author: McCLURE, P.J.,

text:
    Commonwealth v. Stahl

      Graham C. Showalter, assistant district attorney, for the commonwealth.

      Lonnie C. Hill, for defendant.
    August 11, 1989
   McCLURE, P.J.,

On December 5, 1987, a citation (no. 81875) was issued to defendant Ronald S. Stahl for failing to identify himself to a Pennsylvania Game Commission Officer in violation of 34 Pa.C.S. §904. Following a hearing before a district justice, defendant was found guilty and sentenced to pay a fine of $800. Defendant appealed to the court of common pleas.

At a de novo hearing held on July 18, 1988, defendant was again found guilty; and he subsequently filed a timely motion for arrest of judgment. Disposition of defendant’s motion is the issue presently before this, court.

FACTS

Issuance of the citation arose out of the following circumstances. On the evening of December 5, 1987, at approximately 10:30 p.m., Pennsylvania Game Commission Officer Bernard J. Schmader received a report that shots had been fired in the vicinity of Duck and Moyer Roads, White Deer Township, Union County. Witnesses had observed a black pick-up truck in the vicinity. Approximately one-half hour later, Officer Schmader received a second report identifying Greg Stahl as one of the two alleged perpetrators. Officer Schmader, accompanied by two uniformed deputy officers, proceeded to the Stahl residence. The officers arrived at approximately 11 p.m., and failing to see the pick-up identified in the reports, parked nearby to see if it turned up. Their efforts were rewarded a few minutes later, when a beam of light caught their attention. They went to investigate and saw a black pick-up truck parked at the residence.

Greg Stahl and Neil Lilly came out of the house, and Officer Schmader began asking them about their activities earlier that evening. Stahl stated that he and Lilly had been driving around, having a few beers. They admitted driving the black pick-up but denied any involvement with hunting or killing deer.

During the interview, defendant came out of the house, stated that he was the owner of the property, and asked what was going on. Officer Schmader told him that they were investigating a possible game law violation and asked him to identify himself. Defendant refused. Officer Schmader explained that under the Game Code, he was required to identify himself, and repeated the question several times. Each time, defendant refused to state his name and stated that he had no identification on him. Defendant gave the officers permission to search the vehicles parked on the property, but refused to let them search his home without a warrant. He asked the officers to leave when they completed their search of the vehicles.

As a consequence of defendant’s failure to identify himself, he was cited for violating section 904 of the Pennsylvania Game Code, which provides that “it is unlawful for any person to resist or interfere in any manner or to any degree or to refuse to produce identification” upon request of an officer performing any duty required under the code. 34 Pa.C.S. §904. Violation of section 904 is a first degree summary offense punishable by a maximum fine of $800. 34 Pa.C.S. §925(b)(4). Failure to pay the fine imposed is punishable by imprisonment for a period not to exceed 90 days. 34 Pa.C.S. §925(f).

DISCUSSION

Defendant challenges his conviction on the grounds that section 904 violates the search-and-seizure provisions of the Fourth Amendment and that it is overbroad and unconstitutionally vague under the 14 th Amendment to the U.S. Constitution. We find that the mandatory identification requirement of section 904 violates defendant’s constitutional rights . under the 14th Amendment and reverse his conviction. For reasons discussed more fully below, we decline to reach the Fourth Amendment issues raised.

14th Amendment Issues

In Kolender v. Lawson, 461 U.S. 352, 75 L.Ed.2d 903, 103 S.Ct. 1855 (1983), the Supreme Court struck down a California statute similar to section 904 as violative of the due process clause of the 14th Amendment. The California statute [section 647(e)] authorized police officers to approach persons loitering or wandering the street and demand that they produce “credible and reliable identification” and explain the reasons for their presence at that location. Inquiries were restricted to situations in which the officers had reason to suspect that the detainee was involved in illicit activity, the type of brief detention sanctioned by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).

Edward Lawson, a California resident, filed a civil action seeking a declaratory judgment: (1) holding section 647(e) unconstitutional; (2) limiting its enforcement; and (3) awarding compensatory and punitive damages for the inconvenience he suffered at the hands of police officers. Lawson had been detained by the police under section 647(e) on approximately 15 separate occasions over a two-year period. Only one of the detentions resulted in a conviction.

Lawson argued that section 647(e) was unconstitutionally vague on its face in violation of the due process clause of the 14th Amendment. The Supreme Court agreed, concluding that section 647(e) failed to describe with sufficient particularity what a suspect must do to provide “credible and reliable” identification, thereby opening the door for arbitrary enforcement by prosecutors and police officers. Kolender, supra, 461 U.S. at 361, 75 L.Ed. 2d at 911. The court reviewed the constitutional parameters of the void-for-vagueness doctrine, which has two components. The first is actual notice: a penal statute must define the criminal offense with sufficient clarity to inform ordinary people of reasonable understanding the nature of the conduct prohibited. The second component; which overshadows the first, is adequate enforcement guidelines: penal statutes must establish precise standards delimiting what is and what is not a violation. Failing that, there is a risk of arbitrary enforcement; the door is open for a “standardless sweep” by law enforcement officials who are free to pursue their “personal predilections.” Kolender, supra, 461 U.S. at 357, 75 L.Ed. 2d at 909; Smith v. Goguen, 415 U.S. 566, 574, 39 L.Ed. 2d 605, 613, 94 S.Ct. 1242 (1974); and Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L.Ed. 2d 110, 115, 92 S.Ct. 839 (1972).

Section 647(e) did not withstand the court’s scrutiny under the second component because it failed to set definitive compliance guidelines. It left that task to the discretion of the policeman on patrol, thereby opening the door to selective enforcement.

“Section 647(e) furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’ . . . and ‘confers on police a virtually unrestrained power to arrest and charge persons with a violation.’ ” Kolender, 461 U.S. at 360, 75 L.Ed 2d at 911. (citations omitted)

Kolender is part of a line of cases in which the Supreme Court has declared unconstitutional laws that leave the criteria for enforcement up to the personal predilections of the arresting officer. In City of Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398, 107 S.Ct. 2502 (1987), the court invalidated a Houston ordinance making it illegal for any person to “assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.” City of Houston v. Hill, supra, citing Houston Municipal Code §34-11(a) (1984). The court’s ruling was based upon its concern that the vaguely defined parameters of the ordinance made it susceptible to selective enforcement:

“[W]e have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them. As the court observed over a century ago, ‘[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.’. . . The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.” City of Houston v. Hill, supra, 96 L.Ed. 2d at 414-5, quoting Lewis v. City of New Orleans, 415 U.S. 130, 39 L.Ed. 2d 214, 94 S.Ct. 970 (1974). (emphasis supplied)

In Smith v. Goguen, supra, the court struck down a Massachusetts statute imposing criminal sanctions on anyone who “publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States,” stating:

“Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. ... In Gregory v. City of Chicago, 394 U.S. 111, 120, 22 L.Ed. 2d 134, 89 S.Ct. 946 (1969), Mr. Justice Black in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking ‘to the moment-to-moment judgment of the policeman on his beat.’. . .
“Where inherently vague statutory language permits . . . selective law enforcement, there is a denial of due process.” Smith v. Goguen, supra, 415 U.S. at 575-6 and 39 L.Ed.2d at 613. (citation omitted)

