author: TERESHKO, J,

text:
    Pfister v. City of Philadelphia

      Richard Alan Kessler, for appellant.

      Sean Patrick Kirby, for appellee.
    February 7, 2008
   TERESHKO, J,

PROCEDURAL HISTORY

Plaintiffs appeal from this court’s findings and order dated September 13, 2007, wherein the court granted defendant City of Philadelphia’s and Tyrone Winkler’s motion for judgment on the pleadings, filed June 29, 2006.

FACTUAL BACKGROUND

On or about January 20, 2004 at approximately 8:50 a.m., Sharon Pfister alleges that she was struck by a police car operated by Tyrone Winkler while he was acting within the scope of his employment as a police officer for the City of Philadelphia. (Complaint, ¶5.) The incident allegedly occurred as Ms. Pfister was crossing Race Street at the intersection of 12th Street and Race Street, in the City and County of Philadelphia. (Complaint, ¶5.) Ms. Pfister claims that Winkler was traveling eastbound on Race when the front wheel of his vehicle struck her and violently threw her to the ground as her foot remained lodged under the front wheel. (Complaint, ¶¶8-9.) As a result of the incident Ms. Pfister asserts that she suffered a sprained right ankle, fractured left tibia, fractured left patella, injury to her fibula and an exacerbation of a pre-existing arthritic condition in her right ankle. (Complaint, ¶9.) Sharon Pfister’s husband, Robert Pfister, also brought a claim for loss of consortium. (Complaint, ¶18.)

Plaintiffs initially filed their complaint on January 11, 2006, alleging negligence against Winkler for failing to operate his vehicle in a safe manner and negligence against the city for negligence of its employees. (See complaint, ¶¶7-18.) Plaintiffs did file their initial complaint within the applicable statute of limitations, however they failed to verify that they had timely perfected service. (See docket.) Plaintiffs allege that they personally served defendants with a copy of the complaint, however counsel for plaintiffs could not provide the identity of the person within the law department that was served, nor did they file an affidavit of service. (Supplemental brief of plaintiffs in answer to defendants’ motion for judgment on the pleadings, p. 2.)

Plaintiffs later reinstated their complaint pursuant to Pa.R.C.P. 401, but not until March 21, 2006, which is after the statute of limitations had run and more than 30 days since the initial complaint was filed rendering this reinstated complaint invalid. (See docket.) Plaintiffs filed their affidavits of service on the invalid reinstated complaint on March 28, 2006. (Findings and order dated 9-13-07.)

On June 29, 2006, defendants filed their motion for judgment on the pleadings and a response date was given for July 19, 2006. (See docket.) When the matter was assigned to this court for ruling a response had not been filed by plaintiffs. Therefore, this court granted defendants’ motion for judgment on the pleadings based on the fact that it was unopposed by plaintiffs. (See order August 1, 2006.) However, after receipt of the court’s order, plaintiffs contend that they were not served with a copy of the motion for judgment on the pleadings. (See trial court opinion dated 12-29-06.) On August 29,2006, plaintiffs filed their motion to set aside the judgment on the basis that they were not served with a copy of the motion. (Trial court opinion, 12-29-06.) Plaintiffs also filed their appeal from this order to the Commonwealth Court of Pennsylvania and issued their 1925(b) statement of matters accordingly. (See docket.) This court, in noticing that the defendants failed to file a certificate of service with the motion for judgment on the pleadings, issued an opinion requesting that the Commonwealth Court remand the matter back to this court to allow it to rule on the motion to set aside the judgment. (Opinion dated 12-29-06.) By order dated June 6, 2007, the Commonwealth Court granted this court’s request and remanded the matter back to the court of common pleas for entry of anew decision. Thereafter, this court granted plaintiffs’ motion to set aside the judgment on the pleadings and vacated the order of August 1, 2006. (Trial court order, July 13, 2007.) This order also directed plaintiffs to respond to the motion for judgment on the pleadings. Id. On July 27, 2007, plaintiffs filed their response to defendants’ motion for judgment on the pleadings. (See docket.) Additionally, plaintiffs filed a subsequent affidavit of service on July 27, 2007 stating that valid service was made on January 11, 2006 upon the City of Philadelphia and Winkler. (Affidavit of service sworn, January 16, 2006.) By additional order of the court, the parties were requested to submit additional briefs on the issue of whether the January 11, 2006 service of process and the subsequent affidavit of January 16, 2006, which was filed on July 27, 2007, satisfies the requirements of Pa.R.C.P. 400 et seq. (Order dated 9-7-07.)

By findings and order dated September 13, 2007 this court held: that the affidavit of service filed July 27,2007 and sworn on January 16, 2006 is stricken for not being timely filed and for failure to comply with Pa.R.C.P. 405(b). Also, that the service of the reinstated complaint was made on March 24,2006, which was reinstated more than two years after the cause of action arose on January 20,20.04, which exceeds the applicable statute of limitations. (Findings and order dated 9-13-07.) Thus, this court granted defendants’ motion for judgment on the pleadings. On October 5, 2007, plaintiffs filed their appeal from the findings and order of September 13, 2007 and issued their statement of matters accordingly.

The issues on appeal are:

(1) Whether this court committed an error of law or abused its discretion in finding that the initial service of the complaint that was made on January 11, 2006 and the purported service of January 16, 2006 should be stricken based on plaintiffs’ failure to comply with Pa.R.C.P. 405.

(2) Whether this court committed an error of law or abused its discretion in finding that the affidavit for return of service sworn January 16,2006 and filed July 27,2007 was properly stricken for failure to comply with Pa.R.C.P. 405(b)

(3) Whether this court committed an error of law or abused its discretion in finding that the valid service dated March 24, 2006 was made after the statute of limitations had passed.

LEGAL ANALYSIS

Appellate review of an order granting a motion for judgment on the pleadings is plenary. Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269, 1275 (Pa. Super. 2005). The appellate court will apply the same standard employed by the trial court. Id. A trial court must confine its consideration to the pleadings and relevant documents. Id. The court must accept as true all well-pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. Id. The appellate court will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise. Id.

Plaintiffs argue that the initial complaint was properly served on January 11, 2006 via personal service by their attorney on the City of Philadelphia Law Department Claims Unit. In the alternative, plaintiffs contend that the March 22, 2006 affidavit of service complied with the terms of the manner of service under Pa.R.C.P. 402. Lastly, plaintiffs contend that their filing of the affidavit of service on July 27, 2007 which was sworn to on January 16, 2006 should not have been stricken as violating Pa.R.C.P. 405(b).

Pa.R.C.P 405, which addresses the issue of return of service of process, states in pertinent part:

“(a) When service of original process has been made the sheriff or other person making service shall make a return of service forthwith. If service has not been made and the writ has not been reissued or the complaint reinstated, a return of no service shall be made upon the expiration of the period allowed for service.

“(b) A return of service shall set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made.

“(d) A return of service by a person other than the sheriff shall be by affidavit. If a person other than the sheriff makes a return of no service, the affidavit shall set forth with particularity the efforts made to effect service.

“(e) The return of service or of no service shall filed with the prothonotary.” (emphasis added)

The note to Pa.R.C.P. 405 cites the case of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), which stands for the principle that original process “shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Note Pa.R.C.P. 405.

In Englert v. Fazio Mechanical Services Inc., 932 A.2d 122, 124-25 (Pa. Super. 2007), our Superior Court further explained Lamp and its successor cases:

“It is well settled in this Commonwealth pursuant to Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986), that service of original process completes the progression of events by which an action is commenced. Once an action is commenced by writ of summons or complaint the statute of limitations is tolled only if the plaintiff then makes a good-faith effort to effectuate service. Moses v. T.N.T. Red Star Express, 725 A.2d 792 (Pa. Super. 1999), appeal denied, 559 Pa. 692, 739 A.2d 1058 (1999). ‘What constitutes a “good-faith” effort to serve legal process is a matter to be assessed on a case-by-case basis.’ Id. at 796; Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004). (citations omitted) ‘ [W]here noncompliance with Lamp is alleged, the court must determine in its sound discretion whether a good-faith effort to effectuate notice was made.’ Farinacci, at 594, 511A.2d at 759.

