author: GEORGE, J.,

text:
    Commonwealth v. Goldhaber

      C.P. of Bedford County,
    no. CR-307 for 2004.

      Gerald P. Mor ano, for Commonwealth.

      Samuel C. Stretton, for defendant.
    January 26, 2007
   GEORGE, J.,

The defendant, Douglas R. Goldhaber, appeals from a March 2, 2005 jury verdict wherein Goldhaber was convicted of driving under the influence of alcohol as a misdemeanor of the first degree and three related summary offenses. Goldhaber timely filed post sentence motions which were denied by this court. Although direct appeal was untimely filed, by order dated October 31, 2006, Goldhaber’s PCRA petition was granted to the extent that his appellate rights were reinstated. Goldhaber subsequently filed a timely notice of appeal. The issues raised by that appeal are identified as follows:

(1) Whether the Commonwealth committed a Brady violation by failing to disclose information concerning an alleged contact between the arresting trooper and a potentially exculpatory witness;

(2) Whether the trial court erred in failing to grant a new trial based upon after-discovered evidence;

(3) Whether the suppression court erred in failing to suppress evidence derived from an alleged motor vehicle stop;

(4) Whether the evidence presented at trial was sufficient to support the verdict; and

(5) Whether the jury verdict entered in this matter was against the weight of the evidence.

Since a number of the issues are largely fact driven, it is necessary to review the evidence presented at trial.

On April 9, 2004, Trooper Brad Hershey of the Pennsylvania State Police was in full uniform on routine patrol in Bedford County. Trooper Hershey has been a trooper with the Pennsylvania State Police for approximately 10 years and has received significant training in detecting individuals under the influence of alcohol and driving while intoxicated. He has conducted in excess of 700 traffic stops and administered field sobriety tests to approximately 500 individuals. He has arrested individuals on suspicion of driving under the influence of alcohol approximately 400 times.

At approximately 9:25 p.m., Trooper Hershey was dispatched to a call at a business located along State Route 30 in Snakes Springs Township, Bedford County. While traveling east on State Route 30 in response to the call, Trooper Hershey observed a'.vehicle which he believed to be exceeding the posted 35 m.p.h. speed limit in a construction zone. While observing the vehicle, he noticed that the vehicle was not in the proper lane but, rather, was traveling down a center turning lane. He observed this behavior for approximately one-tenth of a mile and noted that there were no obstructions in the right lane causing the deviation. As Trooper Hershey followed the vehicle, he clocked it for nine-tenths of a mile traveling at approximately 55 m.p.h. Once the roadway turned to two lanes, he observed the vehicle cross a double yellow line by approximately six inches followed by movement to the right across the fog line, also by approximately six inches. He observed these same actions later down the road. Trooper Hershey noticed that the vehicle was following a vehicle in front of it very closely at a distance of less than one and a half car lengths. As he continued to follow the suspect vehicle, Trooper Hershey observed it nearly strike a parked vehicle. The operator avoided contact with the parked vehicle by jerking his vehicle back to the left. On a second occasion, Trooper Hershey observed the vehicle again drift towards the right only to be suddenly jerked back to the left side of his lane of travel. After observing the vehicle make a number of quick turns and pull into a private driveway, Trooper Hershey conducted a vehicle stop. Overall, he observed the vehicle over a distance of 5.5 miles.

Upon approaching the vehicle, Trooper Hershey observed Goldhaber as its operator. He also noticed that Goldhaber’s movements were slow and deliberate. Having interacted with Goldhaber on previous occasions, Trooper Hershey noted Goldhaber’s speech to be slurred. He also noticed his eyes were bloodshot and glassy and a strong odor of alcohol emanated from the vehicle. His clothing was disheveled. He believed Goldhaber to be under the influence of alcohol and requested that he submit to field sobriety tests. Trooper Hershey administered the one-leg stand and walk-and-tum test and opined that Goldhaber failed both. On the one-leg stand, Goldhaber raised his right foot but immediately placed it down and lifted his left foot. Thereafter, he was unable to keep his left foot raised beyond the count of seven. He lowered his foot once again on the count of nine. Goldhaber expressed to Trooper Hershey that he did not wish to continue with the test. During the walk-and-tum test, Trooper Hershey observed Goldhaber to be confused. He also observed that he did not touch his heel to a toe while walking and stumbled off of the line. Based upon his observations during these tests, Trooper Hershey opined that Goldhaber was under the influence of alcohol to the extent that he was incapable of safe driving and placed him under arrest. He was transferred to the Bedford County Emergency Room for purposes of a blood test. Goldhaber, however, refused to take the test, indicating that he was afraid of needles. Goldhaber was taken back to the Pennsylvania State Police barracks and charged with driving under the influence of alcohol.

At trial, the Commonwealth also presented the testimony of Trooper Swartzwelder. Trooper Swartzwelder is a 17-year veteran of the Pennsylvania State Police and also has significant experience in observing individuals under the influence of alcohol. Trooper Swartzwelder testified that he responded to the vehicle stop and observed Goldhaber performing'the field sobriety tests. He concurred with Trooper Hershey’s opinion that Goldhaber failed the tests.

Finally, the Commonwealth produced a witness who testified to serving Goldhaber a number of alcoholic drinks on the date in question prior to the vehicle stop.

Initially, I address Goldhaber’s challenge to the suppression court’s denial of his request to suppress evidence based upon an alleged improper vehicle stop. 75 Pa.C.S. §6308(b) requires that a police officer have a “reasonable suspicion” that a provision of the Vehicle Code is being violated in order to conduct a motor vehicle stop. Instantly, Trooper Hershey observed Goldhaber’s vehicle traveling in the wrong lane of travel; committing several unexplained deviations from the lane of travel by crossing both the yellow line and the fog line on two occasions each; following another vehicle at a dangerously close distance; and being operated in a “quick jerky” manner so as to avoid a collision with parked vehicles. In addition, Trooper Hershey clocked Goldhaber’s vehicle on his certified speedometer traveling in excess of 55 m.p.h. in a 35 m.p.h. construction zone for a period of nine-tenths of a mile. As such, Goldhaber’s operation of his vehicle falls squarely within the specific prohibitions set forth in sections 3362 and/ or 3365 of the Pennsylvania Motor Vehicle Code. Undoubtedly, Trooper Hershey had a reasonable suspicion to stop Goldhaber’s vehicle.

Goldhaber’s claims of insufficiency of evidence and a jury verdict against the weight of the evidence are equally meritless. The well established test for determining if the evidence is sufficient to sustain a criminal conviction is whether, accepting as true all the evidence of the Commonwealth and all reasonable inferences arising therefrom upon which the jury could have properly reached its verdict, it was sufficient in law to prove beyond a reasonable doubt that the defendant was guilty of the crime of which he stands convicted. Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599, 600 (1973). If, based upon a review of the evidence, the jury could have found every element of the crime beyond a reasonable doubt, the defendant’s conviction must be sustained. Commonwealth v. Rivera, 565 Pa. 289, 295, 773 A.2d 131, 135 (2001). On the other hand, a motion for new trial on the ground that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain a verdict but claims that “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). Anew trial should only be granted when the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Griffin, 453 Pa. Super. 657, 673, 684 A.2d 589, 596 (1996).

In order to sustain a verdict for driving under the influence of alcohol in violation of 75 Pa.C.S. §3802(a)(l), the Commonwealth must prove beyond a reasonable doubt that Goldhaber was the operator of a motor vehicle, and that while operating the vehicle, he was under the influence of alcohol to such a degree as to render him incapable of safe driving. Commonwealth v. Smith, 831 A.2d 636 (Pa. Super. 2003), appeal denied, 576 Pa. 722, 841 A.2d 531 (2003). In order to establish the second element, it is incumbent upon the Commonwealth to show that alcohol substantially impaired the normal mental and physical faculties required to safely operate a vehicle. Id.

Viewing the evidence in the light most favorable to the Commonwealth, trial testimony not only included Trooper Hershey’s opinion that Goldhaber was incapable of safe driving, but also corroborating testimony as to the impairment of his physical faculties as well as his actual unsafe operation of a motor vehicle. In essence, credible testimony revealed that Goldhaber was operating his vehicle in excess of 20 miles over the speed limit in a posted construction zone. He was unable to operate his vehicle within its lane of travel and, in addition to swerving over both the center line and the fog line, actually operated his vehicle in an improper lane. His operation of the vehicle was accompanied by jerky movements which placed parked vehicles at risk of property damage. Upon interaction with Goldhaber, Trooper Hershey observed classic signs indicating intoxication. Moreover, Goldhaber not only failed the standardized field sobriety tests but was unable to complete one of those tests. Trooper Hershey’s observations are corroborated by testimony of a fellow trooper. Finally, Goldhaber refused to provide a sample of his blood for test purposes. This evidence is more than sufficient to support the jury’s verdict.

After observation of the testimony at trial, the jury’s verdict does not shock this judge’s sense of justice. Although Goldhaber attempted to minimize the amount of alcohol which he admittedly consumed, the testimony was unconvincing. Goldhaber’s strategy of attempting to discredit the prosecuting trooper and others was flimsy. Rather, convincing trial testimony revealed a vehicle stop of an intoxicated driver. Interestingly, despite being versed in the law, Goldhaber refused the blood test which would have provided compelling evidence as to the extent of his alcohol consumption. Under these circumstances, the jury verdict is not a denial of justice but, rather, a testament to the jury’s careful and impartial consideration of the credible evidence submitted at trial.