The Supreme Court struck down a Jacksonville vagrancy ordinance on similar grounds in Papachristou v. City of Jacksonville, supra, 405 U.S. at 170, 31 L.Ed. 2d at 120, stating that it furnished “a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure,” quoting. Thornhill v. Alabama, 310 U.S. 88, 97-8, 84 L.Ed. 1093, 60 S.Ct. 736 (1940). Finally, in Coates v. City of Cincinnati, 402 U.S. 611, 613, 29 L.Ed. 2d 214, 217, 91 S.Ct. 1686 (1971), the court declared a Cincinnati “public nuisance” ordinance unconstitutionally vague. The ordinance made it a criminal offense for “three or more persons to assemble ... on any of the sidewalks, street corners, vacant lots . . . and there conduct themselves in a manner annoying to persons passing by or occupants of adjacent buildings,” Coates v. City of Cincinnati, supra, quoting Code of Ordinances of the City of Cincinnati, §901-L6 (1956). The court stated:

“Conduct that annoys some people does not annoy others. Thus the ordinance is vague ... in the sense that no standard of conduct is specified at all.
“The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through . . . ordinances directed with reasonable specificity toward the conduct to be prohibited. ... It cannot constitutionally do so through ... an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.” Coates v. City of Cincinnati, supra, 402 U.S. at 614, 29 L.Ed. 2d at 217-8. (citation omitted) See also, Waters v. McGuriman, 656 F.Supp. 923, 926 (E.D. Pa. 1987) (loitering ordinance struck down as unconstitutionally vague).

Turning to the case before us, under the analysis followed in Kolender, the critical issue is whether the statute establishes definitive compliance guidelines. Section 904 reads, in its entirety:

“When an officer is in the performance of any duty required by this title, it is unlawful for any person to resist or interfere in any manner or to any degree or to refuse to produce identification upon request of the officer. A violation of this section is a summary offense of the first degree.” 34 Pa.C.S. §904. (emphasis supplied)
“Identification” is not defined anywhere in the code, nor has it been defined by the courts. Thus what is required of someone asked to “produce identification” is an open-ended question left to the judgment of the interrogating officer. Compliance could consist of any of the following: (1) orally stating one’s name; (2) producing written identification; (3) producing identification bearing a telephone number or address to allow further contact; (4) producing identification bearing a photograph to give the interrogating officers reasonable assurance that the proffered identification is genuine. Determination of what constitutes adequate compliance lies solely with the interrogating officer. This vests the officer with unbridled discretion and opens the door to selective enforcement, a result expressly prohibited under Kolender.

Furthermore, unlike the California “stop and identify” statute in Kolender, section 904 does not restrict permissible inquiries to suspects or potential suspects. There is no limitation on whom a game commission officer can approach and ask to produce identification. Read literally, section 904 authorizes game commission officers to stop any citizen, anywhere, at any time, engaged in any activity, whether legal or illegal, demand identification and charge him with commission of a summary offense if compliance is not forthcoming. By fading to prescribe with clarity under what circumstances an individual may be stopped and asked to produce identification or what a detainee must do to comply, section 904 vests game commission officers with unbridled discretion to interrogate whomever they choose under any circumstances they choose and leaves to their sole discretion whether or not the compliance is adequate.

.To the extent that section 904 authorizes the detention of law-abiding citizens, whom officers have no reason to suspect of any wrongdoing, it violates constitutionally protected rights. An implicit right “to be let alone” to enjoy the amenities that life has to offer unchallenged by baseless inquiries from law enforcement officers has been expressly recognized by the Supreme Court and repeatedly reaffirmed by the district and federal appellate courts. This right has been cited as the reason for striking down laws establishing a curfew, prohibiting vagrancy, outlawing loitering, or otherwise making illegal conduct that, in and of itself, harms no one. In Papachristou v. City of Jacksonville, supra, the court invalidated a vagrancy ordinance, stating that it “makes criminal activities which by modern standards are normally innocent,” e.g. strolling or wandering about at night, loafing, idling away the hours at places where alcoholic beverages are served.

“[T]hese activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights [but] . . . have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. . . . They have encouraged lives of high spirits rather than hushed, suffocating silence.” Papachristou v. City of Jacksonville, supra, 405 U.S. at 163-4, 31 L.Ed. 2d at 116-7. See also, Waters v. Barry, 711 F.Supp. 1125 (D.D.C. 1989) (juvenile curfew struck down as violating Fifth Amendment rights of substantive due process) and Waters v. McGuriman, supra, (loitering ordinance declared unconstitutional under the Fourth and 14th Amendments). Cf. Lutz v. City of York, 692 F.Supp. 457, 459 (M.D. Pa. 1988). (The court upheld an ordinance prohibiting “cruising” while acknowledging the existence of a constitutionally protected right to move about “free from restraint or interference by the state.”)

Attempts by the government to curtail these freedoms are strictly circumscribed by the courts, particularly when the activities it seeks to limit or eliminate are not harmful in and of themselves.

“[W]hen government undertakes to limit these rights in some manner, it must act gingerly; it must-do so in a manner that is narrowly focused on the harm at hand, as well as sensitive to needless intrusions, upon the constitutional interests of the innocent.” Waters v. Barry, supra, at 1135. (emphasis supplied)

Section 904 fails to satisfy this exacting criteria. It allows game officers to stop any person they deem “suspect,” for any or no reason, and demand that he identify himself upon penalty of a fine or possible jail sentence. It also makes it unlawful for any person “to resist or interfere in any manner or to any degree” with a game officer in the performance of his duties. This broad authority allows officers to make arrests based on nothing more than a mere suspicion that the detainee has committed, or is about to commit, a crime, concepts alien to our system of justice. See Waters v. McGuriman, supra at 928. Although the purpose behind section 904 serves a laudable goal, to assist game officers in catching game law violators, the commonwealth cannot achieve that goal by abridging the constitutional rights of its citizens.

“Criminal statutes . . . that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” City of Houston v. Hill, supra, (citations omitted) See Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940) (a law is void on its face if it “does not aim specifically at evils within the allowable area of [governmental] control, but. . . sweeps within its ambit other activities that constitute an exercise” of constitutional rights).

The enforcement of section 904 against defendant illustrates the problem. Defendant’s involvement with the officers was wholly fortuitous. He was not suspected of any wrongdoing nor was he the subject of any investigation. In fact, defendant initiated contact with the officers; he approached the officers to ask why they were on his property. When he was advised that they were investigating possible game law violations by his brother, Greg Stahl, and an acquaintance, Neil Lilly, defendant conversed with the officers for several minutes and granted them permission to search the vehicles parked on the property. Defendant terminated the conversation when the officers asked permission to search his house; he declined and asked them to leave the premises.

During the conversation, the officers repeatedly asked defendant to state his name, but he refused. Their warning that his refusal was a violation of the Game Code and would subject him to a fine and possible criminal penalties did not sway him, and he was subsequently charged with violating section 904. Defendant’s only infraction was refusing to state his name during a conversation with an officer regarding possible, game law violations by other individuals. He was not charged with, nor even suspected of committing, any other offense. Imposing criminal sanctions on an individual who does nothing more than decline to state his name to an officer of the law and who is not the subject of any investigation is a patent violation of the due process clause of the 14th Amendment that renders section 904 unconstitutional as applied to the facts of this case.

