author: DiFRANCESCO, J,

text:
    Commonwealth v. Yeckley

      David Kaltenbuagh, district attorney’s office, for Commonwealth.

      Arthur T. McQuillen, for defendant.
    December 29, 2005
   DiFRANCESCO, J,

RULE 1925 STATEMENT

Factual Summary

William D. Yeckley (defendant) was arrested on the evening of April 17,2005, in Hastings, Cambria County, Pennsylvania by Chief Ronald Sharkey Sr. (officer) of the Hastings Borough Police Department for being in actual physical control of the movement of a vehicle after allegedly imbibing alcohol, and charged with violating 75 Pa.C.S. §§3802(a)(l) and 3802(c) as well as the summary offenses of careless driving and driving on the right side of the roadway.

The defendant waived his charges to the Cambria County Court at his preliminary hearing on May 24,2005. The affidavit of probable cause as well as police incident reports stated that the officer received a complaint from an unidentified third party about an alleged intoxicated person leaving the Moose Lodge on 4th Avenue in Hastings. Upon following the defendant’s vehicle on the night of the incident, the officer arrested the defendant, obtained a blood alcohol level (BAC) and charged the defendant with driving after imbibing.

On October 12, 2005, the defendant filed a motion to suppress evidence, contending in part that the officer had an insufficient independent basis to reasonably conclude that the defendant had been operating the motor vehicle and the physical result of the blood test must be suppressed. The Commonwealth vigorously opposed the defendant’s contentions.

After considering legal arguments and testimony of the officer, this court granted the defendant’s motion to suppress said evidence. The Commonwealth subsequently filed a timely appeal on the ruling.

Discussion

The Pennsylvania Constitution provides:

“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.” Article I, Section 8.

The Fourth Amendment of the United States Constitution aptly provides:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Constitution Amendment 4.

Under both federal and state provisions, people are to be secure in their persons against “unreasonable searches and seizures.” As such, the issue in this matter is whether the officer had probable cause or was reasonable in his arrest of the defendant for allegedly driving after imbibing. Such arrests trigger the state and federal protections against “unreasonable searches and seizures.”

The Supreme Court of the United States has made it clear the Fourth Amendment protects people wherever the individual may harbor a reasonable expectation of privacy. See Commonwealth v. Swanger, 453 Pa. 107, 110, 307 A.2d 875, 877 (1973), referencing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Once it is established the individual is within an area where he or she has a reasonable expectation of privacy, he or she is entitled to be free from unreasonable intrusions by the government. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

An automobile is a place where an individual has a reasonable expectation of privacy. Cf. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Commonwealth v. Linde, 448 Pa. 230, 293 A.2d 62 (1972); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). Moreover, when a police officer stops a vehicle, he or she has “seized” the vehicle and its occupants, and thus, the protections of the Fourth Amendment must be considered. Cf. Terry v. Ohio, supra; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973).

The defining decision on police searches into the privacy of individuals in the context of the Fourth Amendment is Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In writing this very eloquent decision, Chief Justice Warren wrote:

“And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the mere detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard; would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in his belief’ that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Beck v. State of Ohio, 379 U.S. 89, 96-97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this court has consistently refused to sanction. See e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). And simple ‘good faith on the part of the arresting officer is not enough.’ If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘ secure in their persons, houses, and papers and effects,’ only in the discretion of the police. Beck v. Ohio, supra, (379 U.S.) at 97, 85 S.Ct. at 229.” Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 896 (1968).

Keeping Terry in mind, the Pennsylvania Supreme Court held that before the police may make even one single automobile stop, there must be specific facts to justify this intrusion. Specifically, the police officer must have probable cause based on specific facts, which indicate to he or she that, either the vehicle or the driver are in violation of the Motor Vehicle Code. Commonwealth v. Swanger, 453 Pa. 107, 115, 307 A.2d 875, 879 (1973).

Justice Clark has described probable cause as occurring where the facts and circumstances within the officer’s knowledge and of which he or she has trustworthy information are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040, 1050 (1967).

If a stop is made without probable cause, then the trial court must suppress such evidence obtained from that unconstitutional stop. The reason for suppressing evidence is to deter improper police conduct. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Thus, every police officer is required to know that he or she cannot search without probable cause. If he or she nevertheless searches on mere suspicion, the court will ignore his argument that the result of the search justified the suspicion. Ker v. California, 374 U.S. 23, 40, n.12, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). To accept the argument would encourage another officer to do what he or she knew he or she should not do, in the hope that his or her illegal conduct would likewise be excused by its result. Commonwealth v. Mayer, 240 Pa. Super. 181, 362 A.2d 407 (1976).

Finally, in a more contemporaneous decision, the Pennsylvania Supreme Court has provided the following guidance for the evaluation of police-citizen interactions:

“Initially we note that Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the police. The first of these is a ‘mere encounter’ (or request for information), which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. ... The second, an ‘investigative detention’ must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. . . . Finally, an arrest or ‘custodial detention’ must be supported by probable cause.” Commonwealth v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047 (1995); Commonwealth v. Reid, 571 Pa. 1, 7-8, 811 A.2d 530, 544-45 (2002). See also, Commonwealth v. Hill, 874 A.2d 1214, 1217 (Pa. Super. 2005).

