.C.S. §3735.1, aggravated assault by vehicle while driving under the influence (F2) along with related misdemeanor and summary charges. Based on the nature of the delinquent acts and applicable law, it is clear that the delinquent acts would be considered a felony if committed by an adult.

Because a prima facie case was established during the hearing, this court must now determine whether reasonable grounds exist for this court to find that transfer of the case serves the public interest. This court is to consider the following factors when determining whether the public interest can be served:

(A) the impact of the offense on the victim or victims;

(B) the impact of the offense on the community;

(C) the threat to the safety of the public or any individual posed by the child;

(D) the nature and circumstances of the offense allegedly committed by the child;

(E) the degree of the child’s culpability;

(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and

(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:

(i) age;

(ii) mental capacity;

(iii) maturity;

(iv) the degree of criminal sophistication exhibited by the child;

(v) previous records, if any;

(vi) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;

(vii) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;

(viii) probation or institutional reports, if any;

(ix) any other relevant factors.

The Commonwealth bears the burden of establishing by a preponderance of the evidence that the public interest is served by the transfer of the case to criminal court and that the juvenile is not amenable to treatment, rehabilitation and supervision in the juvenile system unless:

(1) a deadly weapon as defined in 18 Pa.C.S. §2301 was used and the child was 14 years of age at the time of the offense; or the child was 15 years of age or older at the time of the offense and was previously adjudicated delinquent of a crime that would be considered a felony if committed by an adult; and

(2) there is a prima facie case that the child committed a delinquent act that, if committed by an adult, would be classified as a rape, involuntary deviate sexual intercourse, aggravated assault as defined in 18 Pa.C.S. §2702(a)(1) or (2) (relating to aggravated assault), robbery as defined in 18 Pa.C.S. §3701(a)(l)(i), (ii) or (iii) (relating to robbery), robbery of motor vehicle, aggravated indecent assault, kidnapping, voluntary manslaughter, an attempt, conspiracy or solicitation to commit any of these crimes or an attempt to commit murder as specified in paragraph (2)(ii) of the definition of “delinquent act” in 42 Pa.C.S. §6302.

If the preceding criteria are met, then the burden should rest with the juvenile. See 42 Pa.C.S. §6355(g).

First, this court addresses whether the Commonwealth has the burden in this matter. While Mr. Clarke was 16 years old at the time of the offense, he has never been previously adjudicated delinquent of a felony crime nor was a deadly weapon used, as defined in 18 Pa.C.S, §2301. The Commonwealth argues that it does not have the burden, in this phase of the proceeding, because Mr. Clarke used a deadly weapon, his vehicle, when committing the delinquent act. 18 Pa.C.S. §2301 defines a deadly weapon as:

“Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.”

Based on a review of the applicable law and facts, this court finds no merit in the Commonwealth’s argument. As to subpart two, the delinquent acts allegedly committed by Mr. Clarke are not set forth. Accordingly, this court finds that the Commonwealth bears the burden of proving that transfer of this case to criminal court is warranted. However, this court finds that even if the burden was placed on Mr. Clarke, this court would not be convinced that transfer for criminal prosecution is justified. As discussed below, this court finds that it does not have reasonable grounds to believe that transfer of this case for criminal prosecution serves the public interest.

First, this court considers the impact of the offense on the victim or victims as well as the impact of the offense on the community. It is without question that the loss of a life, especially that of a child’s, has a very great impact on the child’s family as well as the community. The lives of the Lehnerd family have been changed forever. Jacob’s life can never be replaced. Tracy Lehnerd’s life will never be the same, not only because of the death of her child but by her own injuries and involvement. The emotion present in the courtroom is indicative of this impact and of how this tragic incident greatly affected many people, including Cody Wayne Clarke.

This court takes notice of the letters to the editor and cards and letters received by the Clarke family as symbolic of the interest the community has taken in this matter. This court noted during the hearing that these letters would be admissible for that limited purpose and that this court would not consider the content of these letters when making its decision.

While this court recognizes the importance of these two factors, the emotional impact on the parties and community are not the controlling factors in this analysis. This court emphasizes that these two factors are only two amongst seven, all of which must be considered equally.

Next, this court focuses on the threat to the safety of the public or any individual posed by Cody Clarke. Based on the testimony presented, this court finds that Mr. Clarke is not a threat to public safety or any individual. Testimony was presented by various individuals regarding Mr. Clarke’s character and past history. Lou Ann Byrnes, guidance counselor at Knoch High School, and two teachers, Leslie Shoop and Brad Phlugh, all testified that Mr. Clarke is a hard working, respectful and quiet student with no discipline problems. In fact, Mr. Phlugh testified that he often sent Mr. Clarke on class errands.

