author: Dozor, J,

text:
    Commonwealth v. Foreman

      CP. of Delaware County,
    no. 7340-09.

      Michael Mattson, for Commonwealth.

      Patrick Connors, for defendant.
    September 6, 2010
   Dozor, J,

NATURE AND HISTORY OF THE CASE

This is an appeal from this court’s judgment of sentence imposed on June 22,2010. The nature and history of this case is as follows:

On June 24,2009, appellant was arrested and charged with possession of a controlled substance (oxycodone) and turning movement, required signals, a summary offense. This court notes that appellant filed and litigated a motion to suppress, which was denied by this court on March 25, 2010.

From April 6, 2010 to April 7, 2010, this court presided over a jury trial. After reviewing all the evidence, the jury determined that appellant was guilty of Information A, possession of a controlled substance, which was the sole information to be presented to the jury. This court then found appellant guilty of Information B, turning movement, required signals, as a summary offense. This court scheduled sentencing for June 22,2010 and ordered a pre-sentence investigation report, a drug and alcohol evaluation and a psychological report. Appellant was released on bail pending sentencing and was required by this court to be placed upon the electronic home monitor pending sentencing.

This court notes that as a result of a new charge for possession with intent to deliver a controlled substance based upon appellant’s April 20, 2010 arrest, the Commonwealth sought to have appellant’s bail revoked, On April 27,2010, this court granted appellant’s motion and revoked appellant’s bail.

On June 22,2010, appellant was before this court for sentencing. On Information A, possession of a controlled substance, appellant received 14 months to 28 months incarceration in a state correctional facility and eight months consecutive state probation. On Information B, turning movement, required signals, appellant received a $25 fine. Appellant was deemed not RRRI eligible, this court recommended SCI Chester for substance abuse treatment; this court required aparóle plan for substance abuse and required appellant to complete and follow the recommendations of a drug and alcohol evaluation. Appellant was given credit for time served from April 27, 2010 to June 22, 2010.

On July 2,2010, appellant filed a timely post-sentence motion alleging insufficient evidence and which requested modification of the sentence. This court held a hearing on July 19, 2010 on the post-sentence motion. On July 22,2010, this court issued an order denying the post-sentence motion.

On August 23,2010, appellant filed a timely notice of appeal. In response to this court’s Pa.R.A.P. 1925(b) request, appellant raises the following issues on appeal: “The evidence was insufficient to sustain the conviction for possession of a controlled substance since the Commonwealth failed to prove beyond a reasonable doubt that Mr. Foreman had actual or constructive possession of the contraband.”

FACTS

Pennsylvania State Trooper Travis Martin testified that on June 24, 2009 he was in a marked patrol vehicle, working 3rd shift 1 l-7am. Trooper Martin testified that he was working with Trooper Thomas O’Konski on Interstate 95 around 2:04 AM. The Troopers were traveling in the center lane on 1-95 southbound, with relatively light traffic and no adverse weather conditions when they observed a Chrysler in the right lane merge onto an exit ramp without using its turn signal. Based upon his observation of the Chrysler’s movement in to another lane without utilizing a turn signal, Trooper Martin believed a traffic violation had occurred so he activated his overheard lights and sirens; Trooper Martin testified that the vehicle immediately pulled over.

Trooper Martin exited from the driver’s side of the patrol vehicle and approached the passenger side of appellant’s vehicle while Trooper O’Konski exited from passenger side of the patrol vehicle and walked to driver’s side of appellant’s vehicle. Trooper O’Konski testified that he believed that the driver’s side window was already rolled down when he approached the vehicle. Upon making contact with appellant, the driver, Trooper O’Konski informed appellant the reason for the traffic stop and then requested that appellant provide his driver’s license, registration and insurance information. This court notes that appellant provided the requested documentation and that appellant was the registered owner of the vehicle. See Commonwealth’s exhibit, C-l certified PennDOT record of vehicle ownership.

Both troopers testified that appellant appeared to be very nervous, and was not making eye contact with either trooper and in fact was actually attempting not to make contact and appellant was visibly shaking. Trooper Martin testified that appellant was acting more nervous then others normally act during a traffic stop and Trooper Martin characterized appellant’s level of nervousness as “very high.” Based upon his observations, Trooper Martin asked appellant if there was anything he should be nervous about and appellant said he had nothing to be nervous about and they could search the vehicle. Since appellant offered the troopers the opportunity to search the vehicle, the troopers granted the requested and removed appellant from the vehicle so that they could search it. Trooper O’Konski opened the front door and immediately saw a plastic bag on the shelf of the driver’s side door. Trooper O’Konski immediately observed a white plastic shopping bag on the shelf and when he opened the bag and there were white pills loose in the bag. See Commonwealth’s exhibit, C-2, Trooper O’Konski testified that the pills were not in a pill bottle and that there was no prescription. Nothing else was found in the vehicle. See Commonwealth’s exhibit, C-3 property record. Both troopers testified that appellant acted shocked when the pills were discovered and he told the troopers that the pills belonged to his brother. Appellant was placed under arrest, transported to the Media Barracks for processing and the vehicle was towed. Trooper Martin sent the white pills for a drug analysis. See Commonwealth’s exhibit, C-4. The drug analysis for the pills revealed that the 29 round white pills weighed 15 1/10 of a gram and contained Oxycodone, a schedule II substance. See Commonwealth’s exhibit, C-5.

Appellant presented evidence and testimony on his behalf during the trial. Appellant’s brother, James Foreman, testified that he sometimes used appellant’s vehicle. James Foreman testified that he and his brother had no specific arrangement with brother as to the use of the vehicle just used it when necessary and this court testified that the last time he used it prior to June 24 was two months. James Foreman testified that he used the vehicle on June 24 because his wife needed to go to Pathmark to shop and that they used the vehicle around 7 PM on the 24th. James Foreman testified that he returned the vehicle to appellant after he finished grocery shopping and then appellant used the vehicle to drive James Foreman to work. James Foreman told the jury that he had been prescribed medication, specifically oxycodone, for back pain and that he left the medication in appellant’s vehicle because he forgot it. James Foreman informed the jury that he had planned to bring the medication to work, as was his usual routine because he sometimes requires pain management while he is at work. James Foreman informed the jury that he customarily leaves some pills at home and takes some pills to work so that is why the pills were loose in the bag. James Foreman informed the jury that he filled a prescription for 60 pills and had just had it filled prior to appellant being pulled over.

Appellant also presented testimony from Osinakachi Egbukwu, a pharmacist who works in the Rite Aid in Chester, PA. Mr. Egbukwu testified that he recalled that on June 22, 2009, James Foreman filled a prescription for 60 oxycodone and that the prescription was for no refills. See defendant’s exhibit, D-l. Mr. Egbukwu was certain that Mr. James Foreman filled the prescription using a doctor’s script and he also testified that he had been James Foreman’s pharmacist for 25 years.

DISCUSSION

Appellant alleges that the evidence was insufficient and therefore the jury was unable to determine beyond a reasonable doubt that appellant possessed the controlled substances that were located in the driver’s side door of his personal vehicle. When determining the sufficiency of the evidence, “the appellate court is required to review all the evidence and all reasonable inferences drawn therefrom in a light most favorable to the Commonwealth ... [as the verdict winner.]” Commonwealth v. Brunson, 938 A.2d 1057, 1058 (Pa. Super. 2007). In making this determination, “the test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.” Id. Furthermore, it is within the province of the fact-finder to determine the weight to be accorded each witness’s testimony and to believe all, part, or none of the evidence introduced at trial. Commonwealth v. Molinaro, 429 Pa. Super. 29, 33, 631 A.2d 1040, 1042 (1993).

Appellant was convicted of possessing a controlled substance. Section 780-113(a)(16) states:

“Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate state board, unless the substance was obtained directly or from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.” 35 P.S. §780-113(a)(16).

The term possession is defined as the ability to exercise dominion and control over an area or object, and the possession may be actual or constructive. Commonwealth v. Aviles, 419 Pa. Super. 345, 352, 615 A.2d 398, 401 (1992). Constructive possession is a legal fiction created to deal with the realities of criminal law enforcement; it is an inference arising from a set of facts that the possession of the contraband was more likely than not. Id. Constructive possession may be established by a totality of circumstances that demonstrate the defendant-exercised dominion and control over the controlled substance or paraphernalia. Id. 419 Pa. Super, at 352, 615 A.2d at 402 (citing Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974)).

The Commonwealth presented testimony that during a valid traffic stop the Pennsylvania State Troopers noticed that appellant appeared to be overly nervous. According to Trooper Martin, appellant was more nervous then the average person who is involved in a routine traffic stop. Appellant’s nervousness raised suspicions and Trooper Martin’s curiosity was raised enough that he inquired as to whether there was something that appellant was hiding. Appellant told the troopers that they could search his vehicle; thereafter, appellant was removed from the vehicle and Trooper O’Konski began the search. Trooper O’Konski began the search by opening the driver’s side door and look at the interior of the door, within seconds Trooper O’Konski located a shopping bag in the shelf area of the driver’s side door. Trooper O’Konski removed the shopping bag from the shelf and opened the bag, revealing loose oxycodone pills. The testimony of the troopers was clear that the bag was well within the reach of appellant since appellant was the driver and sole occupant of the vehicle and the bag was located to his immediate left, on the shelf of the driver’s side door. The troopers also confirmed and the evidence revealed that appellant was the owner of the vehicle.