With these constitutional protections in mind regarding a traffic stop, the Pennsylvania Supreme Court has provided the following guidance:

“If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is incumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code.” Commonwealth v. Whitmyer, 542 Pa. 545, 550, 668 A.2d 1113, 1116 (1995) (quoting Commonwealth v. Murray, 460 Pa. 53, 58-59, 331 A.2d 414, 416-17 (1975)).

In Commonwealth v. Gleason, 567 Pa. Ill, 785 A.2d 983 (2001), the Supreme Court reaffirmed the holding in Whitmyer that a police officer must have probable cause to believe that a driver has violated a provision of the Motor Vehicle Code in order to justify a traffic stop of the vehicle. Gleason, 567 Pa. at 122, 785 A.2d at 989. Moreover, where the police initiate a traffic stop based on a safety hazard allegedly created by the driver, the police must possess “specific facts justifying [the] intrusion.” Id. at 121, 785 A.2d at 988. “Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.” Commonwealth v. Mickley, 846 A.2d 686, 689 (Pa. Super. 2004), appeal denied, 580 Pa. 705, 860 A.2d 489 (2004). This view was reinforced by the Superior Court in Commonwealth v. Snell, 811 A.2d 581 (Pa. Super. 2002), which held that “[w]hile an actual violation of the [Motor Vehicle Code] need not ultimately be established to validate a vehicle stop, a police officer must have a reasonable and articulable belief that a vehicle or driver is in violation of the [Motor Vehicle Code] in order to lawfully stop the vehicle.” Id. at 584.

Despite the constitutional protections afforded by Terry and its progeny, this court is also mindful but troubled by recent decisions of the Superior Court, in particular the decision in Commonwealth v. Sands, 887 A.2d 261 (Pa. Super. 2005) which in essence has begun an erosion of the Fourth Amendment protections against unreasonable search and seizures as they pertain to suspected violations of the Motor Vehicle Code. In Sands, the Superior Court lessened the probable cause requirement needed for police officers to effectuate the stop of a motorist suspected of driving while after imbibing. Writing for the Sands court, Justice Bender wrote:

“We hold that the limited intrusion permitted by section 6308(b) in the case of a vehicular stop based upon a reasonable suspicion that the driver is driving under the influence, as balanced against the Commonwealth’s salutary interest in preventing DUI violations, violates neither the Fourth Amendment nor Article I, Section 8. In such cases, the officer must be able to relay specific and articulable facts that would give rise to a reasonable suspicion that the person is driving under the influence, and we conclude that this requirement is sufficient to ensure that the police do not infringe upon the citizens’ rights to be free from unreasonable searches and seizures.” Sands, 887 A.2d at 271-72.

In the appearance of the eroding of constitutional rights of our Commonwealth’s citizens, Sands based its decision mostly in part to a speech given by a State Representative on the floor of the Pennsylvania General Assembly who blasted our distinguished Superior Court’s decision in Gleason, by saying in part that the decision enabled “drunk drivers and their attorneys [to] benefit from the elimination of the reasonable suspicion justification, this development in the Pennsylvania criminal law is cause for great concern among not only police and prosecutors but among law-abiding citizens as well, and the issue requires once again the action of the General Assembly.” Id. at 267-68, quoting Legislative Journal-House, July 8, 2003 at 1444-45. (Comments ofRepresentative Harper.)

It is very troubling that Sands would choose to erode the constitutional rights of our Commonwealth’s citizens primarily based on the emotions of a zealous State Representative who appears to have no concept of the Fourth Amendment protections against illegal “searches and seizures” and clearly has a bias against the courageous criminal defense lawyers who uphold the rights of our Commonwealth’s citizens. To be influenced by such inflammatoiy political rhetoric is so reminiscent of the dark days of early 1930s Germany when the National Socialist Party gradually took hold of the Reichstag and gradually chiseled away at the rights of German citizens, and the courts, the last bastion of personal liberty, did nothing.

The judiciaiy must never be influenced by public opinion, polls, protests, misguided media, emotions, or the political whims of the legislative branch. The judiciary, and in particular this court, shall only be guided by the law.

This court recognizes the dangers of motorists who choose to drive after imbibing, but this court also recognizes that all citizens have constitutional protections under the Fourth Amendment of the United States Constitution. In fact, this court is mindful of the many vices of society which need to be vigorously prosecuted — but not at the expense of the Constitution and individual liberties. The irrational basis of Sands could easily be used to justify the elimination of search warrants to expedite the searching of suspect’s homes or to justify the search of an individual on the street who looks suspicious.

To some, individual’s Miranda rights consume too much time in the course of an arrest. Such an attitude is inexcusable in our society. This court is mindful of the words of Samuel Adams, an American patriot who defended accused British soldiers before the Revolution:

“The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrestled from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men.”

In the present matter, the court notes that the officer observed the defendant for less than half of the .36 miles that the defendant traveled. Further, the officer testified that he arrived on the scene as a result of a “report of two guys getting in a vehicle that was highly intoxicated in front of the Moose which is located on Fourth Avenue which at the time I entered the police car and proceeded toward Fourth Avenue from the office.” See page 4 of Suppression Hearing transcript, dated October 25,2005.