Kathy Hoffmeister, intake supervisor for Butler County Juvenile Services, testified that Mr. Clarke has a low degree of criminal sophistication. Ms. Hoffmeister testified that Mr. Clarke was previously involved in only a minor school incident, possession of tobacco, for which he was suspended for three days. She further stated that Mr. Clarke does not have a history of discipline problems at school and has had no previous delinquent acts. Ms. Hoffmeister testified that Mr. Clarke’s actions were not intentional, and that Mr. Clarke has been cooperative with authorities throughout the investigation.

Dr. Alan Pass testified as an expert witness in this matter. Dr. Pass testified that Mr. Clarke comes from an intact, supportive family. Mr. Clarke does not have a history of emotional or health problems. Dr. Pass found no dependency usage patterns or drug use or experimentation. Dr. Pass also testified that Mr. Clarke has accepted responsibility for his reckless actions and has not displaced responsibility in any manner. Furthermore, Dr. Pass stated that Mr. Clarke has shown great remorse. Dr. Pass concluded that Mr. Clarke is a low risk to the community for re-offending.

This court finds Dr. Pass to be a very credible witness and places great weight on Dr. Pass’ conclusion that Mr. Clarke is a low risk to the community.

This court now considers the nature and circumstances of the offense allegedly committed by Cody Clarke and the degree of his culpability. This court hereby incorporates its above discussion regarding the nature and circumstances of the offenses. Driving under the influence of alcohol, homicide by vehicle and aggravated assault by vehicle are serious offenses. In determining whether to order a juvenile to be tried as an adult, the court may not justify the transfer based solely on the nature of the crime charged and nothing else. Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978). This court notes the importance of the nature of the charges in this matter. Specifically, that Mr. Clarke was not charged with committing acts of specific intent but rather, acts of recklessness. As previously stated, this court finds that a prima facie case has been established and that the evidence presented is sufficient to establish that the juvenile is culpable of the named offenses.

Next, this court considers the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system. Adult institutions differ significantly from juvenile facilities. Overcrowding, violence, exploitative relationships and exposure to drugs and disease are prevalent in adult institutions. Studies have found that youths imprisoned in adult institutions are five times more likely to be sexually assaulted, twice as likely to be beaten by staff, and 50 percent more likely to be attacked with a weapon than those youths in a juvenile facility. Efficient and effective treatment programs are almost nonexistent. In juvenile facilities, hard-core offenders are not present to corrupt younger offenders. Furthermore, because of the absence of hard-core offenders, juvenile facilities are able to focus on treatment on more amenable youths.

Michael Weaver, of SCI Pinegrove, testified that juveniles between the ages of 15 and 18, who are transferred to the criminal system and sentenced, are housed at SCI Pinegrove until the age of 22. Mr. Weaver testified that SCI Pinegrove has a drug and alcohol program consisting of three tracts, a GED program and college or vocational courses. Under the three-tract program, tract one consists of drug and alcohol education and awareness. Tracts two and three provide more intensive treatment. Mr. Weaver also testified that the drug and alcohol program cannot be measured as to recidivism because the program has not been in place long enough. Mr. Weaver also testified that no purpose exists to place a juvenile without an alcohol or substance problem in tracts two and three of the program. Although this court commends the Commonwealth for the development of SCI Pinegrove, it notes that placement in that facility is beyond the control of this court. While the present policy of the Bureau of Corrections may favor such a placement, future funding and prison population growth may not permit it.

In addition to Mr. Weaver’s testimony, Ms. Hoffmeister testified as to potential placement with four programs. Dr. Pass suggested intensive counseling and random substance testing and education. Under the juvenile system, various adequate alternatives exist, including placement in a juvenile facility, treatment for drug and alcohol abuse and counseling. In the juvenile system, the duration of these alternatives could last for four years, until Mr. Clarke reaches the age of 21. Under the adult criminal justice system, if sentenced, Mr. Clarke would serve a minimum mandatory sentence of three to six years in prison. Therefore, Mr. Clarke’s imprisonment in a state facility could last for a lesser amount of time than if he was placed in a juvenile facility. Furthermore, if sentenced as an adult, Mr. Clarke would most likely not receive adequate treatment in the state facility, which would be extremely detrimental when considering he is only 17 years old. A CECP study, analyzing recidivism rates of juveniles prosecuted in Florida criminal courts, found that youths, prosecuted as adults, are more likely to commit additional crimes and more serious offenses upon release than those individuals who remained in the juvenile system.

Finally, this court considers whether Cody Clarke is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:

(i) age;

(ii) mental capacity;

(iii) maturity;

(iv) the degree of criminal sophistication exhibited by the child; previous records, if any;

(v) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;

(vi) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;

(vii) probation or institutional reports, if any;

(viii) any other relevant factors.