Based upon the evidence presented by the Commonwealth, there was ample evidence for the jury to conclude that appellant as owner and sole occupant of the vehicle had actual or constructive possession of the controlled substances which were found within inches of his person.

Appellant presented testimony to the jury that his brother, who had a valid prescription for oxycodone, had left the pills in the plastic bag on the shelf of the driver’s side door earlier that day while he was driving the vehicle. Despite the evidence presented by appellant, through his brother, the jury determined that appellant who was the owner and occupier of the vehicle at the time of the vehicle stop possessed the controlled substances. The jury obviously discredited the evidence presented by appellant and choose to believe the testimony of the troopers that appellant was acting overly nervous during the traffic stop and that appellant’s own actions aroused the suspicions of the troopers that appellant may have been involved in criminal activity such that the troopers questioned appellant as to why he appeared to be so nervous.

In reviewing the evidence in the light of the Commonwealth, who was the verdict winner, this court determines that the Commonwealth established all the elements of the crime beyond a reasonable doubt and there was sufficient evidence to support appellant’s conviction for possession of a controlled substance, See Commonwealth v. Jackson, 435 Pa. Super. 410, 414, 645 A.2d 1366, 1368 (1994); Aviles, 419 Pa. Super, at 353, 615 A.2d at 402. Following a valid traffic stop, the police obtained consent to search appellant’s vehicle and during that search the police found a plastic shopping bag containing loose oxycodone within reach of appellant. It is not a stretch of the imagination for the jury to have concluded that appellant as the sole occupier and owner of the vehicle possessed the drugs found in the shelf of the driver’s side door.

Under the standard described above, the evidence summarized above was sufficient to establish that appellant was guilty of possession of a controlled substance. It is within the province of the finder of fact to believe all, part or none of the evidence. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). The credibility of a witness is within the sole province of the finder of fact, and the fact finder must reconcile any conflicts and decide what weight to give the evidence presented. Commonwealth v. Swerdlow, 431 Pa. Super. 453, 458, 636 A.2d 1173, 1176 (1994). This court determines that appellant’s allegation that the evidence was insufficient as a matter of law to support any of the convictions that he received is meritless; while another judge or jury may have reached a different result, the appellate court cannot conclude that the evidence was insufficient as a matter of law and as such this appeal should be dismissed.

CONCLUSION

For all of the foregoing reasons, the trial court’s judgment of sentence should be affirmed.

      . 35 P.S. §780-113(a)(16).

      . 75 Pa.C.S. §3334(b).

      . 35P.S. §780-113(a)(16).

      . 75 Pa.C.S. §3334(b).

      . 35 P.S. §780~113(a)(16).


source: Caselaw Access Project

author: VARRICCHIO, J.,

license: Public Domain

text:
    Caton v. JIK Enterprises Inc.

      CP. of Lehigh County,
    no. 2007-C-0750.

      James T. Huber II, for plaintiff.

      Kevin T. Fogerty, for defendants.
    July 16, 2010
   VARRICCHIO, J.,

This case involves three individuals: Kathleen C. Catón, plaintiff and Mother; Irene J. Catón, defendant and Daughter; and John Nicnick, defendant and live in partner of Daughter. There are four corporations relevant to this law suit and all were controlled solely by Irene and John. Kathleen was a shareholder in one of the corporations and there has been ongoing litigation since the time when she sought to redeem her shares, eight years ago. The issue in this case is whether Irene and John, in order to avoid paying Kathleen, conveyed away all of the assets of that corporation; after a non-jury trial, this court finds that they did so, intentionally and fraudulently.

All of the parties were involved in the sale of Auntie Anne’s pretzels, a franchise business. There were several different business locations, each created at different times and each having a separate corporation. Initially, in 1993 Kathleen invested and became a shareholder in JIK Enterprises; presumably JIK refers to John, Irene, and Kathleen. John, secretary, and Irene, president, were the sole corporate officers, and Kathleen was a nonvoting shareholder. This business operated out of Zem’s Farmers Market in Gilbertsville, Pennsylvania. Six years after the start of business operations, January 1999, John, Irene, and Kathleen entered into a shareholders’ buy/sell agreement (P-19). In part, the agreement established that the price for the company’s purchase of shares shall be equal to the greater of $50,000 or 2/3 of the prior fiscal year’s gross sales.

It appears from the record that sometime between 1993 and 1999 profits began to shift from JIK to Sassafras Management Inc., the fourth corporation. Sassafras, designed and controlled by Irene and John, increased JIK costs and reduced JIK profits in that JIK employees, formerly paid by JIK, were hired, employed and paid by Sassafras. On paper, the purpose of Sassafras was to reduce overall operating costs through the centralized administration of accounting and payroll for JIK, and the two other pretzel business operations, CM Enterprises Inc. and ETN Enterprises Inc. Instead of three separate payrolls from the three corporations, all of the payrolls were paid from Sassafras. Sassafras would bill JIK, CM, and ETN a management fee at a rate of 125 percent of the payroll. This rerouting of JIK payroll thru Sassafras reduced the profits available to Kathleen and increased those to Irene and John.

In June 2001, Kathleen gave written notice to Irene and John that she wished to redeem her shares pursuant to the agreement. The parties were unable to agree upon a buy out; Mother brought legal action in January 2002 against daughter and her partner. Kathleen’s complaint was filed individually and on behalf of JIK, derivatively, against John and Irene, individually, and JIK (P, 19). She alleged, among other things, that John and Irene breached the buy/sell agreement as well as their fiduciary duties by reducing the profits of JIK to the benefit of their other corporations via excessive management fees. Two and one-half years later, and less than a month from trial, the litigation settled in June 2004. A settlement agreement, release, and promissory note was executed by the parties (P, 1). By its terms, JIK was to pay Kathleen $50,000; $5,000 down and $747.05 monthly for 84 months with 10 percent interest per annum beginning July 1, 2004. The debt was secured with a promissory note.

In the meantime, unbeknownst to Kathleen, 45 days prior to the settlement of the litigation with Kathleen, John and Irene had executed a security agreement on April 19,2004 in the amount of $200,000 and a judgment note in the amount of $86,008.71 in favor of Sassafras and against JIK (D, 1-3). The UCC filing financing statement was filed April 26,2004. Irene in her candid deposition testimony of September 25, 2007 stated that the purpose of the security agreement and of the note was to get Sassafras ahead of Kathleen. She agreed that its purpose was to ensure that Sassafras would get the money from JIK before Kathleen would get money from JIK. Her less than credible testimony at trial attempted to downplay her admission; she explained that she had other pressing matters, like unpaid taxes. Irene’s true colors were revealed on the checks that she sent pursuant to the settlement agreement in June and in August of 2004 to her mother. On the first check, Irene drew a shark (which Irene testified was simply a fish) and on the third check she drew a cockroach which took up half of the face of the check (P, 3 and 4).

The parties continued to battle in court. This time Daughter and her partner sued Mother; September 2004, Irene and John sued Kathleen for $31,000, the legal fees that they individually incurred defending the litigation initiated by Mother (P, 10). The case went to arbitration seven months later in April 2005; judgment was entered in favor of Kathleen. No appeal was taken. These legal fees of Irene and John, individually, were ultimately paid by JIK.

Payments to Mother pursuant to the settlement agreement continued to be made until Irene and John sold JIK; August 24,2006, JIK was sold for $85,000 to 14M LLC rendering JIK insolvent. At the time of the asset sale, after payment of approximately $ 14,000 of attorney fees and the subsequent transfer of the proceeds to Sassafras, JIK remained indebted to Kathleen in the amount of $34,248.45. None of the proceeds from the asset sale were utilized to repay the JIK corporate debt to Kathleen. However, Irene and John did choose to pay their own attorney fees out of the sale of JIK.

There were disbursements made at the settlement that indicate that despite the UCC filing, Irene and John decided what debts would be paid from the sale of JIK. The settlement statement for the sale of JIK included disbursements in the amount of $3,911.85 paid to Tallman, Rudders, & Sorrentino P.C. on behalf of JIK for attorney fees owed for JIK/Zern’s and JIK litigation. Irene clarified that some of these attorney fees were those owed individually by her and John for their defense in the litigation brought by Kathleen (P, 5). She testified that she took the money to pay JIK attorney fees.

After the payment of approximately $14,000 in attorney fees, the funds received by JIK, including a promissory note, were transferred by JIK to Sassafras (P. 8). There was a purchase money note on the sale given by 14M LLC, which was payable to JIK. Because of the UCC filing by Sassafras, Sassafras, that is, Irene and John, were paid first, and there was no money left over for Kathleen.