“In making such a determination, we have explained:

“It is not necessary [that] the plaintiff’s conduct be such that it constitutes some bad-faith act or overt attempt to delay before the rule of Lamp will apply. Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out may be sufficient to bring the rule in Lamp to bear. Thus, conduct that is unintentional that works to delay the defendant’s notice of the action may constitute a lack of good faith on the part of the plaintiff. Devine, supra at 1168 (quoting Rosenberg v. Nicholson, 408 Pa. Super. 502, 510, 597 A.2d 145, 148 (1991), appeal denied, 530 Pa. 633, 606 A.2d 903 (1992)). ‘[Although there is no mechanical approach to be applied in determining what constitutes a good-faith effort, it is the plaintiff’s burden to demonstrate that his efforts were reasonable.’ Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 90, 658 A.2d 423, 433 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995).” (emphasis added)

It is plaintiffs’ contention that their attorney served the defendants by hand delivering two time-stamped copies of the initial complaint to an unknown person in the claims unit of the City of Philadelphia Law Department on January 11,2006. (Plaintiffs’ statement of matters, p. 3, affidavit of service dated 1-16-06.) By not providing “the identity of the person served” pursuant to Pa.R.C.P. 405(b), plaintiffs have not executed proper legal service of the complaint. Plaintiffs’ attorney then alleges that he prepared an affidavit of service stating the foregoing facts, however there is no record that this affidavit was filed with the court in compliance with Pa.R.C.P. 405(e).

Plaintiff also states that on January 12,2006, plaintiffs’ attorney mailed a letter to the defendants advising them that plaintiff had filed and served the complaint, however it is unknown to whom this alleged correspondence was directed having not had the benefit of an identifying party who would have specific knowledge regarding plaintiffs’ cases. Defendants deny any receipt of correspondence from plaintiffs’ attorney regarding the service on January 11,2006. It was not until 60 days had elapsed without a response from the defendants that plaintiffs’ counsel then realized that an error had occurred. Although plaintiffs state that they did make service, they have no documentation to support their version of the facts. Regardless of whether this conduct was a result of mistake or neglect by plaintiffs’ attorney, plaintiffs have failed to meet their burden that they acted reasonably in procuring initial service of their complaint on January 11, 2006 according to the principles of Englert.

Plaintiffs’ attorney then attempts to reinstate and serve the complaint approximately 60 days after the statute of limitations had expired and approximately 39 days after the time for serving the complaint had expired under Pa.R.C.P. 401 without having reinstated the complaint pursuant to 401(b)(2). The service of this untimely reinstated complaint was made on March 28, 2006 and is invalid as legal service in this case due to plaintiffs’ failure to timely reinstate this complaint under the aforementioned rules of civil procedure.

Upon realizing that they did not achieve proper service under the rules, plaintiffs then make another attempt to satisfy proper service by filing an affidavit of service on July 27, 2007, which is approximately one and one-half years after the statute had expired. This affidavit, in addition to being untimely, also does not meet the criteria for valid service under 405(b). This affidavit, although filed on July 27,2007 was sworn to and subscribed by a notary on January 16,2006. The fact that plaintiffs filed this affidavit more than one and one-half years after the complaint was initially filed is fundamental evidence of a lack of good faith causing delay to the action. Additional evidence of plaintiffs’ lack of good faith in executing service is revealed by the fact that their affidavit of service filed on March 31, 2006 properly identifies the party who accepted service of the complaint. The March 31,2006 affidavit, although untimely, complies with the requirements of 405(b). The significance of the March 31, 2006 affidavit is that it shows plaintiffs were previously aware of their duty to provide the identity of the party served and simply failed to ensure compliance with this aspect for validating service.

It is this court’s position that these actions of plaintiffs, taken as a whole, do not amount to a good-faith attempt to notify defendants of the action. The Superior Court has held that determining whether a plaintiff acted in good faith lies within the sound discretion of the trial court. McCreesh v. City of Philadelphia, 585 Pa. 211, 224, 888 A.2d 664, 672 (2005).

Although plaintiffs cite the case of McCreesh v. City of Philadelphia, 585 Pa. 211, 227, 888 A.2d 664, 674 (2005), which supports liberal reading of the rules regarding service of process, plaintiffs have not followed several aspects of the rules regarding the proper means of service. In McCreesh, our Supreme Court, in finding that the party acted in good faith in complying with the rules regarding service, stated:

“Neither our cases nor our rules contemplate punishing a plaintiff for technical missteps where he has satisfied the purpose of the statute of limitations by supplying a defendant with actual notice. Therefore, we embrace the logic of the Leidich line of cases, which, applying Lamp, would dismiss only those claims where plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs ’failure to comply with the Rules of Civil Procedure has prejudiced defendant.’’'’ Id. at 227, 888 A.2d at 674. (emphasis added)

It is also noteworthy to mention that Englert would later distinguish the McCreesh case. Unlike in McCreesh, plaintiffs in Englert did not provide defendants with actual notice of the commencement of the action within the applicable statute of limitations. Englert, 932 A.2d at 124. Rather, plaintiffs in Englert took no action whatsoever once the writ was issued to ascertain whether service was properly made and relied instead on counsel’s customary practice of waiting for word from the sheriff’s office. Id. at 126-27. In this case, attorney for plaintiffs improperly served the complaint on defendants, having not identified the person served, nor did they file the affidavit of service. Plaintiffs then allege that their attorney sent a letter to defendants regarding service, which further propounds the problem because, having not known the identity of the person served, the letter is generally directed to the “Law Department — Claims Unit” and addressed and is not specifically addressed to any individual. (Plaintiffs’ correspondence dated January 12, 2006.) At that point the attorney did nothing further to determine whether proper service was made prior to the statute of limitations. Id. As is stated in Englert, “inaction demonstrate[s] an intent to stall the judicial machinery which was put into motion by the filing of the initial writ [or complaint] and simply cannot be excused.” Englert, 932 A.2d at 127 (citing McCreesh at 227, 888 A.2d at 674). In extracting the principle from Englert, where actual notice of the action was not made prior to the expiration of the statute of limitations and the plaintiff took no affirmative action to ensure that proper service was made, the good faith standard has not been met and plaintiffs’ inaction amounts to intent to stall the judicial process.

The failure to establish the identity of the person served when the plaintiffs’ attorney personally served the complaint, as well as their failure to file the affidavit of service with the court constitutes major omissions, which go directly to establishing the validity of whether actual notice was achieved under the law.

In addition, the plaintiffs’ attorney’s 60-day lapse from his alleged initial letter to the defendants amounts to nothing more than negligence in failing to notify the defendants of the action within the applicable statute of limitations or failing to reissue the complaint in order to effectuate valid service.

Lastly, plaintiffs’ subsequent affidavit of service filed on July 27, 2007, must also be stricken as it was filed one and one-half years after the complaint was filed and the statute of limitations expired. This, in addition to the fact that plaintiffs did not file this affidavit more contemporaneously than one and one-half years after the complaint was initially filed indicates fundamental evidence of a lack of good faith causing delay to this action in having to further litigate a pleadings matter, which in turn stalls this court’s attempt to address the matter on its merits.

Defendants were also prejudiced by the delay in plaintiffs’ notification of the action because they were not notified that an action had been brought against them until after 60 days after the statute of limitations had expired. The plaintiffs in turn have not provided this court with sufficient evidence to meet the plaintiffs’ burden, under Englert, that their efforts in achieving proper service were reasonable. Plaintiffs’ continued violation of the rules regarding service and the lengthy delay caused by their repeated failure to comply with the rules does not amount to a “technical misstep,” which would allow for further relief under McCreesh, instead it amounts to an intent to stall the judicial mechanism of this court.

In totality, these errors amount to a lack of good faith on the part of plaintiffs and also prejudice the defendants to the extent that this court believes that the action warrants the granting of defendants’ motion for judgment on the pleadings.

CONCLUSION

In light of the foregoing analysis, this court believes that the defendants’ motion for judgment on the pleadings was properly granted by this court, and respectfully requests that it be affirmed by the court above.


source: Caselaw Access Project

author: HODGE, J,

license: Public Domain

text:
    In re Adoption of M.P.B. III

      Gene G. Dimeo, for petitioner.

      Monica May DeRosa, pro se.
    February 14, 2008
   HODGE, J,

— This case is before the court for a hearing on a petition for involuntary termination of parental rights, filed by the natural father, Michael P. Birckbichler II.

Both parents testified at the hearing, and the following facts were established:

The parties were married on June 12, 1999, and the minor child, M.P.B. Ill, was bom on June 24, 1999. A divorce complaint was filed on October 4,1999, and the parties were divorced by decree dated March 22, 2000, at case number 11076 of 1999, C.A.

Included in the divorce action, was a cause of action for custody of the minor child, with the father having primary physical custody of the child since entry of an order of January 26, 2001.

On September 24,2002, this court entered a temporary protection from abuse order on behalf of the minor child and against the mother, with the court granting the mother supervised visits at Kids In Common pending final hearing. A court hearing was held on October 4, 2002, and the temporary protection from abuse order was dismissed by order of Judge Piccione dated January 8, 2003.

