author: THOMAS, P.J.,

text:
    Commonwealth v. Peters

      J. Wesley Rowden, assistant district attorney, for . the commonwealth.

      Jeffrey C. Peters, pro se. . *
    November 2, 1989
   THOMAS, P.J.,

This matter before us is an appeal of a summary speeding conviction in violation of 75 P.S. § 3362(a)(2), for driving in excess of the posted speed limit. Defendant was “clocked” at 77.5 mph in a 55-mph zone by using a measured distance and an approved stopwatch.^

FACTUAL BACKGROUND

The commonwealth established the following facts through the testimony of its witness, Frank Baranyai, chief of police of the Cochranton Police Department.

Sometime in the early part of 1989, the Cochran-ton Police Department purchased a hand-operated Acutrak Speek Chronometer stopwatch manufactured by Acutrak. The instructions accompanying the stopwatch required lines to be drawn upon the road so the watch operator could determine when to start and stop the watch.

The instructions used, as an example, a distance of 132 feet or 0.025 miles to demonstrate the mathematical calculations to determine the speed. However, any distance could be entered into the electronic component of the watch, which would then automatically convert seconds elapsed, in traversing a specific measured distance, to a speed in miles per hour. For some unexplained reason Chief Baranyai used 132 feet for his pre-measured course.

The Acutrak stopwatch was certified accurate pursuant to Department of Transporation regulations — 67 Pa. Code § 105.71 et seq. — and was timely tested at Rebold’s Service in Harrisburg, Pennsylvania, «which was an approvéd testing station.

On June 23, 1989, Chief Baranyai parked his vehicle near the intersection of Route 322 and Hart Road in Cochranton, Pa. The chief had at some previous time set white lines exactly 132 feet apart on Route 322 to provide him sight markers to start and stop the Chronometer as the vehicles crossed each line.

At approximately 1:54 p.m., while monitoring the speeds of various vehicles on Route 322, defendant’s white Chevrolet drove toward Chief Baranyai in a northerly direction. An elapsed time of 1.16 seconds was recorded on the hand-held chronometer when the vehicle crossed the two lines. This was automatically computed by the chronometer to be a speed of 77.5 mph, well in excess of the posted speed limit of 55 mph. The chief subsequently stopped defendant’s vehicle and issued him a citation for violating the posted speed limit. He was convicted at the district justice level, filed an appeal and competently represented himself at a de novo hearing.

Defendant argues that in such a short distance human reaction time in observing the exact time the car crossed both lines and in twice pressing the chronometer timing button invites inaccuracy and doubt.

ISSUE

Is a pre-measured course of 132 feet, for the purpose of timing traffic to determine the speed of a vehicle, a proper distance under the Vehicle Code or Department of Transportation regulations, or do the code and/or regulations require a course in excess of 132 feet due to the potential for human error in operation of the chronometer?

DISCUSSION

Title 75 Pa.C.S. §3368(c) provides that the rate of speed of a vehicle may be timed by a police officer using a mechanical or electrical speed-timing device. Section 3368(d) requires the approval and testing of such devices by the Department of Transportation for accuracy at designated testing sites. 67 Pa. Code §105.71 et. seq. permits department-approved and certified stopwatches to time the rate of speed of vehicles and prescribes the procedures for approval and certification. The present code and present transporation regulations do not set a minimum distance for the timing of a vehicle; whereas, the previous statute required a distance of no less than one-eighth or one-quarter of a mile. See former at 75 P.S. §1002 (d)(1), P.L. 58, April 29, 1959.

Defendant postulates that the fallibility of humanity as well as the scientific truism that human reflexes are less than instantaneous, makes his speeding conviction measured over a 132-foot stretch of road and involving only 1.16 seconds grossly suspect. He cites Commonwealth v. Alexion, 33 Chester L. Rep. 37 (1984), which held that there was an inherent potential for human error in a VASCAR-Plus speed timing device because of “an inevitable lag between the time the operator [of the device] thinks he sees the driver and actually trips and untrips the device.” Id. at 38. In light of this potential of human error, the Chester County court found it necessary to establish a minimum distance requirement and turned to 67 Pa. Code § 105.95(a)(4) for guidance. This regulation was for the testing and calibration of the speed-timing device and utilizes a distance of one-tenth of a mile, or 528 feet, and the Chester County court set this as the miniumum timing distance.

However, in Commonwealth v. Vishneski, 380 Pa. Super. 495, 552 A.2d 297 (1980), the Pennsylvania Superior Court specifically overruled Alexion, stating that in Alexion the Chester County court improperly created a distance requirement where none existed. Vishneski, supra.

The Superior Court in Commonwealth v. Ness and Smith, 341 Pa. Super. 225, 491 A.2d 234 (1985), held in a case very similar to this one that there was no minimum distance requirement for the use of an approved stopwatch, and there was no impropriety when the officer used a pre-measured course of only 200 feet for the Ness timing and 600 feet for Smith.

The Statutory Construction Act of 1972, P.L. 1339, 1 Pa.C.S. §1501-1991, states with regard to re-enactments:

“Whenever a statute re-enacts a former statute the provisions common to both statutes shall date from their first adoption. Such provisions only of the former statute as are omitted from the re-enactment shall be deemed abrogated, and only the new or changed provisions shall be deemed by the law in the effective date of the re-enactment .” 1 Pa.C.S. §1961. (emphasis supplied)

The court in Vishneski went on to conclude that the omitted provisions were intended to be abrogated and held that the one-eighth of a mile distance requirement was not intended to be maintained by the legislature.

Thus, we are faced with statutory and decisional law which seemingly attributes infallibility to a police officer using a hand-held chronometer or stopwatch when measuring the speed of a car over a measured distance of his choice. In this regard, we note that section 3368(c)(4) of the Vehicle Code has a built-in “safety factor” when arrests for speeding are made by radar or electronic devices using sensor tapes laid across the highway or speed-timing devices as used here. For all speed-timing devices there is a six-mph “safety factor” before a conviction may be had. For highway sensor devices and hand-held devices there is a 10 mph “safety factor,” where the speed limit is less than 55 mph — except in a school zone. Thus, the legislature recognized the possibility of human error when dealing with split-second timing. Unfortunately, the legislature has not prescribed a minimum measured distance requirement before authorized timing devices may be used.

We recently addressed this problem in the unreported case of Commonwealth v. St. John, Crawford County 1989-37, where the borough police used a hand-held chronometer and a measured distance of only 75 feet and charged the errant driver with a speed of 58.13 mph in a 35-mph zone. After hearing, we simply could not find that over this short distance, and allowing for the human reaction time factor, that the police officer’s reported speed was a mathematical certainty. Accordingly, our verdict was that the driver had exceeded the prescribed 35-mph limit, but we were not satisfied beyond a reasonable doubt that he was proceeding at the speed calclulated by the officer’s timing device. Accordingly, we found him guilty of a 47-mph speed.

Likewise in this case, we are apprehensive about the infallible reliability of the reported speed over such a short distance. We intend no criticism of the arresting officer as he is highly trained in the use of this device, and in fact instructs other police officers in its proper use. However, if measured-distance (stopwatch) calculations are to be used as a basis for speeding convictions, and if the Vehicle Code remains sñent in prescribing a mandatory minimum measured distance, what is to prevent over-zealous police officers from arbitrarily using an unreasonable short distance of their choosing? If the courts of this county were to permit police to convict for speeding at a precise mechanically calculated speed over a measured 75 feet, or the 132 feet used in the instant case, would we then invite convictions by stopwatch when the measured distance was 20, 40 or 60 feet?

In the instant case, defendant testified that he was familiar with the road and was in no great hurry. He frankly admitted he was exceeding the speed limit, and that with his driving experience he could not have been exceeding 63 mph. Defendant, without objection, presented a certificate showing he had his own speedometer checked in a timely manner by an approved testing station and at 50 and 60 mph his speedometer was reporting two mph in excess of his true speed.

We have no evidence in the case before us of the impact of the conviction of this defendant regarding points toward a suspension of his driving privileges under 75 P.S. §1539. Also, we note it is obvious that with the amount of the speeding fine based on speed (75 P.S. §3362), and the catastrophic-loss surcharge (75 P.S. §6506) and the ever-present emergency medical services added fine of $10 (35 P.S. §6384(a)), a conviction Of a speeding charge may have serious driving-privilege, point-accumulation and financial implications for the driver. Thus, common sense dictates that it is essential that the factfinder be presented with sufficient evidence of a precise speed that leaves no room for conjecture and doubt.