As per the judgment note and customer balance detail, JIK owed Sassafras $86,008.71 (D, 11). The customer balance detail is dated October 3,2007; the report begins on January 4, 2002 with a balance owed by JIK to Sassafras in the amount of $33,674.73. The report concludes on April 25, 2007 with a balance owed to Sassafras of $124,229.44. The report references invoices and payments made by JIK to Sassafras; however there is nothing in this document that denotes the nature of the invoice and/or payment; the court found this report to be nothing more than a self-serving report of the defendants as it is uncorroborated by any other document. Furthermore, there is nothing in the JIK or Sassafras tax returns or balance sheets that identifies the $86,008.71 judgment note or debt.

After the judgment note was executed by Irene and John as JIK to Irene and John as Sassafras, JIK paid to Sassafras the sum of $69,250 from April 24, 2004 to August 24, 2006. However, contrary to prior Sassafras bookkeeping practices, John and Irene failed to apply these monies paid by JIK to the oldest open invoices owed to Sassafras. John and Irene were the sole decision makers, they chose where to apply the money transferred from JIK to Sassafras. Kathleen was not the only one that they were over looking when it came to paying bills. Taxes were being withheld from JIK employee paychecks, however, Irene and John acting through Sassafras never sent the money to the IRS and as such there was a continually growing tax lien.

JIK and Sassafras were under the exclusive control of both Irene and John, such that it can be inferred that action taken by any entity individually was necessarily known by the others. Irene and John jointly controlled and dominated the corporate finances, policies, and business practices of both JIK and Sassafras. Specifically, Irene and John were the sole corporate officers of JIK and Sassafras, and were the controlling force in both corporations. Although Irene and John attempted to use the corporate structures as a shield, the patterns of their behaviors and Irene’s own statements suggest that Irene and John were the masterminds pulling the puppet strings such that the corporate and individual actions were one and the same. Additionally, personal expenses, such as Irene and John’s individual attorney fees, were satisfied by the corporate structures further solidifying the notion that JIK and Sassafras were in actuality Irene and John. Furthermore, where a corporate structure exists to benefit private concerns and it is not financially stable and successful on its own, as is the case here, then it is property viewed as an extension of the individuals hiding behind it such that it has become an alter ego for purposes of piercing the corporate veil. However, piercing the corporate veil is not addressed in the complaint and as such, this court will not address it any further.

Counts I and II of the Complaint allege violations of the Pennsylvania Uniform Fraudulent Transfer Act, by JIK and Sassafras, respectively. Specifically, Kathleen argues that the transfer of JIK funds to Sassafras was a fraudulent transfer in violation of Pennsylvania law. To recover on a fraudulent transfer action, the plaintiff must plead and prove by clear and convincing evidence that a transfer was made with actual intent to hinder, delay or defraud any creditor. Relevant factors to be taken into consideration include whether the transfer was made to an insider and whether the debtor retained possession or control of the assets.

Here, because JIK and Sassafras were exclusively controlled by Irene and John, any action by either Irene or John individually was properly attributed to the corporate structure such that it can be inferred that any asset transfer was self-serving. Irene and John controlled and dominated the corporate finances, policies, and business practices. It was clear that Irene resented the fact that JIK was making monthly payments to her mother, Kathleen, as evidenced by her testimony in court, her deposition testimony, and her actions in manipulating profits from Kathleen.

The court concludes that the transfer of the JIK sale proceeds to Sassafras was done with the intent to defraud Kathleen. Sassafras was in fact a secured creditor and as such, stood in line ahead of Kathleen in the payment of JIK debts. JIK sold all of its assets and rather than transfer all of the proceeds to the secured creditor, Sassafras, JIK chose to pay some of its unsecured creditors, specifically attorney fees, leaving no proceeds available to pay Kathleen pursuant to the settlement agreement. Additionally, the settlement reveals how the transfer was made to an insider, as JIK and Sassafras were exclusively controlled by Irene and John. JIK bent the rules when attorney fees were paid at settlement, evidencing that JIK, despite the legal claim that Sassafras had over the proceeds, paid its own bills first, further proving that JIK, Irene and John retained control over the property. It is undisputed that the individual attorney fees of Irene and John were paid from the proceeds of the sale of JIK. •Irene argued that she was required to do so by her attorneys, but ultimately under cross-examination she admitted that she was the one in charge who made the final decision.

It is unclear whether JIK paid the attorney fees or the money went to Sassafras first and then Sassafras paid the fees, but in any event the secured debt of Sassafras was not paid first as portrayed and that makes clear the nature of the transactions. Because JIK and Sassafras were virtually an extension of Irene and John, the individuals, the asset transfer was to an insider. The same two individuals controlled both corporations so that although it appeared that the assets shifted from one corporation to another, in actuality the assets remained under the control of Irene and John. Also, Irene and John retained possession and control of the assets by virtue of that transfer. Furthermore, Irene disclosed that she did not want to pay her mother and the intent of the security agreement was to put Sassafras ahead of Kathleen. Therefore, the corporate defendants, JIK and Sassafras acted with the intent to defraud Kathleen and thus violated the Pennsylvania Uniform Fraudulent Transfer Act.

This court finds that Sassafras and its sole shareholders and officers, namely Irene and John, are liable to pay the debt owed to Kathleen. Although Sassafras was not bound by the contract between JIK and Kathleen creating the debt, Sassafras and its officers are liable to this third party. This liability is created by virtue of the multiple indications of fraud between JIK, Sassafras, and their shareholders. As this court has found clear and convincing evidence of actual fraud, Kathleen’s alternative argument that defendants engaged in constructive fraud is not addressed by this court.

Counts III and V of the complaint, breach of fiduciary duty, contain allegations whereby Kathleen asserts that Irene and John, respectively, breached their duty by transferring funds from JIK to Sassafras that reduced JIK to insolvency. To recover on a breach of fiduciary duty action, the plaintiff must plead and prove that there was: (1) a duty owed; (2) a breach of that duty in the form of exercising his power for his own benefit and to the detriment of the company/creditors/stockholders (it could be self-dealing, willful misconduct or recklessness); and (3) damages in the form of lost profits as a consequence of the breach.

Here, Irene and John necessarily owed a duty to be loyal and look out for the best interests of JIK and Sassafras because they were the sole officers and directors of both corporations. Arguably they breached that duty when JIK no longer retained control of its own payroll and began paying Sassafras a management fee of 125 percent to manage the payroll, which resulted in Sassafras not paying the IRS the taxes that were being withheld from the employee paychecks. Sassafras failed to pay employment related taxes beginning in 1999 through 2003. This continued failure to pay taxes resulted in tax liens filed against Sassafras in December 2003 and January 2004 of $98,293.36 and $17,507.46, respectively.

Defendants cleverly argue that JIK’s solvency status did not change as a result of the asset transfer. Arguably, JIK was already insolvent by definition because its debts were greater than its assets. However, the fact remains that JIK was rendered insolvent regardless if it was prior to or as a result of the transfer. Because Irene and John had total control of both JIK and Sassafras, they were responsible for JIK’s insolvency status regardless of when it occurred. Both Irene and John owed a fiduciary duty to JIK and it is the breach of that duty that resulted in JIK becoming insolvent, whether as a result of the asset transfer to Sassafras or prior patterns of behavior of purposefully increasing JIK debts.

When a company becomes insolvent like JIK did as a result of the asset transfer, the fiduciary duties owed by the corporate directors shift to the creditors. Here, the duty did not shift because Irene and John were the directors and creditors of JIK. Furthermore, Irene and John as the shareholders of JIK and Sassafras also owed fiduciary duties to both companies. The fact that Irene and John controlled both companies, any transfer of assets necessarily unjustly enriched them. Thus, Irene and John breached their fiduciary duties to JIK and Sassafras by increasing JIK’s debt, being the actors in the asset transfer and having their own personal attorney debts satisfied with corporate funds, as well as applying the funds to the invoices of their choosing rather than apply the proceeds to the oldest invoices first.

Counts IV and VI of the complaint allege that Irene and John, respectively, conspired with each other to transfer JIK funds to Sassafras with the purpose of depriving Kathleen of the money legitimately owed to her by JIK. To recover on a civil conspiracy action, the plaintiff must plead and prove that “(1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in pursuance of the common purpose, and (3) actual legal damage.”

Here, Irene and John were the sole actors behind the ongoing diversion of profits to Kathleen and ultimately the asset transfer from JIK to Sassafras. As directors and shareholders of both corporations, they both knew the effect the transfer would have on the corporations and on Kathleen. It is clear to this court that Irene and John purposely acted to prevent Kathleen from receiving the remainder of the monthly payments agreed to in the 2004 settlement agreement, such that they committed a civil conspiracy.