The court notes that the officer presented no description of the vehicle as a result of this alleged anonymous tip.

The officer then noted that when he arrived at Fourth Avenue, he did not find the pickup truck being described, so “I proceeded to Third Avenue at which time I spotted a pickup truck that was traveling south on Third Avenue.” Id. at 5. The officer then followed the pickup truck, when he noticed it “was actually riding against the curb” on the “right hand side.” Id. Specifically, the officer said the pickup truck’s “wheel was against the curb.” Id. The officer then testified that the pickup truck “came to the stop sign at Third and Kirkpatrick. He stopped at the stop sign, made a right turn onto Kirkpatrick at which time he made a right turn, it was a wide right turn so he was actually in the opposite lane of traffic. He traveled about a half a block on the wrong side of the roadway at which time I activated the red and blue lights on the police car and [the defendant] stopped at the intersection of Kirkpatrick and Haida.” Id. at 5-6.

On cross-examination, the officer testified that he stopped the defendant’s vehicle based on his own observations, and he also acknowledged that he did not see the defendant’s vehicle parked in front of the Moose. Id. at 9. The officer then testified that he saw the defendant’s vehicle as it was already halfway down Third Avenue, and he further acknowledged that the entire distance from the Moose till the actual stop was three tenths of a mile. Id. at 12-13. All told, the officer noted that he observed the vehicle for a total of three minutes. Id. at 21. Next, the officer acknowledged that the defendant properly stopped his vehicle at Third and Kirkpatrick and properly used his turn signal. Id.

When asked by the Commonwealth why he pulled the defendant over, the officer responded, “the purpose was driving against the curb and also driving on the wrong side of the road.” Id. Upon pulling the defendant over, the officer then administered a series of field sobriety tests as a result of his smelling of alcohol. The defendant was unable to pass the tests, and was subsequently placed under arrest and transported to the local hospital for a chemical blood test, which showed a blood alcohol content of. 144. The officer then charged the defendant with driving after imbibing. Id. at 7-8.

Regarding Kirkpatrick Street, the officer acknowledged that said street did not have any lines or markings, nor a center solid yellow line nor any fog lines or lines defining the width of the roadway. Id. at 14-15. Lastly, the officer agreed that the said road was narrow. Id. When asked on cross why he pulled the defendant over, the officer stated that it was “not a turning violation, [but for a] traffic violation for driving down the wrong side of the roadway.” Id. When told there was no middle line, the officer responded, “he drove to the left of the roadway when there was sufficient width to drive to the right.” Id.

When asked about the defendant’s car and its relationship to the curb on Third Avenue, the officer noted that the vehicle “didn’t strike it; he drove up against it.” Id. at 18. Further, the officer stated that he did not activate his flashers at that point, because he “was waiting to see if there were other infractions.” Id. To the officer, the defining infraction by the defendant was the wide turn. Id. After which, the officer decided to stop the defendant’s vehicle.

In reviewing the officer’s testimony and the record, the court does not find the officer’s testimony to be credible. At best, the officer had the opportunity to view the defendant’s vehicle for .18 of a mile as he so testified, and the court notes that this total travel distance amounts to about 45 seconds as provided by defendant’s exhibit 1. In applying the scaled down standard of individual protections of Sands, the court notes that the officer has failed to provide any specific and articulable facts to warrant this arrest other than witnessing the defendant’s vehicle make a wide turn and ride too close to the road’s curb. Such statements fail to meet the rather low standard set forth in Sands to effectuate this arrest.

In fact, the court further notes that the officer testified that the reason for pulling the defendant’s vehicle over was “driving against the curb and also driving on the wrong side of the road.” Hence, since the grounds for stopping the said vehicle was not driving after imbibing, but rather standard violations of the Motor Vehicle Code, “probable cause” is now the standard to effectuate a traffic stop as enunciated by Gleason and its progeny. Accordingly, the officer acknowledged that the road in question was namow and there were no markings, and at best, the officer observed the vehicle for . 18 of a mile for at best 45 seconds. Such facts fail to constitute the probable cause needed by an officer to effectuate a traffic stop for mere violations of the Motor Vehicle Code.

Lastly, it is readily apparent to this court that whether applying the probable cause standard or the standard applied from Sands, the officer’s decision to pull the defendant’s vehicle over was based upon illusion as a result of an unsubstantiated, anonymous tip. If it were not for the said telephone call, the officer would have had absolutely no reason to pull the vehicle over and effectuate an eventual arrest.

In summary, the officer, by applying both the weak constitutional protections in Sands to effectuate a traffic stop for driving after imbibing and the probable cause requirement for suspected violations of the Motor Vehicle Code, has failed to meet either standard. As such, the evidence of the defendant’s arrest must be suppressed and his constitutional protections against illegal “searches and seizures” per the state and federal constitutions preserved.


source: Caselaw Access Project

author: WETTICK JR., A.J.,

license: Public Domain

text:
    City of Pittsburgh v. Wilson

      Hugh F. McGough and Jacqueline R. Morrow, for plaintiff.