We note also that we were presented with no studies or the results of human reaction tests using this type of timing device that would enlighten us and convince us beyond a reasonable doubt that the chance of the officer being mistaken by a fraction of a second in his timing was extremely remote. Simple mathematical calculation shows that had the time been 1.64 seconds instead of 1.16 seconds (a difference of 0.48 of a second) the “clocking” would have established defendant’s speed at 55 males per hour. Likewise, for a 132-foot distance clocked in 1.16 seconds, if the timing were in error in favor of or against the driver by a mere 0.16 of a second, -it would represent a speed of either 68 miles per hour or 90 miles per hour. Obviously, the greater the measured distance the less impact minor human reflex error would have on the automatically calculated speed.

We conclude therefore, that we cannot find this defendant guilty of speeding at 77.5 mph in a 55-mph zone under the facts of this case, but we are convinced that he exceeded the speed limit and accept defendant’s testimony that he could not have been exceeding the limit by more than eight mph, and find that in fact he is guilty of a 63-mph speed in a 55-mph zone.

We are reluctant to adopt an appropriate minimum measured distance applicable to all cases of this type coming before the courts of this county, absent expert opinions resulting from recognized tests. We suggest that this measured-distance problem is one for legislative correction by appropriate amendments to section 3368 or other sections of the Vehicle Code.

       We do not imply that this type of evidence is admissible or relevant in the adjudication of a speeding charge.


source: Caselaw Access Project

author: KELTON, 7.,

license: Public Domain

text:
    J.A. Robinson Automotive Center v. Hunsberger

      Paul S. Cherry, for plaintiff.

      ■Christopher B. Sessa, for defendant.
    December 4, 1989
   KELTON, 7.,

Plaintiff, Robinson Automotive Center, has appealed to the Superior Court from, an order entered by this court reinstating defendant Hunsberger’s appeal from a district justice judgment.

The questions on appeal relate to whether “good cause” existed under Pa.R.C.P.D.J. 1006 to reinstate defendant’s appeal.

It is undisputecj by the parties that the action instituted by plaintiff was for property damage as a result of an automobile accident on September 7, 1988; that at a hearing scheduled for May 30, 1989, which both plaintiff and defendant and their respective attorneys attended, District Justice Kelly recused himself. The matter was then postponed, and both parties were informed that they-would be notified of the next hearing date.

It is further undisputed that the subsequent hearing was scheduled for July 6, 1989; that notice was sent to defendant at his home address; that counsel for defendant was never notified of this new hearing; and that plaintiffs counsel was aware that defendant was at all times in this action represented by counsel, namely, Christopher B. Sessa, Esq.

On July 6, 1989, without representation of counsel, judgment was entered against defendant in this matter. Thereafter, on August 2, 1989, defendant filed a notice of appeal from the district justice judgment, and a copy was sent both to plaintiff and the district justice.

On August 23, 1989, plaintiff filed a praecipe to strike defendant’s appeal because proof of service of notice of appeal was not filed in the prothonotary’s office within five days of August 2 as required by Pa.R.C.P.D.J. 1005B. On August 31, 1989, a writ of execution was issued. Defendant filed a petition to reinstate the appeal. Plaintiff answered the petition and ordered the matter down for argument without seeking depositions under Pa.R.C.P. 209(b). However, virtually all of the averments of defendant’s petition to reinstate were either admitted directly or not denied in plaintiffs answer.

In accordance with Pa.R.C.P.D.J. 1006, we found good cause to reinstate defendant’s appeal.

DISCUSSION

I

The purpose of procedural rules is to provide evenhandedness with regard to all parties in an adversary situation. Pa.R.C.P. 126 states that:

“The rules [Pa.R.C.P.] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not effect the substantive rights of the parties.”

In the instant action, the applicable rule is Pa.R.C.P.D.J. 1006 which provides for the reinstatement of appeals after they have been stricken, upon a showing of good cause.

In Quarato v. Facelifters Ltd,., 305 Pa. Super. 536, 451 A.2d 777 (1982), a case very similar to the instant action, appellant’s Counsel did not comply with a justice of the peace rule which requires attaching a receipt of certified or registered mail to the affidavit. Counsel’s failure to do so resulted in the dismissal of the appeal. The court in Quarato held that “justice was served by reinstating the appeal since appellees did receive notice of the appeal.” The same is true in the instant action. Reinstating the appeal does not deprive either party of substantive rights. Rather, it affords the parties the opportunity to have the case decided on its merits and, as such, is in harmony with the spirit of rule 126.

II

We also believe that for reasons of fairness and evenhandedness, the appeal should be reinstated. Plaintiffs answer to defendant’s petition to reinstate the appeal does not deny that counsel for defendant had no notice of the hearing before District Justice Vislosky and was not present at that hearing. Although plaintiffs counsel may be technically correct in his argument that defendant himself was aware of the hearing, we find that the record is entirely unclear as to whether defendant’s counsel, Christopher B. Sessa, Esq., ever received notice. At argument, there was a dispute between counsel as to some of the factual issues surrounding notice. Instead of attempting to make a credibility finding between the respective contentions at argument, we believe it is more appropriate to permit the litigants to try the case on the merits with each represented by counsel. See Rule of Professional Conduct 4.2 and Waller v. Kotzen, 567 F.Supp. 424 (E.D. Pa. 1983).

We found that there was cause to reinstate the appeal for the foregoing reasons.

         Rule 1006 states that:
      “Upon failure of the appellant to comply with rule 1004A or rule 1005B, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.”


author: GEORGELIS, J.,

text:
    Rivera v. Arbor Place Inc.

      Scott K. Oberholtzer, for plaintiffs.

      Kendra D. Feldman, for defendant.

      David L. Schwalm, for defendant.
    October 25, 1989
   GEORGELIS, J.,

Before the court are plaintiffs’ preliminary objections to the new matter of defendant, Arbor Place Inc. Briefs have been filed, and the objections are therefore ready for disposition. For the reasons stated below, they will be sustained.

This action arises out of an accident, which occurred on March 19, 1987 and in which David Rivera, a minor, was injured. The complaint alleges the negligence of defendants. In its new matter, filed with its answer to the complaint, Arbor Place pleads the affirmative defenses of the statute of limitations, the assumption of the risk, plaintiffs’ comparative negligence and superseding and/or intervening causes.

Plaintiffs’ objections are in the nature of a motion for a more specific pleading and object to a lack of specificity in paragraphs 84 through 87 of the new matter. Those paragraphs read as follows:

“(84) Plaintiffs are barred by the applicable statute of limitations.
“(85) Plaintiffs assumed the risks of their actions arid inactions.
“(86) Plaintiffs were comparatively and contributorily negligent.
“(87) Actions of others and not Arbor Place acted as superseding and/or intervening causes, and Arbor Place cannot, pursuant to Pennsylvania law, be held liable for the alleged injuries to plaintiffs.”

Plaintiffs’ position is that: (a) paragraphs 84 through 87 violate Pa.R.C.P. 1019(a), which requires that the material facts on which a defense is based be stated in a concise and summary form; (b) Arbor Place should be held to the standard established by our Supreme Court in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983) for plaintiffs; and (c) as stated, paragraphs 84 through 87 prevent them from complying with Pa.R.C.P. 1029(a), which requires a responsive pleading to admit or deny each averment of fact in the pleading to which it is responsive. Arbor Place’s position is that: (a) paragraphs 84 through 87 simply state available affirmative defenses to plaintiffs’ cause of action and preserve the availability of those defenses in the event that the discovery process proves them viable; (b) Pa.R.C.P. 1029(a) requires the admission or denial only of an averment of fact and, since paragraphs 84 through 87 state conclusions of law, plaintiffs may respond to them without specifically admitting or denying them and without violating the rule; and (c) plaintiffs have failed to show how they have been prejudiced by the paragraphs in question, since a specific factual response is unnecessary.

We agree with Arbor Place’s interpretation of Pa.R.C.P. 1029(a), which states, in pertinent part, as follows: “[a] responsive pleading shall admit or deny each averment of fact in the preceding pleading or any part thereof to which it is responsive. ” We agree with Arbor Place that paragraphs 84 through 87 state conclusions of law and that Pa.R.C.P. 1029(a) does not require a responsive pleading to them.

