author: LASH, J,

text:
    Kern v. Taney and Attorney General of Pennsylvania

      C.P. of Berks County,
    no. 09-10739, I.D. #2

      LisaD. Gentile, for plaintiff.

      Calvin R. Koons, senior deputy attorney general, for intervenor.
    March 15, 2010
   LASH, J,

Plaintiff, Carole Ann Kern, has filed the above-captioned action, seeking a divorce from the defendant, Robin Lynn Taney. The parties are both female, and were married in the Commonwealth of Massachusetts, under its laws which permit same-sex marriages. After being notified by counsel for plaintiff that the within divorce action involved parties of the same sex, this court, on its own motion, scheduled and conducted a hearing to determine whether this court has authority to grant the relief requested. Counsel for plaintiff duly notified the attorney general, who intervened and participated in the hearing, which was held on February 17, 2010.

According to the complaint, the parties were married on June 25,2009 in Brewster, Massachusetts. On October 19,2009, plaintiff, a resident of Berks County, Pennsylvania, filed the within action, alleging that the marriage between the parties is irretrievably broken, and requesting that this court enter a decree in divorce under section 3301(c) of the Divorce Code.

Before considering the issues at bar, it is appropriate for this court to comment on our decision that it was proper to raise this matter sua sponte. Our Superior Court in the case of Bernhard v. Bernhard, 447 Pa. Super. 118, 123-24, 668 A.2d 546, 548-49 (1995), provides a summary on the trial court’s authority to question subject matter jurisdiction. The court stated that when subject matter jurisdiction is in issue:

“the trial court’s function is to determine whether the law will bar recovery because of the lack of such jurisdiction. Philadelphia Housing Authority v. Barbour, 405 Pa. Super. 140, 143, 592 A.2d 47, 48 (1991), affirmed, 532 Pa. 212, 615 A.2d 339 (1992). (citations omitted) ‘The action or inaction of the parties cannot bestow subject matter jurisdiction upon a court that otherwise lacks it.’ Clay v. Advanced Computer Applications, 370 Pa. Super. 497, 504, 536 A.2d 1375, 1379 (1988) (en banc), modified, 522 Pa. 86, 559 A.2d 917 (1989). (citations omitted) Therefore, our rules of civil procedure provide that either party, or the court sua sponte, can raise the lack of subject matter jurisdiction at any time. Id. (citing former Pa.R.C.P. 1032(2)); United Carolina Bank v. Martocci, 416 Pa. Super. 16, 20, 610 A.2d 484, 486 (1992); Barndt v. Barndt, 397 Pa. Super. 321, 325, 580 A.2d 320, 322(1990).

“Jurisdiction is the capacity to pronounce a judgment of the law on an issue brought before the court through due process of law. It is the right to adjudicate concerning the subject-matter in a given case____Without such jurisdiction, there is no authority to give judgment and one so entered is without force or effect.

“Rieser v. Glukowsky, 435 Pa. Super. 530, 535, 646 A.2d 1221, 1223 (1994) (quoting Mintz v. Mintz, 83 Pa. Super. 85, 88 (1924)). The trial court has jurisdiction if it is competent to hear and determine controversies of the general nature of the matter involved sub judice. Id. at 536, 646 A.2d at 1224. (citations omitted) Jurisdiction lies if the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case. ’ Id. (citations omitted) When determining whether the trial court has subject matter jurisdiction, we must look first to Pennsylvania law. United Carolina Bank v. Martocci, supra (citing Barndt v. Barndt, supra). ...”

Turning then to the jurisdictional issue itself, we observe that our authority to grant a divorce is conferred by the Pennsylvania Divorce code, 23 Pa.C.S. §3101 et seq. Section 3104(a) of the Divorce Code provides that the court of common pleas “shall have original jurisdiction in cases of divorce.” 23 Pa.C.S. §3104(a). Section 3103 of the Divorce Code defines “divorce” as “divorce from the bonds ofmatrimony.” 23 Pa.C.S. §3103. Section 3102 of the Divorce Code, providing the legislative findings and intent for the Divorce Code, states, in pertinent part:

“The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to: (1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience....” 23 Pa.C.S. §3102.

We find it readily apparent, therefore, that relief under the Divorce code can only be obtained by parties who are recognized to be married. For example, an unmarried heterosexual couple who have resided together for several years and have comingled their assets cannot, upon their breakup, rely upon the Divorce code for disposition of property rights or alimony. The pivotal question, therefore, is whether Pennsylvania should recognize the marriage performed in Massachusetts as a valid marriage.

In Section 1102 of the Marriage Law, marriage is defined as “a civil contract by which one man and one woman take each other for husband and wife.” Section 1704 entitled “Marriage between persons of the same sex” speaks directly to the issue at bar, stating:

“It is hereby declared to be the strong and long-standing public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this commonwealth.” 23 Pa.C.S. §1704.

“Void” is defined in Black’s Law Dictionary as “of no legal effect; null.” Black’s Law Dictionary, 8th ed., p. 1604.