Based on the testimony presented, this court makes the following findings: Mr. Clarke is 17 years old. He is of average mental capacity and maturity and possesses a very low degree of criminal sophistication. He does not have prior record or delinquent history.

Dr. Pass, Ms. Hoffmeister and Ms. Josie Morgaño of Pyramid, all testified that Mr. Clarke is amenable to treatment. Therefore, based on the above factors and opinions presented, this court finds that Mr. Clarke can be adequately rehabilitated prior to the expiration of the juvenile court’s jurisdiction.

The last issue for this court to consider is whether reasonable grounds exist to believe that the juvenile is not committable to an institution for the mentally retarded or mentally ill. Based on the above discussion, this court finds that no reasonable grounds exist to determine that Mr. Clarke is committable to an institution for the mentally retarded or mentally ill.

CONCLUSION

Mr. Clarke is considered a juvenile under the legal system, meaning that specific legal principles and standards are applicable in this matter. The Juvenile Act emphasizes a balanced approach to resolution, accomplishing a result that will best serve the offender, victim and community. Mr. Clarke is a 16-year-old youth who made a poor decision which resulted in a horrible tragedy. He is a good student, an athlete and he does not have a prior record. Not only will Mr. Clarke benefit from receiving treatment, but the community will also benefit because someday, Mr. Clarke will be released back into the community and he will be expected to serve as a responsible and productive member of it.

In each of our lives there sometimes occur events that are tragic, and seemingly unforgivable. The loss of a young life is, perhaps, the most difficult experience anyone can imagine. This is more so when that loss is caused by the behavior of the young, the inexperienced, and the reckless. Moral outrage causes us to cry out for a punishment that satisfies the moment, and which hopefully satisfies our anger at our loss. However, it is that same sense of morality and character that demands a dispositional determination that both befit the unconscionable behavior of this young man and the requirements of the law. The guiding tenet of our judicial process requires that we respond today in a manner that, while it may not seem fair or satisfactory to some, fulfills the mandate of justice. While the pain of a child’s death makes us cry out for retribution, the right decision, the just decision, leads us down a path where appropriate sanctions can and will be meted out and accountability will be required.

Based on the evidence presented, this court finds that the Commonwealth has failed to meet its burden that this case should be transferred to criminal court. Accordingly, the Commonwealth’s motion is denied. This case is to remain in Juvenile Division of the Court of Common Pleas of Butler County.

ORDER

And now, May 5, 2003, upon consideration of the Commonwealth’s motion to transfer to criminal court, it is hereby ordered, adjudged and decreed that said motion is denied. This case is to remain in Juvenile Division of the Court of Common Pleas of Butler County. A pre-adjudication conference is scheduled for May 16, 2003, in courtroom no. 1 of the Butler County Courthouse at 2 p.m.

It is further ordered that pursuant to title 42 section 6307(7) that this memorandum opinion and order are open to inspection by the public.

      . James Anderson & Susan Blackburn, Pennsylvania Juvenile Justice: A Commitment to Community Protection, Victim Restoration & Youth Redemption, NJCSA Rapport, no. 2 at 1-2 (2003).

      . Balanced and Restorative Justice in Pennsylvania: A New Mission and Changing Roles within the Juvenile Justice System, Report of Juvenile Court Judges’ Commission (March 1997).

      . Id. at 3.

      . Guide for Implementing the Balanced and Restorative Justice Model, Report of Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice at 53 (December 1998).

      . Id. at iii.

      . Anderson, supra, note 1.

      . Clemens Bartollas & Stuart J. Miller. Juvenile Justice in America 116 (1994).

      . Id. at 117.

      . Bartollas, supra, note 7 at 125.

      . Juvenile Justice Reform Initiatives in the States, 1994-1996, {HYPERLINK http://ojjdp.ncjrs.org} at 12.

      . Bartollas, supra, note 7 at 125.

      . Id. at 127.

      . Id.

      . Juvenile Justice Reform Initiatives in the States, supra, note 10 at 4.


author: MOTTO, J.,

text:
    Commonwealth v. Sullivan

      C.P. of Lawrence County,
    nos. 498 of 2002 CR, 742 of 2002 CR, 553 of 2002 CR, 626 of 2002 CR and 628 of 2002 CR.

      Karen White, for Commonwealth.

      Stephen Delpero, for defendant Wright.

      Nick A. Turco Jr., for defendants Sullivan, Austin and Moss.

      Norman A. Levine, for defendant King.
    February 14, 2003
   MOTTO, J.,

The above captioned defendants each have pending before the court motions challenging the constitutionality of the statute under which they are charged, criminal use of a communications facility (18 Pa.C.S. §7512), and the sufficiency of the evidence relating to each charge. All defendants have agreed to have hearing on their pending motions consolidated with a joint non-jury trial, held on stipulation of evidence, with the court to decide the motions and enter verdicts as appropriate.