However, plaintiffs’ other two arguments are persuasive, and we believe they are determinative of the issue before us. We will address the Connor argument first. In Connor, supra, our Supreme Court reversed the trial court’s and Superior Court’s refusals to permit an amendment to the complaint. In doing so, it held that allegations in the complaint that defendant was negligent for “otherwise failing to use due care and caution under the circumstances” permitted plaintiffs, even after the passing of the statute of limitations, to amend their complaint to specify the other ways in which plaintiffs believed defendant was negligent. In footnote 3, in Connor at 311, 461 A.2d at 602, the court explained that, if the “otherwise negligent” language of the complaint had been objectionable, defendant should have preliminarily objected to it by moving the court to strike it or to require a more specific pleading. Connor has been used by Pennsylvania courts, including this one, to preclude boilerplate negligence allegations in complaints. Plaintiffs ask us now to apply the Connor holding to Arbor Place’s new matter.

Even though we believe that a better approach to dealing with such boilerplate negligence allegations in both the pleadings of plaintiffs and defendants, so long as causes of action and defenses are sufficiently pleaded to permit their general identification and responses to them, is to permit such allegations and allow the parties to explore their viability through discovery, it is clear that the law in Pennsylvania precludes plaintiffs from using them. We see no reason why this same standard should not apply to defendants.

In stating that plaintiffs assumed the risk and were comparatively negligent and that superseding and/or intervening causes produced plaintiffs’ injuries, Arbor Place is alleging the negligence of plaintiffs and of others. Connor requires plaintiffs to specifically plead their negligence, and we believe it is equally applicable to require Arbor Place to specifically plead the facts which it believes give rise to plaintiffs’ assumption of risk and comparative negligence and the alleged superseding and/or intervening causes. Similarly, the statement of how Arbor Place believes pláintiffs are barred by the statute of limitations should be a simple matter for Arbor Place to specifically identify.

Plaintiffs’ Pa.R.C.P. 1019(a) argument supports our holding. Applying the Conwor^standard to defendants’ negligence pleadings is consistent with the requirement of that rule. As nqted above, it requires the statement of the material facts of a defense in a concise and'summary form. We do not believe that paragraphs 84 through 87 meet this requirement.

Accordingly, we enter the following

ORDER

And now, October 25, 1989, for all of the reasons stated in the foregoing opinion, plaintiffs’ preliminary objections to the new matter of defendant, Arbor Place Inc., are sustained. Arbor Place Inc. is directed to more specifically plead, within 20 days of the date of this order, the affirmative defenses contained in paragraphs 84 through 87 of its new matter.

       We believe that the defense of contributory negligence was abrogated by the passage of the Pennsylvania Comparative Negligence Act, and, even though Pennsylvania courts and litigants continue to use the contributory negligence terminology, we believe a plaintiffs negligence should now more accurately be referred to as his comparative negligence, not his contributory negligence.


author: LEVIN, /.,

text:
    Luebke v. Erie Press Systems

      James A. Pitonyak, for plaintiffs.

      Joe C. Ashworth, Josie A. Alexander and Stephen A. Tetuan, for defendant. ,
    August 2, 1989
   LEVIN, /.,

This matter comes before the court on defendant Erie Press Systems’ motion for summary judgment. In the winter of 1987, plaintiff, Gordon Luebke, was arrested by the police in Erie, Pennsylvania, on criminal charges of indecent assault and corruption of a minor. Later, on April 27,1988, Luebke pled guilty to the criminal charges. Plaintiff had committed these crimes while employed by Erie Press Systems. Consequently, on June 17, 1988, Luebke was sentenced to 11 and one-half months of incarceration and three years of probation. At the time of the sentencing, work release was approved for plaintiff. Because Mr. Luebke had not made the necessary arrangements to enable him to participate in the work-release program, he was incarcerated.

Erie Press claims it first became aware that Luebke had been engaging in and convicted of the crimes of indecent assault and corruption of a minor when Luebke’s sentencing was published in the local newspaper, the Erie Morning News, on June 1-8, 1988. On the other hand, plaintiff claims that before his plea he had consulted with Mr. John Torrelli, his supervisor at Erie Press Systems, and had advised Mr.. Torrelli of the possibility that he might be incarcerated. Further, plaintiff avers that Mr. Torrelli stated there would be no problem with plaintiff continuing his employment with Erie Press Systems through the work release program, if it would be available to Mr. Luebke. In addition, plaintiff alleges he was told by Mr. Torrelli that he would be permitted to take a leave of absence, so that he would continue to be employed by Erie Press Systems.

According to plaintiff, shortly after he was bound over to district court, he advised John Torrelli that criminal charges- had been brought against him. Plaintiff again contacted Torrelli in early April 1987, prior to his plea. On this occasion, plaintiff alleges that Torrelli assurred him that continuation of employment at Erie Press would not be a problem in the event that plaintiff chose to plead guilty to the., charges.

On June 19, 1987, Erie Press Company sent a letter to Mr. Luebke in prison informing him that Erie Press had terminated his employment. Defen- - dant states that Mr. Luebke was discharged because he violated work rule no. 27, which is set forth-as follows:

“The listing below covers common rules of conduct. The disciplinary sanctions listed below will be imposed unless extenuating circumstances are shown to exist.
“Penalties for Violations”
“Nature of Rule Violation First [Offense]
“(27) Immoral conduct or
indecency Termination”

At the time of filing the motion for amendment, the statute of limitations had not yet passed. In addition, the discovery was still being carried out. However, plaintiff had been deposed previously without defendant having benefit of the amended pleading.

Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Plaintiff alleges a series of arguments which the court will discuss seriatim.

The threshold issue before’the court is whether plaintiff should be permitted to amend his pleadings. It has been held that a right to amend pleadings exists up to the time of trial unless prejudice would result to the adverse party. West Penn Power Co. v. Bethlehem Steel Corp., 236 Pa. Super. 413, 348 A.2d 144 (1975). Amendments are .liberally granted in Pennsylvania, Pa.R.C.P. 1033. In the instant case, since the statute of limitations had not yet passed, no prejudice would result to defendant in allowing plaintiff to amend other than possible costs which would be incurred by further discovery depositions of the parties which may not have been necessary if the request for amendment had not been filed. This, since it can be corrected, is not sufficient prejudice to prevent this court from allowing an amendment. Further, Pennsylvania is a fact-pleading state. Thus parties need not plead legal theories. Plaintiff’s original complaint contained facts which pointed to a theory of reliance/ estoppel. Merely allowing plaintiff to plead representations made by defendant which were impliedly or indirectly set forth in previous pleadings in no way surprises or prejudices defendant in this case. Therefore, plaintiff will be permitted to amend the complaint.

The next issue involves a dispute between the parties as to the proper interpretation of defendant’s work rule no. 27, cited above. Specifically, the question is whether the rule applies only during working hours or to the employee’s conduct both on and off the job. A plain reading of the rule shows that it applies to the employee’s conduct at all times. The lack of any limiting statement to the contrary in the work rules is determinative.

Another question is what constitutes “immoral conduct or indecency.” The term is not defined in defendant’s work rules. This is not a factual issue to be decided by jury, as plaintiff argues. Rather, the facts speak for themselves. It is established in this case that plaintiff pled guilty to the crimes of indecent assault and corruption of a minor. The court need not look to the entire universe to determine what is included in the term “immoral conduct.” It can, however, be sure that the crimes to which plaintiff pled guilty do fall within a portion of the whole category of “immoral conduct.” Further, the court need not mince words in pointing out that plaintiff pled guilty to “indecent assault” and his termination from employment was based on “immoral conduct or indecency

The court notes that plaintiff was initially hired as an at-will employee. Consequently, under Pennsylvania law, defendant employer has a right to discharge an at-will employee for any or no reason. Scott v. Extracorporeal Inc., 376 Pa. Super. 90, 545 A.2d. 334 (1988). However, the discharge cannot contravene a clear public policy or be effected with the specific intent to harm the employee. Veno v. Meredith, 357 Pa. Super. 85, 515 A.2d 571 (1986); Scott v. Extracorporeal Inc., supra. These two exceptions are the only ones that the courts will allow. The exceptions have no application to the instant case. Any further erosion of the at-will presumption in Pennsylvania should be effected by the legislature, not the courts. Darlington v. General Electric, 350 Pa. Super. 183, 504 A.2d 306 (1986).

Also presented is whether defendant violated a public policy of the state of Pennsylvania when it discharged Luebke. Pennsylvania’s public policy relative to criminal offenders is as follows:

“We are also mindful that such a result runs afoul of the deeply ingrained public policy of the state to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders. This state in recent years has been unalterably committed to rehabilitation of those persons who have been convicted of criminal offenses. To forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of a concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.” Secretary of Revenue v. John’s Vending Corporation, 453 Pa. 488, 494-5, 309 A.2d 358, 362 (1973).