      Joshua M. Bloom, for defendants.
    October 3, 2005
   WETTICK JR., A.J.,

This is a declaratory judgment action brought by the City of Pittsburgh. The city seeks the entry of a judgment declaring that the law permits the city to use a polygraph procedure to disqualify applicants for firefighter positions. In their answer to the city’s amended complaint, defendants also seek declaratory relief. They request this court to enter a judgment declaring that the city violated the law by disqualifying applicants on the basis of information acquired through the city’s polygraph procedure.

The city accepted applications for employment as firefighters during April 2005 and administered a written test on May 10, 2005. A list ranking 438 applicants by test score was publicly posted on July 8, 2005.

Prior to August 1,2005, candidates in the top third of the list completed a candidate processing form in which they answered questions regarding various matters including residency, education, military service, employment history, driving record, history of illegal drug use or sale, and criminal background. The city’s Office of Municipal Investigations conducted background investigations on these candidates, starting at the top of the eligibility list. The office searched police records, driving history, military records, and other sources to confirm the accuracy and completeness of the information on the processing form. Former employers and educational institutions were also contacted.

As one component of this pre-employment screening, candidates were given polygraph tests. Each test was performed by a certified polygraph examiner. If a candidate had refused to take the polygraph test, he or she would not have been hired.

Before conducting the polygraph test, the examiner obtained background information from the candidate, who knew at that time that a polygraph test was to be conducted. At the conclusion of this interview, each candidate was attached to the polygraph and asked the following 12 questions:

(1) Is your name_?

(2) Regarding this examination, do you intend to answer each question truthfully?

(3) Did you lie about your employment history?

(4) Did you ever abuse a position of trust?

(5) Did you lie about your drug related activities?

(6) Did you ever cheat on your income tax?

(7) Did you ever commit a serious undetected crime?

(8) Did you ever lie on your resume?

(9) Did you lie about what you’ve ever stolen?

(10) Did you ever lie to a person of authority?

(11) Did you lie about anything on your pre-polygraph questionnaire?

(12) Did you ever knowingly violate an employer’s policy or procedure?

Both plaintiff and defendants state that under Civil Service legislation that governs the city’s hiring of firefighters, the fire chief is required to hire candidates from the top of the list but may pass over a candidate “for just cause.” The fire chief passed over approximately 20 candidates as a result of background information which the candidate furnished to the polygraph examiner.

The city anticipates that many of these candidates who were passed over will be challenging their disqualification on the ground that the city was not permitted to require the candidates to take polygraph tests. Consequently, the city seeks a ruling at this time on the legality of the requirement that the candidates participate in the polygraph procedure in order to remain on the list of applicants. Otherwise, if a court, at some later date, determines that the candidates were wrongfully disqualified, the city might be required to pay back wages to persons who have not performed any services for the city.

The following legislation pertains to polygraph tests:

“18 Pa.C.S. §7321. Lie detector tests

“(a) Offense Defined. — A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.

“(b) Exception.—The provisions of subsection (a) of this section shall not apply to employees or other individuals in the field of public law enforcement or who dispense or have access to narcotics or dangerous drugs.”

I.

In its request for declaratory relief, the city seeks a declaration that the exception in the Lie Detector Tests Law applies to Pittsburgh firefighters. Defendants’ request for declaratory relief is broader. They seek a ruling that the exception does not apply; thus, under section 7321(a), the city is prohibited from requiring the candidates to take a polygraph test as a condition for employment. In the alternative, defendants seek a declaration that even if the exception applies to Pittsburgh firefighters, state civil service legislation does not permit the city to conduct polygraph tests as part of the process for hiring firefighters.

A.

I now consider the city’s contention that Pittsburgh firefighters are “in the field of public law enforcement,” as this term is used in the exception within the Lie Detector Tests Law.

Pittsburgh firefighters are the first responders to medical emergencies. They also perform functions traditionally performed by firefighters that are related to fire prevention and fire fighting: They respond to fires, gas leaks, electric lines that are down, and automobile accidents.

The term “field of public law enforcement” is not defined. Consequently, it should be construed according to its plain meaning. McKelvey v. McKelvey, 771 A.2d 63 (Pa. Super. 2001). Firefighters who respond to medical emergencies are not “in the field of public law enforcement” under any reasonable reading of this provision.

I also conclude that firefighters performing the traditional duties of firefighters are not employees in the field of public law enforcement because firefighters have no authority to make arrests and, with the exception of the Fire Prevention Code, firefighters do not enforce the criminal laws of this Commonwealth.

At the time of the enactment of the Lie Detector Tests Law, the General Assembly was very aware that there were two essential components to public safety: firefighters who prevent and control fires, and police officers who enforce the criminal laws of the Commonwealth. The term “field of public law enforcement” clearly reaches police officers. If the General Assembly had intended to include the second essential component in this exclusion, it would have specifically referred to firefighters. It would not have shown its intent to include firefighters performing their traditional functions by using a term that appears to apply only to individuals charged with enforcing the criminal laws of the Commonwealth.

The city contends that firefighters should be characterized as employees in the field of public law enforcement because under Pittsburgh ordinances, firefighters enforce the Fire Prevention Code and are authorized to issue citations for violations of this Code. However, this does not change the essential role of firefighters. To the contrary, the General Assembly has continued to this day to segregate the traditional roles of firefighters and police officers by placing the power to make arrests only in the hands of police officers.