Goldhaber next alleges that the Commonwealth committed a Brady violation by failing to provide exculpatory evidence prior to trial. In support of his claim, Goldhaber claims that the Commonwealth failed to disclose information that Trooper Hershey had interviewed a hospital security guard relative to his observations of Goldhaber on the night in question. Goldhaber claims that the security guard informed Trooper Hershey that he did not notice the odor of alcohol nor observe any objective manifestations of Goldhaber being under the influence of alcohol.

In order to establish a Brady violation by the Commonwealth, the defendant is required to prove the following three elements: (1) suppression of the evidence by the prosecution; (2) that the suppressed evidence was favorable to the defendant; and (3) prejudice on the part of the defendant flowing from the Commonwealth’s failure to disclose the evidence. Commonwealth v. Paddy, 569 Pa. 47, 64-65, 800 A.2d 294, 305 (2002). The requirement to disclose exculpatory evidence does not require law enforcement to “make a complete and detailed accounting to the defense of all [possible] investigatory work on a case.” Commonwealth v. Appel, 547 Pa. 171, 203, 689 A.2d 891, 907 (1997). Also, Brady does not require the production of information which is merely “not inculpatory.” Commonwealth v. Santiago, 439 Pa. Super. 447, 464, 654 A.2d 1062, 1071 (1994). Where the defendant knew, or with reasonable diligence could have known, of such evidence, a Brady violation does not follow. Paddy, 569 Pa. at 65, 800 A.2d at 305.

At hearing on Goldhaber’s post sentence motions, the Commonwealth established that the name of the witness at issue was provided to Goldhaber prior to trial. Although the police report did not include a substance of any alleged statements made by the witness, it appears, at best, that the Commonwealth’s understanding of the statement was that the witness had made no observations. Despite having the opportunity to do so, the defense did not call the witness at the post-trial hearing to establish the substance of any exculpatory statements he may have provided the police. Since the burden is on Goldhaber to establish the exculpatory nature of the evidence allegedly suppressed by the Commonwealth, Paddy, supra, Goldhaber’s post sentence motion asserting a Brady violation was denied. Moreover, since it is undisputed that the witness was identified by the Commonwealth prior to trial, reasonable investigation by Goldhaber would have revealed the nature of the evidence, if any, which the witness could have provided.

Similarly, Goldhaber’s post sentence motion for new trial based upon the discovery of new evidence must fail. In order to be granted a new trial based upon after-discovered evidence, a party must show that the evidence: (1) has been discovered after the trial and could not have been obtained at or prior to conclusion of the trial by the exercise of reasonable diligence; (2) it is not merely cooperative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) is of such a nature that a different verdict will likely result if a new trial is granted. Commonwealth v. McCracken, 540 Pa. 541, 549, 659 A.2d 541, 545 (1995). As previously mentioned, although provided the opportunity to do so at a post-trial hearing, Goldhaber has failed to present any testimony in support of any of the elements necessary for a new trial based upon after-discovered evidence. Moreover, it is relatively clear that through the exercise of reasonable diligence, the proffered testimony should have been discovered prior to trial, since Goldhaber was in possession of the identity of the individual. Absent the means to evaluate the importance of the proffered testimony and whether or not, in fact, it constituted after-discovered evidence, Goldhaber’s post-trial motion on this basis was properly denied.

For the foregoing reasons, it is respectively requested that the sentence of the trial court be affirmed.

      . Pursuant to agreement of the parties, Goldhaber’s right to direct appeal was reinstated for purposes of raising issues properly preserved for direct appeal. Goldhaber’s additional claims of ineffectiveness of counsel were stayed pursuant to agreement until the direct appeal issues were resolved. Although this court is aware of the dictates of Commonwealth v. Miller, 868 A.2d 578 (Pa. Super. 2005), the parties opted to address those issues properly preserved for direct appeal in lieu of a full evidentiary hearing on the remaining claims of ineffectiveness. The ineffectiveness claims have been preserved pursuant to agreement in the event Goldhaber is denied relief on those issues raised by this appeal.

      . Trial testimony is summarized from this court’s notes as the court does not have immediate access to the record.

      . Although this action arose in Bedford County, due to Goldhaber’s status as a public defender of Bedford County, by order dated August 6, 2004, President Judge Daniel Howsare recused himself and appointed the Honorable Judge Kevin A. Hess of the Court of Common Pleas of Cumberland County to preside over this matter. Judge Hess conducted the pretrial suppression hearing, however, due to matters in Cumberland County requiring his attention, was unable to continue to preside over this litigation. Accordingly, President Judge Howsare appointed your undersigned to preside over the remaining proceedings in this matter. Although, as indicated, the Honorable Judge Hess conducted the suppression hearing, I will provide the 1925(b) opinion on this matter as the lack of merit of this issue is obvious.

      . The language referenced herein was added by amendment effective February 1, 2004. It is clearly controlling in this matter as the vehicle stop at issue occurred on April 9, 2004.

      . The amended language of 75 Pa.C.S. §6308(b) has found “reasonable suspicion” to be a standard that requires less than “articulable and reasonable grounds.” See Commonwealth v. Sands, 887 A.2d 261 (Pa. Super. 2005). Nevertheless, I find that Trooper Hershey’s observations not only satisfy a “reasonable suspicion” standard, but also provide “probable cause” to conduct a vehicle stop.

        . Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and in order to make the charges against Goldhaber a misdemeanor of the first degree, the Commonwealth must prove beyond a reasonable doubt that this is Goldhaber’s second offense of driving under the influence of alcohol within a 10-year period. This matter was not submitted to the jury as the parties stipulated to the gradation of the charge in light of Goldhaber having previously been convicted of driving under the influence of alcohol within a 10-year period.

      . Due to Goldhaber being the Bedford County Public Defender, the Bedford County District Attorney’s Office also recused itself. Accordingly, the attorney general’s office represented the Commonwealth.


source: Caselaw Access Project

author: HODGSON, P.J.,

license: Public Domain

text:
    Commonwealth v. Mitchell

      C.P. of Montgomery County,
    no. 2687-06.

      Mary M. Killinger, for Commonwealth.

      Robert C. Keller, for appellant.

      January 18, 2007
   HODGSON, P.J.,

Appellant, Dwayne Mitchell, appeals to the Superior Court from the judgment of sentence imposed upon him by this court on November 8, 2006.

FACTS AND PROCEDURAL HISTORY

While working in his capacity as a patrol officer at approximately 5:30 p.m. on October 29, 2005, Officer Andrew Benner of the Montgomery Township Police Department effected a traffic stop of Appellant, Dwayne Mitchell, in Montgomery Township, Montgomery County, Pennsylvania for having invalid inspection stickers on his vehicle. (N.T., Wednesday, October 18, 2006, at pp. 15-17.) At the time of the traffic stop, appellant was operating the vehicle in question. (N.T., Wednesday, October 18,2006 at p. 17.) During Officer Benner’s conversation with appellant, appellant indicated that he worked in law enforcement and showed the officer a badge, a current Pennsylvania Certified Patrolman’s Association card, and a Lethal Weapons Training Act Certification, or “Act 235” card. The back of the Act 235 card indicates that the card is not a license to carry a lethal weapon, but the card needs to be carried by an individual to whom it is issued while armed with a lethal weapon and while on duty or going to and from duty. (N.T., Wednesday, October 18,2006, atp. 21.) In further conversation, appellant informed Officer Benner that he was in possession of a weapon. Appellant advised Officer Benner that he did not need a permit to carry the weapon because he was exempt from that requirement due to his employment status. (N.T., Wednesday, October 18, 2006, at pp. 28-29.) As of October 2005, appellant did not have a valid license to carry a concealed firearm issued by the Pennsylvania State Police. (N.T. Wednesday, October 18, 2006, at p. 24.) His Act 235 card, however, was valid at the time of the traffic stop and was set to expire on December 1, 2005.

At the time of the stop, appellant was wearing civilian clothes and traveling to dinner at Red Lobster, Montgomeryville, Montgomery County, Pennsylvania. He was traveling with a woman and two children whom Officer Benner presumed were his wife and children. (N.T., Wednesday, October 18, 2006, at p. 20.) In addition to Officer Benner, Patrol Officer Gerald Dougherty of the Montgomery Township Police Department arrived to assist Officer Benner at the scene. (N.T., Wednesday, October 18, 2006, at pp. 31-32.) Upon arriving at the scene, Officer Dougherty spoke with Officer Benner regarding appellant’s identification cards. Thereafter, Officer Dougherty approached appellant and asked him if he had a weapon to which appellant responded that he did. Appellant was then directed to exit the vehicle so that Officer Dougherty could secure the weapon. Appellant then produced for Officer Dougherty a Smith and Wesson 9mm, which appellant was carrying on his hip. (N.T., Wednesday, October 18, 2006, at p. 33.) As a result of the stop, appellant was subsequently charged with possession of a firearm not to be carried without a license under section 6106(a) of the Crimes Code.