The court in the John’s Vending Corporation case based its decision on the fact that the defendant’s convictions were for violations which would be considered “immoral behavior” under a state licensing statute. However, those convictions dated almost 20 years prior to the licensing dispute in that case. The court in John’s Vending Corporation noted that the defendant’s convictions were so long ago that they were of little value in predicting future conduct of their perpetrator.

“Where . . . nearly 20 years has expired since the convictions and the record reveals that the individual has held this position of responsibility for 12 years without any allegation of impropriety, it is ludicrous to contend that these prior acts provide any basis to evaluate his present character.” Id. at 494, 309 A.2d at 362.

In the instant case, plaintiff was very recently convicted of criminal charges.

The full panoply of rights incident to a criminal defendant was afforded plaintiff prior to this criminal conviction. As stated by our Superior Court, the right to be presumed innocent until proven guilty, and the other rights ensured by both the U.S. and Pennsylvania constitutions, cannot necessarily be superimposed into an accused’s remaining life experiences. Thus, jobs are lost when the employer, for business reasons, terminates an employee accused of a crime which is a plausible and legitimate reason for plaintiff’s discharge and does not constitute a violation of the State of Pennsylvania’s public policy. Cisco v. United Parcel Services Inc., 328 Pa. Super. 300, 308, 476 A.2d 1340, 1344 (1984).

In the instant case, plaintiff pled guilty to and was convicted of the charges. Defendant may have terminated plaintiff out of fear for defendant’s public image and worker morale. The court finds the Erie Press Co. had a plausible and legitimate reason for terminating plaintiff’s employment. This court finds that there was not a violation of the State of Pennsylvania’s public policy. Id. at 308, 476 A.2d at 1344.

In count III of his complaint, plaintiff has alleged that not only did defendant’s termination of him breach a contract that he had with Erie Press, it also violated his rights under the due process clauses of both the Pennsylvania and U.S. constitutions (Pa. Constitution, Art. I, §1; U.S. Constitution, Fifth and Fourteenth amendments).

Plaintiff alleges that his rights to due process were infringed by only being told that he violated work rule no. 27. He argues that due process requires that he be granted some form of notice of the charges against him, a hearing on those charges, and the right to be heard on the charges. Plaintiff was an at-will employee. As discussed above, it is an established legal principle that an employee-at-will may be dismissed “for any or no reason.” Veno v. Meredith, 357 Pa. Super. 85, 515 A.2d 571 (1986); Scott v. Extracorporeal Inc., 376 Pa. Super. 90, 545 A. 2d 334 (1988). If there is no contract limiting the employer’s right to discharge at will, the reason for the discharge is not subject to review in a judicial forum. This non-reviewability (except for public policy violations and where there is specific intent to harm) is the sine qua non of the at-will relationship. Veno v. Meredith, 357 Pa. Super. 85, 15 A. 2d 571 (1986).

Furthermore, plaintiff pled guilty to and was convicted of the very same offenses which caused him to be discharged by his employer, Erie Press Company. Plaintiffs right to due process was upheld by his appearance in court. No disciplinary hearing by the company is required where plaintiffs violation of the work rule is established by a court verdict. In other words, the same right to due process existed in both situations. The fulfillment of due process rights in the criminal case sátísfíed those in the discharge circumstances.

Plaintiff also argues that defendant’s termination of his employment constituted intentional infliction of emotional distress. A claim for emotional distress brought by plaintiff would only succeed if it is shown that the defendant’s actions were outrageous. Clay v. Advance Computer Applications, 370 Pa. Super. 497, 536 A.2d 1375 (1988). However, the court does not find that there has been conduct that is so outrageous in character, and so extensive in degree, as to go beyond all possible bounds of decency, and to be intolerable in a civilized community. Clay, supra.

The only questions remaining are (1) whether an oral contract existed by virtue of plaintiffs guilty plea which allegedly amended work rule no. 27; and (2) whether this is a case of detrimental reliance.

Consideration is a key element in the creation of a contract. Any detriment is sufficient consideration to support a contract. A promisee who has suffered detriment, however slight, or has done what he was not otherwise bound to do in return for a promise has given consideration. This is so ¡ regardless of whether the promisor has benefited. Pittsburgh Stove and Range Company v. Pennsylvania Stove Company, 208 Pa. 37, 57 Atl. 77 (1904). When there was a promise which the promisor should reasonably expect to induce action on the part of the promisee, and which does induce such action, it is binding if injustice can be avoided only by enforcement of the promise. This is a question of fact, not law. Havas v. Temple University of Com. System of Higher Education, 357 Pa. Super. 353, 516 A.2d 17 (1986).

In the instant case, defendant did not receive any benefit by making the purported promise of continued employment to plaintiff. However, plaintiff may have in fact acted in reliance on the alleged promise when he entered a guilty plea. This could be a factual question. Further, there is question that surrender of the right to trial by jury can constitute sufficient detriment in terms of consideration. This would be particularly true if plaintiff had a legal defense to the criminal charge but gave .up that defense based on defendant’s promises. If such were the case, a jury could find that injustice was imposed on him by defendant. The discrepancies between plaintiffs and defendant’s version of events in this case create material issues of fact for a jury to determine, regarding oral contract and detrimental reliance theories.

Because there remain material questions of fact as to plaintiffs claim of existence of an alleged oral contract and detriméntal reliance, defendant’s motion for summary judgment is denied. However, plaintiffs due process, public policy violation, and emotional distress claims are improper and are hereby dismissed. In addition, plaintiff is granted leave to amend the complaint within 30 days after this opinion/order is filed. Finally, since defendant •will now be forced to take additional depositions which might not have been necessary had they known of the theories of plaintiff at the time of the original deposition, the court feels defendant’s attorney fees incurred by virtue of the depositions are proper. Hence, the court will award attorney fees to defendant to be paid by plaintiff in the amount of $400 plus one-half the cost of the court reporter in the event depositions are scheduled.

ORDER

And now, August 2, 1989, it is hereby ordered, adjudged and decreed as follows:

(1) Plaintiff shall be allowed to file an amended pleading within 30 days, subject to the terms and limitations of the order hereinafter entered in the disposition of the summary judgment motion, without prejudice to defendant to file responsive pleadings thereto.

(2) Defendant’s motion for summary judgment is granted only to the extent that there is no claim for intentional infliction of emotional distress, no violation of plaintiffs due process rights, and no public policy of the Commonwealth of Pennsylvania was infringed upon by the defendant’s action. However, as-to the other allegations of the amended complaint, the court denies the request for summary judgment.

(3) The court hereby awards attorney fees to defendant to be paid by plaintiff for the cost of supplemental depositions in the amount of $400 plus one-half the cost of the court reporter if in fact depositions are taken, for the reasons set forth in the opinion.

       This is corrected later in the opinion by ordering plaintiff to pay certain costs of further depositions.


author: WALTER, J.,

text:
    PennDOT v. Summerville

      Francis P. Bach, deputy attorney general, for the commonwealth.

      Max J. Smith, for appellant.
    March 8, 1989
   WALTER, J.,

This is an appeal from suspension of driving privileges promulgated by appellant, James D. Summerville. Appellant’s operating privileges were revoked subsequent to an accident on October 11, 1987 for which appellant was cited for driving while his operating privileges were suspended or revoked. This two-year revocation became effective on September 23, 1988 and appellant has appealed the propriety of this sentence. Appellant argues that the Pennsylvania Department of Transportation erred by revoking his driver’s license for a period of two years instead of only one year.

In 1980, appellant’s driving privileges were suspended by PennDOT until such time as appellant completed the necessary prerequisites to have his privileges restored. On April 4, 1985, appellant still had not completed the procedure to regain his driver’s license and was cited for driving while his operating privileges were suspended or revoked. The penalty imposed for this offense was six months’ revocation as required under the Vehicle Code. The revocation became effective June 4, 1985. Throughout this entire sequence of events, appellant did not attempt to have his driving privileges restored until March 8, 1988.

In the interim, however, while appellant was still lacking a driver’s license, he was involved in a car accident on October 11, 1987. As a result, appellant was cited once again for violating the Vehicle Code and his license revoked for a period of two years effective September 23, 1988.

Appellant alleges that, at the time of the accident on October 11, 1987, his privileges were under suspension but not under revocation. Thus, he contends it was error for PennDOT to revoke his license for a period of two years instead of only one year.