Because the broad language of the statute encompasses constitutionally protected rights, e.g. the right to be “left alone,” to go about one’s business free from unwarranted interference from law enforcement officers, it is unconstitutional on its face.

Fourth Amendment Issues

Defendant challenges section 904 on Fourth Amendment grounds. He contends that detaining an individual to demand identification is an unconstitutional “seizure” under the Fourth Amendment absent probable cause or a “reasonable articulable suspicion” that the detainee is involved in criminal activity. We decline to reach the Fourth Amendment issues that defendant raises for two reasons: (1) the record does not support a finding that defendant’s Fourth Amendment rights have been implicated; and (2) since our finding, that section 904 is unconstitutional on 14th Amendment grounds compels us to overturn defendant’s conviction and declare section 904 void as applied and on its face, it would be improper for us to address other constitutional issues, the resolution of which is not necessary to disposition of this case. Constitutional issues should only be addressed if their resolution is necessary to disposition of the case. Kolender, 461 U.S. at 361, 75 L.Ed. 2d at 911.

In view of recent Supreme Court decisions demarcating the circumstances in which a defendant’s Fourth Amendment rights , are implicated, the record does not support a finding that defendant’s Fourth Amendment protections were violated. Michigan v. Chesternut, 486 U.S. _, 100 L.Ed. 2d 565 (1988) and.Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 80 L.Ed. 2d 247, 104 S.Ct. 1758 (1984).

Fourth Amendment protections do not arise in every encounter with a law enforcement officer. The police are free to converse with whomever they choose, just like any other citizen, and the person they address has an equal right to disregard their inquiries and walk away. Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d 1323 (1988). However, if the police exercise their authority to detain a citizen for questioning, that citizen’s freedom is curtailed and he is entitled to the protection of the Fourth Amendment! The Supreme Court has established an objective standard for determining whether an individual was detained for questioning: Fourth Amendment rights are invoked if, considering all of the attendant circumstances, a reasonable person in defendant’s position would not have believed that he was free to leave without responding to the questions posed. United States v. Mendenhall, 446 U.S. 544, 64 L.Ed. 2d 497, 100 S.Ct. 1870 (1980), reh’g. den., 448 U.S. 908, 65 L.Ed. 2d 1138, 100 S.Ct. 3051 (Stewart, J.).

Applying this test to the facts before us, we find that a reasonable person in defendant’s position would have felt free to disregard the officers’ inquiries and walk away. The officers did not display any force, threaten defendant, physically restrain him or in any way seek to curtail his freedom. In fact, defendant, not the officers, initiated the interview. As initiator of the dialogue, defendant certainly had reason to believe that he could likewise terminate the conversation at his convenience and did so when the officers persisted in asking his name and sought permission to search the house. Additionally, the interview took place on defendant’s property. He knew that the officers did not have a warrant, and that he could order them off of the property. Taken together, these circumstances clearly indicate that a reasonable person in defendant’s position would have felt free to terminate the interview and walk away.

Our holding is consistent with recent Supreme Court decisions delimiting the circumstances which implicate Fourth Amendment rights. In Michigan v. Chesternut, supra, the court held that defendant was not “seized” within the meaning of the Fourth Amendment when two officers patrolling in a marked police car drove alongside him as he ran down the sidewalk. The officers first spotted defendant standing on a street comer. When he caught sight of their police cruiser, he began to run, and the officers followed him around the corner and briefly accelerated to catch up with him. They drove alongside defendant for a short distance, but did not activate the siren, direct defendant to stop or otherwise attempt to impede his progress. When the officers saw defendant drop several packets to the ground, one of them got out to retrieve the packets, and discovered that they contained what appeared to be illegal drugs. Defendant was arrested and taken to the police station, where a search of his clothing revealed more illegal drugs. Defendant sought to have the charges against him dismissed on the ground that the officers’ driving alongside him as he ran down the sidewalk constituted and unconstitutional seizure of his person under the Fourth Amendment. The Supreme Court disagreed, holding that a reasonable man in defendant’s position would not have believed that his liberty was curtailed when the police cruiser drove alongside him as he ran down the street.

In United States v. Mendenhall, supra, the Supreme Court found that the law officers’ conduct did not constitute a seizure under the Fourth Amendment. Federal drug enforcement agents were patrolling the Chicago airport when they noticed defendant acting suspiciously. The agents approached defendant and asked to see her plane ticket and identification. She produced the items requested and after she briefly answered questions regarding her travel plans, the officers asked her to accompany them to an office for further questioning. She assented and, while there, consented to a search of her person. The search revealed packets of heroin concealed beneath her clothing. Defendant moved to suppress the heroin on the ground that her Fourth Amendment rights were violated when the agents detained her for questioning and had her accompany them to their office. That argument was dismissed by the Supreme Court, which held that under the circumstances a reasonable person in defendant’s position would have felt at liberty to refuse the agents’ request and continue on her way. See also, Immigration and Naturalization Service v. Delgado, supra, and Florida v. Rover, 460 U.S. 491, 497, 75 L.Ed. 2d 229, 236, 103 S.Ct. 1319 (1983) (plurality opinion; notes that mere approach by uniformed police officers does not constitute a seizure). Cf. Brower v. County of Invo, 489 U.S. _, 103 L.Ed. 2d 628, 635 (1989) (use of a police roadblock to stop the driver of a stolen vehicle constituted a seizure under the Fourth Amendment. “Violation of the Fourth Amendment requires an intentional acquisition of physical control . . . ”)

Defendant relies upon Brown v. Texas, 443 U.S. 47, 50, 61 L.Ed. 2d 357, 361, 99 S.Ct. 2637 (1979) in which the Supreme Court invalidated a Texas “stop and identify” statute on Fourth Amendment grounds. Brown is distinguishable on its facts. The defendant was stopped by police officers and detained without probable cause. When he refused to tell the officers his name or the reason for his presence in the area, he was arrested, taken into custody and transported to the police station for booking. Since defendant was taken into physical custody, there was no question that his Fourth Amendment rights had been implicated.

Having found that defendant’s Fourth Amendment protections were not implicated in the case sub judice, we do not consider the validity of section 904 under the Fourth Amendment to be an issue properly before us, and for that reason decline to rule on it. See, Waters v. Barry, supra, at 1121, 1123, 1138.