The most recent custody order was dated October 2, 2006, at which time the mother was granted weekly, supervised visits with the minor child, at Kids In Common. However, this court was advised by Mr. Brian Dick of Kids In Common, pursuant to letter of January 21, 2007, that on October 4,2006, the program had received a phone call from the mother requesting establishment of services, but when Mr. Dick attempted to explain the preliminary orientation, fees for services, etc., the mother became angered and terminated the phone call, and Kids In Common has not heard from her since.

Both parents agree that the last physical contact by and between the natural mother and the minor child was on Christmas Day 2004. Since that time, the mother, by her own testimony, acknowledges that she has not seen the child.

The mother was incarcerated in the Lawrence County Jail for two periods of time, being from December 2005 through June 2006, on a probation violation, and from February 2007 through November 2007, on a sentence to a charge of conspiracy to robbery. The mother’s testimony was that she sent cards and letters to her son while incarcerated, but that she believes the father refused to give any of the cards or letters to her son.

The petition for involuntary termination of parental rights was filed November 1,2007, pursuant to 23 Pa.C.S. §2511(a)(1). The six-month look-back period then, would run from May 1,2007, through November 1,2007, during which period of time the mother was incarcerated in the Lawrence County Jail.

The statutory authority for termination of parental rights is set forth at 23 Pa.C.S. §2511, “grounds for involuntary termination; (a) general rule (1),” which provides that a parent’s rights to his or her child may be terminated where:

“The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.”

Other statutory authority of importance is set forth at 23 Pa.C.S. §2511(b), “other considerations,” which provides as follows:

“The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the base of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.”

The case law makes clear that under section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in section 2511(a). Only after determining that the parent’s conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interest of the child. Though the needs and welfare analysis is mandated by the statute, it is distinct from, and not relevant to, a determination whether the parent’s conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child. See In re Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006).

In proceedings to involuntarily terminate parental rights, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. In re G.P.-R., 851 A.2d 967 (Pa. Super. 2004). In such a proceeding, the focus is on the conduct of the parent. In re B.L.W., 843 A.2d 380 (Pa. Super. 2004).

The court must first consider whether the statutory criterion for termination was met pursuant to section 2511(a)(1). In this case, the six-month statutory period under section 2511(a)(1) spans from May 1, 2007, through November 1, 2007.

The uncontradicted evidence is that the mother has not seen her son since December 25, 2004, and has never paid child support for the benefit of the child. The mother’s own testimony provides clear and convincing evidence that she failed to perform parental duties for this entire statutory period. In fact, the evidence as set forth above makes clear that the mother’s many failures far preceded the statutory period.

While incarceration of a parent does not, in itself, provide grounds for the termination of parental rights, a parent’s responsibilities are not tolled during his or her incarceration. In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975). Moreover, parental rights may not be preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities. See Smith Adoption Case, 412 Pa. 501, 194 A.2d 919 (1963).

In the case of In re D.J.S., 737 A.2d 283 (Pa. Super. 1999), the Superior Court considered a situation in which an incarcerated father had sent an occasional card or gift to his child, but had no direct phone contact with the child and had shown no interest in supporting the child financially until after the termination of parental rights petition was filed. In that case, the Superior Court held that letters, some child support, and gifts that the incarcerated father sent to his child did not indicate a serious intent to re-establish a parent-child relationship and a willingness and capacity to undertake a parental role; thus, the father’s parenting effort after the county petitioned to terminate parental rights did not preclude termination.

In this case, the mother was incarcerated for, at most, a 16-month out of 34-month period from the time she last saw her son until the filing of the petition for involuntary termination. More than half the time the mother was not incarcerated, and, during that period of time, failed to show any efforts whatsoever in order to act as a parent toward her son. Thus, the court concludes that there is clear and convincing evidence to support the termination of Mother’s parental rights pursuant to section 2511(a)(1).

The second part of our analysis relates to the determination of the needs and welfare of the child under the standard of best interest of the child. A major aspect of that analysis is the nature and status of the emotional bond between the parent and child. The significant evidence in this comes from the mother’s own testimony, that her son probably does not even recognize her now. In addition, the father presented letters written by the mother to his mother, indicating that she appreciates what the father and paternal grandmother are doing to raise her son and she knows that she (parental grandmother) will do what is right concerning the child. See petitioner’s exhibit no. 1, no. 5, no. 6 and petitioner’s exhibit no. 7. The common theme in all of these is gratitude for the father raising the child in an appropriate manner. In addition, to be fair to the mother, the mother also indicates a hope in her life that she will be able to have an appropriate relationship with her child, once she is able to resolve her own addiction issues. The mother testified at the hearing that she has been clean and sober for a period of one year, from February 2007 to the present date. However, the court must take that testimony into consideration of the fact that she had been incarcerated from sometime in February 2007 through November 2007, or a period of approximately nine to 10 months out of this past year. With that being the case, her testimony about being free from drugs and alcohol must be considered to have only approximately three months of clean time while she has been “on the streets.”

There is no question in this case that the mother’s drug addiction caused her to neglect her child for a substantial and formative period of his life. As a result, the child has no bond with the mother, and, in fact, has no relationship with her at all.

In addition, because the child has had no contact with the mother from age 5 through 8 1/2, the effect of termination of parental rights will be positive and beneficial to the minor child.

Accordingly, the court will enter the attached order:

ORDER

And now, February 14, 2008, this case being before the court for a hearing on February 13, 2008, on a petition for involuntary termination of parental rights of the natural mother, Monica May DeRosa, with the petitioner/father, Michael Paul Birckbichler II, appearing with his attorney, Gene Dimeo, Esquire; and the natural mother, Monica May DeRosa, appearing pro se, and following hearing held and testimony received, the court enters the following order:

(1) The court finds the testimony of the petitioner, Michael Paul Birckbichler II, to be credible, and sufficient to establish by clear and convincing evidence, the grounds for involuntary termination of parental rights pursuant to 23 Pa.C.S. §2511(a)(1).

(2) The petition for involuntary termination of parental rights of the natural mother, Monica May DeRosa, is hereby granted, and the parental rights of the natural mother, Monica May DeRosa, are hereby terminated. For cause shown by clear and convincing evidence, the court exercises its discretion pursuant to section 2901 of the Pennsylvania Adoption Act, and finds it to be in the best interest of the minor child to proceed with a decree of adoption without termination of the natural father’s parental rights which shall remain intact. See In re Adoption of R.B.F. and R.C.F., 569 Pa. 269, 803 A.2d 1195 (2002).

(3) In arriving at this decision, this court has considered the statutory authority for involuntary termination of parental rights, 23 Pa.C.S. §2511; the appellant authority cited in the opinion attached hereto, and in addition, but not limited to, Adoption of Charles E.D.M. II, 550 Pa. 595, 708 A.2d 88 (1998); In re D.J.S., 737 A.2d 283 (Pa. Super. 1999).

(4) Custody of M.P.B. Ill is hereby awarded to petitioner, Michael P. Birckbichler II and Diane E. Birckbichler, pending further order of court and the adoption proceedings.

(5) The respondent, Monica May DeRosa, shall have no right to object to or receive notice of adoption proceedings with respect to the above minor child.

(6) Pursuant to this order and made a part hereof is the statutory notice to natural parents relative to the right to place personal information on file with the court and the Department of Health, which shall be served on the natural parent, together with a certified copy of this order of court.

(7) The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record, and upon the respondent, Monica May DeRosa, at 107 East Sharp Street, New Castle, Pennsylvania, 16101.

NOTICE TO NATURAL PARENT(S)

Following a court hearing, your parental rights to your child have been terminated. You have the right to place personal information on file with the court and with the Department of Health.

This information may not be disclosed to anyone. However, you may give the court and the Department of Health any other information placed on file about the natural parent(s). This information may only be given to: (1) the child if 18 years old or older; or, (2) the child’s adoptive parents or legal guardians if the child is under 18 years of age. The child may see these records if you give permission by filing a consent form with the court and the Department of Health. If both parents sign consent forms, the child can receive the information on the birth certificate. If only one parent signs a consent form, only the identity of that parent may be given to the child.

You may update the records to show your current address or other information about yourself.

You may withdraw your permission for the child to see these records at any time by filing a withdrawal of consent form with the court and the Department of Health.


author: BLACK, P.J.,

text:
    Hartenstine v. Daneshdoost

      Todd Miller and Howard S. Stevens, for plaintiff.

      James J. Dodd-o, for defendant.
    January 16, 2008
   BLACK, P.J.,

— This medical malpractice case arises from three spinal surgeries performed by the defendant, Ghodrat Daneshdoost M.D., on the plaintiff, Tina A. Hartenstine, on August 8, October 8 and November 7, 2003. In her amended complaint the plaintiff alleges causes of action against the defendant for negligence (Count I) and lack of informed consent (Count II).