The thrust of appellant’s argument is that under the Vehicle Code, penalties for vehicle violations are to run consecutively and not concurrently. Therefore, at the time appellant was cited he was still under the original suspension imposed in 1980 since he had not taken any affirmative steps towards the restoration of privileges at that juncture. He further avers the six-month revocation imposed in June 1985, would not then begin until his suspension terminated. We acknowledge violations of the Motor Vehicle Code require consecutive penalties to ensure a fair and equitable result. Brewster v. Commonwealth of Pennsylvania, Department of Transportation, 52 Pa. Commw. 112, 415 A.2d 922 (1980); Commonwealth of Pennsylvania, Department of Transportation v. Von Altimus, 49 Pa. Commw. 245, 410 A.2d 1303 (1980).

However, in the instant situation we must conclude that the period of revocation began at the time appellant was sent notice of it on June 4, 1985, and continued effective until he took steps to restore his operating privileges on March 8, 1988.

When driving privileges are suspended they remain suspended until the driver takes the required affirmative action to restore those privileges. Commonwealth of Pennsylvania, Department of Transportation v. Happe, 111 Pa. Commw. 532, 534 A.2d 576 (1987). Suspension is for an indeterminate period and does not automatically terminate. Happe, supra. Since appellant did not commence restorative action he believes he should be treated as if under suspension until he chooses to regain his driver’s license. And only after his license is restored should it then be revoked.

Appellant’s argument is, at first blush, persuasive. Further reflection, however, shows it achieves an inequitable, absurd result. It would allow appellant to repeatedly commit driving offenses with license revocation penalties, yet he would never actually be required to serve the sentence for such offenses so long as he took no steps to have his suspension lifted.

We agree with PennDOT’s contention that this situation compels a result identical with that in Caruso v. Commonwealth of Pennsylvania, Department of Transportation, no. 671 C.D. 1988, Pa. Commonmwealth Court, November 17, 1988 (slip opinion). There, Caruso’s privileges were suspended in 1982. When he was cited for driving under suspension in 1983, his driving privileges were revoked for a six-month period. The court found that because Caruso had not performed the necessary prerequisites to regain his license from the initial six-month revocation, he was still under revocation when cited for a third time in 1987. That was so regardless of the fact four years had elapsed from the effective date of the six-month revocation. Caruso’s operating privileges had not been restored as of the date of his 1987 citation, so they were deemed still revoked.

Here, appellant was cited in October 1987 for driving under revocation, at which time he had taken no steps towards license restoration. In fact, he took no such steps until a full six months later, in March 1988. Therefore, at the time of the October 1987 citation, appellant’s license was revoked according to the Caruso precedent. The two years’ revocation imposed upon appellant was entirely proper.

ORDER

And now, March 8, 1989, for the reasons set forth in the accompanying memorandum opinion the. appeal from suspension filed by James D. Summer-ville is hereby respectfully denied, and the Department of Transportation is directed to reinstate the suspension of appellant’s operating privileges on a date to be determined by it.

      . 75 Pa.C.S. § 1543(b), effective July 1, 1977.

      . 75 Pa.C.S. §1544 implies this result as well.


author: WETTICK, A.J.,

text:
    Children’s Hospital of Pittsburgh v. DeSillers

      Wilber McCoy Otto, Stewart M. Flam and Bonnie P. Webster, for plaintiff.

      David A. Jones and Frank T. Johnson, for defendant.
    July 24, 1989
   WETTICK, A.J.,

Children’s Hospital instituted an action to recover the balance allegedly due for health care goods and services that it provided to defendant’s son during his hospitalization. Defendant, individually and as trustee ad litem on behalf of all persons entitled to share in damages for the wrongful death of her son, filed a counterclaim in which she alleged that her son’s death and his suffering for several months prior to his death were a result of medical malpractice.

In accordance with the rules of civil procedure governing discovery, Children’s Hospital noticed defendant’s deposition for November 28, 1988. At defendant’s request, Childem’s Hospital agreed to reschedule the deposition to a later date. After several additional postponements, defendant’s deposition was eventually scheduled for May 3, 1989 at 1:00 p.m. at the offices of counsel for Children’s Hospital. At approximately 1:00 p.m. on May 3, 1989, defendant’s Pittsburgh counsel informed counsel for Children’s Hospital that he had just received a letter from defendant’s Florida counsel indicating that the May 3, 1989 deposition date was inconvenient for Florida counsel. Children’s Hospital filed a motion for sanctions. On May 12, 1989, this court ordered defendant to appear for a deposition on June 15, 1989 at the offices of plaintiffs counsel. On the morning of June 15, 1989, defendant’s Florida counsel informed counsel for Children’s Hospital that defendant would not be appearing for her deposition because of illness.

Children’s Hospital filed a second motion for sanctions. On June 23, 1989, this court entered an order dismissing defendant’s counterclaim with prejudice for failure to comply with discovery. The order further provided that this court would reconsider this order of court if defendant appeared for a deposition within 20 days.

Defendant appeared for her deposition within 20 days. Pursuant to the June 23, 1989 order, defendant then filed a motion to reinstate the counterclaim. This motion is opposed by Children’s Hospital on two grounds. Children’s Hospital contends that defendant’s deposition testimony did-not support the reasons that her counsel had given for her failures to appear for her deposition in the past. Children’s Hospital also contends that defendant had frequent and convenient memory lapses and repeatedly failed to provide full and complete answers.

Both Pennsylvania appellaté court case law and Pa.R.C.P. 4019(c)(2) permit a court to bar a party from pursuing a claim as a discovery sanction. See Pride Contracting Inc. v. Biehn Construction Inc., 381 Pa. Super. 155, 553 A.2d 82 (1989); Vorhauer v. Miller, 311 Pa. Super. 395, 457 A.2d 944 (1983). However our appellate courts have repeatedly emphasized that less drastic .sanctions should normally be utilized and that the sanction of the dismissal of a claim should be imposed only as a last resort after a party has been given every reasonable opportunity to comply with discovery compelled by the discovery rules and orders of court. Dunn v. Maislin Transport Ltd., 310 Pa. Super. 321, 456 A.2d 632 (1983); Walker v. Pugliese, 317 Pa. Super. 595, 464 A.2d 482 (1983).

Case law is equally clear that the court may not impose a sanction that is overly broad. The appellate courts continue to apply the standard enunciated in Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979). In that case the Superior Court considered the validity of a local rule of court which authorized the prothonotary to enter á judgment of non pros in every case in which a party failed to comply with a court order requiring answers to interrogatories to be filed within a specified time. The Superior Court held that the imposition of the most severe allowable sanction in each case in which there is non-compliance with any court order compelling discovery is inconsistent with the sanction provisions of the discovery rules because it is the responsibility of a court to impose a sanction that is appropriate for the particular violation.

“Pa.R.C.P. no. 4019 envisions a procedure by which the court, when confronted with a failure or refusal to answer interrogatories, will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to select a punishment which ‘fits the crime.’ If a written interrogatory asks for information which, although relevant, is not determinative of the entire controversy, a default judgment, which in effect is an adjudication of the merits, would seldom, if ever, be appropriate. Under such circumstances, it would be more appropriate to treat the default as an admission or to disallow proof at trial of such undisclosed information. The need to ‘fit the punishment to the crime’ compels the exercise of judicial discretion. The court is required to strike a balance between the procedural need to move the case to a prompt disposition,and the substantive rights of the parties.” Id. at 252, 407 A.2d at 1341.

When we apply these principles to the case before this court, we conclude that defendant’s request to reinstate her counterclaim should be granted.

We .find no merit to the contention of Children’s Hospital that we should deny defendant’s request to reinstate her counterclaim because she did not provide reasonable explanations for her failures to appear at the prior depositions. Even assuming that the prior failures were willful, we should not dismiss the action if she has now cured her willful failures to comply with discovery. In accordance with the mandates of Gonzales u. Procaccio Bros. Trucking Co., we must select a punishment which fits the crime. If her failures were willful, the appropriate punishment is the award of counsel fees and other costs. Children’s Hospital has experienced no prejudice other than the incurrence of these counsel fees and costs because of defendant’s prior failures to comply with discovery. Consequently, Children’s Hospital is entitled to no greater sanctions.

. Children’s Hospital, on the other hand, is entitled to the dismissal of the counterclaim if defendant appeared for a deposition in name only. The provision in the June 23, 1989 order of court that this court would reconsider its order dismissing defendant’s counterclaim if she appeared for deposition within 20 days envisioned a deposition at which defendant gave responsive answers to plaintiff’s questions or raised good-faith objections to questions that she refused to answer. We therefore consider the merits of the contention of Children’s Hospital that defendant failed to provide responsive answers.