Appellant’s bench trial took place on October 18,2006. At trial, Officer Benner and Officer Dougherty testified to the above events. In addition, Officer Dougherty testified to the relevant differences between Act 235 and Act 120, the act under which police officers are certified to carry lethal weapons and trained in the use of such weapons by the Pennsylvania State Police. He testified that unlike individuals certified under Act 235, officers who are certified under Act 120 may carry a lethal weapon on or off duty without a license. Conversely, Officer Dougherty testified that Act 235 is geared towards private security employment and as such, a person certified under Act 235 is permitted to carry a lethal weapon without a license only while on duty or going to and from duty. (N.T., Wednesday, October 18, 2006, at pp. 35-39.)

In support of appellant, Archie Watkins, appellant’s commanding officer, testified to the nature of appellant’s work with the Pennsylvania Certified Patrolman’s Association. According to Mr. Watkins, the association has been in existence for 13 years and provides security work for churches, banks, private individuals, and the like. (N.T.. Wednesday, October 18, 2006, atpp. 45-52.) He admitted, however, that at the time of appellant’s traffic stop, the association did not have any security contracts in Montgomery Township. With regard to the appellant, Mr. Watkins testified that due to the nature of appellant’s employment, appellant is on duty 24 hours a day, seven days a week. (NT., Wednesday, October 18, 2006, atp. 55.) Nevertheless, Mr. Watkins admitted that appellant is only compensated when he is actually dispatched. (N.T., Wednesday, October 18,2006, atp. 55.) Additionally, Mr. Watkins testified that employees of the association wear full uniforms including badges, handcuffs, radios, hats, and name tags. (N.T., Wednesday, October 18, 2006, atpp. 71-72.)

Thereafter, on October 23, 2006, the undersigned found appellant guilty of unlawfully carrying in a vehicle a certain firearm without having a valid and lawfully issued license therefor under section 6106(a) of the Crimes Code. On November 8,2006, appellant was sentenced to one-year probation for his conviction. Appellant subsequently appealed his judgment of sentence on December 7,2006. In accordance with section 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed appellant to file a concise statement of matters complained of on appeal no later than December 26, 2006. Appellant filed such statement on December 26, 2006.

LEGAL DISCUSSION

On appeal, appellant raises the following issues:

• The trial court erred by finding Dwayne Mitchell guilty of violating 18 Pa.C.S. §6106(a) because he was on duty at the time of his stop and therefore exempt from the licensing requirement of 18 Pa.C.S. §6106(a) based on the Lethal Weapons Training Act.

• The trial court erred by finding that Dwayne Mitchell was not exempt from the permit requirement of 18 Pa.C.S. §6106(a) pursuant to 18 Pa.C.S. §6106(b).

• The trial court erred by finding that Dwayne Mitchell was not exempt from the permit requirement of 18 Pa.C. S. §6106(a) pursuant to 18 Pa.C.S. §6106(b)(l).

• The trial court erred by finding that Dwayne Mitchell was not exempt from the permit requirement of 18 Pa.C.S. §6106(a) pursuant to 18Pa.C.S. §6106(b)(6).

I. Was Appellant On Duty at the Time of the Traffic Stop and Therefore Exempt From the Licensing Requirement of Section 6106(a)?

Section 6106(a) of the Crimes Code provides:

“(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

“(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.” 18 Pa.C.S. §6106(a).

It is undisputed that at the time of the traffic stop, appellant was canying a firearm in his vehicle and did not have a valid license to carry that firearm. The relevant inquiry, therefore, is whether appellant’s certification under Act 235 dispensed with the need for appellant to have a license to carry the firearm in accordance with section 6106(a) at the time of the traffic stop. The Lethal Weapons Training Act, 22 Pa.C.S. §41, et seq. (Act 235), was enacted to provide training in lethal weapons to private security enforcement personnel. Upon satisfactory completion of a program developed under Act 235, an individual is issued a certificate, which such person is required to possess whenever on duty or going to and from duty and carrying a lethal weapon. 22 Pa.C.S. §§47, 48(a). This certificate essentially eliminates the need for privately employed security personnel, like appellant, to maintain a license to carry a firearm while that person is on duty or is going to and from duty.

Appellant argues that he is on duty 24 hours a day, seven days a week and, therefore, his certification under Act 235 permits him to carry a firearm at all times. We disagree with this proposition. Such a finding by this court would blur the distinction between Act 120 and Act 235 by allowing private security individuals, who are not subject to intensive police training, to have the same authority to carry a lethal weapon as police officers. Further, our conclusion that appellant is not always on duty is supported by the fact that he is only compensated when he is actually dispatched.

Additionally, the testimony presented at trial does not support the conclusion that appellant was on duty at the time of the traffic stop. The record reveals that at the time of the traffic stop, he was traveling with a woman and children to Red Lobster in Montgomery Township and not to a job site. Further, Mr. Watkins testified that the association did not have contracts within Montgomery Township on the date of the traffic stop, thereby precluding the possibility that appellant was traveling to a job site. During his testimony, Mr. Watkins indicated that employees wear full uniforms. At the time of the traffic stop, appellant was in civilian clothes. Based on these facts, we find that at the time of the incident, appellant was not on duty or going to or from duty at the time of the traffic stop. Accordingly, appellant’s certification under Act 235 is inapposite to the present fact situation and, therefore, we find that appellant was required to possess a license for the firearm at the time of the traffic stop.

II. Is Appellant Exempt From the License Requirement of Section 6106(a) of the Crimes Code?

That being said, appellant will be in violation of section 6106(a) of the Crimes Code unless an exception provided for in section 6106(b) is applicable. Appellant argues that both section 6106(b)(1) and section 6106(b)(6) apply.

Section 6106(b)(1) provides an exception for “constables, sheriff’s prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law enforcement officers.” Section 6102 of the Crimes Code specifically defines a “law enforcement officer” as “any person employed by any police department or organization of the Commonwealth or political subdivision thereof who is empowered to effect any arrest with or without warrant and who is authorized to cany a firearm in the performance of that person’s duties.” We decline to accept appellant’s argument that because the legislature used “other law enforcement” it meant something different than “law enforcement.” We find such an argument contrary to the legislative intent of the statute. The legislature provided for a specific definition of law enforcement in the Crimes Code and as such, a common sense approach to interpreting the statute requires us to employ the legislature’s definition. See Commonwealth v. Pozza, 750 A.2d 889 (Pa. Super. 2000) (employing commonsense approach to interpreting statutes).

Applying this definition, we find that appellant’s occupation in private security does not meet this definition of law enforcement officer. First, the definition specifically contemplates that the person be employed by a police department or organization of the Commonwealth. Appellant is not employed by any such entity but rather, is employed by a private security association. Second, appellant does not have arrest powers. As such, appellant fails to meet the definition of law enforcement officer and, therefore, the exception enumerated in section 6106(b)(1) is inapplicable.

Contrary to appellant’s contentions, section 6106(b)(6) is also inapplicable. Section 6106(b)(6) provides an exception for “[ajgents, messengers and other employees of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other property in the discharge of such duties.” While appellant does provide security for banks and the like in the course of his employment, at the time of the traffic stop, appellant was not “in the discharge of such duties.” Rather, he was traveling to dinner. Accordingly, this exception is also inapposite.

We also refuse to accept appellant’s argument that Act 235 and section 6106 of the Crimes Code are inconsistent. Act 235 was enacted in order to provide education, training, and certification of privately employed agents who use lethal weapons including firearms as an incidence of their employment. 22 Pa.C.S. §§42, 48. Conversely, section 6106 is a penal statute designed to set out the offense of firearms not to be carried without a license. Both of these acts were separately created and for different purposes and, therefore, we find no conflict between them.

CONCLUSION

Based on the foregoing, the undersigned respectfully requests that appellant’s judgment of sentence be affirmed.


author: BUCCI, J,

text:
    Commonwealth v. Herd

      C.P. of Berks County,
    no. CR-06-CR-0001405-2006.

      Alisa Hobart, assistant district attorney, for Commonwealth.

      Holly Kloos, assistant public defender, for appellant.
    January 8, 2007
   BUCCI, J,

PROCEDURAL HISTORY

On October 6,2006 following a bench trial, this court found appellant guilty of unsworn falsification to law enforcement authorities and false reports to law enforcement authorities and sentenced her to two years probation. These charges arose out of false oral and written statements appellant made to police on July 17, 2005, when she claimed she was raped. On November 14,2006, appellant’s counsel filed a notice of appeal to the Pennsylvania Superior Court. On November 16, 2006, this court ordered appellant to file a concise statement of matters complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure § 1925(b). Appellant filed a concise statement on November 29, 2006, challenging the weight and sufficiency of the evidence supporting the verdict.

STATEMENT OF FACTS

The evidence at trial included the transcript of testimony from a pretrial hearing held May 10, 2006. On July 17, 2005, at approximately 3 a.m., appellant and her husband Donald Herd, as well as an acquaintance, Melissa Huber, were eating at Angelo’s Diner in Bechtelsville, Berks County, Pennsylvania. Ms. Huber testified that she witnessed appellant leave the restaurant for no apparent reason and that no one was following her. N.T., pretrial hearing, 5/10/06, at 5-6; Commonwealth trial exhibit no. 1. Miss Huber’s testimony concerning appellant’s peculiar behavior on the night in question convinced this court that appellant fabricated her allegations that she was raped.

“Question by assistant district attorney: And at some point, did Dawn, the defendant, leave the restaurant?

“Answer by Ms. Huber: Yes....

“Q: Did the defendant leave before you?

“A: Yes.

“Q: Did the defendant leave before her husband?

“A: Yes.