The defendant has moved for partial summary judgment in his favor on several of the plaintiff’s claims. He requests (1) that certain of the negligence allegations be dismissed; (2) that the claims for medical expenses and loss of income be dismissed; and (3) that the claim for lack of informed consent be dismissed. For the reasons that follow, the motion is granted in part and denied in part.

THE SUMMARY JUDGMENT STANDARD

Summary judgment is warranted after the relevant pleadings are closed and discovery has been completed under either of the following circumstances:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.R 1035.2.

In passing upon a motion for summary judgment the court must examine the record in light most favorable to the non-moving party. Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises Inc., 303 Pa. Super. 497, 500, 450 A.2d 36, 38 (1982).

Nevertheless, when confronted with a motion for summary judgment, if the non-moving party bears the burden of proof on the issues that are raised, the non-moving party has an affirmative duty to produce evidence, by depositions, answers to interrogatories, admissions, affidavits or expert reports, sufficient to support a jury finding in his or her favor on these issues. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 736 (1998). It is not sufficient for the non-moving party merely to recite in his response that he will produce evidence later at the time of trial. It is necessary that the evidence be identified and produced so that there is an adequate record for the court to review. “Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996).

DISCUSSION

I. The Claims of Negligence

The plaintiff has the burden of proving negligence on the part of the defendant. Hoffman v. Mogil, 445 Pa. Super. 252, 258, 665 A.2d 478, 481 (1995). Under the law of this Commonwealth, to establish negligence in a medical malpractice case the plaintiff must present the opinion of a qualified expert to identify the applicable standard of care and any deviations from that standard by the defendant medical provider. Brannan v. Lankenau Hospital, 490 Pa. 588, 595-96, 417 A.2d 196, 199-200 (1980).

In paragraph 3 8 of the amended complaint the plaintiff alleges that the defendant was negligent in the following respects:

“(a) Failing to properly, fully or adequately diagnose the plaintiff’s condition;

“(b) Failing to treat plaintiff with conservative therapies;

“(c) Failing to advise Tina Hartenstine of the risks of the procedure;

“(d) Failing to advise Tina Hartenstine of alternative treatments;

“(e) Failing to order appropriate preoperative studies;

“(f) Failing.to obtain consultation with physicians appropriate to treat her condition, including without limitation, a pain management specialist;

“(g) The placement of the pedicle screws in an appropriate manner;

“(h) The placement of pedicle screws in a manner for which they were not designed, being placed lateral to the pedicles;

“(i) Performing inappropriate surgeries upon Tina Hartenstine;

“(j) Failing to advise Tina Hartenstine in a timely manner of the problems which had taken place during his (sic) surgeries;

“(k) Abandoning his patient;

“(1) Failure to heed the complaints of Tina Hartenstine, and tell her complaints needed the care of a psychiatrist; rather than the care of a competent neurosurgeon;

“(m) As a direct result of the negligence and carelessness of defendant, plaintiff sustained serious and permanent injuries, including nerve damage and disfigurement;

“(n) By insertion of the pedicle screws into the psoas muscle and neural foramen;

“(o) Improper placement of the internal fixation system and pedicle screws;

“(p) Improper removal of internal fixation system and pedicle screws;

“(q) Failure to properly place pedicle screws within all pedicles on August 8, 2003;

“(r) Failure to properly place pedicle screws within pedicles on October 8, 2003;

“(s) Failure to properly stabilize the spinal column.”

In support of these allegations the plaintiff has submitted an expert report from Morris Pulliam M.D., F.A.C.S., a neurosurgeon. Dr. Pulliam opines in his report that the defendant failed to properly place the pedicle screws in the plaintiff’s spine during the first two surgeries performed on August 8 and October 8, 2003. He identifies this as a deviation from the standard of care for a neurosurgeon. However, Dr. Pulliam does not assert any opinion regarding the allegations in subparagraphs (b), (c), (d), (e), (f), (j), (1) and (m) of paragraph 38. The plaintiff has failed to produce any evidence to support claims of negligence on these theories. Hence, summary judgment must be granted in favor of the defendant against the plaintiff with respect to the allegations of negligence in subparagraphs (b), (c), (d), (e), (f), (j), (1) and (m) of paragraph 38 in the amended complaint. Summary judgment is denied on the remaining allegations of negligence.

II. The Claims for Medical Expenses and Loss of Income

In her amended complaint the plaintiff claims as damages past medical expenses (paragraph 42), future medical expenses (paragraph 43), past wage loss (paragraph 44), and future wage loss (paragraph 45) as a result of the defendant’s alleged medical negligence. The plaintiff has the burden of proving these damage claims. The defendant contends that the plaintiff is unable to do so. We agree in part.

A. Past Medical Expenses

In his motion for partial summary judgment, the defendant alleges that the plaintiff has failed to provide documentation to support her claim for medical bills or expenses. However, the plaintiff states that the medical bills were included with the medical records provided to the defendant. In this circumstance we do not believe that summary judgment is appropriate on this issue. We will hold an in limine hearing immediately before the commencement of trial to determine what medical bills were in fact provided by the plaintiff to the defendant and what amount is claimed for past medical expenses in accordance with the decision in Moorhead v. Crozier Chester Medical Center, 564 Pa. 156, 765 A.2d 786 (2001).

At oral argument on the defendant’s motion, the defendant’s counsel made reference to section 508 of the Medical Care Availability and Reduction of Error (MCARE) Act. This section provides that a claimant in a medical professional liability action “is precluded from recovering damages for past medical expenses ... incurred to the time of trial to the extent that the loss is covered by a private or public benefit or gratuity that the claimant has received prior to trial.”

There is an exception to this rule for “public benefits paid or payable under a program which under federal statute provides for right of reimbursement which supersedes state law for the amount of benefits paid from a verdict or settlement.”

The plaintiff alleges in her supplemental memorandum that her past medical expenses were paid in part by Medicare and in part by an insurance policy provided through her employment.

There is a right of reimbursement that supersedes state law for the Medicare payments. Thus, we see no impediment under section 508 to the plaintiff’s claim for recovery of the Medicare-reimbursed expenses. However, with respect to the expenses reimbursed by private insurance provided through the plaintiff’s employment, the answer is unclear. The plaintiff claims that the private insurance was part of a plan that qualifies under the Federal Employment Retirement Income Security Act (ERISA), 29 U.S.C. §1001 et seq. In FMC Corporation v. Holliday, 498 U.S. 52 (1990), the United States Supreme Court held that ERISA preempts the application of Pennsylvania law, and hence that medical expenses paid through an ERISA plan that provides a right of subrogation may be recovered in a personal injury action. What is absent from the record, though, is any evidence that the private insurance was part of an ERISA plan that provided for subrogation.

Since section 508 of the MC ARE Act and the ERISA issue were raised for the first time at oral argument and are not part of the defendant’s motion for partial summary judgment, we decline to act on these matters at this time. However, to avoid confusion at trial, we will take these matters up at the in limine hearing to be held immediately prior to the commencement of trial. The parties should be prepared to present evidence regarding the source or sources of the payments for the plaintiff’s past medical expenses and whether these sources qualify for reimbursement under ERISA.

B. Future Medical Expenses

The plaintiff withdrew her request for future medical expenses at oral argument on the subject motion. Hence summary judgment is granted in favor of the defendant on the claims for future medical expenses in paragraph 43 of the amended complaint.

C. Past Wage Loss

The plaintiff has supplied the defendant with information regarding her employment history and earnings, including tax returns. This information is sufficient to afford the trier of fact a reasonably fair basis on which to calculate the plaintiff’s past wage lost. Summary judgment on this issue is not warranted.

D. Future Wage Loss

The motion for summary judgment is granted with respect to the plaintiff’s claim for future wage loss. The plaintiff has not produced any expert evidence to support her claim that she will suffer a future wage loss as a result of the defendant’s alleged negligence. Moreover, the plaintiff has not submitted any evidence that would enable a jury to reduce any future wage loss to present value, as required by section 510 of the MCARE Act.

Plaintiff’s counsel suggested at oral argument that the trial judge can reduce the jury’s findings of future income to present value. This argument is unsound for several reasons. First, section 510 of the MCARE Act requires the “trier of fact,” which in this case is the jury, to make these determinations, not the trial judge. In addition, this same section requires that a claim for loss of future earnings be presented “with competent evidence of the effect of productivity and inflation over time,” and that the trier of fact shall determine the applicable discount rate based upon “competent evidence.” The plaintiff has not identified any economist, actuary or other expert competent to testify on these issues, and no report from any such expert has been provided. Consequently, there is no basis whatsoever for anyone, either the jury or the trial judge, to make the necessary computations.