’ After reviewing the transcript of defendant’s deposition, we find no merit to the claim of Children’s Hospital that defendant consistently provided evasive and incomplete answers. Defendant’s deposition lasted for more than seven hours over a two-day period. The transcript exceeds 300 pages. In the course of this deposition defendant generally provided adequate information concerning her malpractice claim. If there are specific problems, they should be dealt with through a motion for additional discovery that focuses on the information that defendant allegedly failed to provide.

Children’s Hospital is correct in stating that the deposition was prolonged because of the many occasions on which defendant’s initial responses were argumentative and incomplete, thereby requiring counsel for Children’s Hospital to ask additional questions in order to obtain the information which he sought. But Children’s Hospital was equally responsible for the length of the deposition. Most of the difficulties arose over questions that appear to have little or nothing to do with this malpractice claim. An overall review of the transcript indicates that the parties seemed more concerned with matters involving defendant’s character, her life history, her activities over the past three years and her general thoughts concerning the quality of care that Children’s Hospital provided to her son and to other transplant patients. Few questions were designed to elicit information that would have a significant bearing on this malpractice claim.

While it is apparent that there is a great deal of animosity between Children’s Hospital and defendant and while it is obvious from the deposition that counsel for Children’s Hospital questions defendant’s good faith, the counterclaim that is the subject of this discovery dispute is nothing more than a typical medical malpractice claim. In all likelihood the merits of this claim will depend almost exclusively on expert testimony. The claim will not proceed to trial unless defendant obtains a medical expert who concludes that there was malpractice. This expert’s testimony will in all likelihood be based almost entirely on the medical records of defendant’s son and a review of the deposition testimony of the physicians who treated defendant’s son. If defendant is able to provide such expert testimony, the jury’s decision will be based primarily on the assessment of the credibility of the expert testimony offered by defendant and the expert testimony offered by Children’s Hospital.

The parent of a deceased child plays a very limited role in this type of litigation. Since the parent is not a medical expert, her conclusions concerning the quality of the care that her son received are irrelevant and inadmissible. She cannot offer relevant testimony as to liability other than factual observations which a lay person may make concerning the treatment that her son received and statements made to her by persons rendering the treatment. It appears that defendant provided adequate information in her deposition concerning any admissible testimony that she can offer at trial on the issue of liability. While the parent may play a greater role on the issue of damages, it again appears that defendant has provided adequate information concerning this issue at her deposition.

Also even if Children’s Hospital can establish that defendant should have provided more complete information concerning specific areas of inquiry, it is unlikely that the dismissal of the entire malpractice claim would be an appropriate sanction. As a general practice we give a party who provided deposition testimony that we found to be incomplete the opportunity to furnish additional testimony in accordance with specific instructions from the court. Also when a party is not a critical witness to the case, the most appropriate sanction may be to bar that witness from offering testimony at trial that is beyond thé fair scope of the testimony offered at the discovery proceedings rather than to dismiss the entire claim.

Children’s Hospital has not supported its request that this court deny defendant’s motion to reinstate her counterclaim by pointing to any specific areas of inquiry in which she allegedly failed to provide relevant information. It rests its case solely on its characterization of the deposition as a thwarted effort to obtain any relevant information. Since we disagree with this characterization of the deposition, Children’s Hospital has given no good reason for denying defendant’s request to reinstate the counterclaim. Consequently, in accordance with the established case law that the sanction of a dismissal of a claim should be imposed only as á last measure when there is no other appropriate sanction, we grant defendant’s request to reinstate her counterclaim.

ORDER OF COURT

On this July 24,1989, it is hereby ordered that the June 23, 1989 order of court dismissing defendant’s counterclaim with prejudice for failure to comply with discovery is vacated and defendant’s counterclaim is reinstated. This order is entered without prejudice to Children’s Hospital to request this court to compel defendant to provide additional discovery or to seek other sanctions in the event that it establishes that defendant failed to provide full and complete information concerning relevant areas of inquiry.

       At this time the only issue before this court is whether to reinstate defendant’s counterclaim. Consequently, this court makes no determination as to whether defendant had a valid reason for her previous failures to appear for her deposition.


text:
    In re Appeal of Autohaus Lancaster Inc.

      William J. Cassidy Jr., for Autohaus.

      Christopher S. Underhill, for Zoning Hearing Board and Manheim Township.
    February 13, 1989
   GEORGELIS, J.,

Before the court is the appeal of Autohaus Lancaster Inc. from the decision of the Manheim Township Zoning Hearing Board, which decision directed Autohaus to remove a Volkswagen vehicle from the roof of its property. Manheim Township has intervened, and, along with Autohaus, has filed a brief. Oral argument having been heard, the appeal is ready for disposition. For the reasons stated below, it will be denied, and the decision of the board will be affirmed.

FACTS

The facts, relevant to the disposition of this appeal and as found by the board, are the following. Autohaus is an automobile dealership, which is located on property it owns at 1373 Manheim Pike in the township, Lancaster County. That property is located in a business district B-4 zone in the township.

The portions of the township’s Zoning Ordinance no. 1987-30, which regulate signs and which are relevant to this appeal, became effective on November 9, 1987. On February 25, 1988, Autohaus had a Volkswagen vehicle on the roof of its building and thereby above the budding’s roof line. On that same date, Autohaus was issued a notice of violation, directing it to remove that vehicle because it constituted, pursuant to the ordinance, a sign that impermissibly projected above the budding’s roof line in violation of section 1706-A(4) of the ordinance.

On March 1, 1988, Autohaus filed an application appealing the notice on the grounds, inter alia, that: the vehicle does not constitute a sign; section 1706-A(4) is inapplicable; the use of the vehicle constitutes a non-conforming use; and the ordinance is unconstitutionady vague and overbroad. A hearing on that application was held before the board on April 4, 1988. Autohaus has placed different vehicles at the same location on the roof of its budding since approximately February 23, 1967, and, to accommodate the weight of those vehicles, it has reinforced the roof of the budding with a 30’ x 60’ x 4” concrete and steel slab. The vehicles are parked, one at a time, on the slab, do not overhang the sides of the budding and are approximately six feet away from the edge of the budding.

Authohaus’s purpose for so placing the vehicles is to identify its business as a Volkswagen dealership, and, in addition to the vehicles, it has a sign, which was attached some time in 1981, and a Volkswagen logo on the roof of the building. Other than the notice of violation, no one has complained to Autohaus about the placement of the vehicles on the roof.

Since February 1967, Autohaus has changed the vehicles, with the use of a crane, originally once per month and now once every three months. Except for when the vehicles are being changed, there generally is no period of time when there is not a vehicle on the roof.

With these findings of fact, the board concluded that: (a) the vehicles placed on the roof are signs, within the meaning of the ordinance; (b) the vehicles are attached to the building; (c) section 1706-A(4) of the ordinance is applicable and Autohaus is in violation of that section because the vehicles project above the roof line; (d) Autohaus has the burden of proving that its use of the vehicles constitutes a legal and non-conforming use and has failed to meet that burden; (e) Autohaus has the burden of proving the relevant provisions of the ordinance are unconstitutional and has failed to meet that burden; and (f) the relevant provisions of the ordinance are not unconstitutionally vague or broad.

Having drawn those conclusions, the board denied Autohaus’s application and directed it to stop placing vehicles on the roof of its building. From that denial, Autohaus filed a timely appeal, placing the matter before this court.

DISCUSSION

The parties had agreed by stipulation that Autohaus’s appeal presents eight issues for our determination. At oral argument, Autohaus abandoned one of those issues, leaving the following seven:

(A) Whether the vehicles are signs, as defined by the township’s ordinance.

(B) Whether placing the vehicles on the roof violates section 1706-A(4) óf the ordinance.

r (C) Whether the township is equitably estopped from enforcing the ordinance as to Autohaus.

(D) Whether the use of the vehicles has nonconforming status.

(E) Whether the definition of a sign in the ordinance is unconstitutionally vague and over-broad. - ''

(F) Whether the ordinance is in violation of the United States Constitution’s First Amendment as an unreasonable restriction of free speech.

(G) Whether the ordinance is an invalid exercise of police power in that it fails to promote the public health, safety and welfare and in that the regulations are not substantially related to the purposes of the ordinance.

We will address each of these issues individually. We note at the onset that our scope of review in this appeal, since the record has been made before the board and since no additional evidence was presented before us, is limited to determining whether the board committed an abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554-5, 462 A.2d 637, 639-40 (1983).

Issue A

Are the Vehicles Signs?