Irene’s testimony and the settlement sheet of the JIK asset transfer reveal several relevant factors. First, the corporations and Irene and John intermingled corporate and personal affairs. Specifically, the settlement sheet indicates disbursement made on behalf of JIK of $14,990.21; all of which were unsecured JIK debts. A portion of these disbursements were for payments for legal fees itemized as JIK/Zem’s and JIK Litigation. These legal fees included JIK and individual attorney fees from the 2002 litigation, although they did not have priority over the secured Sassafras debt they were paid first, further demonstrating that Irene and John manipulated the finances for their own benefit.

Second, Irene, as president of JIK and Sassafras, circumvented corporate formalities when she commingled JIK assets and utilized them with total disregard for the corporations’ separate existence and for the sole benefit of Irene and John. Another portion of the disbursements made on behalf of JIK were for tax related attorney fees itemized as Tax Matter — Sassafras. It is unclear why JIK closing costs would include an unsecured debt of Sassafras, other than to confirm that JIK and Sassafras were one and the same because the same individuals controlled both and the funds were commingled. Irene determined the priority of the debts listed as JIK’s closing costs for the benefit of Irene, John and Sassafras, in disregard of the corporations’ separate existences.

Also, Irene and John had total control of JIK and Sassafras such that they were able to render JIK insolvent, consistent with their intent to avoid paying Kathleen’s debt. The judgment amount and the lack of any documents to corroborate the JIK debt substantiates their intention. The debt continued to grow even though the evidence submitted by Sassafras failed to establish the nature of the charges to JIK and any credit for payments made after the debt was secured. JIK payments received by Sassafras after the creation of the secured interest were not credited toward that debt contrary to the prior practice between the corporations of applying JIK payments to the oldest outstanding invoices. In fact, JIK had paid Sassafras $69,250, reducing the amount of the judgment far below the proceeds transferred to Sassafras. Had JIK been properly credited for its payments, JIK could have satisfied its debt to Sassafras and Kathleen from the proceeds. Again, this is demonstrative of the control by Irene and John individually and as Sassafras and JIK to render JIK insolvent and unable to satisfy Kathleen’s lien.

Given the stated intent, the credibility observed at trial, the total control of the corporations by the two officers and the pattern of debt payments by the corporations to the benefit of Irene and John, and the commingling of personal and corporate affairs, this court cannot permit the corporations to protect the fraud and must find Irene and John liable.

For the reasons stated, the court finds in favor of plaintiff, Kathleen C. Catón, and against defendants, JIK Enterprises Inc. and Sassafras Management Inc., on Count I and II for fraudulent conveyance in the amount of $34,248.45 plus 10 percent interest until paid in full. A constructive trust shall be placed on all of the assets of defendant, Sassafras Management Inc., and no assets may be sold, conveyed, or transferred until the debt owed to plaintiff, Kathleen C. Catón, is paid in full.

The court finds in favor of plaintiff, Kathleen C. Catón, and against defendants, Irene J. Catón and JohnNicnick, on Counts III, IV, V and III for breach of fiduciary duty and civil conspiracy in the amount of $34,248.45 plus 10 percent interest until paid in full, and as punitive damages, attorney fees as well as 10 percent interest on the $34,248.45 debt from September 15,2006 to the date of this order. A constructive trust shall be placed on all of the assets of defendant, Irene J. Catón and JohnNicnick, and no assets may be sold, conveyed, or transferred until the debt owed to plaintiff, Kathleen C. Catón, is paid in full.

ORDER

And now, July 16, 2009, following a non-jury trial held on November 24, 2008 for the reasons set forth in the attached opinion;

It is hereby ordered that:

(1) Judgment is entered in favor of plaintiff, Kathleen C. Catón, and against defendants, JIK Enterprises Inc. and Sassafras Management Inc., on Count I and II for fraudulent conveyance in the amount of $34,248.45 plus 10 percent interest until paid in full.

(2) A constructive trust shall be placed on all of the assets of defendants, Sassafras Management Inc., Irene J. Catón and John Nicnick, and no assets may be sold, conveyed, or transferred until the debt owed to plaintiff Kathleen C. Catón, is paid in full.

(3) Judgment is entered in favor of plaintiff, Kathleen C. Catón, and against defendants, Irene J. Catón and John Nicnick, on Counts III, IV, V and VI for breach of fiduciary duty and civil conspiracy in the amount of $34,248.45 plus 10 percent interest until paid in full, and as punitive damages, attorney fees as well as 10 percent interest on the $34,248.45 debt from September 15,2006 to the date of this order.

      . Lehigh County Court of Common Pleas, 2002-E-5, filed January 2002.

      . Lehigh County Court of Common Pleas, 2004-C-2528, filed September 2004.

      . JIK, Irene and John incurred approximately $70,000 in legal fees and costs.

      . JIK financial records were kept on a cash basis and records of Sassafras were on the accruel basis.

      . Blatstein v. Blatstein, 192 F.3d 88 (3d.Cir. 1999).

      . 12 Pa.C.S. §§5101 et seq. adopted in 1993.

      . 12 Pa.C.S. §5104(a)(1).

      . Pa.C.S. §§512 and 513.

      . 12 Pa.C.S. §5102(a).

      . Voest-Alpine Trading USA v. Vantage Steel Corp., 919 F.2d 206 (3d Cir. 1990).

      . Phillips v. Selig, 959 A.2d 420 (Pa. Super. 2008).


author: MINORA, J,

text:
    Menichiello v. Borough of Clarks Summit

      C.P. of Lackawanna County,
    no. 09 CV 5251.

      MichaeL R. Mey, for plaintiffs.

      Gary H. Dadamo, for defendant.
    September 7, 2010
   MINORA, J,

The issues before the court are defendant’s preliminary objections to the plaintiffs’ complaint in the nature of demurrer.

FACTUAL AND PROCEDURAL HISTORY

This case was commenced by plaintiffs, Joseph and Susan Menichiello, filing a complaint in estoppel and negligence. The plaintiffs are seeking damages in the amount of $113,550.

Plaintiffs own two lots on Claybome Avenue in Clarks Summit, Pennsylvania. In January of 2009, plaintiffs allege that they submitted a building application to the Clarks Summit Code Enforcement office, consisting of a proposal to build a single-family dwelling straddling the centerline of the two lots. Plaintiffs further allege they were informed by Code Enforcement Officer Ziesemer that they could not build a single family structure as desired but that they could obtain two separate permits to construct two separate residences, one on each lot.

Plaintiffs subsequently received their building permit for one lot in April 2009 and began construction on that lot. In June of 2009, plaintiffs submitted an application for a building permit on the other lot and defendant denied the same.

Plaintiffs subsequently filed an appeal with the zoning hearing board who denied the application by a 2 to 1 decision.

Plaintiffs then initiated this action with the filing of a writ of summons on September 18,2009. On March 25, 2010, plaintiffs filed their complaint against defendant. Preliminary objections to the complaint along with a brief in support were filed in the nature of demurrer for both counts of the complaint. Plaintiffs filed an answer to the preliminary objections along with a brief in opposition to the defendant’s preliminary objections. Both parties agreed to have the issue decided on briefs. We now find this issue ripe for disposition.

Defendant contends demurrer should be granted as to plaintiffs’ claim of equitable estoppel for several reasons: (1) equitable estoppel requires a prayer for equitable relief, not money damages; (2) plaintiffs did not justifiably rely on the alleged representations of the code enforcement officer and did not act in good faith to support a claim of equitable estoppel; (3) plaintiffs have not alleged elements of equitable estoppel that would provide them with recovery if proven true.

Plaintiffs argue they are entitled to proceed on the theory of promissory estoppel, a cognizable theory of recovery arising from the concept of equitable estoppel.

Defendant contends demurrer should also be granted as to plaintiffs’ claim of negligence because defendant is entitled to immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541, et seq. Plaintiffs agree with the cases cited by the defendant with respect to Count II (negligence) and so withdraw that count.

LEGAL STANDARD

Preliminary objections are governed by Pa.R.C.P. 1028. “Preliminary objections in the nature of [a] demurrer test the legal sufficiency of the plaintiff’s complaint.” State Farm Mutual Automobile Insurance Co. v. Ware’s Van Storage, 953 A.2d 568, 571 (Pa. Super. 2008) (quoting Sexton v. PNC Bank, 792 A.2d 602, 604 (Pa. Super. 2002)). It is not necessary that the plaintiff identify the specific legal theory underlying the complaint, as it is the court’s duty to discover from the facts alleged in a complaint the cause of action, if any, stated therein. Cardenas v. Schober, 783 A.2d 317, 325 (Pa. Super. 2001). Accordingly, the court must examine the complaint to determine whether it sets forth a cause of action that, proven, would vest the plaintiff with a right to relief. State Farm Mutual Automobile Insurance Co., 953 A.2d at 571.