In a letter to the court after oral argument, plaintiff’s counsel alludes to section 509(b)(8) of the MC ARE Act, which provides:

“Future damages for medical and other related expenses shall not be awarded in periodic payments if the claimant objects and stipulates that the total amount of the future damages for medical and other related expenses, without reduction to present value, does not exceed $100,000.”

This section applies by its terms only to future damages for “medical and other related expenses.” A claim for future wage loss does not fall within this category of damages.

Therefore, in the absence of any expert evidence that the plaintiff will be unable to perform the duties of her employment in the future because of the defendant’s alleged medical negligence, and the further absence of any evidence that would enable the jury to reduce a claim for future wage loss to present value, the plaintiff’s claim for future wage loss cannot succeed. Accordingly, summary judgment must be granted to the defendant against the plaintiff on the plaintiff’s future wage loss claim.

III. The Informed Consent Claim

The plaintiff alleges in Count II of her amended complaint that the defendant did not obtain her informed consent prior to performing the three surgeries on her spine. Without her informed consent to the surgical procedures, these procedures would have been tortious batteries, for which she would be entitled to compensation whether or not the defendant was negligent. Gouse v. Cassel, 532 Pa. 197, 204, 615 A.2d 331, 334 (1992).

Section 504(b) of the MCARE Act provides:

“Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.”

A claim for lack of informed consent is actionable under section 504(d) of the Act “only if the patient proves that receiving such information would have been a substantial factor in the patient’s decision whether to undergo the procedure.” Under section 504(c), expert testimony is required to identify “the risks of that procedure, the alternatives to that procedure and the risks of these alternatives.” See also, Festa v. Greenberg, 354 Pa. Super. 346, 356, 511 A.2d 1371, 1376 (1986). Without this information the fact-finder cannot properly evaluate these risks to determine if they are sufficiently material to sustain a claim of lack of informed consent. Bey v. Sacks, 789 A.2d 232, 238 (Pa. Super. 2001).

In the instant case the defendant contends that the plaintiff has failed to submit an expert report that can sustain her burden on the lack of informed consent claim. The only expert report produced by the plaintiff is that of Dr. Pulliam, who focuses exclusively on the negligence of the defendant in the placement of the pedicle screws during the surgeries. Dr. Pulliam’s report does not address the defendant’s alleged failure to discuss risks attendant with the surgical procedures, the alternative methods of treatment, or risks associated with the alternatives.

The plaintiff contends that she does not need an expert to discuss the risks of alternative methods of treatment because of the defendant’s deposition testimony. In his deposition the defendant testified that he had informed the plaintiff, prior to the initial surgery, that conservative treatment, including a back brace, muscle relaxers, and rest, was an option, and that the surgery he was going to perform had attendant risks. However, this testimony does not satisfy the expert evidence requirement. It does not identify and explain the risks associated with the alternative treatments. Therefore, the plaintiff’s claim for lack of informed consent to the initial surgery on August 8, 2003, must be dismissed.

We reach a different conclusion regarding the second and third surgeries on October 8 and November 7,2003. In her complaint and supplemental memorandum the plaintiff alleges that prior to the second surgery the defendant misinformed her as to the reason the first surgery had been unsuccessful. She claims that instead of telling her that he had failed to place the pedicle screws properly, he stated that the screws came loose because her bones were too soft. In the affidavit attached to her supplemental memorandum, she states that if the defendant had revealed the correct information to her, she would not have allowed him to perform the later surgeries.

This is not a classic type of informed consent claim. It is in essence a claim of misrepresentation, rather than a claim that the risks of alternative procedures were not disclosed. Nevertheless, we believe that this claim, if proved at trial, is a viable one. Our Supreme Court has held that a surgical procedure performed without the patient’s consent is actionable as a battery. Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742 (2002). Where the patient’s consent has been induced by an intentional misrepresentation, the result must be the same. A consent induced by a knowing misrepresentation is ineffective. The surgical procedure subsequently performed is therefore a battery, and the physician is liable for damages without proof of negligence.

A medical battery claim based on a misrepresentation does not require expert testimony as to the alternate treatments available and the risks of those alternate treatments. The reason is that the patient’s claim is not grounded in the physician’s failure to disclose such information, but rather on the physician’s affirmative misrepresentation. The issues are whether the physician made a misrepresentation, whether he knew the representation was false, whether he intended to induce the patient’s consent by means of the misrepresentation, and whether the patient reasonably relied on the misrepresentation. These issues are well within the competence of a jury. We do not believe that expert testimony is required.

Our Supreme Court has previously held that the physician’s skill or lack of skill in performing the proposed operation need not be disclosed in order to obtain the patient’s informed consent. Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255 (2001). In Duttry, the patient had questioned the physician specifically about his experience in performing the type of operation he was recommending. The physician responded falsely that he performed this procedure approximately once every month, whereas in point of fact, he had performed the procedure only nine times in the preceding five years. The Supreme Court rejected the patient’s claim of lack of informed consent, holding that evidence of a physician’s personal characteristics and experience is irrelevant to an informed consent claim.

The holding in Duttry, however, is no longer the law of Pennsylvania. Section 504(d)(2) of the MCARE Act, adopted the following year, now provides:

“A physician may be held liable for failure to seek a patient’s informed consent if the physician knowingly misrepresents to the patient his or her professional credentials, training or experience.”

The misrepresentation theory advanced here is analogous to section 504(d)(2). In this case the alleged misstatement as to the reason the first surgery failed was relevant to the defendant’s experience in performing such surgeries. Whether this misrepresentation was made by the defendant with knowledge of its falsity, and whether the plaintiff reasonably relied on it in consenting to the second and third surgeries, is a jury question that does not require expert testimony.

For these reasons, the defendant’s motion for partial summary judgment is granted on the plaintiff’s claim for lack of informed consent to the first surgery, but is denied on the plaintiff’s claim for lack of informed consent to the second and third surgeries.

ORDER

Now, October 25,2007, upon consideration of defendant’s motion for partial summary judgment on the claims of negligence, damages, and informed consent, and plaintiff’s response thereto, after review of the parties ’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered as follows:

(1) With respect to plaintiff’s allegations of negligence, the motion for partial summary judgment is granted with respect to paragraphs 38(b), 38(c), 38(d), 38(e), 38(f), 38(j), 38(1) and 38(m) of the amended complaint, and summary judgment is entered in favor of defendant against plaintiff on those claims. The motion is denied with respect to the allegations of negligence in paragraphs 38(a), 38(g), 38(h), 38(i), and 38(n) through 38(s) inclusive.

(2) With respect to the allegations of damages, the motion for partial summary judgment is granted on the claims for future medical expenses in paragraph 43 and future wage loss in paragraph 45 of the amended complaint, and summary judgment is entered for defendant against plaintiff on those claims. The motion is denied on the claim for past medical expenses in paragraph 42 of the amended complaint, subject to an in limine hearing immediately before the commencement of trial in accordance with the accompanying opinion. The motion is also denied with respect to the claim for past wage loss in paragraph 44 of the amended complaint.

(3) With respect to the claim of lack of informed consent in Count II of the amended complaint, the motion for partial summary judgment is granted as to the initial surgery on August 8,2003, and summary judgment is entered for defendant against plaintiff on the claim in Count II for this surgery. The motion is denied as to the subsequent surgeries on October 8 and November 7, 2007.

      . Plaintiff’s amended complaint ¶38.

        . Paragraphs 21 and 22 of motion for partial summary judgment.

      . 40 P.S. §1303.508(a) (Supp. 2007).

      . 40 P.S. §1303.508(d)(4) (Supp. 2007).

      . 42 U.S.C. § 1395y(b)(2)(B)(iii).

      . Section 510 of the MCARE Act provides the following:
      “Future damages for loss of earnings or earning capacity in a medical professional liability action shall be reduced to present value based upon the return that the claimant can earn on a reasonably secure fixed income investment. These damages shall be presented with competent evidence of the effect of productivity and inflation over time. The trier of fact shall determine the applicable discount rate based upon competent evidence.” 40 RS. §1303.510 (Supp. 2007).

      . 40 P.S. §1303.509(b)(8) (Supp. 2007).

      . 40 P.S. § 1303.504(b) (Supp. 2007).

      . 40 P.S. § 1303.504(d) (Supp. 2007).

      . 40 P.S. § 1303.504(c) (Supp. 2007).

      . Plaintiff’s response to defendant’s motion for partial summary judgment on claims of negligence and informed consent, exhibit A, 10, 15, 60.

      . See complaint, ¶20.

      . 40 P.S. § 1303.504(d)(2).


author: PICCIONE, J.,

text:
    Commonwealth v. Austin

      Larry J. Keith, assistant district attorney, for Commonwealth.