In addition, the city assigns a very small number of firefighters to work in the field of fire protection and only these firefighters are authorized by the city to issue citations for violations of the Fire Prevention Code. According to the testimony offered in these proceedings, only four individuals may issue citations at this time. Consequently, if there is any merit to the city’s argument that firefighters who enforce the Fire Prevention Code through the issuance of citations are employees in the field of public law enforcement, the exception to the Lie Detector Tests Law should govern only firefighters who are assigned to enforce the Fire Prevention Code. These firefighters could be given polygraph tests at the time they are assigned to enforce the Fire Prevention Code (assuming that they are employees in the field of public law enforcement). See e.g., Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, 118 Pa. Commw. 132, 546 A.2d 137 (1988).

B.

I next consider the city’s contention that the prohibition against the use of polygraph tests does not apply to Pittsburgh firefighters because of the exception for persons who “dispense or have access to narcotics or dangerous drugs.” This argument would have no merit if Pittsburgh firefighters performed only the work that firefighters have traditionally performed. However, in the 1980s, Pittsburgh firefighters became the first responders to medical emergencies. This is a substantial portion of the work of the Pittsburgh firefighters. Testimony establishes that firefighters were the first responders for medical emergencies on more than 12,000 occasions in the past year (there were approximately 24,000 additional responses that did not involve medical emergencies).

Testimony establishes that, on most occasions, the firefighters are at the scene of a medical emergency at least several minutes before the city paramedics arrive. One truck containing four firefighters responds to each medical emergency. Three of the four firefighters enter the building to provide assistance. Their responsibilities include gathering relevant information concerning the medical condition of the person with a medical emergency (“patient”) for use by the paramedics. This information includes the preparation of a list of medications which the patient is taking. Frequently, the firefighters must examine the vials and pillboxes containing the medication to prepare this list of medications. If medication, as is frequently the case, is located outside the presence of the patient (usually, according to the testimony, in a medicine cabinet or on a dining room/kitchen table), the firefighter may move the medicine to a location near the patient (usually near a bed which the patient is occupying and where the remainder of the patient’s medicine is kept).

Usually, the medicine handled by firefighters does not include a narcotic. However, much of the medicine is obtained by prescription.

I find that the plain meaning of “individuals who have access to dangerous drugs” includes persons whose job responsibilities include having possession, custody, or control (temporarily or permanently) of drugs. Dictionaries define “access” as the right to make use of; the ability to obtain or make use of; obtainable; and the opportunity to obtain (Merriam-Webster Online Dictionary; Compact Oxford Dictionary; Webster’s New Universal Unabridged Dictionary, Delux second edition). There are no definitions which support defendants’ position that the firefighters do not have “access” to drugs.

The exception in the Lie Detector Tests Law applies to individuals who dispense or have access to “dangerous” drugs. Defendants contend that “dangerous” drugs refer to illegal drugs. This contention has no merit because no employee, as part of his or her job responsibilities, dispenses illegal drugs.

A dangerous drug is a drug that can cause harm. Almost any medicine for which a prescription is required can cause harm. Otherwise, the medicine would be available over the counter.

For these reasons, I rule that Pittsburgh firefighters, because of their role as the first responders to medical emergencies, have access to dangerous drugs within the meaning of the exception in the Lie Detector Tests Law.

II.

I next address defendants’ contention that the fire chief did not have authority to require candidates to undergo polygraph tests as a condition of employment.

A.

Defendants contend that state law prohibits the city from adopting any Home Rule Charter provisions, ordinances, or regulations that require candidates for firefighter positions to undergo polygraph testing. Defendants rely on the following provision in the General Civil Services Act:

“Section 23431. Appointments, promotions, etc., to be based on fitness; preference to honorably discharged soldiers; ‘civil service ’ defined

“On and after the first day of July, one thousand nine hundred and seven, appointments to, and promotions in, the civil service of the cities of the second class shall be made only according to qualifications and fitness, to be ascertained by examinations, which, so far as practicable, shall be competitive, as hereinafter provided. On and after the said date, no person shall be appointed, transferred, reinstated, or promoted, as an officer, clerk, employee, or laborer, in the civil service under the government of any city of the second class, in any manner or by any means other than those prescribed in the act: Provided, however, That among those persons possessing equal qualifications and eligible for appointment to any office preference in appointment shall be given to honorably discharged soldiers and sailors who served in the Army or Navy of the United States during the War of the Rebellion, or to honorably discharged soldiers, sailors, and marines, who served in the armed forces of the United States or its Allies during its war against the Imperial German Government: Provided further, however, That if the preference hereby provided for be for any reason invalid, all the other provisions of this act shall remain in force with like effect as if said preference had not been contained therein, it being the intention of the legislature not to make the other provisions of the act dependent upon the validity of said preference.

“The term ‘civil service’ of a city shall include all offices, positions, and employments, in which the officers or employees are paid by the city treasurer, either directly or through some official or agent, and all offices, positions, and employments, in or under institutions, departments, boards, or commissions, wherein the city, through any official or board or commission, has the exclusive right to select the officials and employees.