The Commonwealth Court provided the guidelines for examining legal insufficiency of a pleading (demurrer) in Richardson v. Beard, 942 A.2d 911, 913 (Pa. Commw. 2008) (citations omitted):

“In considering preliminary objections, we must consider as true all well-pleaded material facts set forth in the petition and all reasonable inferences that may be drawn from those facts.... Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. . .. We need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion.” (emphasis added)
“The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Mistick Inc. v. Northwestern National Casualty Co., 806 A.2d 39, 42 (Pa. Super. 2002). (citation omitted) Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside the complaint may be considered to dispose of the legal issues presented by the demurrer, (citation omitted) Cooper v. Frankford Health Care System Inc., 970 A.2d 431 (Pa. Super. 2008). Any doubt as to the legal sufficiency of the complaint should be resolved in favor of overruling the demurrer. Kane v. State Farm Fire and Casualty Co., 841 A.2d 1038 (Pa. Super. 2003). Further, the Rules of Civil Procedure are to be liberally interpreted. See Pa.R.C.P. 126.

LEGAL ANALYSIS

1. Defendant’s Preliminary Objection in the Nature ofDemurrer as to Count of Plaintiffs ’ Complaint (Equitable Estoppel)

Count I of plaintiffs’ complaint purports to assert an equitable estoppel claim against the defendant based upon the actions of its employee, Code Enforcement Officer Ziesemer. While defendant is correct to assert that a claim of equitable estoppel requires a prayer for equitable relief not money damages, this assertion is insufficient to grant demurrer in this instance.

Defendant’s claims are based on the assumption that plaintiffs have filed an “equitable estoppel” action. Although the plaintiffs have labeled Count I of the complaint “equitable estoppel,” the more appropriate cause of action arising from the facts averred is “promissory estoppel.” Whether the plaintiffs have identified the specific legal theory under which they may recover is inconsequential, as the duty to determine the appropriate cause of action remains with the court. See Cardenas v. Schober, 783 A.2d 317, 325 (Pa. Super. 2001). A plaintiff who attempts to recover upon a promise on the basis of estoppel need not attach any particular label to his claim as long as the plaintiff’s basic contention involves a promise and reasonable and detrimental chance. Paul v. Lankenau Hospital, 375 Pa. Super. 1, 10, 543 A.2d 1148, 1152 (1988), reversed on other grounds. We see no reason to deny the plaintiffs relief on the grounds that they have confused and mislabled the theories of estoppel.

Equitable estoppel applies to prevent a party from assuming a position or asserting a right to another’s disadvantage inconsistent with a position previously taken. Quinn v. Commonwealth, Department of State, Bureau of Professional & Occupational Affairs, 168 Pa. Commw. 447, 451, 650 A.2d 1182, 1184 (1994). Equitable estoppel is a defense used to preclude a person from denying or asserting a claim. Mellon Bank N.A. v. Holub, 400 Pa. Super. 360, 368, 583 A.2d 1157, 1160 (1990). Thus, equitable estoppel is not an independent cause of action. Peluso v. Kistner, 970 A.2d 530, 533 (Pa. Commw. 2009). Though it may aid a party in recovering upon a legal theory, it may not serve as a substitute for such a theory. See id.

The doctrine of promissory estoppel is an outgrowth of equitable estoppel but the two are separate and distinct principles. See id. Promissory estoppel, unlike its equitable cousin, may serve as an independent cause of action. See id. The Supreme Court of Pennsylvania has provided the following guidance regarding promissory estoppel:

“Where there is no enforceable agreement between the parties because the agreement is not supported by consideration, the doctrine of promissory estoppel is invoked to avoid injustice by making enforceable a promise made by one party to the other when the promisee relies on the promise and therefore changes his position to his own detriment. ... In order to maintain an action in promissory estoppel, the aggrieved party must show that (1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; (2) the promisee actually took action or refrainedfrom taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise. ” Crouse v. Cyclops Industries, 560 Pa. 394, 403, 745 A.2d 606, 610 (2000). (citations omitted) (emphasis added)

Indeed, plaintiffs have pleaded and alleged facts sufficient to support a claim of promissory estoppel: (1) defendant erroneously informed plaintiffs as to what they could build on their lots; (2) plaintiffs built a single-family residence as a result of defendant’s advice; (3) injustice can only be avoided by enforcing the promise. Plaintiffs may proceed under this theory and have indicated intent to do so.

The defendant’s claim that money damages are inappropriate in this instance thus is no longer relevant. The Commonwealth Court has acknowledged that money damages are an appropriate remedy for promissory estoppel claims, stating that “[i]n promissory estoppel, the remedy is adjusted to suit each case____The remedy can include (1) money damages measured by the foreseeable injury resulting from non-performance; (2) restitution measured by the promisor’s unjust enrichment; (3) reliance damages to reimburse the expenses incurred by the promise; or (4) specific performance.” Matarazzo v. Millers Mutual Group Inc., 927 A.2d 689, 697 n.4 (Pa. Commw. 2007).

The defendant’s second claim that plaintiffs did not justifiably rely on the alleged representations of the code enforcement officer and did not act in good faith is also insufficient to support demurrer. This claim too relies on the assumption that the plaintiffs will proceed under the theory of equitable estoppel. See Cicchiello v. Bloomsburg Zoning Hearing Board, 151 Pa. Commw. 506, 617 A.2d 835 (1992). However, as discussed above, recovery is possible under the theory of promissory estoppel. Plaintiffs’ ability to recover under the theory of equitable estoppel is not relevant. So long as recovery is available under a legally cognizable theory, demurrer is inappropriate.

The defendant’s final contention is that plaintiffs have not alleged elements of equitable estoppel that would provide them with recovery if proven true. More specifically, defendant contends that plaintiffs have not alleged that they relied upon any representation made by defendant which precluded them from appealing the decision by the zoning hearing board. Defendant has cited Cicchiello v. Bloomsburg Zoning Hearing Board in support of this contention. 151 Pa. Commw. at 511-12, 617 A.2d at 837. However, this too is insufficient to support demurrer, as the defendant’s argument and applicability of Ciccheillo rests upon the assumption that the plaintiffs will proceed under the theory of equitable estoppel. See Ciccheillo, 151 Pa. Commw. at 512, 617 A.2d at 837.

The facts plaintiffs have averred support recovery under the theory of promissory estoppel and the plaintiffs will proceed under that theory. While plaintiffs’ failure to appeal the decision of the zoning hearing board may provide evidence that their reliance was unreasonable under the circumstances, it does not preclude recovery under the theory of promissory estoppel, even if it would preclude recovery under the theory of equitable estoppel as in Cicchiello. See id.

At this time, it is not clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Therefore, defendant’s preliminary objection of demurrer to Count I of the complaint (equitable estoppel) is denied.

2. Defendant’s Preliminary Objection in the Nature of Demurrer As to Count II of Plaintiffs ’ Complaint (Negligence)

Count II of plaintiffs’ complaint purports to assert a negligence claim against the defendant based upon the actions of its employee, Code Enforcement Officer Ziesemer. Defendant contends that defendant is immune from liability from plaintiffs’ negligence claim pursuant to the provisions of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541, et seq.

Plaintiffs agree with the cases cited by the defendant with respect to Count II (negligence) and so withdraw that count.

Therefore, defendant’s preliminary objection of demurrer to Count II of the complaint (negligence) is granted. An appropriate order will follow.

ORDER

And now, September 7, 2010, upon consideration of the pleadings and their supporting briefs, it is hereby ordered as follows:

(1) Defendant’s preliminary objection of demurrer to Count I of the complaint (equitable estoppel) is denied and dismissed.

(2) Defendant’s preliminary objection of demurrer to Count II of the complaint (negligence) is granted.


author: WETTICK JR., J

text:
    In re Pittsburgh Citizen Police Review Board

      C.P. of Allegheny County,
    no. GD10 -001338.

      Hugh F. McGough, for petitioner.

      Paul D. Krepps and Alan E. Johnson, for respondent Harper.

      Daniel D. Regan, city solicitor, John F. Doherty, associate city solicitor, Michael Kennedy, assistant city solicitor, and Wendy Kobe, assistant city solicitor, respondent for City of Pittsburgh.
    September 23, 2010
   WETTICK JR., J

The motion of the Pittsburgh Citizen Police Review Board to compel production of 309 pages of un-redacted police reports is the subject of this opinion and order of court.

In September 2009, the croup of 20 Finance Ministers and Central Bank Governors (G-20) met in Pittsburgh. During and after the G-20 meeting, more than 200 persons were arrested. The Police Review Board received numerous complaints of alleged police misconduct. On October 20, 2009 and November 10, 2009, the Police Review Board held public hearings regarding police/ citizen encounters involving G-20 activities. These hearings were held in connection with a board-initiated investigation of the policies, procedures, and circumstances surrounding the police/citizen encounters.

Through a subpoena to the chief of police of the City of Pittsburgh, the Police Review Board is seeking two categories of information. The first category is arrest reports and related documents pertaining to 29 arrests made in connection with G-20 activities. The second category is large numbers of documents relating to the G-20 activities of the City of Pittsburgh Police and police officers from other jurisdictions serving to as Pittsburgh Bureau Police Officers. These documents are relevant for an overall review of the manner in which law enforcement responded to G-20 activities.