We do note, however, that if the issue were properly before the court, we would follow the holding in Waters v. McGuriman, supra. There, the plaintiff filed a 42 U.S.C. § 1983 action challenging the constitutionality of a borough loitering ordinance under which he had been arrested and convicted for refusing to answer a police officer’s questions. The court entered summary judgment on the issue of liability in the plaintiffs favor, finding that the ordinance was blatantly unconstitutional under the Fourth Amendment in allowing the police to arrest and detain citizens absent probable cause or even a reasonable suspicion of any criminal conduct on their part. In support of its decision, the court reiterated the fundamental Fourth Amendment rights as set forth by the Supreme Court in Terry v. Ohio, supra, and other landmark decisions: “[Pjolice may only seize and detain or arrest a person if there is probable cause to believe that he has committed a crime.. . . Where probable cause is lacking, we have expressly declined to allow significantly more intrusive detentions or searches on the Terry [v. Ohio] rationale, despite the assertion of compelling law enforcement interests. ‘For all but those narrowly defined intrusions, the requisite “balancing” has been performed in centuries of precedent and is embodied in the principle that seizures are “reasonable” only if supported by probable cause.’ . . . Even during a Terry encounter, ‘the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.’ ” Waters v. McGuriman, supra at 928, quoting Kolender, supra, 461 U.S. at 363, 103 S.Ct. at 1861 (Brennan, J., concurring), (other citations omitted)

For all of the foregoing reasons, we hold that 34 Pa.C.S: §904 is unconstitutional, as applied to defendant, and on its face under the 14th Amendment, and we will enter an order to that effect overturning defendant’s conviction.

ORDER

And now, August 11, 1989, upon consideration of defendant’s post-trial motions and for. the reasons set forth in the accompanying opinion, it is ordered that:

(1) Defendant’s motion in arrest of judgment is granted;

(2) Defendant’s conviction for violating section 904 of the Pennsylvania Game Code (34 Pa.C.S. §904) is reversed, the charges are dismissed and defendant is discharged; and

(3) Section 904 is declared unconstitutional, as applied to defendant, and on its face as a violation of the 14th Amendment of the U.S. Constitution.

      . The testimony on this point differs. At the hearing held on July 18,1988, defendant testified that, when asked to identify himself, he stated his name, but was unable to produce any form of written identification when requested to do so by Officer Schmader. The officer testified that defendant refused to either identify himself verbally or produce written identification.

      . Defendant did not raise, either in his motion for arrest of judgment or in his supporting brief, any alleged violation of the Pennsylvania Constitution. Therefore the court will not review the consistency of section 904 with comparable provisions of the Pennsylvania Constitution, such as Article I, section 8 (“Security from searches and seizures”),'which reads:
      “The people shall be secure in their persons, houses, papers, and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant^]” and Article. I, section 1 (“Inherent rights of mankind”), which reads:
      “All men are bom equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

      . The constitutionality of a related provision, section 901(14) of the Game Code, is not at issue here. Section 901(14) authorizes Game Commission Officers investigating alleged violations, to “demand and secure identification from any person...” Defendant was not charged under section 901(14). Therefore, we are not in a position to rule upon its constitutionality, but would, however, comment that the reasons cited for declaring section 904 unconstitutional would apply with equal force to section 901(14).

      . “Credible and reliable” was interpreted by the California courts to mean identification that provides a reasonable assurance of its authenticity and includes information, such as a telephone number or address, that allows the Interrogating officer to initiate further contact. Kolender, supra, 461 U.S. at 357, 75 L.Ed. 2d at 908. (citations omitted)

      . If the detainee failed to comply with the officer’s request, he could be arrested on a misdemeanor charge. Kolender, supra, 461 U.S. at.353, 357, 75 L.Ed. 2d at 906, 909, citing California Penal Code §647(e) (West 1970).

      . The ordinance read, in pertinent part:
      “Rogues and vagabonds, or dissolute persons who go about begging, common gamblers ... or common drunkards, common night walkers, thieves . . . traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places . . . persons wandering or strobing around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting ab lawful business and habituaby spending their time by frequenting houses of ib fame, gaming houses, or places where alcoholic beverages are served, persons able to work but habituaby hving on the earnings of their wives or minor children shah be deemed vagrants and, upon conviction in the Municipal Court shah be punished as provided for Class D offenses.” Papachristou v. City of Jacksonville, supra, 405 U.S. at 156, 31 L.Ed. 2d at 112, quoting Jacksonvble ordinance §26-57.

      . Furthermore, to the extent that section 904 requires detainees to produce written identification, it imposes criminal sanctions for an activity not otherwise illegal or improper in any way. American citizens are not required to carry identification, unless they are engaged in a regulated activity such as operating a motor vehicle.

      . Violators of section 904 who neglect or refuse to pay the fine imposed face possible imprisonment for a period of up to 90 days. 34 Pa.C.S. §925.

      . Compare this broad language which can be interpreted to encompass virtually any conduct that the officer deems an interference with his duties, even a verbal challenge to an investigation or an arrest (see City of Houston v. Hill, supra) with the language of statutes making it unlawful for persons to resist arrest or interfere with a police officer or other governmental officer in the performance of his duties. ■
      Section 5101 of Title 18 (“Obstructing administration of law or other governmental function”) provides:
      “A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, expect that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.”

      Section 5104 of Title 18 (“Resisting arrest or other law enforcement”) provides:
      “A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.”
      Section 5105 of Title 18 (“Hindering apprehension' or prosecution”) provides:
      “A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
      “(1) harbors or conceals another;
      “(2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;
      “(3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;
      “(4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with the law; or
      “(5) volunteers false information to a law enforcement officer.”

      . This also arguably infringes on rights guaranteed by the Fourth Amendment. See 339-40, infra.

      . Testimony on this point differs. See note 1 infra. See also, City of Houston v. Hill, supra, 96 L.Ed. 2d at 407-8, quoting Lewis v. City of New Orleans, 415 U.S. 130, 39 L.Ed. 2d 214, 94 S.Ct. 970 (1974) (Powell, J., concurring), in which the court quoted Justice Powell’s observation that there is a “possibility of abuse” any time obtaining a conviction depends upon resolving conflicting testimony as to “who said what” to whom.

      . See Kolender, supra, 461 U.S. at 360, 39 L.Ed. 2d at 911, quoting Davis v. Mississippi, 394 U.S. 721, 122 L.Ed. 2d 676, 89 S.Ct. 1394 (1969) (under the Fifth Amendment: “It is a settled principle that while the police have the right to request citizens to answer questions concerning unsolved crimes they have no right to compel them to answer.”)

      . Our finding that section 904 is unconstitutional on its face obviates the need to consider whether it has any constitutional applications. See Kolender, supra, 461 U.S. at 358, 75 L.Ed. 2d at 910.

      . Section 904 does not place any limitations on an officer’s right to detain a citizen and demand identification. No showing of probable cause or even a reasonable suspicion of wrongdoing is required.

      . In Commonwealth v. Ellis, supra, the Pennsylvania Superior Court stated:
      “Encounters with police may be classified as mere encounters, non-custodial detentions, custodial detentions and formal arrests.... The classification of the encounter determines the applicability and scope of constitutional protections. ... A ‘mere encounter’ is one which does not involve a seizure of the person. A seizure of person sufficient to trigger the protections of the Fourth Amendment occurs ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.’... A seizure occurs if the person is subjected to a stop and a period of detention during which he is subject to the control of the police and is not free to leave.. .. While a suspect may certainly walk away from a mere encounter with a police officer, every traffic stop and every Terry stop involves a stop and a period of time during which the suspect is not free to go but is subject to the control of the police officer detaining him.” (emphasis supplied; footnotes and citations omitted)

      . Fourth Amendment concerns were not at issue in Kolender, supra, since the California statute incorporated the stop-and-frisk criteria established by Terry v. Ohio, supra, thereby placing appropriate constraints on the conduct of the officers. No individual could be detained absent a “reasonable suspicion, based on articulable facts” that criminal activity was afoot.
      The Supreme Court noted parenthetically that absent this limitation, the statute would have been subject to being stricken on Fourth Amendment grounds. Kolender, 461 U.S. at 356, 75 L.Ed. 2d at 908.