“Q: Okay. Did she indicate why she was leaving?

“A: No.

“Q: Okay. She just left?

“A: Yep.

“Q: Can you describe her mood when she left?

“A: She definitely looked tense. She got up quick and just walked out.

“Q: And what did you and her husband do in response to the defendant leaving the restaurant?

“A: We both looked at each other and couldn’t understand why. He asked me to go after her and would pay for the bill, and he would be right out.

“Q: And did you follow after her?

“A: Yes, I did.

“Q: And did — when you left the restaurant, did you see her?

“A: Yes.

“Q: Where did you see her?

“A: She was still in the parking lot.

“Q: What was she doing?

“A: She was getting ready to walk away, walk down the road.

“Q: And that is Route 100,1 believe?

“A: Yes.

“Q: Now did anyone, other than yourself, follow her out of the restaurant?

“A: No.

“Q: Did any males — were there any males behind her?

“A: No.

“Q: Did she, in fact, leave the parking lot and start walking down the street?

“A: Yes.

“Q: Did you say anything to her before she left?

“A: Yeah. I told her to stop and turn around to talk to me, and she kind of waved her hands up and kept going.

“Q: When you say ‘waved her hands up and kept going,’ what do you mean?

“A: Almost like she was just ignoring me or didn’t want to hear it. She just kept going.

“Q: And when she began to walk down the street, was anyone following her then?

“A: No.” N.T., pretrial hearing, 5/10/06, at 5-7; Commonwealth trial exhibit no. 1.

Shortly thereafter, appellant’s husband came out of the restaurant, and he and Ms. Huber got into Mr. Herd’s truck with the intention of pursuing appellant. N.T., pretrial hearing, 5/10/06, at 7-8; Commonwealth trial exhibit no. 1. As Ms. Huber and Mr. Herd drove along Route 100, Ms. Huber saw appellant walking along the road. N.T., pretrial hearing, 5/10/06, at 8; Commonwealth trial exhibit no. 1. However, by the time they parked a short distance ahead of appellant, she had disappeared into the wooded area along the road. N.T., pretrial hearing, 5/10/ 06, at 9; Commonwealth trial exhibit no. 1.

While Ms. Huber and Mr. Herd were looking for appellant, a Colebrookdale police officer arrived on the scene. Mr. Herd, Ms. Huber, and Colebrookdale Township Police Officer Alisha Mathias then called appellant on her cell phone, and tried repeatedly to convince her to come out of the woods. Appellant indicated to Ms. Huber that someone was following her. N.T., pretrial hearing, 5/10/06, at 11; Commonwealth trial exhibit no. 1.

Officer Mathias described her conversation with appellant as follows:

“Q: Did you have the opportunity to speak to her on the phone before she was brought out?

“A: Yes, I did.

“Q: And did she indicate what was happening in the woods at that time to you?

“A: No.

“Q: What did she say to you?

“A: She really didn’t have a lot to say to me. I wanted her to know that I was a police officer and I was out there and that she needed to come out so they could go home for the evening.

“If I remember correctly, there were a few times she hung up the phone on me unexplained.

“Q: Did she, at any time, indicate to you that she was being raped?

“A: Absolutely not.

“Q: Did she indicate to you, at any time, that she was being followed?

“A: Absolutely not.

“Q: Did she indicate — did you, in fact, indicate to her that she — you were a police officer and that you were right outside the woods?

“A: Yes, I did.

“Q: Did she indicate to you that she was in danger?

“A: No.” N.T., pretrial hearing, 5/10/06, at 18-19; Commonwealth trial exhibit no. 1.

When appellant was finally retrieved from the woods by a police officer, she was naked and first claimed she had been raped. N.T., pretrial hearing, 5/10/06, at 21; Commonwealth trial exhibit no. 1. She gave a statement to police at the hospital. N.T., pretrial hearing, 5/10/06, at 23; Commonwealth trial exhibit no. 1. However, the police found no evidence to confirm her allegations. N.T., pretrial hearing, 5/10/06, 31-32; Commonwealth trial exhibit no. 1.

Appellant was examined at the Reading Hospital Medical Center. The nurse examining her found no trauma to the vaginal area, such as bruising or tearing. N. T, bench trial, 10/6/06, at 9, 14. However, she documented scratches on appellant’s arms, legs, back, buttocks, chest and face, as well as a bruise on appellant’s inner thigh. Defendant’s exhibit no. 1.

Appellant testified at trial that she abruptly left the restaurant because she was upset by a comment Ms. Huber made. N.T., bench trial, 10/6/06, at 22. She told police that two men followed her out of the restaurant, immediately behind her. N.T., pretrial hearing, 5/10/06, at 23; Commonwealth exhibit no. 1. She claimed these men were making disparaging comments about her, so she started walking along Route 100 away from the diner. N.T., bench trial, 10/6/06, at 22-23. Appellant claimed that she eventually fled into the nearby woods to escape these two individuals, that they followed her, and that they raped her. N.T., bench trial, 10/6/06, at 31-33. She gave a signed written witness statement to the Colebrookdale Township Police Department detailing the events described above. Commonwealth exhibit No. 1.

DISCUSSION

I. Sufficiency of the Evidence

Appellant first argues that the evidence is insufficient to sustain her convictions for unsworn falsification to law enforcement authorities and false reports to law enforcement authorities because the Commonwealth failed to prove beyond a reasonable doubt that the statements she made to the police are false or that appellant was aware of the falsity of her report.

“In reviewing the sufficiency of the evidence, [the court] must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offenses beyond a reasonable doubt.” Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa. Super. 2000), citing Commonwealth v. Johnson, 556 Pa. 216, 223, 727 A.2d 1089, 1092 (1999). “The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence, but the question of any doubt is for the fact-finder, unless the evidence is so weak and inconclusive that, as a matter of law no probability of fact can be drawn from the combined circumstances.” Id.

“This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be based on ‘more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.’ ” Commonwealth v. McFadden, 850 A.2d 1290, 1293 (Pa. Super. 2004).

A person is guilty of unsworn falsification to authorities if, with intent to mislead a public servant in performing his official function, she makes any written false statement which she does not believe to be true. 18 Pa.C.S. §4904(a)(l). A person is guilty of false reports to law enforcement authorities if she reports to law enforcement authorities an offense or other incident within their concern, knowing that it did not occur. 18 Pa.C.S. §4906(b)(l).

This court is completely convinced that appellant was not raped on July 17,2005, based on strong circumstantial evidence indicating she fabricated her story. In addition to the absence of any vaginal trauma, appellant’s testimony was completely contradicted by the testimony of Ms. Huber, whom this court found to be an extremely credible witness. Although appellant testified that two men followed her out of the diner, Ms. Huber testified that she never saw anyone following appellant. Furthermore, this court had the opportunity to witness appellant’s testimony and we did not find her testimony to be credible. This court was also concerned by testimony elicited by the Commonwealth on cross-examination which established that appellant had made several allegations of rape within the span of a few months. N.T., bench trial, 10/6/06, at 34-37.

Finally, while appellant was in the woods, she spoke on the phone with her husband, Ms. Huber, and the police, but never told anyone she was being raped. Her conduct from the time she stormed out of the restaurant until the police convinced her to come out of the woods was bizarre.

Once this court determined that appellant’s written and oral statements to the police were false, in the absence of any testimony suggesting that appellant was incapable by mental disease or defect of knowing that her statements were not true, this court reasonably inferred that appellant’s false reports had been made knowingly and intentionally.

Therefore, this court concludes that the evidence was sufficient to sustain the verdict as to both counts.

II. Weight of the Evidence

Appellant also argues that the verdict was against the weight of the evidence.

“The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). In determining whether the verdiet is against the weight of the evidence, the role of the trial court is to determine whether, “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000). (citations omitted) Stated more concisely, the verdict should not be disturbed unless it is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Miller, 555 Pa. 354, 367, 724 A.2d 895, 901 (1999).

The Commonwealth’s evidence is summarized above. After carefully reviewing the entire record and considering the relevant facts and law, this court cannot find that the verdict in this case was so contrary to the weight of the evidence that it shocks its sense of justice.

CONCLUSION

For the reasons detailed above, this court submits that appellant’s assignments of error should be denied and her judgment of sentence affirmed.

      . 18 Pa.C.S. §4904(a)(l).

      . 18 Pa.C.S. §4906(b)(l).

      . Appellant was sentenced to two years probation on Count I and one year probation on Count II, the sentences to be served concurrently.


author: FRIEDMAN, J,

text:
    Birdy v. Maharam

      C.P. of Allegheny County,
    no. GD 05-15476.

      Robert A. Goldman, for plaintiffs.

      Robert A. Loch, for defendants.
    August 31, 2006
   FRIEDMAN, J,

Plaintiffs have filed a motion to enforce settlement agreement related to an automobile accident involving plaintiff Lori Birdy and defendant Cherie D. Maharam. Defendants’ insurer, through a claims adjuster, Andrew Beneigh, offered plaintiffs first the sum of $ 11,000 and later the sum of $14,000. Plaintiff Dean Birdy, an attorney, did most of the negotiating with Mr. Beneigh. He then consulted plaintiffs’ current counsel, Mr. Goldman, who called Mr. Beneigh regarding the offer.