At the direction of the mayor of the City of Pittsburgh, counsel for the city took the position that the city shall not honor these subpoenas because the Police Review Board exceeded its authority in issuing subpoenas for an investigation initiated by the board. It was the position of the mayor that the role of the Police Review Board is limited to investigating verified complaints of police misconduct.

Counsel for the Police Review and contended that the city’s position ignored several provisions of a 1997 ordinance governing the role of the Police Review Board which permits the board to initiate investigations and studies of incidents of alleged police misconduct for which no complaint has been filed, to hold public hearings, and to make recommendations on policy matters that may improve the relationship between the bureau of police and the community, including matters involving police training, hiring, and discipline.

In an opinion and court order dated March 18, 2010, I ruled in favor of the Police Review Board. I said that the 1997 amendments to the Home Rule Charter establishing an Independent Citizen Police Review Board authorized City Council to adopt an ordinance granting the Police Review Board the power to initiate investigations of incidents of alleged police misconduct for which no complaint has been filed, and to initiate studies and investigations for the purpose of making recommendations on policy matters that may improve the relationship between the police department and the community, including matters involving police training, hiring, and discipline.

My court order required the city to produce the documents described in the subpoena of the Police Review Board. However, the city was not required to produce any documents that were protected by law.

While the bureau of police has produced numerous documents, it has not produced 309 pages of un-redacted police reports. For the first time in this litigation, it contends that under a state law — the Criminal History Record Information Act (CHRIA) (18 Pa.C.S. §9101 et seq.) — the Pittsburgh Bureau of Police is prohibited from furnishing these reports to any noncriminal justice agencies — the law permits dissemination only to other criminal justice agencies.

The CHRIA governs the dissemination of information by criminal justice agencies. It creates three categories of information and establishes different rules for the dissemination of this information.

The first category created by the CHRIA covers court dockets, police blotters, and press releases, which under the provisions of the CHRIA shall be considered public records. Section 9104.

The second category is criminal history record information which is defined in section 9102 as information collected by criminal justice agencies concerning individuals and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, information, or other formal criminal charges and any disposition arising therefrom. The section 9102 definition explicitly provides that criminal history record information does not include intelligence, investigative, or treatment information, or information outside the scope of the Act as provided for in section 9104.

The third category consists of investigative, intelligence, and treatment information. These terms are defined in section 9102 as follows: Intelligence information is information “concerning the habits, practices, characteristics, possessions, associations or financial status of any individual compiled in an effort to anticipate, prevent, monitor, investigate, or prosecute criminal activity.” Investigative information is information “assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing and may include modus operandi information.” Treatment information is information “concerning medical, psychiatric, psychological or other rehabilitative treatment provided, suggested or prescribed for any individual charged with or convicted of a crime.”

At an August 26,2010 argument, counsel for the Police Review Board stated that it does not contest the statement of the City of Pittsburgh that the only information which it has not provided is intelligence, investigative, or treatment information as defined in section 9102, and as governed by section 9106(c) of the CHRIA. Subsection 9106(c)(4) provides that investigative and treatment information may be disseminated only to a criminal justice agency which requests information in connection with its duties:

“Investigative and treatment information shall not be disseminated to any department, agency or individual unless the department, agency or individual requesting the information is a criminal justice agency which requests the information in connection with its duties, and the request is based upon a name, fingerprints, modus operandi, genetic typing, voice print or other identifying characteristic.” (emphasis added)

Additional requirements and restrictions are imposed for disseminating intelligence information. One restriction is that the entity requesting the information be a criminal justice agency. Section 9106(c)(1)(h).

The CHRIA distinguishes between criminal justice agencies and noncriminal justice agencies. See e.g, section 9121. The definition of a criminal justice agency in section 9102 does not include a police review board.

Since the Police Review Board is not a criminal justice agency, section 9106 clearly provides that the Pittsburgh Bureau of Police may not disseminate intelligence, investigative, and treatment information to the Police Review Board. If the bureau of police were to do so, under section 9106(g) of the CHRIA, the city would be subject to administrative remedies provided for in section 9181 and damage actions brought by persons aggrieved by violations of section 9106, including exemplary and punitive damages as provided for in section 9183.

The Police Review Board relies on my March 18,2010 ruling that city council was authorized to enact an ordinance authorizing the Police Review Board to initiate investigations of incidents for which no complaint has been filed and to initiate studies and investigations and to make recommendations concerning police practices. However, in my March 18, 2010 opinion, I only addressed the issue of whether the bureau of police could refuse to turn over documents on the ground that the documents which were requested did not pertain to any incidents of alleged police misconduct for which a complaint had been filed with the Police Review Board. The city did not raise, and I did not consider, whether any of the records which the Police Review Board sought came within the provisions of section 9106 of the CHRIA.

The Police Review Board contends that the CHRIA does not apply to the City of Pittsburgh because Pittsburgh is a home rule municipality empowered to legislate over a wide range of local interests. The City of Pittsburgh correctly states that this argument is without merit because the Home Rule Charter Law through which the city became a home rule municipality specifically provides that state laws of general application apply to home rule municipalities The city relies on 53 Pa.C.S. §2961 and 53 Pa.C.S. §2962(c)(2). The former reads as follows:

“A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality.”

And the latter provides:

“A municipality shall not:... Exercise powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth.”

In this case, the city ordinance, as construed in my March 18,2010 opinion, requires the Pittsburgh Bureau of Police to comply with a subpoena issued by the Police Review Board directing the production of intelligence, investigative, and treatment information. State law, on the other hand, prohibits the Pittsburgh Bureau of Police from furnishing this information to the Police Review Board. Thus, there is a direct conflict between the instructions of state law (the bureau may not furnish this information to a noncriminal justice agency) and local law (the bureau must turn over this information to a noncriminal justice agency).

Where there is a direct conflict, settled law holds that state law applies.

See Huntley & Huntley Inc. v. Borough Council of the Borough of Oakmont, 600 Pa. 207, 220, 964 A.2d 855, 862-63 (2009) (citation omitted) (footnote omitted):

“The preemption doctrine establishes a priority between potentially conflicting laws enacted by various levels of government. Under this doctrine, local legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow .... Additionally, a local ordinance may not stand as an obstacle to the execution of the full purposes and objectives of the legislature.”

Also see Spahn v. Zoning Board of Adjustment, 602 Pa. 83, 103, 977 A.2d 1132, 1144 (2009) (citations omitted):

“Thus, while the General Assembly cannot abrogate ordinances of purely local concern, the General Assembly may effectively abrogate local ordinances by enacting a conflicting statute concerning substantive matters of statewide concern .... Additionally, this court has explained that ordinances of purely local concern are those that affect the personnel and administration of the local government .... Stated differently, local ordinances enacted pursuant to the local charter are subordinate to the Home Rule Act when the matter at issue is one of statewide concern, and where the two conflict, the subordination mandate of the Home Rule Act takes precedence and controls.”

The Police Review Board relies on case law which bars the General Assembly from enacting laws involving matters (1) that affect the personnel or administration of a local government, (2) that conflict with local ordinances, and (3) that do not have statewide application. The board correctly states that courts continue to look to Addison case, 385 Pa. 48, 55, 122 A.2d 272, 275 (1956), where the court stated:

“[I]t being abundantly clear that the limitations of power referred to in section 18 [of the Home Rule Act] concern only laws in relation to substantive matters of state-wide concern, such as the health, safety, security and general welfare of all the inhabitants of the state, and not to matters affecting merely the personnel and administration of the offices local to Philadelphia and which are of no concern to citizens elsewhere. Any other conclusion would reduce the charter to a mere scrap of paper and make the much heralded grant of Philadelphia home rule an illusion and a nullity.” See e.g., Fraternal Order of Police v. City of Pittsburgh, 165 Pa. Commw. 83, 644 A.2d 246 (1994).

The difficulty with the Police Review Board’s reliance on Addison is that the CHRIA is not local legislation affecting merely the personnel and administration of the offices local to Pittsburgh and which is of no concern to citizens elsewhere. To the contrary, the CHRIA is an act of the legislature that is uniform and applicable in every part of the Commonwealth. It applies “to persons within this Commonwealth and to any agency of the Commonwealth or its political subdivisions which collects, maintains, disseminates or receives criminal history record information.” 18 Pa.C.S. §9103. Its purpose is to balance the public’s right to know with privacy rights of the citizens of this Commonwealth by describing what police records shall be made available to the public and which records shall be protected from dissemination to any entity other than another law enforcement agency.