      . The Supreme Court noted that its ruling on this issue was not affected by the fact that defendant was not expressly told by the agents that she was free to leave and need not cooperate with them; informing defendant that he is free to leave is not a necessary prerequisite to voluntarily acceding to the officers’ request. United States v. Mendenhall, 446 U.S. at 555, 75 L.Ed. 2d at 510.

      . The Texas statute provided:
      “[A] person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information.” Brown v. Texas, 443 U.S. at 50, 61 L.Ed. 2d at 361, citing Tex. Penal Code Ann., Title 8, §38.02(a) (1974).

      . On appeal to Court of Common Pleas of Montgomery County, the charges were dismissed, and plaintiff’s conviction was set aside.


source: Caselaw Access Project

author: MORAN, J.,

license: Public Domain

text:
    In re Conveyance of 1.2 Acres of Bangor Memorial Park to Bangor Area School District

      Alan B. McFall, for petitioner, Borough of Bangor.

      Donald F. Spry II, for intervenor, Bangor Area School District.

      David J. Cerau and Preston W. Moritz, for respondent, Taxpayers Organization.
    December 8, 1988
   MORAN, J.,

This matter comes before the court upon a petition of the Borough of Bangor to convey 1.2 acres of Bangor Memorial Park to the Bangor Area School District.

In the 1930’s, the original parcel of land that makes up a portion of what is today known as Bangor Memorial Park was deeded to the Borough of Bangor. The original 18-acre complex underwent various improvements through the auspices of the New Deal’s Works Progress Administration, popularly known as the WPA. Additionally, local residents contributed funds which were used to purchase equipment for the park. Since its creation in the 1930’s, approximately 16 acres of land have been added to the park. The park has been enjoyed by Borough of Bangor residents, as well as people from neighboring municipalities, from the late 1930’s through the present day.

On June 5, 1950, ordinance no. 416 was enacted by the council of the Borough of Bangor. Ordinance No. 416, in pertinent part, states:

“Whereas, the citizens of the Borough of Bangor, acting through their municipal authorities and the religious, civic, fraternal and social organizations of the borough, have created and are maintaining a public park; and
“Whereas, said park has not been officially dedicated nor named; and
“Whereas, the members of Bangor Borough Council, entrusted with the privilege of dedicating and naming the park, are convinced that the citizens who created and are maintaining the park acted and are acting in the same spirit that motivated those who served the United States of America in the wars waged by our Country for the preservation of democratic ideals and principles, for the defense of the dignity of the individual, and for the furtherance of brotherhood among men of all nations:
“Now, therefore, be it ordained and enacted and it is hereby ordained and enacted by the Council of the Borough of Bangor that, in honor and respect for the veterans of all wars, as a tribute to those veterans who still are with us and in loving memory of those who have passed on, there is hereby dedicated to the use of the public the . park of the Borough of Bangor, a living memorial, hereafter to be known as Bangor Memorial Park.”

The park, according to all parties to the present litigation, has been maintained and improved continuously throughout its over half-century history, without any diminution in its size, community support or usage by the public.

On December 7,1987, the Bangor Borough Council voted to make the subject 1.2-acre tract, which is a part of the Bangor Memorial Park, available to the Bangor Area School District for the purpose of building a new, 750-pupil elementary school to replace the present elementary school which is located on Fourth Street in Bangor, Pennsylvania.

On December 21, 1987, the Bangor Area School District voted to accept the subject 1.2-acre tract as the site for the new school.

The subject tract is located on the east side of South. 10th Street and is separated from the remaining large portion of the park by that street. The subject portion of the park has a lighted basketball court, restroom facilities, a pavilion and several stone fireplaces which apparently are part of the improvements made by the Works Progress Administration during the Depression. It is not disputed that the 1.2-acre parcel is heavily used by the public and is an integral and important part of the Bangor Memorial Park.

On October 3, 1988, upon prior notice from respondent taxpayers that formal opposition existed to the proposed conveyance, the Bangor Borough Council resolved to seek approval of this court for the proposed conveyance. The Bangor Borough Council proposed to substitute for the land to be granted to the school district, a 3.6-acre tract of land owned by the borough, located at a considerable distance from the subject park. The proposed substitute land is known as the Flory Dam site. Additionally, the Bangor Borough Council resolved to reconstruct any recreational facilities located on the subject 1.2-acre parcel at other locations within the remaining areas of the Bangor Memorial Park.

On October 4, 1988, this court granted a rule to show cause, if any, why the Borough of Bangor should not be permitted to convey the 1.2-acre tract of Bangor Memorial Park to the Bangor Area School District for the purpose of allowing the Bangor Area School District to construct an elementary school on that site.

This court held hearings on the borough’s petition on October 21, 1988 and October 31, 1988. All parties were then given 10 days within which to brief the issues raised at those hearings. The parties’ respective briefs have been received and the petition is now ready for disposition.

The case at bar presents the court with an issue of considerable civic importance to petitioner, the Bangor Borough Council, and intervenor, the Bangor Area School District, as well as the respondent taxpayers.

Petitioner and intervenor both assert that a new elementary school will enhance the remainder of Bangor Memorial Park, and will also reflect a social policy that stresses the importance of maintaining the Borough of Bangor as a viable small-town community with all of the traditional civic components of such a community, including its own local elementary school.

Respondents view the proposed conveyance as one which, despite the relatively small depletion of the total park area, will adversely affect the use of the park and will also constitute a betrayal of the historic significance of the park as a memorial to war veterans.

During the course of the two days of hearings, this court heard testimony that indicated that the proposed conveyance is a highly emotional issue for the local residents of the Borough of Bangor and the surrounding communities. While the court understands and appreciates the social, civic and emotional significance that the involved parties place on the outcome of the proposed conveyance, it must be stressed that the parties have chosen to put this matter before the court for resolution. That choice requires the decision to be made within the narrow confines of the law governing such issues. The court notes that such a narrowly constrained forum may not be best suited to the resolution of such significant civic issues. A community consensus on a course of action would be a far preferable solution. However, lacking such a consensus, this court is faced with the issue raised in the Borough of Bangor’s petition. With this statement in mind, we now turn to the legal issues before the court.