      Philip W. Berezniak, for defendant.
    December 20, 2007
   PICCIONE, J.,

— Before the court for disposition is defendant’s omnibus motion for pretrial relief in the form of a motion to suppress evidence. Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. DeMark, 800 A.2d 947 (Pa. Super. 2002).

Defendant asserts that any and all evidence seized pursuant to the search warrant should be suppressed because there was insufficient probable cause to issue the search warrant. According to the language in Pa.R.Crim.P. 203 and as explained in Commonwealth v. Edmunds, 526 Pa. 374, 377, 586 A.2d 887, 888 (1991), a trial court shall only consider the information set forth in the affidavit of probable cause to evaluate whether or not probable cause was established to issue a search warrant. “The courts in this Commonwealth employ a ‘totality of the circumstances’ test, as enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for determining the existence of probable cause for the issuance of a search warrant.” Commonwealth v. Singleton, 412 Pa. Super. 550, 551, 603 A.2d 1072, 1072 (1992). Consequently, this court shall consider only the information contained in Trooper Kocinski’s (affiant) affidavit and Trooper Barnett’s supplemental investigation report which was attached to such affidavit and shall apply the totality of the circumstances test.

The court will first consider whether there was sufficient probable cause to issue a search warrant encompassing the seizure of a SKS semi-automatic assault rifle. According to paragraph eight of the affidavit Danielle Lynn Workman is the defendant’s girlfriend and the defendant resides in her home. According to paragraph seven Workman completed a “Department of the Treasury Bureau of Alcohol, Tobacco and Firearms form” indicating that she was the individual purchasing the rifle. After purchasing the rifle, Workman asked the vice president of Duke’s Sporting Goods what would be the appropriate ammunition for deer hunting. The vice president informed her that it was illegal to use the rifle for deer hunting. Upon combining the above information with a controlled buy made at the defendant’s residence and the defendant’s past criminal history, the affiant states his belief that the rifle was being used to protect defendant’s residence.

In Trooper Barnett’s supplemental investigation report he states that he was informed by Trooper Baer that Workman’s purchase of the rifle may have been a “straw purchase.” Trooper Barnett goes on to state that “[a] background check on the offender [defendant] revealed he is not prohibited from possessing a firearm, however the firearm was seized by Trooper Baer due to the drug activity at the residence.”

A strawman purchase occurs “when a lawful purchaser buys for an unlawful one.” U.S. v. Moore, 109 F.3d 1456, 1461 (9th Cir. 1997). In the instant case, defendant was not prohibited from possessing firearms. Moreover, there is no information indicating Workman purchased the rifle for defendant or that defendant used the rifle for illegal purposes. The rifle was legally purchased by Workman and seized from her residence. There is insufficient information within the affidavit upon which the affiant relied to base his belief that the rifle was being used for illegal purposes. As such, the defendant’s omnibus motion to suppress evidence is granted as to the rifle.

The court will next consider whether there was sufficient probable cause to issue a search warrant encompassing all other items seized. The crux of defendant’s assertion is that insufficient information as to the confidential informant’s (Cl) reliability was stated in the affidavit for the issuing authority to find that there was probable cause to search. “A tip from an unnamed informant can properly form the basis for probable cause to issue a search warrant, provided there is adequate evidence of the informant’s reliability.” Commonwealth v. Lemanski, 365 Pa. Super. 332, 353, 529 A.2d 1085, 1095 (1987) (distinguished on other grounds by Commonwealth v. Oglialoro, 377 Pa. Super. 317, 547 A.2d 387 (1988)).

In the instant case, the defendant’s reputation supports the Cl’s tip. The affiant stated in paragraph three of the affidavit that other law enforcement officers informed the affiant that the defendant had “been involved in illegal drug trafficking for several years in and around the Lawrence County, Pennsylvania area.” Also, the affidavit specifically states in paragraph five that the Cl gave prior reliable information. The affiant stated “[t]he Cl has also provided information to your affiant on occasions which has been determined to be true and correct by your affiant and other officers.” Moreover, the Cl was advised that giving any false information or statements to the affiant would subject the Cl to criminal penalties. The Cl acknowledged that he/she understood this possible consequence.

Defendant has asserted that reliability of the Cl was not proven in the affidavit because the affiant wrote in paragraph five that “[t]he Cl has assisted your affiant and other officers with investigations in the past which will and/or has resulted in the arrest of individuals . . . Defendant asserts that the term “and/or” is fatal to prove reliability of the CI. Defendant cites Commonwealth v. Gindlesperger, 706 A.2d 1216 (Pa. Super. 1997), to support this contention. In Gindlesperger, the only information in the affidavit to establish the Cl’s reliability was a statement that the CI “provided information to this officer in the past that has been proven reliable and will result in the arrests of individuals for violations of the drug laws. ” Id. at 1225. (emphasis in original) The court found that in such a situation, the CI must have given information that has led to arrests in the past. Id.

This court finds that Gindlesperger is not controlling. In the instant case, the reliability of the CI is not based solely on the reliability of prior information given to the affiant as was the case in Gindlesperger. In fact, there are four factors that must be considered when: “ determining the credibility of an unidentified informant and the reliability of his information: (1) Did the informant give prior reliable information? (2) Was the informant’s story corroborated by another source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip?” Id. at 1225 (citing Commonwealth v. Gray, 322 Pa. Super. 37, 47, 469 A.2d 169, 174 (1983)). “It is not necessary that the affidavit satisfy all four of these criteria.” Id.

This court should, and will, give deference to the issuing authority’s determination of probable cause. Commonwealth v. Corleto, 328 Pa. Super. 522, 528, 477 A.2d 863, 866 (1984). The issuing authority must read the “affidavit upon which a search warrant is sought... with common sense. Technical requirements of elaborate specificity are inappropriate.” Commonwealth v. Jefferson, 271 Pa. Super. 199, 204, 412 A.2d 882, 885 (1979). Reading the affidavit in such a manner and applying the totality of the circumstances test, this court finds that adequate probable cause is established in the affidavit for the issuing authority to have issued a search warrant. As such, the defendant’s omnibus motion to suppress evidence is denied as to all other items seized.

ORDER

And now, December 20, 2007, the court having held a hearing December 3, 2007 on defendant’s omnibus motion for pretrial relief, with Assistant District Attorney Lawrence J. Keith, Esquire, appearing and representing the Commonwealth, and Philip W. Berezniak, Esquire, appearing .and representing the defendant, Dana Q. Austin, it is hereby ordered, adjudged and decreed as follows:

(1) The relief requested in defendant’s omnibus motion for pretrial relief is denied in part and granted in part pursuant to the attached opinion.

(2) The clerk of courts shall properly serve notice of this order and attached opinion upon counsel of record, Assistant District Attorney Larry J. Keith, Esquire, Philip W. Berezniak, Esquire; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: CEPPARULO, J,

text:
    Commonwealth v. Martellacci

      Christina Stephanos, assistant district attorney, for Commonwealth.

      Christa S. Dunleavy, deputy public defender, for defendant.
    April 9, 2008
   CEPPARULO, J,

INTRODUCTION

On January 29, 2008, following the denial of his motion to suppress physical evidence and statements, defendant was convicted of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Defendant was sentenced to a three-year period of probation and from that judgment of sentence, defendant has now appealed. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

FACTUAL AND PROCEDURAL BACKGROUND

On January 30, 2007, defendant entered the parking lot of the Knights Inn, in Bensalem Township, Bucks County, Pennsylvania. Notes of Testimony, 1/29/2008 (N.T.), pp. 5,22. The Knights Inn is in a high crime area, well-known for drug trafficking. N.T., pp. 22-23. At the time defendant entered the parking lot, Officer David Clee, an undercover police officer was patrolling the area in an unmarked vehicle. N.T., pp. 22-23. Officer Clee’s training and experience includes 400 hours of narcotics training specifically related to drug dealing, eight years handling a narcotics canine, and six years with the Bensalem Township Special Investigations Unit. N.T., p. 21. During his time with that unit approximately 1,500 drug arrests were made. N.T., p. 22. While on patrol, Officer Clee observed defendant complete what he believed was a drug sale.