In Spahn, 602 Pa. 83, 977 A.2d 1132, supra, the Pennsylvania Supreme Court addressed the standing of taxpayers to take an appeal from a decision of the Zoning Board of Adjustment. Under the Philadelphia Code, taxpayers were given standing. Subsequently, the General Assembly amended the First Class City Home Rule Act to permit only aggrieved persons (the definition of which did not include taxpayers) to appeal zoning decisions. The court did not apply the case law barring the General Assembly from enacting laws “affecting the personnel and administration of offices local to Philadelphia and which were of no concern to citizens elsewhere” (Id. at 104, 977 A.2d at 1145), because the question of who has standing to appeal to a court of record is a substantive matter of statewide concern implicating a question of access to the courts of the Commonwealth.” Id. at 104, 977 A.2d at 1144.

The Police Review Board argues that this is not a law of statewide application because the city, as a home rule municipality, may balance its interests in overseeing the activities of the Pittsburgh Bureau of Police against the privacy interests that are protected by section 9106. This argument is without merit because a home rule municipality may not enact any legislation that interferes with provisions of state laws with statewide application. The legislature has determined that in order to adequately protect privacy interests of all the citizens of this Commonwealth, documents covered by section 9106 can be furnished only to criminal justice agencies. The argument of the Police Review Board, that these privacy interests are adequately protected because the Police Review Board will not disseminate to any third party records which the bureau of police provides, has been rejected through the provisions of the CHRIÁ which prohibit dissemination to any noncriminal justice agency. A city ordinance may no more create an exception to section 9106’s prohibition against dissemination because of the interests of the Police Review Board than the city could protect the interests of law enforcement officers by enacting an ordinance that barred disclosure of a category of documents that by state law are to be made available to the public.

The Police Review Board cites section 1983 actions brought in the federal courts in which the trial court required the production of police reports covered by section 9106 of the CHRIA. See e.g., Curtis v. McHenry, 172 F.R.D. 162 (W.D. Pa. 1997); Griffin El v. Beard, 2009 WL 1606891 (ED. Pa. 2009); and D.N. and S.N. v. Snyder, 2009 WL 1362665 (M.D. Pa. 2009). In these cases, the courts ruled that the state privilege does not apply in a federal question case pending in the federal courts. The rationale for these rulings is that if state statutory privileges were automatically entitled to recognition under Rule 501 of the Federal Rules of Evidence, the state could frustrate the ability to prove a section 1983 claim.

These cases offer no support to the Police Review Board. In litigation in state courts involving a state question, state law applies. Also, this litigation does not raise the issue of whether there are instances in which the Pennsylvania courts will require production of information protected by CHRIA in criminal proceedings, civil rights proceedings, and the like.

The Police Review Board states that prior to the present dispute, the Pittsburgh Bureau of Police has voluntarily disclosed investigative information to noncriminal justice agencies, including the Police Review Board. The Police Review Board refers to a letter of understanding between the acting director of the Citizens Police Review Board and the city solicitor which provides that with limited exceptions, all documents produced by the City of Pittsburgh to the Police Review Board are officially designated confidential and may be reviewed only by the Police Review Board, its director, and authorized paid employees who agree to maintain this documentation in the strictest confidence. Police Review Board brief filed 8/21/10, ex. 1. However, doctrines of waiver or estoppel cannot affect the interests of third parties protected by section 9106.

In summary, the General Assembly has established a statewide statutory scheme governing the collection and dissemination of information of criminal justice agencies. Under the home rule legislation through which the City of Pittsburgh became a home rule municipality, the city may not alter the statewide statutory scheme through an ordinance, which provides for law enforcement agencies to disseminate information that cannot be disseminated under state law creating a comprehensive statewide statutory scheme.

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

ORDER

On September 23, 2010, it is hereby ordered that the request of the Pittsburgh Citizen Police Review Board that I compel the Pittsburgh Bureau of Police to furnish intelligence, investigative, and treatment information protected by section 9106 is denied.

      . Section 662.07 of the 1997 ordinance permits the board to issue subpoenas.

      . Only five of these 29 persons who were arrested filed complaints with the Police Review Board.

      . Under section 9121, criminal history record information may be disseminated to noncriminal justice agencies and individuals.

      . The intelligence, investigative, and treatment information which the Police Review Board seeks will refer to persons who reside outside the City of Pittsburgh.

      . Under the enabling ordinance and the rules, regulations, and operating procedures adopted thereunder, the Police Review Board’s files are confidential and not matters of public record. See City of Pittsburgh Code, title 6, art. VI §662.05(m).


author: JELIN, J,

text:
    Schroeder v. Anchor Darling Valve Co.

      Aaron J. DeLuca, for plaintiff.

      Catherine S. Straggas and Alexis A. Walter, for defendants.
    September 17, 2010
   JELIN, J,

Plaintiff Brenda Lee Schroeder as the executor of the estate of Dale Lee Schroeder, deceased, and in her own right, brought suit against defendants, Melrath Gasket Inc. and Melrath Supply and Gasket Company Inc., for damages incurred as a result of Mr. Schroeder’s alleged exposure to asbestos-containing products. Plaintiff alleged that exposure to defendants’ asbestos-containing products caused Mr. Schroeder to develop mesothelioma and resulted in his death.

On February 17,2010, this case proceeded as a bench trial before The Honorable Sheldon C. Jelin. Prior to the commencement of trial, plaintiff had settled with all other defendants. Thus, only the Melrath defendants remained.

Counsel for Melrath entered an appearance on September 10, 2008. Counsel withdrew on August 3, 2009. Although defendants were properly served notice of trial, defendants did not attend trial or defend themselves in any way.

At the onset of trial, plaintiff’s counsel presented the court with an order dated January 20, 2010, signed by The Honorable Sandra M. Moss. Pursuant to the order of Judge Moss, all defenses available to the defendants at trial were stricken as a result of non-compliance during discovery.

Without any defenses available to Melrath and without any appearance on behalf of Melrath, plaintiff proceeded with a non-jury trial in defendants’ absence.

At the close of plaintiff’s presentation, the court reviewed, considered and weighed all the evidence. On February 17, 2010, the court entered a finding in favor of plaintiff and against defendants as follows: $2,000,000 with respect to plaintiff’s survival action; $3,000,000 with respect to plaintiff’s claim for wrongful death action; and $5,000,000 with respect to the loss of consortium claim. In total, the damages awarded by the court amounted to $10,000,000.

On March 1, 2010, Melrath filed a motion for post-trial relief, which was denied by the trial court on April 15, 2010. Defendants now appeal the trial court’s order of April 15,2010, which denied defendants’ request for post-trial relief.

DEFENDANTS’ MATTERS COMPLAINED OF ON APPEAL

Defendants’ motion for post-trial relief was denied on all grounds because defendants had failed to appear at trial and had failed to make any objections, thereby waiving any issues that may have been raised for post-trial relief. By failing to appear at the pretrial proceedings and at trial, defendants failed to preserve anything on the record relating to grounds for post-trial relief and all issues were thereby waived.

“In order to preserve an issue for post verdict relief and subsequent appellate review, a party is required to make a timely and specific objection before the trial court at the appropriate stage of the proceedings. Pa.R.C.P. 227.1(b). Failure to object will result in waiver.” Goldberg ex rel. Goldberg v. Isdaner, 780 A.2d 654, 662 (Pa. Super. 2001). Further, Pa.R.C.P. 227.1(b) provides:

“[Pjost-trial relief may not be granted unless the grounds therefor, (1) if then available, were raised in pretrial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and (2) are specified in the motion. The motion shall state how the grounds were asserted in pretrial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.” Pa.R.C.P. 227.1(b) (2010).

Here, defendants did not preserve any issues during the pretrial proceedings or during trial by way of motion, objection, or any other method because it simply did not attend. Therefore, defendants failed to satisfy the first requirement ofPa.R.C.P. 227.1(b). Defendants also failed to satisfy the second requirement as the motion for post-trial relief did not specifically state the ways in which any of the grounds were asserted during pretrial proceedings or at trial.

Under Pa.R.C.P. 227.1(b) and Goldberg, defendants waived all issues related to post-trial relief.

Notwithstanding defendants’ waiver of any and all grounds for relief, in an abundance of caution, this court will address defendants’ statement of matters complained of on appeal.

Defendants complain of eight matters on appeal. The court will group and address them as follows:

(1) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court’s finding of liability and subsequent award of$10,000,000 is so contrary to the evidence as to shock one’s sense of justice.

(2) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court’s finding of liability and subsequent award of$10,000,000 is contrary to the weight of the evidence.

(3) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court’s finding of liability and subsequent award of$10,000,000 is excessive in light of the evidence presented.

(4) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court’s award of $10,000,000 is speculative.

The first four matters complained of on appeal assert sufficiency of the evidence. The court will address them collectively. Under Pa.R.C.P. 227.1(b) and Goldberg, defendants waived these issues by failing to attend trial and failing to preserve any grounds for relief whatsoever. Even if the issues had been properly preserved, which they were not, defendants’ claims have no merit.

Anew trial based on weight of the evidence issues will not be granted unless the verdict is so contrary to the evidence as to shock one’s sense of justice; a mere .conflict in testimony will not suffice as grounds for a new trial. Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa. Super. 2001).