The first issue before the court is whether 53 P.S. §3381 et seq. applies to the instant case. The relevant portions of 53 P.S. §3381 et seq. state:

“§3382. Property held in trust
“All lands or buildings, heretofore or hereafter donated to a political subdivision for use as a public facility, or dedicated to the public use or offered for dedication to such use, where no formal record appears as to acceptance by the political division, as a public facility and situate within the bounds of a political subdivision, regardless of whether such dedication occurred before or after the creation or incorporation of the political subdivision, shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee ...” (emphasis supplied)
“§3384. Orphans’ court relief—
“When, in the opinion of the political subdivision which is the trustee, the continuation of the original use of the particular property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest, or where the political subdivision, as trustee for the benefit of the public, is in doubt as to the effectiveness or the validity of an apparent dedication because of the lack of a record of the acceptance of the dedicated land or buildings, the trustee may apply to the orphans’ court of the county in which it is located for appropriate relief. The court may permit the trustee to —
“(1) Substitute other lands or property of at least equal size and value held or to be acquired by the political subdivision in exchange for the trust property in order to carry out the trust purposes.
“(2) If other property is not available, sell the property and apply the proceeds to carry out the trust purposes.
“(3) In the event the original trust purpose is no longer practicable or possible or in the public interest, apply the property or the proceeds therefrom in the case of a sale to a different public purpose.
“(4) Relinquish, waive or otherwise quitclaim all right and title of the public in and to such land and buddings as have been apparently dedicated but for which no formal acceptance appears of record: Provided, only, that the court is satisfied upon hearing the evidence that there is no acceptance by implication arising out of public user or otherwise, the court shad also determine the consideration, if any, to be paid to the political subdivision.” (emphasis suppfied)

Petitioner contends that Bangor Memorial Park is land held in trust under 53 P.S. §3381 et seq., and that it has fulfilled the requirements under 53 P.S. §3384. Therefore, it argues, the court must approve the petition for the conveyance of the subject 1.2-acre parcel. This is the legal position that the intervenor also supports.

Respondents assert that 53 P.S. §3381 et seq. is inapplicable because Bangor Memorial Park was acquired by the borough for use as a public park and was formally accepted and dedicated as such by the political subdivision, the Borough of Bangor. Respondents further contend that common-law trust principles governing public trusts must be applied to the proposed conveyance.

In order to determine whether or not 53 P.S. §3381 et seq. applies, the court must look to the language of the statute. The rules of statutory construction are clear. The rules of construction found at 1 Pa.C.S. § 1903(a) state:

“Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; ...”
“A cardinal rule of statutory construction is that we must give terms in a statute the meaning dictated by the context in which they are used.” Philadelphia Housing v. Commonwealth Labor Relations, 508 Pa. 576, 499 A.2d 294 (1985).
“It is an elementary principle of interpretation, and an accepted canon of statutory construction, that qualifying words or phrases are to be applied to the words, phrases, or clauses immediately preceding them, but that they do not extend to or include other words, phrases, or clauses more remote, unless such extension or inclusion is clearly required by the intent or meaning of the context or required by an examination of the entire statute.” Smiley v. Ohio Casualty Insurance Company, 309 Pa. Super. 247, 455 A.2d 142 (1983).

In the case at bar, the key language is contained in the following words:

“[0]r dedicated to public use or offered for dedication to such use, where no formal record appears as to acceptance by the political division ...” 53 P.S. §3382.

It is obvious to this court that the phrase “ . . . where no formal record appears as to acceptance by the political division...” acts as a modifier to the language that directly precedes it. This finding is not only grammatically correct, but as the cited case indicates, it is also the legal, statutory construction required under the rules of construction, supra. Thus, 53 P.S. §3381 et seq. is applicable only when there has been no acceptance by, and dedication of, land for use as a public facility. It is not disputed that on June 5, 1950, pursuant to ordinance ho. 416, the Borough of Bangor formally dedicated the existing Bangor Memorial Public Park as a public park. This action by the Bangor Borough Council constitutes the formal dedication of the park which had been previously acquired for public use as a park in the 1930’s. This formal acceptance and dedication by the political subdivision of land to the public for use as a park removes the proposed 1.2-acre conveyance from the parameters of 53 P.S. §3381. Simply stated, the court holds that 53 P.S. §3381 et seq., does not apply to the proposed conveyance of the 1.2-acre parcel of Bangor Memorial Park and, therefore, the conveyance must be judged, instead, solely by common-law principles applicable to land held as a public trust.

The leading case in Pennsylvania regarding the public trust doctrine is Trustees of the Philadelphia Museums v. Trustees of the University of Pennsylvania, 251 Pa. 115, 96 Atl. 123 (1915). In the Philadelphia Museums, supra, case, land was set aside for the health and public welfare of the citizens of Philadelphia. The land was later dedicated, by ordinance, as a public park. Following this dedication, the land was put to public use and funds were expended by the City of Philadelphia to repair, improve and care for the grounds of the museum and park.

By a series of five ordinances, the City of Philadelphia attempted to repeal the ordinance which had previously dedicated the land for public use and further, to convey the property to the University of Pennsylvania. A deed to the land was given to the University of Pennsylvania and the Board of Trustees of the Philadelphia Museums instituted proceedings to set aside the conveyance from the City of Philadelphia to the University of Pennsylvania.

The Pennsylvania Supreme Court stated that the City of Philadelphia held the land subject to a trust which existed in favor of the community and, further, that the City of Philadelphia, as only a conservator of the title to the land, had “ . . . neither the power nor authority to sell and convey the same [the park] for private purposes.” Philadelphia Museums, supra. The Supreme Court, in Philadelphia Museums, quoted Davenport v. Buffington, 97 F. 234 (8th Cir. 1899):

“We are unwilling to concede that a nation or a state which becomes the proprietor of a town site, plats it, and dedicates its streets and parks to public use has had greater or better right to revoke or avoid its grant or covenant than a private proprietor would have. It may be that either, before any rights have accrued, can revoke the dedication, but, after lots have been sold, after streets have been graded, after parks have been cared for and improved, according to the plat, — in other words, after rights have vested in reliance upon the dedication, — we deny the right of a nation or an individual to revoke it, or to release or destroy the right of the public to the exclusive use of the parks and streets for the purposes for which they were granted.
“[A] nation, state, or municipality which dedicates land that it owns in the site of a town to public use for the purpose of a park is as conclusively estopped as a private proprietor from revoking that dedication, from selling the park, from appropriating the land which it occupies to other purposes after lots have been sold, after the town has been settled, and after the park has been improved with moneys raised by the taxation of its residents and taxpayers in reliance upon the grant and covenant, which the dedication evidences.” (emphasis sup- . plied)

The facts of the case at bar are strikingly similar to the facts in Philadelphia Museums. The land was acquired for use as a public park. The land that encompasses Bangor Memorial Park was formally dedicated as park land for public use pursuant to local ordinance. Funds were appropriated and expended by the Bangor Borough Council for the care and maintenance of the park. The court is cognizant of the fact that Philadelphia Museums wás decided over 70 years ago. However, we believe it remains the law which governs this case. It is to be noted that underlying principles of the Philadelphia Museums, supra, case have been espoused in more recent decisions.