Those stipulations are as follows:

(1) Telephone conversations were intercepted and recorded by the authorities.

(2) The other speaker in all of these conversations was James Johnson and the said James Johnson was selling illegal substances during the time in question.

(3) Identification of all of the defendants’ voices and of all other voices recorded would be established by the Commonwealth’s testimony.

(4) The Commonwealth’s expert in the field of narcotics would testify in the manner set forth in the written stipulated testimony entered of record as exhibits.

(5) The crime lab report submitted regarding Anthony Moss would have been the only crime lab reports that would have been submitted at trial, and the various police reports submitted would be the substance of the testimony against defendant Moss.

(6) That each submitted packet of stipulated evidence shall be evaluated independent of all other defendants.

(7) That this court will, after examination of facts and law, issue a verdict by order of court.

All of the defendants contest the sufficiency of the stipulated evidence and the constitutionality of the statute defining the charge of criminal use of a communication facility as a deprivation of due process.

The constitutional argument advanced in that the statute, criminal use of a communications facility, 18 Pa.C.S. §7512, violates due process in that it “is vague and fails to give fair warning as to what acts are prohibited.” Robert Sullivan’s brief in support of motion for judgment of acquittal, p. 3. Anthony Moss’s brief in support of motion for judgment of acquittal, p. 3. Dana Austin’s brief in support of motion for judgment of acquittal, p. 3. Subsection (a) (the substantive offense portion of the statute) reads as follows:

“(a) Offense defined. — A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the Act of April 14,1972 (RL. 233, no. 64), known as The Controlled Substance, Drug Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.”

In subsection (c) a “communication facility” is defined as a “public or private instrumentality used or useful in the transmission of signs, signals, writings, image, sounds data or intelligence” including but not limited to “telephone, wire, radio, electromagnetic, photo-electronic or photo-optical systems or the mail.” Criminal legislation must lay down a reasonably ascertainable and definite standard of guilt. A criminal statute must be definite to be valid, and a statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. A criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute, or that is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for vagueness. Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). A lack of fair warning in the criminal statute of what conduct is prohibited will offend due process. United States v. Lanni, 335 F. Supp. 1060 (E.D. Pa. 1971), aff’d, 466 F.2d 1102 (3d Cir. 1972). However, there is no constitutional requirement that the statute proscribing the criminal conduct delineate what evidence is required to establish a violation of the statute in order to satisfy the due process requirement of specificity. United States v. Moses, 360 F. Supp. 301 (W.D. Pa. 1973). The constitutionality of 18 Pa.C.S. §7512 has not been passed upon by any reported decision of any court of this Commonwealth that the research of the court and counsel can disclose. However, the Commonwealth has directed the court to a federal statute, which is somewhat similar to the statute in question, which has been challenged on the basis of its constitutionality. The federal statute, 21 U.S.C. §843(b) provides as follows:

“It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this title or title III. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term communication facility means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.”

In U.S. v. Rogers, 755 F.2d 533 (7th Cir. 1985), the 7th Circuit Court of Appeals held that the foregoing statute was not unconstitutionally vague.

In Rogers, the defendant was found guilty of the aforementioned statute where defendant caused another, his co-conspirator, to place a telephone call to the Bahamas in order to arrange an illegal drug transaction. The defendant attacked the constitutionality of the statute on the basis that it was overly broad and vague. The court denied both of the defendant’s constitutional claims, but the court here will discuss the holding in Rogers only with respect to the vagueness claim, as the defendants here have not raised the claim that the statute is overly broad. In response to the void-for-vagueness argument, the Rogers court said the following at 755 F.2d at 11,12:
“[14] [15] Defendant also attacks section 843(b) as void-for-vagueness both on its face and as applied. In particular, he urges that the statute is vague both as to the means by which the crime of using a communication facility is established, [fnlO] and as to the intent necessary to prove a violation. The void-for-vagueness doctrine ‘requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited [and] in a manner that does not encourage arbitrary and discriminatory *544 enforcement.’ Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). As with overbreadth, a party seeking to overturn a statute for vagueness on its face must in essence establish that it is constitutionally vague in at least a substantial number of the cases to which it could apply. See Levas & Levas v. Village of Antioch, 684 F.2d 446, 451 (7th Cir. 1982) (‘a finding of unconstitutional vagueness cannot be based on uncertainty at the margins, or on a parade of bizarre hypothetical cases: problems of that order can be resolved in challenges to the ordinance as applied.’) See also, Kolender v. Lawson, 103 S.Ct. at 1859 n.8; Village of Hoffman Estates, 455 U.S. at 494-95 102 S.Ct. at 1191-92. Furthermore, it is a commonplace that “a sci-enter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Village of Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193. See also, United States v. Bohonus, 628 F.2d 1167, 1173-75 (9th Cir.) (rejecting vagueness challenge to mail fraud statute), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980).
“[16] To state the governing law on this issue is to reject the defendant’s vagueness attack on section 843(b). That statute is simply not so vague as to create a meaningful danger of arbitrary law enforcement, and any problems with the notice it provides (which we think are in any event minimal) are alleviated by the intent requirement. Section 843(b) is no more, and possibly less, vague than other broadly phrased federal criminal statutes that we have consistently upheld over vagueness and over-breadth challenges. See e.g., United States v. Feinberg, 535 F.2d 1004, 1010 (7th Cir.) (mail fraud statute), cert. denied, 429 U.S. 929, 97 S.Ct. 327, 50 L.Ed.2d 300 (1976); United States v. Dellinger, 472 F.2d 340, 354-64 (7th Cir. 1972) (Anti-Riot Act), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); United States v. Cerone, 452 F.2d 274,286 (7th Cir. 1971) (Travel Act). We reach the same conclusion here.”