“1907, May 23, P.L. 206, §1. Amended 1919, May 8, P.L. 118, §1.” 53 P.S. §23431.

This civil service legislation governs only cities of the second class. Consequently, under the ruling of the Commonwealth Court in Fraternal Order of Police v. City of Pittsburgh, 165 Pa. Commw. 83, 644 A.2d 246 (1994), the city has the authority under the Home Rule Charter Law to adopt provisions in its Home Rule Charter, ordinances, or regulations that supersede or are inconsistent with this civil service legislation.

In Fraternal Order of Police v. City of Pittsburgh, supra, the city enacted an ordinance which authorizes the Civil Service Commission to certify individuals to entry-level police officer positions without regard to ranking on eligibility lists secured through civil service testing. The ordinance provides that police officer positions may be filled without competition for applicants who have at least one year of law enforcement experience and hold a current certification as a police officer or are able to obtain such a certification. Under this ordinance, the director of public safety is permitted to fill vacancies on the basis of background investigations as to prior employment and experience, relevant education and character without reliance on any competitive testing for candidates with at least one year of law enforcement experience.

The Fraternal Order of Police sought declaratory and injunctive relief on the ground that the ordinance was inconsistent with the hiring procedures set forth in the Policemen’s Civil Service Act governing cities of the second class. The Commonwealth Court rejected this argument, stating that under the Home Rule Charter Law, the city may enact legislation that is inconsistent with state law except for acts of the General Assembly that are uniform and applicable throughout the Commonwealth. This means that the city may enact legislation that supersedes state legislation governing the hiring of firefighters where the state legislation applies only to cities of the second class.

B.

Defendants may also be contending that the fire chief has not been given authority to decide whether to utilize polygraph testing as part of the screening process.

Case law holds that a bureau chief may not require candidates for employment within the bureau to submit to a polygraph test unless a municipal law, expressly or by implication, authorizes the bureau chief to impose this requirement. See Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, supra; Marion v. Green, 95 Pa. Commw. 210, 505 A.2d 360 (1986), petition for allowance of appeal denied, 514 Pa. 633, 522 A.2d 560 (1987); and DeVito v. Civil Service Commission of the City of Philadelphia, 404 Pa. 354, 172 A.2d 161 (1961).

The city contends that the laws of the city provide that each bureau chief has the responsibility to decide whether to utilize polygraph testing as part of the background screening for positions within the bureau. The city relies on section 116.02(a) of the Home Rule Charter which reads as follows:

“The chiefs of the respective bureaus of the Department of Public Safety shall have the following powers and duties:

“(a) The care, management, administration and supervision of police, fire emergency medical forces and the city’s emergency communication system.”

I agree with the city that the power and duty given to the fire chief to manage and administer the city’s Fire Bureau includes the authority to develop procedures for obtaining information that may establish just cause for passing over a candidate on the competitive list. Furthermore, it cannot be contended that a polygraph test is an inappropriate test for determining the suitability of a candidate for a firefighter position. Through 18 Pa.C.S. §7321 (b), the legislature has made the determination that this is a tool that an employer may elect to use to obtain background information of job applicants who, if hired, will have access to dangerous drugs. In its brief, the city states that there is no requirement in the city charter, or elsewhere, that each bureau’s procedures for screening candidates be subject to Civil Service Regulations. Defendants have not brought to this court’s attention any provisions in the city’s Home Rule Charter or any city ordinances or regulations that would restrict the authority of the fire chief, as manager and administrator of the Fire Bureau, to use a polygraph procedure as a component of background screening of firefighter candidates.

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

ORDER

On October 3, 2005, upon consideration of the parties’ request for declaratory relief, it is hereby ordered that a judgment is entered declaring that the fire chief has the authority to require candidates for firefighter positions to take polygraph tests.

      . The hearing was held on September 29, 2005. There is no transcript. My findings of fact are based on my notes.

      . No candidate refused to take the test.

      . There is no case law construing this exception.

      . In this litigation, defendants do not claim that the fire chief did not have good cause to pass over defendants if the law permitted him to make use of information that the applicants furnished to the polygraph examiner.

      . In responding to automobile accidents, they perform two functions. They determine whether there is the possibility offire and whether there is a medical emergency.

      . Different legislation governs firefighters and police officers. See e.g., the Firemen’s Civil Service Law (Act of June 27,1939, P.L. 1207, as amended, 53 P.S. §23491 et seq.) and the Policemen’s Civil Service Law (Act of August 10,1951, P.L. 1189, as amended, 53 P.S. §23531 et seq.).

      . Every employee of the City of Pittsburgh might dispense drugs that he or she is not authorized to dispense or might have access to drugs by being where he or she should not be. However, a reading of the exception in this fashion would produce an absurd result: the prohibition against administering polygraph tests would not apply to any city employees. The exception should, instead, be read as applying to persons who, as part of their job responsibilities, dispense or have access to narcotics or dangerous drugs.

      . Effective January 1, 2005, all newly hired firefighters are required to earn and maintain a Pennsylvania Emergency Medical Technician Certificate.