Mr. Goldman indicated to Mr. Beneigh that he had to relay the “best and final offer” to plaintiffs and Mrs. Birdy in particular. Mr. Goldman spoke to plaintiffs that evening and Mrs. Birdy decided to accept the offer. Mr. Birdy called Mr. Beneigh the following day and accepted defendants’ offer on behalf of plaintiffs. At that point Mr. Beneigh asked if plaintiffs had filed a writ and, upon being told they had not, stated that the offer was withdrawn.

It is undisputed that Mr. Beneigh told Mr. Goldman on July 5, 2005 that the $14,000 offer was still on the table. It is undisputed that there was no deadline for acceptance mentioned by Mr. Beneigh. (See Beneigh deposition pp. 23, 1. 22-24, 1. 15.) It is undisputed that Mr. Birdy accepted the outstanding offer before Mr. Beneigh attempted to withdraw it. (See Beneigh deposition p. 29, 11. 10-15.)

This case does not involve the timeliness of the filing of the writ of summons. Rather, it involves the reasonableness of the time between when the offer was made and when it was accepted. This is a matter of contract law and has nothing to do with whether or not a writ was timely filed.

Mr. Beneigh was aware that he would not be given an answer regarding his offer on the same day the offer was made, July 5,2005. If he intended his offer to expire on that same day, it was his obligation to so state. It is axiomatic that the offerer is the master of his offer. Mr. Beneigh spoke to Mr. Goldman for the first time on July 5, 2005. He confirmed that the $14,000 offer was still alive and was not going to be raised. He said nothing when Mr. Goldman indicated he would relay the finality of the $14,000 amount to the plaintiffs. He did not say the offer that he relayed to Mr. Goldman had to be accepted by the close of business on July 5,2005. The earlier negotiations with Mr. Birdy, although defendants feel they are significant, are not relevant to the offer relayed to their counsel.

Given the undisputed facts, a jury would not be permitted to find that plaintiffs were unreasonable in accepting the “best and final” or “final final” offer of defendants within 24 hours after it was relayed to their attorney.

Plaintiffs’ motion to enforce settlement agreement must be granted. See Vaskie v. West American Insurance Company, 383 Pa. Super. 76, 556 A.2d 436 (1989).

See order filed herewith.

ORDER

And now, to-wit, August 31, 2006, plaintiffs’ motion to enforce settlement agreement is hereby granted for the reasons set forth in the accompanying memorandum in support of order.

      . No written offer had yet been sent out by defendants’ insurer, although such a letter was prepared on July 6,2006, but then not sent when the insurer realized the plaintiffs appeared not to have filed a timely writ of summons.


author: PICCIONE, J.,

text:
    Emery v. Emery
    C.P. of Lawrence County,
    no. 11392 of 2004, C.A.

      Jean K. Perkins, for plaintiff.

      Bruce W. Emery, pro se.

      August 23, 2006
   PICCIONE, J.,

Before the court for disposition is Kimberly Carol Emery’s (Mother) petition to relocate. Mother is requesting permission to relocate with the Minor Children, [ ] bom June 6, 1991 and [ ] bom June 24,1993 to Mercer County, Pennsylvania. The court will not be utilizing any notes of testimony from the hearings to supplement the record, as the court wishes to implement this custody order in an expedited manner in order to best facilitate any transitions for the parties and the Minor Children before the commencement of the school year.

The existing custody order dated January 11, 2005 awards, by agreement of the parties, primary physical custody of the Minor Children to Mother, subject to the partial custody rights of Bruce W. Emery (Father). Father currently enjoys partial custody of the Minor Children on each Monday after school to 8 o’clock p.m. and on every other Friday after school until Saturday at 2 p.m. and every other Sunday on the weekends that Father does not have the minor children on Sunday at 2 p.m. until 7 p.m. Mother and Father share legal custody of the Minor Children.

Mother seeks to relocate the minor children to 1355 Cochranton Road, Mercer County, Pennsylvania. This is approximately a 50-minute drive from Mother’s prior residence. Mother was employed by the Wilmington School District as a teacher’s aid and has applied to the Cochranton School District for employment, but, to the court’s knowledge, has not interviewed as of this time. The proposed relocation address is a two-story, five-bedroom home with two and one-half acres of land. Mother intends to reside at that location with her boyfriend of one year, Brian Smith. Brian Smith is employed as a truck driver and currently has a good relationship with the Minor Children. If relocation is granted, the Minor Children would attend the Cochranton School District.

Father has not been exercising his periods of custody with the Minor Children for some time. Furthermore, Mother is unable to determine where Father currently resides, or what phone number he may be reached at. Mother has averred that she believes she can relay information to the Minor Children’s paternal grandmother, who Mother purports is able to contact Father.

The court finds the standards enumerated in Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 439 (1990), apply to this case in disposing of the relocation issue presented by Mother. The Gruber court set forth three factors a trial court must consider in determining whether a custodial parent may relocate a distance from the noncustodial parent.

“(1) [T]he potential advantages of the proposed move[, economic and otherwise,] and the likelihood... the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent....

“(2) [T]he integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it....

“(3) The availability of a realistic substitute visitation arrangement, which will adequately foster an ongoing relationship between the children] and the non-custodial parent. Gruber, 400 Pa. Super at 186, 583 A.2d at 439; Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002).

These three factors must be included in the ultimate consideration of the court, which is the children’s best interest. Thomas v. Thomas, 739 A.2d 206 (Pa. Super. 1999). Due to the fact that a custody order currently exists, the burden of proof is on the custodial parent requesting relocation. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003); Tripathiv. Tripathi, 787 A.2d 436 (Pa. Super. 2001).

A determination of the children’s best interest must be premised upon all factors that legitimately affect the children’s physical, intellectual, moral and spiritual well-being. McAlister v. McAlister, 747 A.2d 390 (Pa. Super. 2000).

The first inquiry is whether the proposed relocation will improve the minor children’s quality of life. The court finds that Mother is seeking to establish a new family unit with Mr. Smith and the Minor Children. Although the court will not consider Mr. Smith’s income, as he is not married to Mother, this court notes that Mother has testified that she will be able to obtain similar employment in Mercer County. Furthermore, the court has heard testimony that Mother’s current residence (co-owned with Father) is currently under mortgage foreclosure. As Father has not appeared, nor responded to these proceedings, this court is constrained to accept that the proposed relocation will improve the quality of the Minor Children’s lives. Therefore, this court finds that the first prong of the Gruber analysis has been satisfied.

The next Gruber factor calls for the court to inquire into the integrity of the parties’ motives. Gruber, 400 Pa. Super, at 186, 583 A.2d at 439. The court finds that Mother’s desire to relocate is premised on her desire to further her relationship with Mr. Smith and attempt to establish a better situation, socially and economically, for herself and the Minor Children. Father has not appeared in these proceedings; accordingly, it is impossible for this court to assess his motives. Accordingly, the court finds that the motives of the parties are pure, which satisfies the second Gruber prong.

The final prong of the Gruber analysis examines the availability of a realistic substitute visitation arrangement, which will foster adequately an ongoing relationship between the children and the noncustodial parent. Id. Father is purportedly failing to exercise his current periods of custody with the minor children. Nevertheless, due to the fact that the proposed relocation is approximately 50 minutes away from Father’s last known residence address, this court finds that a realistic substitute custody arrangement would be easily accomplished if Father attempts to reestablish contact with the minor children. Specifically, this court notes that Father could exercise the same aggregate period of custody with the minor children under the modified custody order.

Accordingly, the court finds that the third prong of the Gruber analysis is satisfied.

Considering all relevant factors and the Minor Children’s best interest, the court concludes Mother has now satisfied the standard set forth in Gruber; specifically, the court finds that the Minor Children will benefit from the proposed relocation, in that they will be in a developing family unit that is able to provide for their social, physical and economic needs. For these reasons, Mother’s petition to relocate is granted.

ORDER

And now, August 23, 2006, this court having held a hearing on My 31, 2006 on plaintiff’s petition to relocate, with Jean K. Perkins, Esquire, appearing and representing the plaintiff, Mother, and the defendant, Father, being unrepresented and not appearing after being paged three times in the outer corridor, the court finds and it is hereby ordered, adjudged and decreed as follows:

(1) The court finds that Mother has satisfied the three-prong test, analyzing the advantages of the relocation, the motives of the parties and the availability of realistic substitute custody arrangement, set forth in Gruber v. Gruber and its progeny. See Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 439 (1990). Therefore, Mother’s petition to relocate Minor Children is hereby granted as set forth in the accompanying opinion.

(2) Based on the above findings, the court enters the following order:

(a) Primaiy physical custody of the Minor Children, [ ] bom June 6, 1991 and [ ] bom June 24, 1993, is awarded to Mother, subject to the rights of partial physical custody of Father as hereinafter set forth.

(b) Father shall enjoy partial custody, holiday custody, and summer custody of the Minor Children as the parties from time to time shall mutually agree.

(c) In the absence of such mutual agreement, Father shall enjoy custody of the Minor Children as follows:

(i) During the school year, Father shall be entitled to custody of the Minor Children every other weekend after the close of school on Friday until 6 p.m. on Sunday.

(ii) The Minor Children’s Christmas holiday if om school shall be divided into two time periods, one commencing after the last day of school at the beginning of the Christmas holiday until 5 o ’ clock p.m. December 26, which shall be the first time period and another from 5 o’clock p.m. December 26 to the following January 3 or commencement of school, whichever first occurs, which shall be the second time period. Such custody with the minor children shall be alternated annually between the parties with Mother being entitled to custody during the first time period and Father the second time period during even-numbered years, and Father being entitled to the first time period and Mother the second time period during odd-numbered years.