Here, the Pennsylvania counterpart of the federal statute sets forth in clear and straightforward language that using a telephone to cause, facilitate, or otherwise aid in the commission, or the attempted commission, of a felony is a criminal offense. Also, any concern that the statute could be interpreted to include use of a telephone or other communication facility that had the unanticipated consequence of facilitating the commission or attempted commission of a felony is relieved by the court in grafting thereon a scienter requirement as did the court in Rogers, whereby, in order for a conviction to stand, the defendant must be found to have intentionally or knowingly caused or facilitated the commission of the felony or the attempt to commit the felony through the use of the telephone. Defendants Sullivan, Moss and Austin argue that because an overt act is a required element for conspiracy under 18 Pa.C.S. §903, then an overt act should also be imposed as an element of this offense. However, that argument must fail because the statute in question does not criminalize use of a communication facility to engage in a conspiracy. The requirement of an overt act is a statutory element of the crime of criminal conspiracy created by the statute defining that crime, 18 Pa.C.S. §903(a)(e). The requirement of an overt act not contained in the statutory definition of criminal use of a communication facility and there is no reason to impose one, either for reasons of constitutional law or otherwise. The only question is whether the statute defines the crime in clear and unambiguous terms. Here, the court finds the statute to be clear in that one cannot use a telephone, or other communications facility, to commit, cause or facilitate the commission of a felony or the attempt to commit a felony. Since the statute includes the language “or attempt thereof’ proof of the commission of the underlying felony is unnecessary, and to cause or facilitate the attempt to commit a felony will meet the statutory requirements.

A strong presumption exists that duly enacted laws are constitutional and it is for the party advocating unconstitutionality to overcome the burden. Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217 (2000); Commonwealth v. Murray, 749 A.2d 513 (Pa. Super. 2000); Commonwealth v. Brown, 741 A.2d 726 (Pa. Super. 1999). Here, defendants have failed to show the statute in question to be unconstitutional.

Each defendant has challenged the sufficiency of the evidence made by specific defendants. We will address them individually. However, the court delineates the elements of the offense as follows:

(1) Use of a communication facility, here the telephone.

(2) The purpose of such use being to commit, cause or facilitate the commission of, or the attempt to commit, a crime constituting a felony, the felony here being delivery of a controlled substance.

(3) That the defendants acted intentionally or knowingly in using the telephone for such prohibited purpose.

As to each count of criminal use of a communication facility against each defendant, each such count will be evaluated by the court as to the sufficiency of evidence utilizing the habeas corpus standard requiring the Commonwealth to produce sufficient evidence to constitute a prima facie case. Such standard shall be applied with regard to each motion filed by each defendant, regardless of how styled, that challenges the sufficiency of the evidence. However, since the motions challenging the sufficiency of evidence have been consolidated with the actual trial, when deliberating on a verdict, the court will apply the higher standard of proof beyond a reasonable doubt in arriving at a verdict. Therefore, the court notes that it is entirely conceivable that the court may find that sufficient evidence has been produced for purposes of sufficiency of the evidence, but in rendering a verdict, the court may nevertheless conclude that the Commonwealth has not met its burden of proof when held to the beyond-a-reasonable-doubt standard, in which case, the court would render a verdict of not guilty.

Furthermore, the court notes that as to each count, the stipulations that have been previously mentioned apply in that James Johnson, the other speaker with whom the defendant spoke in each recorded conversation, sold illegal substances in and around the City of New Castle during the time frame when each telephone call was intercepted and that the identification of the voices on the recorded conversations are established by way of the stipulations regarding the testimony of Agent Shaffer and Agent Bouye.