      . The city does not contest defendants’ contention that if the fire chief was not permitted to require candidates to take polygraph tests, the fire chief could not make any use of information that candidates furnished the examiner. See e.g., Kroen v. Bedway Security Agency Inc., 430 Pa. Super. 83, 92-93, 633 A.2d 628, 633 (1993).

      . Testimony established that the fire chief made the decision to utilize polygraph testing. He testified that the police and EMS bureaus were using the same polygraph procedure in screening candidates.

      . I recognize that the city contends that this line of cases applies only to existing employees.

      . In this litigation, there is no evidence that any candidate was disqualified because the polygraph examiner believed that the candidate’s answers were not truthful. The city justifies the use of its polygraph procedures on the ground that many candidates responded to the procedure by furnishing more accurate or more complete information that the candidate should have disclosed on his or her Candidate Processing Form. Thus, issues concerning the reliability of a polygraph examination, raised in cases such as Anderson v. City of Pittsburgh, 845 F.2d 1216 (3d Cir. 1988), do not apply.


author: WORTHINGTON, J,

text:
    Valore v. Bronicki

      Christie E. Bower, for plaintiff.

      Jeremy A. Haugh, for defendant.
    September 19, 2005
   WORTHINGTON, J,

This matter comes before the court on Laura Bronicki’s (petitioner) appeal of this court’s memorandum opinion and order dated July 14, 2005. Petitioner is the biological mother of the minor child, Corey Bronicki (child), bom May 5, 1998. Petitioner became pregnant with Child during a very brief relationship. The biological father has not been involved in the child’s life.

Petitioner and Theresa Valore (respondent) became involved with one another when petitioner was three months pregnant. When petitioner was approximately five months pregnant, the parties moved in together and commenced an intimate relationship. After the child’s birth, the parties raised the child together in the same household until the parties’ relationship ended in late 2004.

On October 15, 2004, respondent filed a complaint for custody against petitioner seeking shared legal and physical custody of the child. At the Conciliation Conference held on December 17, 2004, the Custody Conciliator recommended to the court that the parties share legal and physical custody. This court adopted the agreement as a consent order on January 10, 2005.

On February 9, 2005, petitioner filed a petition to revise custody agreement and grant sole legal custody to defendant. Petitioner averred that the court should not have awarded respondent shared legal custody because she did not have standing to seek legal custody. Petitioner acknowledged that respondent had a right to visitation with the child.

In an order dated February 14,2005, the court issued a rule upon respondent to show cause why the petition should not be granted. Respondent filed an answer to the petition to revise custody agreement on March 4, 2005. In her answer, respondent averred that she had a right to seek custody of the child because she stood in loco parentis to the child.

Petitioner filed a praecipe for argument on March 15, 2005. The court struck this matter from the argument list and a hearing was scheduled for June 24, 2005. Both parties filed briefs in support of their respective positions. On July 14,2005, after hearing the testimony and reviewing the briefs and arguments of counsel, we ordered the following:

(1) Respondent was granted in loco parentis standing to pursue legal and physical custody of the child.

(2) It is in the child’s best interest for petitioner to be granted sole legal custody of the child. Petitioner shall communicate with respondent, if possible, prior to the making of any major decisions concerning the health, safety or welfare of the child. Additionally, petitioner shall allow respondent to have access to all records of the child.

(3) The physical custody arrangements agreed to by the parties and entered as a consent order on January 10, 2005, shall remain in full force and effect.

On August 10, 2005, petitioner appealed the July 14, 2005 memorandum opinion and order to the Superior Court of Pennsylvania. Petitioner’s concise statement of matters complained of on appeal argues that it was an error of law for this court to confer in loco parentis status upon respondent to seek legal custody of the child.

It is well known that standing is a fundamental concept in our jurisprudence. A case or controversy will not be adjudicated by our courts unless it is commenced by a party who has standing. William, Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 191, 346 A.2d 269, 280 (1975). In order to establish standing, a proponent of an action must have a direct, substantial, and immediate interest in the matter at hand. Franklin Township v. Commonwealth, Department of Environmental Resources, 500 Pa. 1, 4, 452 A.2d 718, 719 (1982).

In the area of child custody, principles of standing have been applied with particular scrupulousness. J.A.L. v. E.P.H., 453 Pa. Super. 78, 86, 682 A.2d 1314, 1318-19 (1996). In order to prevent intrusion into the protected domain of the family, a custody action may be brought only by a person having a “prima facie right to custody.” Id. at 86, 682 A.2d at 1319. “Biological parents have a prima facie right to custody, but biological parenthood is not the only source of such right.” Id. at 87, 682 A.2d at 1319. Aright to seek full and partial custody may also arise by virtue of the parties’ conduct. Id. For instance, the courts have recognized that a third party, who has stood in loco parentis to a child, has “a prima facie right sufficient to grant standing to litigate questions of custody of the child for whom he or she has cared.” Id.