(iii) The parties shall alternate custody of the minor children on Thanksgiving and, if any, “spring break” or similar time off from school. Such custody with the Minor Children shall be alternated annually between the parties with Father being entitled to custody during the first time period and Mother the second time period during even-numbered years, and Mother being entitled to the first time period and Father the second time period during odd-numbered years.

(iv) During the summer months of June, July and August while the Minor Children are not in school, Mother and Father shall be entitled to three weeks of physical custody with the minor children and with each giving at least 30 days prior notice of such selection of custody to the other party. During the even-numbered years, Mother’s choice shall take precedent and during odd-numbered years, Father’s choice shall take precedent. Such vacation period shall occur during the time period commencing one week after the ending of school to one week prior to the commencement of school for the Minor Children.

(v) The parties shall share custody with the Minor Child on the child’s birthday, as they shall from time to time mutually agree.

(vi) In addition, Mother shall be entitled to partial custody with the Minor Children on Mother’s Day and Father shall be entitled to partial custody with the Minor Children on Father’s Day.

(vii) Each of the parties shall enjoy reasonable telephonic visitation, including computer-aided video technology, with the Minor Children when the Minor Children are not in his or her custody at such reasonable times and hours as the parties may arrange. Neither party shall abuse the privilege by an unreasonably excessive number of contacts or length of contacts and shall not utilize the contact for any other purpose than visitation with the minor children. The then custodial parent and grandparent shall not intentionally withhold the availability of the Minor Children to prevent the then non-custodial parent from enjoying such visitation contact and shall make every effort to make the minor children available from time to time for such reasonable visitation contact.

(d) Mother and Father shall have shared legal custody of the Minor Children and shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/or releases for school reports, medical reports, insurance documents and documents required by state, local or federal authorities. Except in the case of medical emergencies, the custodial parent will consult with the noncustodial parent with regard to the medical, dental and psychiatric care and treatment of the Minor Children. Mother and Father shall have the right to review medical, dental and psychiatric records of the Minor Children. Also, the custodial parent is responsible for the academic performance of the Minor Children and the Minor Children’s participation in normal extracurricular activities.

(e) In any transporting of the Minor Children, all parties and anyone involved with such transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania including those regarding children safety restraint apparatus in any vehicle used to transport the children.

(f) The transportation of the Minor Children for the purposes of the aforestated periods of custody shall be as the parties mutually agree. In the event that the parties fail to agree, such transportation shall be as follows:

(i) Father shall initiate all requests and arrangements for such transportation.

(ii) Mother and Father shall equally share the cost and responsibility of transporting the Minor Children to and from the aforestated periods of custody. Mother and Father shall arrange a mutually agreeable meeting destination to exchange custody of the Minor Children. In the absence of such agreement, Mother and Father shall select a destination that is approximately equal distance in time between the residence of the Mother and Father where the exchange of custody shall occur. It shall be the responsibility of Mother and Father to arrive at the custody exchange destination not later than 30 minutes after the agreed-upon time of exchange.

(g) The parties shall read and fully comply with the provisions of the appendix to custody order, which is attached hereto and filed with this order.

(h) The parties are directed to cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter. Failure to do so may result in sanctions being imposed by the court upon the offending party, including suspension of custody and payment of attorney’s fees.

(i) The provisions of all existing orders of court not in conflict with or modified by the provisions of this order shall remain and continue in full force and effect.

(3) The prothonotary shall serve notice of this order of court and opinion upon counsel of record for the parties, and if a party has no counsel, then upon said parly at their last known address as contained in the court’s file.


author: BERNSTEIN, J,

text:
    Farda v. Chelsea Property Group Inc.
    C.P. of Philadelphia County,
    May Term 2004,
    no. 926.

      Stephen Harvey; for plaintiffs.

      Marc Sonnenfeld, for defendants.
    April 18, 2006
   BERNSTEIN, J,

And now April 18, 2006, the motion of defendants Chelsea Property Group Inc. and CPG Partners L.P. to depose experts is hereby granted in part and denied in part. As to expert Pocalyko, defendants’ request for deposition is denied. As to experts Richard F. Wolf and Reaves C. Lukens Jr., said motion is granted.

Pennsylvania Rule of Civil Procedure 4003.5 requires, in response to expert interrogatories, the expert to “state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” The response, whether by report or answer to interrogatories, must provide the opposing party with sufficient information to avoid surprise at trial and permit appropriate pretrial preparation, including the filing of warranted pretrial motions. “The purpose of this provision is to avoid unfair surprise by enabling the adversary to prepare a response to expert testimony.” We must ask the overreaching question, which is whether the purpose of Rule 4003.5 is being served. We are guided by the following: “Whether the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare----” Feden v. Consolidated Rail Corporation, 746 A.2d, 1158, 1162 (Pa. Super. 2000).

The expert report of Wolf and Lukens fails to describe all material considered and therefore fails to identify the substance of the facts to which the expert is expected to testify and fails to provide the basis for the opinions expressed. The report specifically states: “We have met with Samuel M. D’Alessandro PLS, PE, PP and president of R.K.R. Hess Associates. We have discussed various developmental issues with him and conclude that the proposed project has or could have received all of the necessary approvals to be constructed. Further, he indicated that the site could support the proposed improvements.” The report further explains: “We have interviewed Ms. Sherri Reems of PNC Bank regarding the anticipated financing of the proposed project. According to her, the project would have qualified for financing when 70 percent of the space was pre-leased. We believe this is true.” The expert conclusions further rely upon: “Various data on the surrounding Pocono real estate market were gathered. Numerous published transactions including comparable properties were reviewed. We have also spoken to local brokers and appraisers.” Having failed to fully identify the factual basis on which the opinion has been rendered, the report has not complied with Rule 4003.5(a)(1)(b), which requires “a summary of the grounds for each opinion.”

These experts propose to testify on the basis of one or more meetings and discussions with Samuel M. D’Alessandro, PLS, PE, PP and president of R.K.R. Hess Associates, one or more interviews with Ms. Sherri Reems of PNC Bank and undisclosed conversations with unidentified “local brokers and appraisers.” Reliance upon this material and conversations as a basis for opinion testimony is proper pursuant to Pa.R.E. 703 if of a type reasonably relied upon for forming opinions for purposes other than litigation.

However, defendant has a right to challenge inappropriate expert opinion pretrial. Defendant may challenge pretrial the methodology used by an expert. Defendant may challenge pretrial whether an otherwise appropriate methodology is appropriate to or “fits” the question for resolution by the jury.

The defendant may challenge pretrial and in cross-examination whether the expert has really applied expertise to the issue or is merely parroting what others have said. An expert may not act as “a mere conduit or transmitter of the content of an extrajudicial source. An ‘expert’ should not be permitted simply to repeat another’s opinion or data without bringing to bear on it his own expertise and judgment. Obviously, in such a situation, the non-testifying expert is not on the witness stand and truly is unavailable for cross-examination.... Where ... the expert uses several sources to arrive at his or her opinion, and has noted the reasonable and ordinary reliance on similar sources by experts in the field, and has coupled this reliance with personal observation, knowledge and [expertise], we conclude that the expert’s testimony should be permitted.” Primavera v. Celotex Corporation, 415 Pa. Super. 41, 52-53, 608 A.2d 515, 521 (1992).

The Commonwealth Court has precluded the testimony of a real estate appraisal expert where his opinion merely parroted opinions of others on issues about which he was unqualified to evaluate. In Luzerne County Flood Protection Authority v. Reilly, 825 A.2d 779 (Pa. Commw. 2003), the Commonwealth Court explained that Rule 703 assumes the expert has the ability to evaluate the trustworthiness of data since it is the kind of data routinely relied upon to practice their profession. The court explained that: “the above analysis depends, of course, on the expert actually acting as an expert and not a mere conduit or transmitter of the content of an extrajudicial source. An expert should not be permitted simply to repeat another’s opinion or data without bringing to bear on it his own expertise or judgment. Obviously, in such a situation, the non-testifying expert is not on the witness stand and truly is unavailable for cross-examination.” Id. at 784 (quotingPrimavera). In Beaumont v. ETL Services Inc., 761 A.2d 166 (Pa. Super. 2000), the Superior Court stated the same proposition differently: “The law in Pennsylvania is clear, an expert is permitted to express opinions formulated, in part, upon materials which are not in evidence, but which are customary [sic] relied upon by experts in the particular field. The expert may incorporate a non-testifying expert’s findings into his own express opinion, however, he is not permitted to merely restate another’s conclusions without espousing his own expertise and judgment.” Id. at 171 n.8.

The defense may also challenge pretrial and in cross-examination whether the opinions are factually grounded in factual materials “of records.” “The salient facts relied upon as the basis of the expert opinion must be in the record so the jury may evaluate the opinion.” Most recently, in Folger v. Dugan, 876 A.2d. 1049 (Pa. Super 2005) the Superior Court said: “Expert opinion testimony is proper if the facts upon which it is based are of record. This requirement for admissibility of opinion testimony is crucial. The purpose of expert testimony is to assist the fact-finder in understanding issues which are complex or go beyond common knowledge____If a jury disbelieves the facts upon which the opinion is based the jury undoubtedly will disregard the expert’s opinion. Likewise, if a jury accepts the veracity of the facts which the expert relies upon, it is more likely that the juiy will accept the expert’s opinion. At the heart of any analysis is the veracity of the facts upon which the conclusion is based.” Id. at 1058.