The credibility of witnesses and the weight to be accorded the evidence are matters solely within the province of the fact-finder. Commonwealth v. Cappellini, 456 Pa. Super. 498, 505, 690 A.2d 1220, 1224 (1997). As the fact-finder, the trial court is free to believe all, some, or none of the evidence presented. Id. A new trial is not warranted merely because the trial judge on the facts would have arrived at a different conclusion. Pritts v. Wigle, 414 Pa. 309, 313, 200 A.2d 386, 388 (1964).

“In a bench trial it is the duty of the trial j udge to j udge credibility of the witnesses and to weigh their testimony. . . . His findings will not be reversed unless it appears that he has clearly abused his discretion or committed an error of law...; for it is not the duty of an appellate court to find the facts but to determine whether there was evidence in the record to justify the trial court’s finding of fact.” Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819, 824 (1989). (citations omitted)

In the case at bar, plaintiff presented evidence by way of the testimony of Brenda Schroeder, the videotaped deposition of Dale Schroeder (which related to his exposure to Melrath’s asbestos-containing products), the videotaped deposition of Dr. Wesley King (treating physician), the stipulation for economic loss ($1,500,549.78), and the report of Dr. Sam Hammer (which opines that Mr. Schroeder’s mesothelioma and death were caused by asbestos exposure).

The court heard testimony that Mr. Schroeder was 52 years old when he was diagnosed with mesothelioma. He had suffered the excruciating and debilitating effects of the illness for at least four years before he died at age 56. His life expectancy was an additional 26.5 years.

The court viewed pictures of Mr. Schroeder during Mrs. Schroeder’s testimony, and was able to witness her reactions and demeanor regarding the illness and loss of her husband of 31 years. Additionally, the court heard evidence of Mr. and Mrs. Schroeder’s signing of adoption papers to adopt a 9-year-old girl, Mrs. Schroeder’s granddaughter, who was present in the courtroom during trial. The court observed the girl, witnessed her reactions and saw how she felt about Dale Schroeder.

Based on the gravity of the evidence and the severity of the circumstances in the case sub judice, particularly the testimony of Brenda Schroeder, Dale Schroeder and Dr. Wesley King, the damages awarded were not excessive, speculative, contrary to the weight of the evidence, or shocking to shock one’s sense of justice. There was ample evidence of pain and suffering and the court, as fact-finder, was well within its discretion to weigh the evidence and determine the amount of damages.

(5) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court committed an error of law and abused its discretion in awarding damages to [plaintiff Schroeder] for both wrongful death action and loss of consortium claim effectively permitting double recovery of damages.

Defendants waived this issue by failing to attend trial and failing to preserve any grounds for relief whatsoever. Even if the issue had been properly preserved, which it was not, defendants’ claim has no merit.

Defendants argue that the court improperly awarded damages in a manner that allowed a double recovery. Defendants assert that because damages in a wrongful death action include loss of financial support, services, comfort, society and affection, an award for loss of consortium is necessarily and impermissibly duplicative.

This issue has been addressed in the case of Novelli v. Johns-Manville Corporation, 395 Pa. Super. 144, 576 A.2d 1085 (1990), wherein the Superior Court adopted the position taken by the Restatement (Second) of Torts §693 cmt. f (1977), which states:

“In case of death resulting to the impaired spouse, the deprived spouse may recover under the rule stated in this section [regarding compensation for loss of consortium] only for harm to his or her interests and expense incurred between the injury and death. For any loss sustained as a result of the death of the impaired spouse, the other spouse must recover, if at all, under a wrongful death statute.” Novelli v. Johns-Manville Corp., at 149, 576 A.2d at 1087 (emphasis added); see also, Restatement (Second) of Torts §693 cmt. f (1977).

Novelli explained that the time frame is the important factor: a spouse may recover for loss of consortium for losses incurred between injury and death. Losses incurred after death must be recovered under a wrongful death statute.

Defendants’ reliance on Linebaugh v. Lehr, 351 Pa. Super. 135, 505 A.2d 303 (1986), is not appropriate as the case is distinguishable. Linebaugh involved a decedent who was struck and killed on a bicycle. There is no discussion in Linebaugh as to the amount of time between injury and death. It appears death was instant.

In the case at bar, there was a period of four years from the onset of the disease until the time of death.

For four years, the spouse had to witness her husband’s misery, suffering, sickness and ultimate demise. For this harm, the spouse is entitled to recover under the consortium claim.

For the loss the spouse sustained as a result of the death of her husband, she is entitled to recover under the Wrongful Death Act.

Here, the court reviewed all of the evidence, including the testimony of the surviving spouse and the videotaped deposition of the decedent. The court heard testimony that Mr. Schroeder was 52 years old when he was diagnosed with mesothelioma. He had suffered the excruciating and debilitating effects of the illness for at least four years before he died at age 56.

After weighing all the evidence, the court determined the amount of damages as follows: $5,000,000 for plaintiff’s loss of consortium for the four-year period of decedent’s illness up until his death, and $3,000,000 under the Wrongful Death Act for the period after decedent’s death up to life-expectancy (26.5 years). The loss of consortium award compensates Mrs. Schroeder for the years she suffered while her husband was ill, yet still alive. The wrongful death award compensates the widow and family for their loss after Mr. Schroeder passed away. The awards compensate for different time frames and different types of suffering: the horror of watching her husband waste away versus the pain of his absence. The periods do not overlap and there is no double recovery. Therefore, the awards are not duplicative.

(6) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court erred in denying defendants ’/appellants ’motion for post-trial relief

Pa.R.C.P. 227.1(b) is clear that post-trial relief may not be granted unless two requirements are met. First, the grounds must have been preserved during pretrial proceedings or at trial. Second, the grounds must be specified in the motion for post-trial relief. As stated above, defendants did not meet either of these requirements because they neither attended the proceedings nor specified how the grounds were asserted in the motion. Defendants made a conscious decision not to provide discovery, not to attend trial either personally or by counsel, and cannot now complain. Without having met the requirements of preservation and specificity, defendants were ineligible for post-trial relief. Therefore, the court’s denial of defendants’ motion for post-trial relief was appropriate.

(7) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court erred as the trial record lacks sufficient evidence to sustain the court’sfinding of liability against Melrath in that the court conducted a limited or de minimis trial only against Melrath based up on a review of documents and testimony as suggested by plaintiff’s counsel.

Defendants waived this issue by failing to attend trial and failing to preserve any grounds for relief whatsoever. Even if the issue had been properly preserved, which it was not, defendants’ claim has no merit.

Pursuant to Judge Moss’ order of January 20, 2010, all defenses available to the defendants were stricken. Defendants, who did not attend the trial and had no defenses available, presented no evidence.

Plaintiff, on the other hand, presented evidence by way of live testimony, video deposition, an expert report, and by stipulation. The evidence in this case, particularly that of Mr. Schroeder’s testimony regarding his exposure to Melrath’s asbestos-containing products and the expert’s opinion on causation, was more than sufficient to sustain a finding of liability against defendants.

As fact-finder, the court reviewed all of the evidence presented, made determinations as to weight and credibility, and found in favor of the plaintiff. Such determinations are well within the province of the fact-finder and should not be disturbed absent an abuse of discretion.

(8) Defendants/appellants, Melrath Gasket Inc. and Melrath Supply and Gasket Co. maintain the trial court erred as the trial record lacks sufficient evidence to sustain the court s assessment of damages against Melrath in that the court conducted a limited or de minimis trial against only Melrath based up a review of documents and testimony as suggested by plaintiff’s counsel.

Defendants waived this issue by failing to attend trial and failing to preserve any grounds for relief whatsoever. Even if the issue had been properly preserved, which it was not, defendants’ claim has no merit.

As with Melrath’s first four matters complained of above, this claim attacks the sufficiency of the evidence. A new trial based on weight of the evidence issues will not be granted unless the verdict is so contrary to the evidence as to shock one’s sense of justice; a mere conflict in testimony will not suffice as grounds for a new trial. Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa. Super. 2001).

The credibility of witnesses and the weight to be accorded the evidence are matters solely within the province of the fact-finder. Commonwealth v. Cappellini, at 505, 690 A.2d at 1224. As the fact-finder, the trial court is free to believe all, some or none of the evidence presented. Id. A new trial is not warranted merely because the trial judge on the facts would have arrived at a different conclusion. Pritts v. Wigle, at 313, 200 A.2d at 388.

In the case at bar, there was ample evidence of pain and suffering and the court, as fact-finder, was well within its discretion to weigh the evidence and determine the amount of damages. Upon reviewing all of the evidence presented, this court found in favor of the plaintiff and against the defendants in the amount of $ 10,000,000. Absent an abuse of discretion, such findings should not be disturbed.

CONCLUSION

As a result of the foregoing, this court respectfully requests that the order dated April 15,2010, which denied defendants’ motion for post-trial relief, be affirmed.