It is important to recognize that a “prima facie right to custody” only grants a party standing to seek custody. J.A.L. v. E.P.H., 453 Pa. Super. 78, 87, 682 A.2d 1314, 1319 (1996). “Granting a party standing merely gives a party a personal interest in the procedure and outcome of the litigation and in no way implicates the ultimate merits of case.” Kellogg v. Kellogg, 435 Pa. Super. 581, 588 n.5, 646 A.2d 1246, 1250 n.5 (1994). In order to be granted full or partial custody, a party must still be able to establish that granting him or her custody would be in the best interest of the child under the standards applicable to third parties. J.A.L. v. E.P.H., 453 Pa. Super. 78, 87, 682 A.2d 1314, 1319 (1996). “Thus while it is presumed that a child’s best interest is served by maintaining the family’s privacy and autonomy, that presumption must give way where the child has established strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child’s eye a stature like that of a parent.” Id. at 88, 682 A.2d at 1320. When a third party has stood in loco parentis to a child, our courts recognize that it is in the child’s best interest to grant such a person standing to seek custody. Id.

“The phrase in loco parentis refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.” T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913, 916 (2001). A person stands in loco parentis to a child when they assume a parental status and discharge parental duties. Id. at 228-29, 786 A.2d at 916-17. The third party in this type of relationship cannot place himself in loco parentis without the consent of the biological parents. Id. at 229, 786 A.2d at 917, citing B.A. and A.A. v. E.E., 559 Pa. 545, 550, 741 A.2d 1227, 1229 (1999).

In order to determine whether a third party stands in loco parentis to a child, the courts must examine the particular facts of the case. J.A.L. v. E.P.H., 453 Pa. Super. 78, 89, 682 A.2d 1314, 1320 (1996). The fact that a third party lives with a child and the natural parent in a family setting, whether traditional or nontraditional, and develops a relationship with the child as a result of the participation and acquiescence of the natural parent is an important factor for the courts in determining whether a third party has in loco parentis standing. Id. at 90, 682 A.2d at 1321.

The record indicates that petitioner consented to respondent’s performance of parental duties and acquiesced as respondent carried out the day-to-day care of the child. The parties bought a home together that was titled in both of their names. They moved in together when petitioner was five months pregnant. Petitioner testified that she provided 99 percent of the child’s day-to-day care while respondent provided the remainder. Petitioner took the child to the majority of his doctor’s appointments while respondent attended the balance of the visits. Petitioner testified that she authorized respondent to obtain medical treatment for the child from his pediatrician. Respondent provided health care coverage for petitioner and child through her employment. Respondent picked the child up from day care once a week and the facility was authorized to release information concerning the child to respondent. The record supports the trial court’s conclusion that respondent stood in loco parentis to the child and assumed a position more significant than a caretaker.

Petitioner’s brief argues that respondent’s inability to adopt the child or marry petitioner serves as evidence that respondent cannot stand in loco parentis to the child. Petitioner’s brief at 4. First of all, it is worth noting that our Supreme Court in In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002), held that both parties in a same-sex relationship may adopt a child. Second, the nature of the relationship between the petitioner and respondent has no legal significance to the determination of whether respondent stands in loco parentis to the child. T.B. v. L.R.M., 786 A.2d 913, 918 (2001). “The ability to marry the biological parent and the ability to adopt the subject child have never been, and are not now factors, in determining whether the third party assumed parental status and discharged parental duties.” Id. at 918-19.

The courts focus on how a third party gained authority to perform parental duties, rather than on the relationship between the third party and the biological parent. Id. at 919. During the parties’ relationship, petitioner consented to respondent’s performance of parental duties and allowed respondent to assume the status of a parent in the eyes of her child. Now that the parties have separated, petitioner cannot eradicate the relationship between respondent and the child that she voluntarily created and fostered. J.A.L. v. E.P.H., 453 Pa. Super. 78, 93, 682 A.2d 1314, 1322 (1996); Bupp v. Bupp, 718 A.2d 1278, 1282 (Pa. Super. 1998).

Petitioner relies on T.B. v. L.R.M., 786 A.2d 913 (2001), to support her argument that in loco parentis grants respondent standing to seek visitation only. Petitioner’s brief at 8. In T.B. v. L.R.M, 786 A.2d 913, 920 (2001), our Supreme Court held that a biological mother’s former lesbian partner stood in loco parentis to the child and thus had standing to seek partial custody for purposes of visitation. The court’s opinion dealt solely with the third party’s standing to seek custody, and did not address her chance of success on the merits. Id. The court’s opinion did not limit what type of custody rights a third party had standing to litigate; rather it focused on whether a former lesbian partner could stand in loco parentis to a child. As addressed above, in loco parentis is a question of standing only. A court’s award of standing to a third party merely gives the party a right to bring a custody action relative to the child. Such an award in no way determines the ultimate merits of the case or the best interest of the child.

Courts have granted both shared legal and physical custody to former domestic partners who were found to have in loco parentis standing. L.S.K. v. H.A.N., 813 A.2d 872 (Pa. Super. 2002). In L.S.K. v. H.A.N., 813 A.2d 872, 875 (Pa. Super. 2002), a woman filed a complaint for custody against her former partner, who was the children’s biological mother. The trial court entered an order granting each party legal custody of the children. Id. The order also granted the former partner partial physical custody of the children. Id.

For the foregoing reasons, we maintain that the record supports respondent’s in loco parentis standing to pursue legal and physical custody of the child.