Furthermore, as to each offense, sufficient evidence will be found to exist if the proof amounts to proof sufficient to satisfy the elements of the underlying inchoate crime of attempt to deliver a controlled substance, in accordance with the construction adopted in the United States v. Pierorazio, 578 F.2d 48 (3d Cir. 1978), which specifically held that 21 U.S.C. §843(b) makes it a crime to use the telephone to attempt to possess a controlled substance with intent to distribute it as the attempt to commit such inchoate crime constituted a felony. Here, such construction is even more compelling, as the federal statute did not utilize the term “attempt” and here the statute in question specifically includes utilizing the communication facility in an attempt, including to cause or facilitate the attempt to commit, of a crime constituting a felony. In short, utilizing a telephone in order to assist or arrange for a drug sale to take place would constitute utilizing the telephone to cause or facilitate the attempted commission of the crime of delivery of a controlled substance, which finding would meet the requirement of the statute. All that is required to prove criminal attempt in violation of 18 Pa.C.S. §901 is proof that the actor, with intent to commit a specific crime, does any act which constitutes a substantial step towards the commission of that crime. Case law has made it clear that section 901 of the Crimes Code applies to attempted violations of the Controlled Substance, Drug Device and Cosmetic Act, 35 Pa.C.S. §780-101 et seq. See Commonwealth v. Mills, 329 Pa. Super. 196, 478 A.2d 30 (1984); Commonwealth v. Cunningham, 248 Pa. Super. 219, 375 A.2d 66 (1977).

THERESA WRIGHT

The defendant, Theresa Wright, is charged with two counts of criminal use of a communication facility. Count 1 is based on a telephone call Wright made to Johnson on October 12, 2001. Count 2 is based upon a telephone conversation that took place between Wright and Johnson on October 13, 2001.

In the telephone conversation of October 12, 2001, Johnson asked Wright if she had spoken with an unidentified individual and then inquires, “What she say? . . . same weight?” Wright replied, “Yea” and Johnson ended the call by saying, “Alright.” The stipulation provides that Agent Shaffer, Sergeant Bouye, and/or an expert would testify that this conversation consisted of Johnson asking Wright if the unknown individual wanted to purchase the same amount of drugs, indicating that Wright had set up a purchase between Johnson and this unknown individual before.

In the telephone conversation of October 13, 2001, Wright stated to Johnson, “You already got people, already deal with” and asked “Is it worth it, a, a eight ball, once a year?” Johnson replied, “That’s the first time I ever.” Wright also stated, “And Macri come up there and get him. Across the street, everybody talkin’ about well how Macri know where he was.” The stipulation provides that Agent Shaffer, Sergeant Bouye, and/or an expert would testify that this conversation consisted of Wright telling Johnson that he should be more selective about to whom he sells illegal drugs. Wright further warned Johnson that Lieutenant Macri of the New Castle Police Department was in the area where Johnson had been selling drugs. The court concludes that considering the content of the conversation and accepting at this juncture the conclusions contained in the expert testimony, the defendant in each of these cases was facilitating the attempted commission of the offense of delivery of a controlled substance. Under the construction of the act above explained, it is not necessary to show that an actual delivery did take place, only that the defendant’s purpose in utilizing the telephone was to facilitate the attempted commission of that felony, i.e., delivery of a controlled substance. In the conversation of October 12, 2001 it is apparent that Wright has arranged a drag deal for Johnson to consummate. In the conversation of October 13, 2001, defendant and Johnson discuss certain individuals who had been recently sold drags by Johnson and Wright gives Johnson additional information about the presence of Lieutenant Macri and information regarding to whom Johnson should be selling drags to, in order to facilitate Johnson’s attempts at further drag deliveries.

ROBERT SULLIVAN

The defendant, Robert Sullivan, is charged with two counts of criminal use of a communication facility based upon two separate telephone conversations, one occurring on October 12, 2001 and the other on October 13, 2001. Each telephone conversation forms the basis for each separate count.

Relative to Count 1, on October 12, 2001, Sullivan telephoned Johnson and stated, “I need one of them when you get a chance” and Johnson replied, “Alright, I’ll hit youns up.” It is stipulated that Agent Shaffer, Sergeant Bouye and/or an expert would testify that this conversation consists of an inquiry by Sullivan about purchasing drags from Johnson and a confirmation from Johnson that he will get in contact with Sullivan when he has drags available for purchase. This inference is further buttressed by the second telephone conversation that took place on October 13,2001 and forms the basis for Count 2.

Relative to Count 2, during the second conversation that occurred on October 13, 2001, Sullivan called Johnson and stated he wants an “eight for me” and repeated himself by stating an “eight ball.” Johnson replied by stating, “Ah, alright. You at home?” Sullivan answered, “Yes,” and Johnson stated, “Alright. In a minute.” The stipulation of facts provides that Agent Shaffer, Sergeant Bouye and/or an expert would testify that this conversation consists of Sullivan asking to purchase cocaine in the amount of 1/8 ounce from Johnson, and Johnson informing Sullivan that he would come to his home in a minute.