Specifically, Officer Clee observed defendant drive slowly through the Knights Inn parking lot searching for a room. This area of Bensalem Township contains numerous hotels and motels which are commonly used for narcotics trafficking and use. N.T., p. 23. The Knights Inn is located in the center of this area and Officer Clee, alone, has investigated thousands of drug cases just in that motel. N.T., p. 24. While cruising in the parking lot, Officer Clee observed the defendant drive up and down the aisles looking at hotel room doors without first going to the lobby. N.T., p. 24. The manner of defendant’s actions were, in Officer Clee’s opinion, consistent with behavior often associated with people searching for a prostitute or dealing drugs. N.T., p. 24; see also, exhibit C-4, p. 2 (application for search warrant). Officer Clee watched as defendant stopped in front of room 209 and honked his horn. N.T., p. 25. A woman exited the room and entered the vehicle. N.T., p. 25. Officer Clee observed defendant reach into the roof of his vehicle and pass an object to the woman; the woman then passed an item back to the defendant. N.T., p. 26; see also, exhibit C-4, p. 2. The woman was in defendant’s vehicle for about 45 seconds before she exited, placed an object in her pocket, and returned to room 209. N.T., p. 26; see also, exhibit C-4, p. 2.

Officer Clee followed defendant out of the parking lot, and radioed to have a uniformed officer in a marked patrol vehicle conduct a traffic stop of defendant’s vehicle. N.T., pp. 27-28. Officer Cornish, another police officer with Bensalem Township, stopped defendant’s vehicle approximately a mile and a half from the Knights Inn. N.T., p. 28. Officer Clee arrived at the scene as Officer Cornish executed the stop. N.T., p. 28. At that time, Officer Clee observed defendant reaching under the passenger seat and toward the dashboard of his vehicle. N.T., pp. 57-58. Defendant was subsequently asked to step from his vehicle. N.T., pp. 28-29. At this point, Officer Clee observed what appeared to be “Chore Boy”, a cleaning product often associated with drug use, scattered throughout the entire vehicle. N.T., pp. 41, 56.

As defendant’s vehicle was being pulled over Officer Clee observed defendant reaching inside the vehicle, under the passenger seat and near the glove box. N.T., pp. 56-57. At that point Officer Clee did not know if the defendant would be detained or returned to the vehicle and the defendant was asked, therefore, to exit the vehicle while Officer Clee searched the area in the car to insure there were no weapons inside. N.T., p. 57. As defendant exited the vehicle, Officer Clee had a brief conversation with him, wherein defendant indicated he was coming from Philadelphia traffic court and heading to Frankford Hospital to see his girlfriend and new baby. N.T., p. 29; exhibit C-4, p. 2. Officer Clee knew that had defendant taken a direct route from traffic court to the hospital he would not have passed the Knights Inn in Bensalem Township. N.T., p. 29. Officer Clee asked defendant to explain himself and defendant gave an explanation which omitted any mention of entering the Knights Inn parking lot. N.T., p. 29. Officer Clee asked defendant if he made any stops along the way; defendant responded that he had not. Exhibit C-4, p. 2. Officer Clee concluded that defendant was attempting to deceive him, and in his experience deceptive behavior is one of the best indicators of criminal activity. N.T., p. 30; exhibit C-4, p. 2. Based on his observations in the Knights Inn parking lot, his observations before and during the traffic stop, and defendant’s lack of candor with police, Officer Clee had Officer Cornish take defendant into custody and impound the vehicle in order to obtain a search warrant for the vehicle. N.T., p. 30; exhibit C-4, p. 2.

Officer Clee returned to the Knights Inn where he spoke to the woman he had seen with defendant. N.T., p. 30; exhibit C-4, p. 2. He approached room 209, where a man answered and invited him in. Exhibit C-4, p. 2. The woman Officer Clee observed with defendant was also in the room. N.T., p. 30; exhibit C-4, p. 2. While speaking with the woman Officer Clee spotted empty glassine bags, consistent with those used for heroin, in the trash can. N.T., p. 30. The woman told Officer Clee that she was in defendant’s vehicle to pay for heroin she received the day before. N.T., p. 30; exhibit C-4, p. 2. Following the conversation Officer Clee transported the man and woman to headquarters. N.T., p. 30.

Officer Clee subsequently read defendant his Miranda rights. N.T., pp. 32-33; exhibit C-4, p. 3. Defendant waived his Miranda rights and gave a voluntary statement to police. N.T., pp. 32-34; exhibit C-4, p. 3. Defendant admitted that he sold three packets of heroin to the woman in the parking lot for $32, and he had a bundle of heroin packets hidden in the roof of his vehicle. N.T., pp. 32-34; exhibit C-4, p. 3. Defendant made it clear he was willing to cooperate with police in other drug-related investigations, and was thereafter released from custody. N.T., pp. 34-35.

The next day Officer Clee executed a search warrant on the vehicle and found a bundle of heroin packets in the roof of the vehicle, the location indicated by defendant. N.T., p. 36. Additionally, police found a needle, a bottle, two Pennsylvania driver’s licenses and an Arizona driver’s license. None of the licenses belonged to defendant. N.T., pp. 36-38; see also, exhibit C-2 (inventory sheet).

Defendant was charged with possession of a controlled substance with intent to deliver and possession of drug paraphernalia. On January 29,2008, defendant appeared in court for a preliminary hearing, and after ruling that the Commonwealth had established a prima facie case, we proceeded to hear defendant’s motion to suppress.

Defendant argued that the traffic stop was not supported by reasonable suspicion and that there was no probable cause to take him into custody at the conclusion of the traffic stop. Defendant requested that the court suppress his statements to police and the items found during the search of his vehicle, arguing such evidence was the fruit of an illegal search and seizure. We denied defendant’s motions, and after a stipulated non-jury trial we convicted defendant on both charges. On the possession with intent to deliver charge, we sentenced defendant to three years probation.

STATEMENT OF MATTERS.

COMPLAINED OF ON APPEAL

On appeal defendant raises eight issues. They are:

(1) The trial court erred in holding that officers had reasonable suspicion to conduct a traffic stop of his vehicle.

(2) The trial court erred in holding that police officers had probable cause to conduct a traffic stop of appellant’s vehicle.

(3) The trial court erred in holding that officers had probable cause to arrest appellant.

(4) The trial court erred in holding that officer had probable cause to seize appellant.

(5) The trial court erred in holding that the officer had probable cause to seize appellant’s vehicle.

(6) The trial court erred in holding the statements made by appellant were knowingly, voluntarily and intelligently made and were not the “fruit” of the unlawful stop, arrest and seizure.

(7) The trial court erred in holding that the search warrant to search appellant’s vehicle was based on probable cause.

(8) The trial court erred in holding that the search warrant of appellant’s vehicle was not the “fruit” of an illegal seizure.

STANDARD OF REVIEW AND ANALYSIS OF THE ISSUES

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Ruey, 586 Pa. 230, 239-40, 892 A.2d 802, 807 (2006), citing Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992).

The standard of review by the Pennsylvania Superior Court is whether the record supports the factual findings of a trial court and whether the legal conclusions drawn therefrom are free from error. Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super. 2000), citing Commonwealth v. Collazo, 692 A.2d 1116 (Pa. Super. 1997). In reviewing an order from a suppression court, the Superior Court considers the Commonwealth’s evidence, and only so much of the defendant’s evidence as remains uncontradicted. The suppression court’s factual findings will be accepted if they are supported by the evidence. Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa. Super. 2000), citing Commonwealth v. Hoopes, 722 A.2d 172 (Pa. Super. 1998). For ease of review, we have summarized defendant’s “statement of matters complained of on appeal” into four issues:

1. Was the Initial Stop of Defendant’s Vehicle Based on a Reasonable Suspicion That Criminal Activity Was Afoot?

In Pennsylvania, in order to execute a vehicle stop, for the purpose of conducting an investigatory detention, the stop must be supported by a reasonable suspicion that criminality is afoot. Commonwealth v. Donaldson, 786 A.2d 279, 281 (Pa. Super. 2001).

Reasonable suspicion must be based on specific and articulable facts, and while open to some degree of interpretation must be more than an “educated hunch.” Id.; see also, Commonwealth v. Powell, 934 A.2d 721, 723 (Pa. Super. 2007).

“To establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.” Commonwealth v. Reppert, 814 A.2d 1196, 1204 (Pa. Super. 2002).

Defendant contends that at the time of the initial vehicle stop there was insufficient information known to Officer Clee to support a reasonable suspicion that criminality was afoot. The only way of determining the issue is to state, with as much specificity as possible, what Officer Clee knew at the time of the stop:

(1) Defendant was initially seen driving up and down the aisles at the Knights Inn without first going to the lobby.

(2) The Knights Inn is located in an area of Bensalem Township known for high narcotic trafficking activity.

(3) Officer Clee has investigated thousands of drug cases in that motel alone.

(4) Officer Clee has hundreds of hours of narcotic training specifically relating to drug dealing and has been assigned to the Special Investigations Unit of Bensalem Township for a period of six years, during which time over 1,500 drug arrests were made.

(5) Defendant eventually stopped his vehicle in front of room 209 and, after honking his horn, a woman exited the room and entered the vehicle.