In Easton v. Koch, 152 Pa. Super. 327, 31 A.2d 747 (1943), a case dealing with the taxability of certain real estate owned by a municipality, the City of Easton had purchased a 97-acre parcel of land and dedicated it for use, in its entirety, as a public park. The court held that a municipality may not revoke such a dedication to public use. The court stated:

“The property had been dedicated and was maintained by the city for a public park, which may be comprehensively defined as a public pleasure ground which affords pleasure to the eye as well as opportunity for open-air recreation. See Laird v. Pittsburgh, et al., 205 Pa. 1, 54 Atl. 324: 3 McQuillin, Municipal Corporations, 2d ed., § 1255 p. 772. A municipality cannot revoke or destroy, after dedication and acceptance, the right of the public to the exclusive use of the property for the purpose designated. See Trustees of the Philadelphia Museums v. Trustees of the University of Pennsylvania, et al., 251 Pa. 115, 96 A.2d 123 (1915). From the record before us it cannot be said that the rights of the public have vested, in reliance upon the dedication, in only a portion of the property dedicated. ‘There should be reasonable presumptions in favor of the preservation of such public interests, and the acts to constitute an acceptance on the part of the public need be such only as the public wants demanded.’ Taraldson v. Town of Lime Springs et al., 92 Iowa 187, 60 N.W. 658.” Easton v. Koch, 152 Pa. Super. 327, 31 A.2d 747 (1943).

In Borough of Ridgway v. Grant, 56 Pa. Commw. 450, 425 A.2d 1168 (1981), a tract of land was conveyed to the Borough of Ridgway in 1921. The deed specified that the land was to be used as a public park to be known as “Grant Park.” The land was, in fact, used as a park from the time of its conveyance in 1921. In 1979, the Borough of Ridgway petitioned the Court of Common Pleas of Elk County, pursuant to the Declaratory Judgments Act, to construe the deed as permitting the construction of a firehouse on a site within Grant Park. In Borough of Ridgway v. Grant, supra, the Pennsylvania Commonwealth Court held that the actions by the Borough of Ridgway to maintain the park over a long period of time manifested a clear intent to devote the park for public usage. The Commonwealth Court further stated that the use by the public of the land solely as a park manifested the public’s acceptance of the dedicated land. Following the conclusion that the deed of dedication imposed a charitable trust upon Grant Park, the Commonwealth Court determined that the placement of a firehouse therein was inconsistent with this dedication. It is noted that the Borough of Ridgway case was decided subsequent to the enactment of 53 P.S. §3381 et seq.

It is clear that the standards and principles governing the use. and maintenance of a park as a public trust first stated in Philadelphia Museums apply to the case at bar. Bangor Memorial Park was dedicated and accepted for use solely as a public park. The dedication of Bangor Memorial Park is evidenced by its continuous use as a park from the late 1930’s and the subsequent, formal rededication pursuant to ordinance no. 416. The acceptance and dedication of the Bangor Memorial Park as a public park is further evidenced by its heavy use for recreational purposes during the past 50 years, coupled with the expenditure of funds raised through taxes and local community contributions to care for, maintain and improve the park. The public trust doctrine, not 53 P.S. §3381 et seq., applies to the proposed conveyance of the subject 1.2-acre parcel of Bangor Memorial Park. Based upon the public trust doctrine as set forth by our Supreme Court in the Philadelphia Museums case, the land must continue to be used solely as a public park and the borough, as trustee, cannot convey any portion of Bangor Memorial Park for a use that is-inconsistent with its charitable trust purpose as parkland.

Finally, while it is our opinion that 53 P.S. §3381 et seq., is inapplicable to the case at bar, we deem further comment appropriate. Had this proposed conveyance been decided under section 3381 et seq., this court would still not permit the conveyance. Section 3384 clearly states that the political subdivision must be of the opinion that the continuation of the original use of the property held in trust as a park is no longer practicable. However, neither the borough’s petition nor the borough council's action authorizing the proposed conveyance state that use of the subject 1.2-acre parcel as a portion of Bangor Memorial Park is no longer practicable. To the contrary, the court heard testimony from both petitioner and respondent that indicated that the subject 1.2-acre parcel is an important, integral and heavily used part of Bangor Memorial Park. It must be stressed, however, that while the court is of the opinion that the subject 1.2-acre parcel is a valuable portion of Bangor Memorial Park, our decision as to the petition is based solely upon the aforementioned legal principles and not upon any determination regarding feasibility or desirability of its continued use as a park or its potential use as an elementary school.

Wherefore, we enter the following

ORDER OF COURT

And now, December 8, 1988, the petition of the Borough of Bangor, re conveyance of 1.2 acres of Bangor Memorial Park to Bangor Area School District, is hereby denied and dismissed.

      . The attorney general of Pennsylvania, through Deputy Attorney General Lawrence Barth, participated in the second hearing held on October 31, 1988, and was given the opportunity to file a brief. The attorney general submitted letters to the court dated October 4,1988 and November 23,1988 in which the attorney genéral stated that his office was not opposed to the proposed conveyance.

      . 53 P.S. §3381(3) states: “Public facility shall mean without limitation any park, theatre, open air theatre, square, museum, library, concert hall, recreation facility or other public use.”

      . This data precedes the enactment of 53 P.S. §3381 et seq.. However, the language of section 3382 makes the statute applicable to prior as well as prospective land donations or dedications.

      . The Borough of Bangor and the Bangor Area School District also aver that the proposed conveyance is governed by 20 Pa.C.S. §8301 et seq., which replaced the repealed Revised Price Act. However, the court disagrees. 20 Pa.C.S. §8301, in pertinent part, states:
      “The court of common pleas, operating through its appropriate division, may authorize the sale, mortgage, lease or exchange of real property:
      “(3) Where the legal title is otherwise inalienable.”
      The issue before the court involves a restriction on use created by the Borough of Bangor’s dedication of the subject land as a park. It is not an issue of alienability.

      . “[W]here a dedication is for a limited or restricted use, any diversion therefrom to some purpose other than the one designated is likewise forbidden.” Bruker v. Carlisle Borough, 376 Pa. 330, 102 A.2d 418 (1954).


author: YOHN, J.,

text:
    Weister v. Cumberland Farms of New Jersey Inc.

      Patricia Burke Henss, for plaintiff.

      Thomas K. Ellixson, for defendant.
    December 7, 1989
   YOHN, J.,

Defendants Cumberland Farms of New Jersey Inc. and Lily Penn Food Stores Inc. d/b/a Cumberland Farms employed plaintiff in one of their retail stores. She alleges that on December 31, 1980, while she was working in the store, defendants falsely imprisoned her, accused her of stealing and inflicted severe emotional distress upon her. Because plaintiffs allegations are against her employer for intentional torts committed during the course of her employment, the court concluded that she is barred from bringing this action against her employer by the exclusivity section of the Workmen’s Compensation Act. 77 P.S. §481(a). The court granted summary judgment in favor of Cumberland and plaintiff appeals.

The incident which gave rise to plaintiffs claim occurred on December 31, 1980 while plaintiff was working as a cashier in one of Cumberland’s retail stores. She alleges that Paul Thompson, the store manager and a co-defendant, introduced her to a Mr. Walsh and falsely represented to her that Mr. Walsh was an area executive who wished to interview her concerning a management position. In fact, the individual was a security officer for defendant Miley Detective Agency, which had been retained by Cumberland to investigate thefts at the store. Plaintiff accompanied the individual to a back room where he allegedly detained her, accused her of stealing and held her against her will until she agreed to draft and sign a confession which he dictated. This confession is the only evidence Cumberland produced in support of the allegation that plaintiff had stolen from the store.