Additionally, and in support of the inference referred to in Count 1, Sullivan also inquired in this conversation where Johnson has been and why he had not gotten in touch with him, followed then by the conversation where Johnson requested what Sullivan wanted. Tying the content of these two conversations together, a permissible inference is that when Johnson states on October 12,2001 that “I need one of them,” he is clearly referring to his desire to purchase drugs.

The surveillance further reveals that surveillance was conducted after the phone call and Johnson was seen entering Sullivan’s home a short period after the phone call and leaving within a few minutes, which is consistent with the type of activity that would be consistent with someone delivering illegal drugs.

The stipulated evidence supports the conclusion that on October 12, 2001 and on October 13, 2001, Sullivan telephoned Johnson to cause or facilitate the attempted unlawful delivery of a controlled substance from Johnson to sell them.

DANA AUSTIN

The defendant, Dana Austin, is charged with four counts of criminal use of a communication facility. Count 1 is based upon a telephone conversation between defendant Austin and Johnson on October 11,2001 at 15:48; Count 2 is based upon a second telephone conversation that occurred on October 11, 2001 at 17:45. On October 23, 2001 at 16:07, Johnson telephoned Austin and left a message on Austin’s answering machine. Count 3 relates to a telephone conversation between defendant Austin and Johnson on October 23, 2001 at 17:48. Count 4 relates to a telephone conversation occurring between defendant Austin and Johnson on October 24,2001 at 16:25. The common thread between all the telephone conversations is that defendant Austin and Johnson are discussing Austin supplying Johnson with money so that Johnson can make a purchase of drugs from “Big Lee” from New York and to thereby provide the illegal drugs to defendant Austin.

In the first phone call, defendant Austin telephones Johnson to inform him that a woman friend had stolen money from his truck. Johnson replies that he “needed that change.” Defendant Austin assures Johnson that as soon as he can obtain the money, he will bring it to Johnson. When one considers all of the intercepted conversations together, it is clear that Johnson wants Austin’s money in order to purchase illegal narcotics. Johnson made a phone call on October 16, 2001 to “Big Lee” in the Bronx, New York to arrange for a purchase of narcotics from “Big Lee”.

The second telephone conversation occurring approximately two hours later on October 11,2001 is a follow-up call by Johnson to confirm when defendant Austin is going to “get straight” meaning get the money that Austin owes to Johnson. The third conversation, which occurred on October 23, 2001 at 16:07 is a call where Johnson calls defendant Austin and leaves a message inquiring, “Did you get that yet?”

In the fourth telephone conversation, defendant Austin calls Johnson and inquires about “getting some now.” Johnson responds, “I’ll have somethin’ for ya.”

In the final phone call occurring on October 24, 2001 at 16:25, Johnson states to defendant Austin “What’s up?” Austin responds, “Check you out later” and “For sure I’m grab some soft last night” and repeats, “I grabbed some soft last night.” “Soft” is a street term for powdered cocaine. Austin further states that he was able to get the “soft” “a little quicker than the hard.” “Hard” is a street term of crack cocaine. Defendant Austin is telling Johnson that he was able to obtain powdered cocaine the night before and once he sells it, Austin will be able to provide Johnson the money that he owes him. Thus, defendant Austin was able to obtain illegal drugs from an alternative source thereby enabling Austin to sell those drugs to have the money for Johnson after the sale of those illegal substances.

Taking all of the facts contained in the stipulation together allows the inference that Johnson is engaging in the illegal trafficking of controlled substances and that defendant Austin is facilitating the attempts to acquire illegal contraband by Johnson by providing Johnson to provide the funds to do so. In exchange, defendant Austin desires to obtain some of the illegal substances from Johnson for Austin’s own purposes. The purpose of all of these telephone conversations, which are the subject of the various counts, is Austin’s attempt to facilitate the illegal delivery of drugs to Johnson by defendant Austin providing money to Johnson for that purpose. The use of the telephone in each instance to facilitate the attempt to acquire the illegal drag activity brings defendant Austin’s conduct within the provisions of criminal use of a communications facility.