Numerous other appellate court decisions have rejected expert opinion testimony not appropriately grounded on facts of records. In Viener v. Jacobs, 834 A.2d 546 (Pa. Super. 2003), expert evaluation testimony was precluded because that expert’s factual understanding was not supported by evidence of record. The Superior Court in Viener said: “It is well settled that expert testimony is incompetent if it lacks an adequate basis in fact.” Id. at 558. In Jones v. Wilt, 871 A.2d. 210 (Pa. Super. 2005), expert opinion grounded in facts not supported by any evidence as to the intent of the decedent was precluded, saying: “It is well settled law... that an expert may not express his opinion upon facts which are not warranted in the record regardless of the expert’s skill and experience.” Id. at 215. Most recently, in Kelly v. Thackray, 874 A.2d 649 (Pa. Super. 2005), expert testimony was rejected in a products liability case because it was grounded in the understanding that defendants had control of the rigging and hoisting. Since there was no evidence that the defendant had such control, the facts did not support the expert’s assumptions and the opinion was stricken. Finally, in Hutchinson v. Penske Truck Leasing Company, 876 A.2d 978 (Pa. Super. 2005), expert testimony as to the crashworthiness of the cab of a truck was grounded upon National Highway Traffic Safety Administration Reports, University of Michigan Transportation Research Institute reports and Society of Automotive Engineers Reports. The testimony was stricken because there was no demonstration that any of the accidents or vehicles which formed the factual basis for these reports were similar to the accident before the court.

While this basic principle of law that an expert opinion has value only if the jury accepts the facts on which it is based has received renewed interest subsequent to adoption of the Rules of Evidence, it is not a new concept in Pennsylvania law. In 1998 the Supreme Court rejected expert testimony that a bicycle was defective because the bicycle which the expert had examined had been materially altered following the accident.

Without knowing the content of the conversations noted in the expert reports and the manner in which that information was utilized, the defense cannot know before trial has begun whether the experts are expressing their own opinions or merely parroting what others have told them. The defense also has a pretrial right to plan its cross-examination. To properly prepare for trial and avoid inadvertently allowing these experts to present impermissible and prejudicial hearsay, the defense has a right to learn the complete factual basis upon which opinion testimony is based. This is the purpose of Pa.R.C.P. 4003.5. Because the conversations reported as a basis for opinion reveal no content, the defendant is unable to file appropriate pretrial motions or prepare for trial. Accordingly, defendants’ motion for deposition is granted limited to the content and use of all factual material upon which experts Wolf and Lukens base their opinions as expressed in their expert report.

      . A motion to compel expert deposition should be so designated and not designated as “motion for extraordinary relief.” A motion for extraordinary relief is only to be used for extending case management deadlines.

      . Rule 703 reads in pertinent part: “The facts or data in the particular case upon which an expert bases an opinion or inference may be those... made known to the expert... before the hearing. If of a lype reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

      . See Gunn v. Grossman, 748 A.2d 1235 (Pa. Super. 2000); Commonwealth v. duPont, 730 A.2d 970 (Pa. Super. 1999) and Milan v. PennDOT, 153 Pa. Commw. 276, 620 A.2d 721 (1993).

      . Grady v. Frito-Lay, 576 Pa. 546, 839 A.2d 1038 (2003).

      . Grady v. Frito-Lay, 576 Pa. 546, 839 A.2d 1038 (2003).

      . Rule 705 requires an expert to testify as to “the facts or data on which the opinion or inference is based.”

      . See Kozak v. Struth, 515 Pa. 554, 531 A.2d. 420 (1987); Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988).

      . Standard Civil Jury Instruction 5.31.

      . See Factor v. Bicycle Technology Inc., 550 Pa. 500, 707 A.2d 504 (1998). It is also obvious that an expert may not bootstrap facts into the record through analysis or opinion. See Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892 (2004).


author: KWIDIS, J,

text:
    Cartwright v. SCA Packaging North America LLC

      C.P. of Beaver County,
    no. 10187 of 2006.

      Robert Taylor, for plaintiff.

      Abigail Flynn-Kozara, for defendants.
    March 2, 2007
   KWIDIS, J,

The plaintiff, Edward L. Cartwright, has filed a complaint for wrongful termination of employment. Plaintiff alleges that on or about August 31,2005, he was required to pull trailer no. 308. After pulling trailer no. 308, plaintiff had a conversation with SCA Plant Manager, Mr. Christopher Marsh. Following this exchange, plaintiff was discharged from employment. Defendants filed a motion for summary judgment alleging that the Uniform Commercial Driver’s License Act is inapplicable and that plaintiff’s own deposition testimony confirms that his discharge was not based upon his refusal to operate trailer no. 308.

Summary judgment is properly granted after the close of all relevant pleadings “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discoveiy or expert report” and the moving party is entitled to judgment as a matter of law. The party moving for summary judgment shoulders the burden of proving the nonexistence of any genuine issue of material fact. In order for a grant of summary judgment to be proper, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Parties seeking to avoid the imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial.

Plaintiff alleges that he was wrongfully terminated pursuant to the Uniform Commercial Driver’s License Act (UCDLA), 75 Pa.C.S. §1601 et seq., which prohibits against discharging, disciplining or in any manner discriminating against any employee who refuses to operate a commercial motor vehicle which is not in compliance with the provisions of 67 Pa.Code Ch. 231 and existing safety laws. Plaintiff alleges that he was discharged because of his refusal to operate trailer no. 308.

In the above-captioned case the plaintiff is an at-will employee. It is well-established that Pennsylvania recognizes the at-will employment doctrine. As a general rule, a cause of action does not exist based upon an employer’s termination of an at-will employment relationship. An employer may “discharge an employee with or without cause, at pleasure, unless restrained by some contract.”

However, as the Superior Court has noted, there are public policy exceptions to the at-will employment doctrine. These exceptions fall into three categories: an employer (1) cannot require an employee to commit crime, (2) cannot prevent an employee from complying with a statutorily imposed duty and (3) cannot discharge an employee when specifically prohibited from doing so by statute. To state a cause of action for wrongful discharge based upon the public policy exception to the at-will employment doctrine, the employee must identify “a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision.” The plaintiff in some way must allege that some public policy of this Commonwealth is implicated, undermined, or violated because of the employer’s termination of the employee.

The UCDLA, a Pennsylvania statute, prohibits any person from discharging, disciplining or in any manner discriminating against any employee who “refuses to operate a commercial motor vehicle which is not in compliance with the provisions of 67 Pa.Code Ch. 231 (relating to intrastate motor carrier safety requirements) and existing safety laws.” The UCDLA defines a “commercial motor vehicle” as a motor vehicle designed or used to transport passengers or property “if the vehicle has a gross vehicle weight rating of 26,001 or more pounds or such lesser rating as the department shall adopt under the provisions of section 6103(c) (relating to the promulgation of rules and regulations by department), as determined by federal regulation and published by the department as a notice in the Pennsylvania Bulletin.”

While section 1603 does not define “gross vehicle weight rating,” the Vehicle Code generally defines it as “the value specified on the federal weight verification label by the manufacturer as the loaded weight of a single vehicle.”

The purpose of the UCDLA is to implement the Commercial Motor Vehicle Safety Act and to reduce or prevent commercial motor vehicle accidents, fatalities and injuries. It is a remedial statute, which should be liberally construed to promote the public health, safety and welfare. The Superior Court stated that based upon the definition of commercial motor vehicle, the legislature’s focus was not on the use of the vehicle, but instead concerned about the size of the vehicle and the vehicle’s contents. Hence, the legislature’s concern was with the “potential hazard that is posed from such vehicles being driven on our roadways.”

At issue in the instant case is a tractor weighing approximately 12,600 pounds and trailer no. 308 weighing 14,600 pounds. This court finds that in order to facilitate the purpose of the UCDLA, to reduce or prevent commercial motor vehicle accidents, fatalities, and injuries, the tractor and trailer no. 308, in combination, meet the weight requirements making the UCDLA applicable to this case.

Prior to the August 31,2005 incident, the plaintiff provided a list of repairs which included trailer no. 308 and testified in his deposition that he had spoken to Mr. Marsh on three or four occasions regarding the problems with trailer no. 308. On August 31,2005, the plaintiff brought trailer no. 308 from the Darlington warehouse, which is approximately 13 miles from New Brighton. Plaintiff related to Marsh that he had brought trailer 308 back and that “it’s going to need repairs. It was the only empty trailer out there and that’s why I brought it back and that before I took it out again, the repairs would have to be done on it.” The comment led to an altercation between the two men, which ended in Mr. Marsh firing the plaintiff. Defendants argue that plaintiff’s discharge resulted from his gross insubordination towards SCA Plant Manager and was unrelated to any alleged refusal to drive trailer no. 308.

This court finds that there is a question of fact regarding whether plaintiff was discharged because of his refusal to operate trailer no. 308 in that the altercation, and ultimate discharge, stemmed from plaintiff’s discussion regarding the repairs to trailer no. 308 and his statement that the trailer would need repairs before he would take it out again. As such, this court holds that the UCDLA provides a public policy exception to the at-will employment doctrine and defendant’s motion for summary judgment is denied.