Plaintiff states that she became hysterical after this incident and was taken by ambulance to a local hospital where she received minor treatment through the emergency room and was released. She has received some limited medical care since the time of the incident, claiming a total of $206 in medical expenses. Plaintiff alleges that she has never recovered from this incident and continues to suffer from anxiety and fear. She alleges that these resulting neuroses prevented her from concentrating and made her fearful to leave home which has resulted in lost employment and lost wages. She requests both compensatory and punitive damages.

Plaintiff filed a complaint against Cumberland, Thompson and Miley. By stipulation of the parties, the complaint against Miley was later dismissed, although the record is silent as to the reasons for the dismissal. Walsh was not sued.

The complaint against the two remaining defendants alleges two counts. The first count is for false imprisonment and the second, for libel and slander. The libel and slander action is barred by a one-year statute of limitation; however, plaintiff now argues that the facts alleged in this count support an action for intentionally causing severe emotional distress and desires to proceed using that theory as a basis for liability.

Cumberland and Thompson both filed motions for summary judgment arguing that plaintiffs action is barred by the exclusivity section of the Workmen’s Compensation Act. 77 P.S. §481(a). Plaintiff responds that the claims are permissible because of the recognized exception to the exclusivity section for intentional torts by employers.

On October 2, 1989 the court entered summary judgment in favor of defendant Cumberland. The court also entered partial summary judgment in favor of defendant Thompson on the allegations of libel and slander (now argued to be intentional infliction of emotional distress) but denied summary judgment on the false imprisonment claim. The present appeal concerns only the summary judgment entered in favor of defendant Cumberland.

DISCUSSION

When seeking recovery from an employer for an injury sustained in the course of employment, an employee’s exclusive remedy is under the Workmen’s Compensation statute. 77 P.S. §481. In Poyser v. Newman and Company Inc., 514 Pa. 32, 522 A.2d 548 (1987), the court held that there was no exception to the exclusivity section of the Workmen’s Compensation Act for the intentional torts of employers. More recently in Barber v. Pittsburgh Corning Corporation, 521 Pa. 29, 555 A.2d 766 (1989), a case concerning a comparable section of the Occupational Disease Act, the court reemphasized its holding in Poyser. “In this court’s decision in Poyser, supra, we expressly held under a similar provision of the WCA that there was no intentional tort exception to the exclusivity provision of the WCA.” Barber, supra.

Plaintiffs argument that there is such an exception relies on a theory first advanced in Readinger v. Gottschall, 201 Pa. Super. 134, 191 A.2d 694 (1963). Essentially Readinger held that the statute was intended to cover employment accidents but was not broad enough to encompass injuries deliberately inflicted on employees. A number of subsequent Superior. Court cases followed the reasoning of Readinger recognizing what came to be known as the implied exception to the exclusivity section of the WCA for the intentional torts of employers. Brooks v. Marriott Corporation, 361 Pa. Super. 350, 354, 522 A.2d 618, 620 (1987).

The legislature amended the statute in 1972 specifically deleting the word “accident” relied on by Readinger and replacing it with the broader term “injury.” Barber, supra; 77 P.S. §411. The effect of these amendments on the intentional tort exception carved out by Readinger was not immediately clear. Higgins v. Clearing Machine Corporation, 344 Pa. Super. 325, 330, 496 A.2d 818, 821 (1985). Several panels of the Superior Court held that the implied exception was unaffected by the 1972 amendments. Brooks, supra; Barber v. Pittsburgh Corning Corporation, 365 Pa. Super. 247, 529 A.2d 491, rev’d, 55 A.2d 766 (1989). The Supreme Court recently resolved any doubt about the effect of the 1972 amendments on this exception and the continued viability of the reasoning in Readinger. “Any validity to the analysis in Readinger has been lost when the ‘accident’ concept was discarded by the legislature in 1972 and replaced with the ‘injury’ approach.” Barber, supra. The argument that employers are somehow not operating in the normal course of business when they injure employees so as not to bring them within the coverage of the WCA, relies on reasoning which was unequivocally rejected by the Pennsylvania Supreme Court. Barber, supra; Poyser, supra.

Plaintiff’s argument appears to rest on a supposition that the torts alleged in this case are somehow different in kind from the wrongful acts alleged by the plaintiffs in Poyser and Barber. Plaintiff’s suggestion that workmen’s compensation only covers injuries caused by industrial accidents or safety violations in the workplace rather than the sorts of injuries alleged in the present case, misconstrues the reach of the act. A nervous disability or mental illness which is related to stress or caused by the wrongful acts of employers in the workplace is compensable under the WCA. Bell Telephone Company of Pennsylvania v. Workmen’s Compensation Appeal Board (De May), 87 Pa. Commw. 558, 487 A.2d 1053 (1985). The legislature broadened the scope of the coverage through its use of the term “injury” in the 1972 amendments. 77 P.S. §411. Limiting the scope of the act in the manner plaintiff suggests would be a revival of the more narrow “accident” approach which the legislature purposely abandoned in 1972.

As pointed out by the Supreme Court in Barber, supra:

“We are constrained to follow the clear legislative mandate notwithstanding the appealing quality of the arguments marshalled to support a contrary approach. Once the legislative judgment has been made, we axe bound to accept it.”

In a similar vein, the Supreme Court stated in Poyser, supra:

“The appellant’s argument is an interesting one; but it is one that must be resolved by the General Assembly, not this court. What he is asking us to do is to engraft upon section 303(a) of the act an exception the legislature did not see fit to put there.”

Thus, the Supreme Court has explicitly held that there is no intentional tort exception to the WCA. This court cannot engage in weighing qualitative differences among the various tortious acts of employers to permit recovery outside of the act for certain kinds of intentional torts. In Poyser, plaintiff alleged that the employer continued to use a machine which he knew was dangerous and which resulted in an employee losing a portion of his finger. Poyser, supra. The employees’ claims in Barber were that the employer knowingly exposed employees to unsafe levels of asbestos, causing employees and their families to contract abestosis. Barber, supra. The allegations in these cases as well as in the present case, if established, present situations where employers chose to inflict harm on their employees rather than experience financial losses. That one employer engaged in the type of behavior alleged here to prevent or recover financial losses does not alter the quality or character of his wrongful acts or of the injury to his employee. Each employer may have committed an intentional tort for which he will be liable to his employee. However, the employee’s exclusive remedy against his employer for injuries sustained in the workplace, even for intentional harms whatever they may be, is through the Workmen’s Compensation Act. For this reason, the court’s order entering summary judgment in favor of defendant employer should be affirmed.

      . Both defendants raised alternative arguments that the facts alleged did not state a cause of action for false imprisonment and that the tort of intentional infliction of emotional distress was no longer recognized in Pennsylvania. The fact that this case is barred under the Workmen’s Compensation Act eliminates the need to address these arguments.

      . Co-workers do not have total immunity under the WCA. The legislature granted immunity for employees’ negligent acts or omissions in the course of their employment while expressly excluding immunity for “intentional wrong.” 77 P.S. §72.

      . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §481(a).