(6) Officer Clee observed defendant reach into the roof of his vehicle and pass a small unidentified object to the woman.

(7) The woman then immediately passed a small unidentifiable object back to the defendant and reentered the motel room.

(8) The woman was in defendant’s vehicle for approximately 45 seconds.

(9) Defendant’s vehicle was stopped by another patrol officer approximately one and one-half miles away from the Knights Inn.

(10) As the vehicle was pulling over, Officer Clee observed the defendant reaching under the passenger seat and in and around the glove box before the car came to rest.

(11)As the officer approached the vehicle, he noticed what appeared to be “Chore Boy” all over the inside of the vehicle.

(12) Chore Boy is a cleaning product which is commonly used to smoke crack-cocaine.

(13) Defendant was asked to step to the rear of the vehicle while Officer Clee searched the area where defendant was reaching during the stop for any weapons which were present.

(14) Defendant was asked where he was going and his answer was that he was coming from traffic court in Philadelphia to Frankford Hospital to visit with his girlfriend and new child.

(15) Since the hospital and traffic court are both located in Philadelphia there was no reason for the defendant to be traveling in Bensalem Township, Bucks County.

(16) Although asked repeatedly, defendant refused to admit that he had just been in the parking lot of the Knights Inn.

(17) Specifically, defendant was asked if he had made any stops along the way from the traffic court to the hospital and he replied that he had not, which was obviously not true.

(18) Defendant was placed under arrest and taken to police headquarters.

(19) The vehicle was not immediately searched, but was impounded to await the issuance of a search warrant.

The information described above was known to Officer Clee at the time of the initial traffic stop leading up to defendant’s arrest. This court found that it was reasonable for Officer Clee to conclude that a drug sale had just taken place and that he had witnessed that sale. Furthermore, despite having that knowledge, Officer Clee did not search the vehicle while on the street, but instead allowed a neutral judicial officer to review the probable cause prior to any search being conducted. We believe the above fairly summarizes the evidence and justifies this court’s conclusion regarding the initial traffic stop of defendant’s vehicle.

2. Was Defendant’s Arrest Supported by Probable Cause?

It was agreed between the parties that when defendant was placed into the rear of the police car and handcuffed to be transported to police headquarters that he was clearly then under arrest. The issue raised by defendant is, at that time, whether there was probable cause to believe defendant had committed a crime.

The Supreme Court of Pennsylvania in Commonwealth v. Dunlap, 941 A.2d 671 (Pa. 2007), recently clarified the standard and factors relevant to a probable cause determination. In Dunlap, a police officer, working in a high-crime area, observed the defendant exchange currency for an unknown object without seeing any other suspicious activity. Id., 941 A.2d at 673. Shortly thereafter, that officer arrested the defendant and searched him without a warrant, and found crack-cocaine. Id. The Supreme Court ruled that the limited information available to the officer was a mere suspicion and did not constitute probable cause. Id., 941 A.2d at 679.

“The existence or nonexistence of probable cause is determined by the totality of the circumstances.... The totality of the circumstances test requires a court to determine whether ‘the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.’” Commonwealth v. Dunlap, 941 A.2d 671, 674-75 (Pa. 2007). (citations omitted)

Anonexhaustive list of factors to consider is: the time and location of transaction, the number of transactions, the place where small items were kept, and the movements and manners of the parties. Dunlap, 941 A.2d at 675 (recounting the factors examined in Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973)). In Dunlap, the court made clear that, “police training and experience, without more, is not a fact to be added to the quantum of evidence to determine if probable cause exists, but rather a Tens’ through which courts view the quantum of evidence observed at the scene.” Id. (emphasis in original) Indeed, the court recognized that a police officer’s training and experience provide officers with the ability to identify packages which are likely to contain illegal narcotics, and to recognize illegal activity where civilians may not. Dunlap, 941 A.2d at 675-76.

Defendant argues that his case is identical to Dunlap and that Officer Clee’s observations do not rise to the level of probable cause. However, we believe the cases are factually distinguishable, simply based on the information known to Officer Clee at the time of defendant’s arrest. We have summarized that information heretofore and believe it is more than sufficient to justify defendant’s arrest. We note, also, that defendant did not testify or offer any evidence at the hearing on his motion to suppress and we accepted, therefore, all of Officer Clee’s uncontroverted testimony.

In our view, Officer Clee took defendant into custody based, not on a hunch or gut feeling but on specific observations, which when considered in light of his training and experience, allowed him to conclude reasonably that, while in his car in the parking lot of the Knights Inn, defendant had conducted an illegal drug transaction.

3. Was the Search Warrant Obtained for Defendant’s Vehicle Supported by Probable Cause?

On January 31,2007, the day after defendant’s arrest, a search warrant was obtained for defendant’s vehicle by Officer Clee. That search warrant was approved by District Justice Joseph P. Falcone of Penndel, Bucks County, Pennsylvania. Within the warrant, Officer Clee spelled out his special training in narcotics investigations indicating that, in addition to the testimony already summarized within this opinion, he has been a police officer for 13 years, that he is approved as a special Bucks County Detective, which allows him to investigate narcotics activities throughout the entire county of Bucks and that his unit has applied for and been approved for at least 50 search warrants in the area of the Knights Inn within the past five years.

In the search warrant, Officer Clee spelled out in summary fashion the information leading up to defendant’s arrest. He also indicated that subsequent to that arrest, he interviewed the female in room 209 of the Knights Inn and that he observed within her room used glassine packets of heroin. The female identified to Officer Clee as Katherine O’Neill stated that she has been buying heroin from the defendant over the past six months and that, on the day before, she had paid defendant a $32 debt from prior heroin transactions. She also stated that during her encounter with defendant, he offered her heroin and it was her belief that the defendant had that heroin on or about his person. She did not, however, see the heroin.

Finally, within the body of the search warrant, Officer Clee indicated that at 4 p.m. on January 30, 2007, he interviewed defendant after defendant waived his right to remain silent and agreed to speak with him without a lawyer being present. Officer Clee noted that the defendant admitted that he went to meet with Katherine O’Neill on that day and that he sold her three packs of heroin for $32. He also indicated that he had one bundle of heroin remaining in the roof of his vehicle.

Based on the above facts, District Justice Falcone issued the search warrant allowing defendant’s vehicle to be searched for any and all items of drugs and/or drug paraphernalia possessed in violation of the Pennsylvania Controlled Substance Drug Device and Cosmetic Act of 1972. It was our determination that the above summarized information presented to the district justice was certainly sufficient for the issuance of a search warrant, especially with the defendant indicating that there were controlled substances remaining in the vehicle, which was then in police custody. We believe, therefore, that the issuance of the search warrant was supported by probable cause.

4. Were Defendant’s Statements to the Police Knowingly, Intelligently and Voluntarily Made?

The only evidence received by this court at the motion to suppress was offered by Officer Clee which recounted the waiver of defendant’s Miranda rights and his statement to Officer Clee. The Commonwealth introduced the actual Miranda card used by Officer Clee and defendant’s answers were written on the card itself. They ended with “I’d like to speak to you” with the defendant’s signature immediately thereafter. As we previously indicated, defendant did not testify at his motion to suppress, or at trial, and offered no evidence to suggest that the waiver of his right to remain silent and his statement to Officer Clee was anything but knowingly, intelligently and voluntarily made. Accordingly, we believe that this issue also has no merit.

The remaining issues raised by defendant on this appeal are whether the police had the right to seize his vehicle after his arrest, and whether or not his statement and the physical evidence seized from his vehicle are the “fruits” of an illegal seizure. Police may impound a vehicle following an arrest of the driver pending the obtaining of a search warrant. Commonwealth v. Hennigan, 753 A.2d 245, 256 (Pa. Super. 2000); see also, Commonwealth v. Holzer, 480 Pa. 93, 102-103, 389 A.2d 101, 106 (1978). As defendant was lawfully taken into custody, the subsequent impoundment of his vehicle was also lawful. Similarly, as defendant’s arrest and seizure were proper, his subsequent statement made to Officer Clee was not the fruit of any primary illegality. We believe, accordingly, that these remaining issues should be dismissed as they are without merit.

CONCLUSION

The foregoing represents the reasons for this court’s denial of defendant’s motion to suppress evidence and his subsequent judgment of sentence entered on January 29, 2008.

      . 35 Pa.C.S. §780-113(a)(30).

      . 35 Pa.C.S. §780-113(a)(32).

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We imposed no further penalty on Count Two. As conditions of probation, we ordered that defendant pay the costs of prosecution, undergo a drug and alcohol and mental health evaluation and abide by any recommendations, complete 50 hours of community service, and maintain full-time employment or full-time educational enrollment.