ANTHONY MOSS

The defendant, Anthony Moss, is charged with seven separate counts of criminal use of a communications facility, specifically Count 1, Count 2, Count 6, Count 7, Count 8, Count 11 and Count 12. Counts 1,2, 6,7 and 8 all relate to conversations between a confidential informant and the defendant Moss to arrange for the sale and delivery of illegal controlled substances from Moss to the confidential informant, which did in fact occur. The only conclusion that can be reached from the stipulation is that the telephone was used to make the arrangements for the controlled buys that subsequently did occur between the confidential informant and the defendant. There is nothing ambiguous in the content of those telephone conversations and each conversation is summarized in the police reports pertaining to the proceedings against the defendant Moss. Counts 12 and 13 deal respectively with telephone conversations that occurred on October 14, 2001 and October 26, 2001. In the telephone call of October 14,2001, Defendant called Johnson and inquired of whether or not Johnson had any illegal drugs to sell by asking, “What can you do for me?” Johnson’s reply is “Tomorrow.” In the second telephone call, Moss inquires, “Ain’t nothing jumpin’?” to which Johnson replies negatively. Moss then states, “Goddamn body, whatcha doin’ ?” to which Johnson replies that he is “just waiting around.” Expert testimony provides the explanation that the short vague nature of the conversation shows that Moss and Johnson deal with each other on a regular basis in the purchase by Moss of illegal drugs from Johnson and that Johnson is familiar with what Moss wants and the price. In addition, in the second conversation, the expert testimony opines that defendant Moss wants to buy illegal drugs and Johnson does not have any to sell but is waiting on a new shipment, which is confirmed by another telephone conversation between Johnson and “Big Lee” which indicates that “Big Lee” will be bringing a shipment of illegal drugs down to Johnson.

In both conversations, defendant Moss telephoned Johnson to facilitate the attempted sale of illegal drugs from Johnson to Moss. The use of the telephone for this purpose is within the prohibition of criminal use of a communications facility.

SCOTT KING

The defendant, Scott King, is charged with two counts of criminal use of a communications facility, Count 1 relating to a telephone conversation of October 12,2001, and Count 2 relating to a telephone conversation of October 25, 2001.

The substance of both telephone conversations is the inquiry by defendant King of Johnson about purchasing illegal drugs from Johnson.

In the first telephone call, defendant King states, “Hey, anything?” to which Johnson replies, “I’m coming through shortly” and “One’s a hizzie. I only got hard.” The term “hard” is a street term for crack cocaine. The term “hizzie” is a street term for one-half ounce of crack cocaine. King then states that he would like some and states, “Do me half that” meaning that King desires to purchase one-quarter ounce of crack cocaine.

In the second telephone call, defendant King again inquires about purchasing illegal drugs to which Johnson replies, “Ain’t nothin’ happenin’ right now?” but that he will “hit” King up. This means that Johnson does not have illegal drugs in his possession for sale at the time but he will contact defendant King when he acquires any illegal drugs to sell. The expert testimony illustrates that individuals who deal with one another in an effort to purchase and sell illegal drugs speak in short, vague terms and each party understands what the conversations are referring to without being specific in a language.

In each instance, the evidence allows the inference that defendant King contacted Johnson on each occasion to discuss the illegal sale of controlled substances from Johnson to defendant King. These conversations constitute facilitating the attempted illegal delivery of controlled substances.

CONCLUSION

For the reasons above set forth, the court having concluded that the statute in question, criminal use of a communications facility, is constitutional and that the stipulated evidence is sufficient to support each count charging a violation of criminal use of a communications facility against each defendant, the court will issue a separate order which will deny all pending motions of the defendants challenging the constitutionality of the statute and the sufficiency of the evidence relative thereto.

ORDER

And now, February 14, 2003, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s [Robert John Sullivan] amended motion for writ of habeas corpus and the defendant’s motion for judgment of acquittal and specifically defendant’s challenge to the constitutionality of the statute, criminal use of a communications facility and the sufficiency of the evidence relative thereto are each denied.

ORDER

And now, February 14, 2003, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s [Dana Q. Austin] amended motion for writ of habeas corpus and the defendant’s motion for judgment of acquittal and specifically defendant’s challenge to the constitutionality of the statute, criminal use of a communications facility and the sufficiency of the evidence relative thereto are each denied.

ORDER

And now, February 14, 2003, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s [Anthony Moss Sr.] amended motion for writ of habeas corpus and the defendant’s motion for judgment of acquittal and specifically defendant’s challenge to the constitutionality of the statute, criminal use of a communications facility and the sufficiency of the evidence relative thereto are each denied.

ORDER

And now, February 14, 2003, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s [Theresa Wright] motion for writ of habeas corpus and motion in limine, and specifically the defendant’s challenge to the constitutionality of the statute charging criminal use of a communications facility and to the sufficiency of the evidence relative thereto are each denied.

ORDER

And now, February 14, 2003, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s [Scott A. King] motion for writ of habeas corpus and motion to quash information, and specifically the defendant’s challenge to the constitutionality of the statute charging criminal use of a communications facility and to the sufficiency of the evidence relative thereto are each denied.

      . The defendant Moss is also charged with delivery of a controlled substance, possession of a controlled substance, and possession of a controlled substance with intent to deliver, all violations of the Controlled Substance, Drug Device and Cosmetic Act.