To address this issue, our attention is first directed to section 1701 of the ordinance which defines a sign as: '

“[A]ny identification, description, illustration or device, illuminated or non-illuminatied, which is visible from any public place ánd which directs attention to a product, service, place, activity, person, institution, business or solicitation ...”

Autohaus contends that the vehicles are not signs within this definition and argues that interpreting the definition to include them, as signs would lead to the result that all vehicles on Autohaus’s lot would be signs and would require permits, pursuant to another section of the ordinance. The township argues that Autohaus’s position ignores the portion of the definition which requires attention to be directed to a product or place of business. It further contends that, even though vehicles on a dealer’s lot may have the incidental effect of attracting business,- they are not placed there for that purpose.

We agree „with the township and note that thé board found, based on the testimony of Autohaus’s witness, that the purpose of placing the vehicles on the roof is to identify Autohaus’s business as a Volkswagen dealership. Autohaus asks us to find the language of the definition ambiguous, construe it strictly and interpret it in its favor. We believe the language in the definition is clear, and we have no difficulty including the vehicles within the ordinance’s definition- either as “identifications” or as “devices.” Webster’s Seventh New Collegiate Dictionary (1963) defines “identification,” inter alia, as “evidence of identity” and defines “device,” inter alia, as “a piece of equipment or a mechanism designed to serve a spécial purpose” or perform a special function.”

We believe the record establishes that the vehicles on the roof are evidence of the identity of Autohaus’s dealership, that they are placed there for the purpose of performing the special function of calling the public’s attention to Autohaus’s business and that they accomplish that purpose. Accordingly, we do not believe that the board abused its discretion or committed an error of law in finding that the vehicles are signs within the definition in the ordinance.

Issue B

Is Section 1706-A(4) Applicable?

The next issue involves the ordinance’s section 1706-A(4), which states, in part, as follows:

“Signs attached to a budding:
“Each sign shad be placed either (A) paradel to budding facade and projecting not more than 12 inches therefrom, or (B) in alignment with outer facing of a covered passageway and at least eight feet above the finished floor thereof; or (C) at right angles to budding facade and under covered passageway and at least eight feet above the finished floor of such passageway. In any case, such sign shad not project above the roof line or top of parapet.”

Autohaus argues that this section is not appdcable because it deals with signs attached to a budding, which is not the case instantly, and because the restriction that a sign not project above the roof line appdes only to signs placed on the facade of a budding or in adgnment with the 'outer facing of a covered passageway. The township argues that, even though the word attached appears in the title of section 1706-A(4), under rules of statutory construction, the title cannot control the plain words of a statute unless an ambiguity exists in its text, which is not the case instantly. In the alternative, the township argues that the vehicles are attached to the budding by virtue of their being joined to it, and for this argument the township redes oil the definitions of the words attach and join.

We believe Autohaus’s position is untenable for two reasons. First, we believe that section 1706-A(4) prohibits the projection of any sign above a budding’s roof line. Second, we believe that, without the applicability of that section to the vehicles involved in this case, Autohaus would be prohibited from using the vehicles, since they would not fit into any other definition of a permitted sign under the ordinance. Both of these reasons, of course, rely on our earlier finding that the roof vehicles are signs.

We wdl explain the second of these reasons first. Section 1706 of the ordinance deals with signs which are permitted in business and industrial districts. Section 1706-A lists the signs permitted in B-l and B-2 districts; section 1706-B lists the signs permitted in B-3 districts; and section 1706-C lists the signs permitted in B-4, 1-1 and 1-2 districts.

Specifically, section 1706-C, which is the applicable one for the herein appeal, lists, as permitted signs, those listed in section 1706-B and panel type signs, which are defined as off-the-premises billboards. Section 1706-B lists, as permitted signs: those listed in section 1706-A, free-standing signs and signs displaying automotive fuel prices. A freestanding sign is defined as a permanent one, erected on a foundation or supported by a structure or pole specifically designed to support it. Section 1706-A lists, as permitted signs: permanent signs, freestanding signs, temporary signs, signs attached to a building and awning signs.

Therefore, since Autohaus’s property is within a B-4 zone, it is by virtue of section 1706-A’s inclusion of signs attached to a budding that this kind of sign and its definition are relevant to this issue of Autohaus’s appeal. Permanent signs are defined as requiring permanent affixing or installation; and temporary and awning signs, by definition, are made of some fabric. -

From these definitions, we do not believe that the vehicles involved in this case qualify as panel type, free-standing, fuel-price-displaying, permanent, temporary or awning signs. Therefore, the only remaining definition which would permit the use of the vehicles as signs is section 1706-A(4)’s signs attached to a building. Accordingly, Autohaus’s contention that section 1706-A(4) is inapplicable is untenable.

Moving to our other reason for believing Autohaus’s position is untenable, i.e. section 1706-A(4) prohibits the projection of any sign above a building’s roof line, even though we agree with the township’s alternate argument on this issue, we note that the township’s first argument is also untenable. As noted, the township first argues that, because the text of section 1706-A(4) is clear, the words in its title cannot be considered. It then contends that, becuase the text prohibits the projection of any sign above a roof line, the vehicles are in violation of the ordinance. However, without reference to the title of that section, that prohibition is inapplicable to Autohaus’s vehicles, since the balance of the text identifies only three permissible signs — those parallel to a building’s facade, those in alignment with a covered passageway’s outer facing or those at right angles to a budding’s facade or covered passageway — and the vehicles are not one of those three types. Accordingly, for the roof-line prohibition to be applicable to the vehicles, the text to section 1706-A(4) must be read in conjunction with its title.

As noted above, we agree with the township’s alternate argument that the vehicles are attached to the budding, and we believe it is the most compelling one proffered on this issue. Both parties agree that the definition of the word attach includes the word join, and, as the township notes in its brief, the definition oí join includes the putting or bringing into close association or relationship. The American Heritage Dictionary (Second Codege ed. 1982). By virtue of the vehicles’ resting on the slab on top of the roof of Autohaus’s budding, they are obviously in physical contact with it, which places them in close association and relationship to it. Therefore, we conclude that they are attached to the budding.

With this conclusion, we find that Autohaus is in violation of section 1706-A(4) in two ways. The vehicles do not qualify as one of the three permitted signs within that subsection and they project above the roof line of the budding. We do not believe that the board abused its discretion or committed an error of law in concluding that the vehicles are attached to the budding and that Autohaus is in violation of section 1706-A(4).

Issue C

Equitable Estoppel

The doctrine of equitable estoppel is one of fairness and prevents a party from taking a position which is inconsistent with a position previously taken and thus disadvantageous to the other party. Curran v. Eberharter, 361 Pa. Super. 65, 74-5, 521 A.2d 474, 480 (1987). On this issue Autohaus argues that, should we deem the sign ordinance to be applicable, the township should be estopped from enforcing it as to it under this doctrine. Autohaus refers us, in support of this argument, to Caporali v. Ward, 89 Pa. Commw. 621, 625, 493 A.2d 791, 793-4 (1985), which held that the fodowing three elements are indispensable for the application of the doctrine: “(1) municipal failure to enforce the law over a long period of time or some form of ‘active’ acquiescence of the illegal use; (2) good faith throughout the proceedings by the property owner; and (3) innocent reliance evidenced by substantial expenditures.” It then contends that the record factually establishes these three elements.

The township argues that the doctrine of equitable estoppel cannot be applied without a showing of prejudice and refers us to Sullivan v. Zoning Board of Adjustment, 83 Pa. Commw. 228, 478 A.2d 912 (1984). It also argues that, under a more recent decision of our Commonwealth Court, Crawford Appeal, 110 Pa. Commw. 51, 531 A.2d 865 (1987), the first element required by the Caporali court was expanded to require municipal failure to enforce and active acquiescence in the illegal use.

We believe the township accurately states the current status of the law. We note that the Crawford court, in discussing the first element, states:

“One factor is a long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of ‘active’ acquiescence in the illegal use. What is well-settled is that a mere showing that a municipality has failed to enforce the law for a long period of time is insufficient in itself to support the grant of a variance.” Crawford Appeal at 55, 531 A.2d at 867-8. (emphasis in original)

In reviewing the record made before the board, we note the testimony of Autohaus’s witness that the notice of violation was the only complaint ever received by Autohaus as to the vehicles’ being on the roof, and we note the board’s finding of fact to that effect. However, the record is devoid of any evidence of any form of the township’s active acquiescence in the illegal use. Accordingly, we conclude that the board’s unwillingness to apply the doctrine of equitable estoppel was neither an abuse of its discretion nor an error of law.