      . Pa.R.C.P. 1035.2(1); Ovitsky v. Capital City Economic Development Corporation, 846 A.2d 124, 125 (Pa. Super. 2004).

      . Kafando v. Erie Ceramic Arts Company, 764 A.2d 59, 61 (Pa. Super. 2000).

      . Fritz v. Glen Mills School, 894 A.2d 172, 175 (Pa. Commw. 2006) citing Schnupp v. Port Authority of Allegheny County, 710 A.2d 1235 (Pa. Commw. 1998).

      . Fritz, 894 A.2d at 175 citing Sovich v. Shaughnessy, 705 A.2d 942 (Pa. Commw. 1998).

      . Spierling v. First American Home Health Services Inc., 737 A.2d 1250, 1252 (Pa. Super. 1999) citing Henry v. Pittsburgh & Lake Erie Railroad Company, 139 Pa. 289, 297, 21 A. 157 (1891).

      . Spierling, 737 A.2d at 1252.

      . Nazar v. Clark Distribution Systems Inc., 46 D.&C.4th 28, 32 (2000).

      . Nazar, 46 D.&C.4th at 36.

      . 75 Pa.C.S. §1619.

      . 75 Pa.C.S. §1603.

      . 75 Pa.C.S. §102.

      . 75 Pa.C.S. § 1602(a).

      . 75 Pa.C.S. § 1602(b).

      . Commonwealth v. Williams, 425 Pa. Super. 113, 118, 624 A.2d 171, 174(1993).

      . Plaintiff’s deposition pages 35-36.

      . Plaintiff’s deposition page 46.


author: LUNSFORD, J,

text:
    Commonwealth v. Cluck

      C.P. of Centre County,
    no. CP-14-CR-1714-2006.

      Steven Sloane, for Commonwealth.

      Bruce Manchester, for defendant.
    March 9, 2007
   LUNSFORD, J,

Before the court is defendant Justin Cluck’s motion for finding of contempt and sanctions. The motion is based primarily on assistant district attorney Stephen Sloane’s alleged neglect of professional duties in seeking postponement of a trial in this matter. The court determines that while Attorney Sloane may have engaged in conduct that creates an appearance of impropriety, he did not act with the wrongful intent required for a finding of contempt and imposition of sanctions.

BACKGROUND

The pertinent facts are as follows. Defendant, charged with rape, was scheduled to be tried by jury on Friday, March 2, 2007. On Thursday, March 1, 2007, the Commonwealth requested a continuance, due to the fact that Attorney Sloane was ill and was being treated at Geisinger Family Practice Center. The court granted the continuance, and the trial was postponed.

On the evening of Thursday, March 1, Attorney Sloane, a candidate for the position of common pleas judge, attended a public dinner function and gave a speech before hundreds of people. Defense counsel also attended the function, prompting him to file this motion the following day, March 2. In the motion, defense counsel argues Attorney Sloane deliberately misled the court by having the trial postponed due to illness when he was well enough to attend the dinner. Defense counsel seeks sanctions and dismissal of the charges against his client.

A hearing on the motion was scheduled for Tuesday, March 6, 2007. At the hearing, Attorney Sloane argued vehemently that he violated no duty in seeking postponement of the trial. He provided evidence that he had been too ill to withstand the rigors of prosecuting a rape case, but not to attend a dinner and make a short speech. Specifically, he presented a letter from his health care provider at Geisinger. The letter indicates that he was suffering from bronchitis and laryngitis on Thursday, March 1 and was medically unfit to proceed with the trial. The letter further indicates that he was free to attend a dinner, if he was able to keep his talking to a minimum. He defended his attendance at the dinner Thursday night, as well as campaigning activities he engaged in over the weekend, as both doctor-approved and less physically taxing than trial. He emphasized that he felt an obligation to the victim in this case to handle the prosecution himself and to do so when in good health.

DISCUSSION

The question for the court’s determination is whether Attorney Sloane’s conduct in rescheduling the rape trial due to his illness, then engaging in other community activities, is contemptuous. Pursuant to 42 Pa.C.S. §4132(2), courts may impose contempt sanctions for “[disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.” An attorney who fails to meet court commitments may be found in contempt under section 4132(2) only if he acted with wrongful intent. See e.g., Commonwealth v. Debose, 833 A.2d 147 (Pa. Super. 2003).

The court is satisfied that Attorney Sloane did not act with any wrongful intent. While his decision to attend the dinner and engage in campaigning over the weekend certainly could be viewed as objectionable in the eyes of reasonable citizens, the court is convinced that his intentions were, in fact, sincere. There is no doubt that Attorney Sloane was quite ill at the times in question and even at the contempt hearing. There is also no doubt that he was advised by his health care provider that he was not well enough to withstand the physical demands of a full-day trial but that he was free to attend less taxing events that required minimal speaking. Attorney Sloane had an ethical duty to defer to that health care directive. See Pa.R.P.C. 1.1 (requiring attorneys to provide competent representation).

Attorney Sloane is a man of good character who has served the Centre County court system dutifully for many years. The court believes that he made a good faith, albeit perhaps not good, decision to postpone the trial but follow through on other less demanding commitments. Accordingly, there is no legal basis for a finding of contempt, and the court denies the motion.

ORDER

And now, March 9, 2007, upon consideration of defendant Justin Cluck’s motion for finding of contempt and sanctions, the motion is hereby denied.


author: HODGE, J,

text:
    Rotunno v. Horace Mann Life Insurance Company
    C.P. of Lawrence County,
    no. 10949 of 2005, C.A.

      Louis M. Perrotta, for plaintiff.

      Brian P. Downey; for defendant.
    January 17, 2007
   HODGE, J,

Before the court for consideration are the preliminary objections filed by the defendant, Horace Mann Life Insurance Company, to plaintiff Stefania Rotunno’s complaint.

Rotunno has filed a complaint against the defendant, seeking money damages arising from a disability income protection coverage insurance policy issued by the defendant to her on November 1, 1991.

The complaint alleged that Rotunno, a 62-year-old woman employed as a teacher at a vocational school, became unable to work as a result of a knee disability due to sickness. Rotunno submitted a proof of claim form to Horace Mann, and Horace Mann approved Rotunno’s claim for disability benefits for the time period from July 5, 2004 through August 31, 2004. By letter dated October 22,2004, Horace Mann refused to pay long-term disability benefits to Rotunno as of September 1, 2004.

Rotunno has filed a four-count civil action complaint against Horace Mann, count number one being for breach of contract; count number two for unjust enrichment; count number three for bad faith; and count number four for fraud and deceit.

Horace Mann has filed preliminary objections to count number four in plaintiff’s complaint, the argument being that plaintiff’s claim for fraud and deceit is barred by the gist of action doctrine, which precludes plaintiff from recasting ordinary breach of contract claims into tort claims.

The “gist of the action” doctrine is designed to maintain the conceptual distinction between breach of contract and tort claims. eToll Inc. v. Elias/Savion Advertising Inc., 811 A.2d 10 (Pa. Super. 2002). When a plaintiff alleges that the defendant committed a tort in the course of carrying out a contractual agreement, Pennsylvania courts examine the claim and determine whether the “gist” or gravamen of it sounds in contract or tort. Yocca v. Pittsburgh Steelers Sports Inc., 806 A.2d 936 (Pa. Commw. 2002). The test is not limited to discrete instances of conduct; rather, the test is, by its own terms, concerned with the nature of the action as a whole. American Guarantee and Liability Insurance Co. v. Fojanini, 90 F. Supp.2d 615, 622 (E.D. Pa. 2000).

Plaintiff’s response to the preliminary objections of the defendant, as set forth in her brief, are that Horace Mann encouraged her to purchase the insurance policy by fraud in the inducement: wrongful, fraudulent conduct that occurred prior to the policy purchase, external to the policy itself, and separate from the denial of benefits under the policy after purchase. See paragraphs 40, 41, 42, 43, and 44 of plaintiff’s complaint.

“The essential elements of... cause of action for fraud or deceit are a misrepresentation, a fraudulent utterance thereof and intention to induce action thereby, justifiable reliance thereon, and damage[s] as a proximate result.” See Wilson v. Donegal Mutual Insurance Company, 410 Pa. Super. 31, 40-41, 598 A.2d 1310, 1315 (1991).

The court’s standard for review of the merits of the preliminary objections is as follows:

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the complaint. The standard of review to be used in deciding such preliminary obj ections is also well settled:

“[A] 11 material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.” Vulcan v. United of Omaha Life Insurance Company, 715 A.2d 1169, 1172 (Pa. Super. 1998).

Based upon the foregoing standard of review, and upon the court’s review and analysis of count number four of plaintiff’s complaint, alleging fraud and deceit, this court cannot say with certainty that no recovery is possible. As a result, the court will enter the attached order.

ORDER

And now, January 17,2007, this case being before the court for a resolution of defendant’s preliminary objections to count number four of plaintiff’s complaint, upon review of the preliminary objections, the briefs submitted by both parties, the appellate court cases cited in the attached opinion, and plaintiff’s complaint, the defendant’s preliminary objections to count number four of plaintiff’s complaint are hereby dismissed.

The defendant shall have 20 days from the date of this order to file a responsive pleading to plaintiff’s complaint in civil action.

The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record.