Issue D

Non-Conforming Status

A non-conforming use is an existing use which, when it began, was lawful either because there was no zoning ordinance or because there was an ordinance permitting it and the ordinance was subsequently changed. A property owner has a constitutional right to continue a non-conforming use unless the municipality proves that it has been abandoned. Tantlinger v. Zoning Hearing Board of South Union Twp., 103 Pa. Commw. 73, 77, 519 A.2d 1071, 1073 (1987). Autohaus argues that its current use of the vehicles should be granted non-conforming status because the use was lawful on the effective date of the ordinance, which was November 9, 1987. The township argues that the use was not lawful at its inception.

Autohaus has the burden of proving that the use of the vehicle was lawful prior to the enactment of the ordinance. Our review of the record indicates no evidence was presented by Autohaus on that issue, and we, therefore, conclude that it has failed to carry its burden of proof. In fact, in an effort to provide Autohaus the benefit of any doubt, we reviewed the complete record made before the board and have determined that the use at its inception, which Autohaus established as being approximately February 23, 1967, was unlawful.

The record contains copies of the relevant portions of all previous zoning ordinances enacted by the township, and our review of them indicates that the ordinance enacted on February 13, 1956 was the one in effect at the inception of the use of the vehicles by Autohaus. Section 1203(5)(B) of that ordinance states, inter alia, that business signs, in no case, shall project above the roof line. Accordingly, we conclude that Autohaus did not carry its burden of proof, that it is not entitled to nonconforming status for its use of the vehicles and that the board did not abuse its discretion or commit an error of law in denying that status.

Issue E

Is the Ordinance Unconstitutionally Vague and Overbroad?

On this issue, Autohaus contends that the ordinance’s definition of sign is not specific enough for an individual of common intelligence to determine what would be permitted and what would be proscribed and that the word device is subject to countless interpretations. The township argues that, even though an ordinance may be found violative of due process if its terms are vague, due process only requires that the law give sufficient warning so that individuals may conform their conduct so as to avoid that which the law forbids. For this proposition, the township refers us to Commonwealth v. Robbins, 358 Pa. Super. 225, 230, 516 A.2d 1266, 1268 (1986).

In analyzing this issue, we begin with the proposition that a zoning ordinance is presumed to be constitutionally valid and that a judicial construction consonant with this presumption is to be preferred. Board of Supervisors of Upper Merion Twp. v. McDonald's Corp., 91 Pa. Commw. 299, 344, 497 A.2d 264, 266 (1985). Accepting this proposition and applying the Robbins, supra, standard, the test is whether the ordinance may be understood by persons of common intelligence. See Commonwealth v. Barnhart, 345 Pa. Super. 10, 497 A.2d 616 (1985). After reviewing the ordinance and all of its definitions, we cannot agree with Autohaus’s position. We believe the ordinance, along with the normally accepted definitions of its key words, more than clearly defines what signs are permitted and what the limitations of those signs are.

Next on this issue, Autohaus argues that the ordinance’s definition of sign is overbroad, so much so that it includes all types of visual communication and thereby limits First Amendment protected commercial speech. Again', Autohaus has the burden of proving this alleged unconstitutionality but has produced no evidence to do so. We believe the argument is meritless, and we will simply note that the ordinance permits a wide variety of commercial signs, several of which, as the record indicates, Autohaus is currently using. We conclude that the ordinance is neither unconstitutionally vague nor overbroád and that the board did not abuse its discretion or commit an error of law in so determining. ‘

Issue F

Does Ordinance Violate First Amendment?

On this issue, Autohaus contends that, pursuant to Heffron v. International Society of Krishna Consciousness Inc., 452 U.S. 460, 101 S.Ct. 2559, 69 L.Ed. 2d 298 (1981), commercial speech is entitled to First Amendment protection and that the ordinance violates that protection. Heffron held that an ordinance which regulates free speech is constitutional only if: (1) it is imposed without a reference to the content of the regulated speech, (2) the regulation serves a significant governmental interest and (3) there are ample alternative channels for communication. Autohaus contends that Heffron’s second requirement is not met because the ordinance fails to effectively serve the goals it is designed to achieve. The township argues that two of the ordinance’s purposes are to avoid the uncontrolled proliferation of signs and to preserve the wholesome and attractive character of the township and that there is a significant governmental interest which is directly served by regulating the placement and structure of signs within the township.

We agree with the township’s position on this issue. Section 1700 of the ordinance provides its statement of purpose and states as follows:

“The purpose of this article is to:
“(1) Regulate signs in such a way as to support and complement land use objectives set forth in the Zoning Ordinance and Comprehensive Plan, to avoid uncontrolled proliferation of signs, and to preserve the wholesome and attractive character of the township.
“(2) Ensure that all signs within the township are compatible with existing land uses and/or buildings within the general area of the sign and/or the community as a whole, with regard to size, location, color, message, construction, materials, and manner of display.
“(3) Permit such signs that do not confuse, obstruct the vision necessary for traffic safety, or otherwise endanger the pubic health, safety, morals, or general welfare, and to recognize that the general welfare includes a community that shall be beautiful as well as healthy, spacious as well as clean, and well balanced in its growth and development.”

We believe that these purposes identify a number of significant governmental interests and that the ordinance’s efforts to regulate the types and placement of signs within the township effectively serve those purposes. Autohaus does not contend that the ordinance fails to meet the other two Heffron requirements, and we will not, therefore, specifically address them. However, we will note that we believe the ordinance satisfies them as well. Accordingly we conclude that the ordinance does not violate the U.S. Constitutions’s First Amendment and that the board did not abuse its discretion or commit an error of law in so concluding.

Issue G

Is Ordinance an Invalid Exercise of Police Power ?

On this issue, Autohaus contends that the ordinance is an invalid exercise of police power in that it fails to promote the public health, safety and welfare and in that its regulations are not substantially related to the purposes it purports to serve. In support of this contention, it refers us to Clover Leaf Trailer Sales Company v. Pleasant Hills, 366 Pa. 116, 76 A.2d 872 (1950), which held that the language of a zoning ordinance must be construed in the light of the purpose of the legislation. The township argues that the specifically stated purposes of the ordinance are to promote the public health, safety and welfare.

In analyzing this issue, we begin with the proposition, as noted in the township’s brief, that a municipality has the power to regulate signs, billboards and other advertising media when such regulation is not unreasonable, arbitrary or discriminatory and bears a reasonable relationship to public safety, morals, health and welfare. Borough of Dick son City v. Patrick Outdoor Media Inc., 90 Pa. Commw. 628, 631-2, 496 A.2d 427, 429 (1985). We then move to the proposition, as also noted in the township’s brief, that any party asserting that a statute or regulation is an unreasonable exercise of the police power must meet a heavy burden of proof. Department of Environmental Resources v. Locust Point Quarries Inc., 483 Pa. 350, 362, 396 A.2d 1205, 1211 (1979). In addition, an ordinance is presumed constitutional, and its challenger must prove that it is clearly, palpably and plainly unconstitutional. Judd v. Zoning Hearing Board of Middletown Twp. et al., 74 Pa. Comm. 535, 539, 460 A.2d 404, 406 (1983).

Autohaus, in its brief, refers us to testimony taken before the board regarding the presence of the vehicles on the roof, their compatibility with the surrounding area and their not endangering the public health, safety, morals or general welfare. Its challenge, however, in asserting that the ordinance is an invalid exercise of police power, is to prove that the sign regulations are unreasonable, arbitrary or discriminatory. Our review of the record produced no evidence whatsoever to carry this heavy burden of proof.

We do note that Autohaus, in its brief, states that some of the criteria set forth in the ordinance’s purposes are merely based on aesthetics. Even though aesthetic reasons may not furnish the sole basis of regulation of signs, billboards and other outdoor advertising media, Norate Corp. Inc. v. Zoning Board of Adjustments, 417 Pa. 397, 406, 207 A.2d 890, 895 (1965), aesthetics and property values are legitimate considerations in a municipality’s exercise of its zoning power to promote the general welfare. Mont-Bux Inc. v. Township of Cheltenham, 36 Pa. Commw. 397, 401-2, 388 A.2d 1106, 1107(1978).

Autohaus has failed to prove the ordinance’s sign regulations are unreasonable, arbitrary or discriminatory. Accordingly, we do not believe that the township abused its discretion or committed an error of law in concluding that the ordinance is constitutional.

Accordingly, we enter the following

ORDER

And now, February 13, 1989, for all of the reasons stated in the foregoing opinion, the appeal of Autohaus Lancaster Inc. from the decision of the Manheim Township Zoning Hearing Board is denied, and the board’s decision of May 2, 1988 is affirmed.