The import of these provisions is that this court, based on the law in Pennsylvania as it currently exists, cannot grant a divorce to these parties. Their marriage, perhaps considered valid in Massachusetts and some other states, is not recognized in Pennsylvania. Without a legally recognizable marriage, relief under the Divorce Code is simply not available.

We also note that the Full Faith and Credit Clause of the United States Constitution does not require Pennsylvania to recognize this Massachusetts marriage. Federal statutory law specifically addresses the issue, setting forth “[n]o state . . . shall be required to give effect to any public act, record, or judicial proceeding of any other state... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state ... or a right or claim arising from such relationship.”

At the time of the hearing, counsel for plaintiff essentially acknowledged that the current Pennsylvania law does not afford her client relief. Plaintiff contends, however, that Pennsylvania law, particularly Section 1704 of the Marriage Law, is unconstitutional, as it infringes upon a fundamental right granted to her under the United States and Pennsylvania Constitutions, namely, the right of marriage. This infringement violates the substantive due process and equal protection provisions of the respective constitutions.

If a statute restricts a fundamental right, it must be strictly scrutinized to determine whether it violates either the equal protection or due process clauses. Schmehl v. Wegelin, 592 Pa. 581, 591 n.6, 927 A.2d 183, 188 n.6 (2007). Plaintiff urges that there is no interest the Commonwealth can show that is sufficiently compelling to satisfy the within challenge. Moreover, abridgement of the right to marry denies same-sex partners, among other things, substantial benefits which would accrue upon obtaining spousal status such as:

“(1) The authority to make what can be profound health care decisions for a spouse and hospital visitation;

“(2) The authority to make decisions upon the death of a partner/spouse, including funeral decisions, organ donation;

“(3) The right to inherit;

“(4) The right and standing to sue upon the death of a spouse/partner;

“(5) The right to receive health insurance and pension benefits;

“(6) The right to file joint income tax returns;

“(7) The right to have a child legally be considered their child, without having to incur expense of adoption.”

Accordingly, plaintiff requests this court rule that the definition of marriage in Pennsylvania include same-sex marriages, that Section 1102 and Section 1704 of the Marriage Law be declared unconstitutional, and that this court permit the parties to seek remedies under the Divorce Code.

Prior to conducting our analysis, we make three preliminary observations. First, we note that a presumption exists that the laws of Pennsylvania are constitutional. As stated in Nixon v. Commonwealth of Pennsylvania, 576 Pa. 385, 398-99, 839 A.2d 277, 286 (2003):

“We reiterate the well-established rule that a law is presumed to be constitutional and may only be found to be unconstitutional if the party challenging the law can prove that it clearly, palpably, and plainly violates the constitution. See Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323, 331-32 (1986) (citing Pennsylvania Liquor Control Board v. The Spa Athletic Club, 506 Pa. 364, 485 A.2d 732, 735 (1984)); see also 1 Pa.C.S. §1922(3). Furthermore, in determining the constitutionality of a law, this court may not question the propriety of the public policies adopted by the General Assembly for the law, but rather is limited to examining the connection between those policies and the law. See Finucane v. Pennsylvania Milk Marketing Board, 136 Pa. Commw. 272, 582 A.2d 1152, 1154 (1990); see also Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932, 937 (1978) (the power of judicial review must not be used as a means by which the courts might substitute [their] judgment as to the public policy for that of the legislature).”

Secondly, the equal protection and due process provisions of the United States and Pennsylvania Constitutions are coextensive, permitting our analysis to be the same under both federal and state law, with one exception.

Third, although touching upon equal protection, plaintiff’s argument relies on a substantive due process analysis. Importantly, she does not contend that section 1704 creates a legislative classification that is arbitrary or suspect. As such, our analysis for substantive due process and equal protection is essentially the same. Both analyses require an initial determination on whether plaintiff’s decision to marry a person of the same sex is a decision guaranteed to her as a fundamental right under the constitutions. The answer to this question then determines the appropriate level of judicial review. Finally, the application of that review is balanced between the government’s interest against the level of the infringement on the individual’s interest. See Schmehl v. Wegelin, 592 Pa. at 589, 927 A.2d at 187. Accordingly, this court shall employ a substantive due process analysis and finds an analysis under equal protection to be unnecessary.

When dealing with infringement of an inherent or fundamental right, the analysis to be applied to the statute in question is a means-end review. Nixon v. Com monwealth, 576 Pa. at 399, 400, 839 A.2d at 286-87. As stated, this analysis requires “strict scrutiny” by the courts, as more fully explained in the case of Khan v. State Board of Auctioneer Examiners, 577 Pa. 166, 842 A.2d 936, 947 (2004):

“When confronted with a constitutional challenge premised upon substantive due process grounds, the threshold inquiry is whether the challenged statute purports to restrict or regulate a constitutionally protected right. Commonwealth v. Burnsworth, 543 Pa. 18, 669 A.2d 883, 889 (1995). If the statute restricts a fundamental right, it must be examined under strict scrutiny. Smith v. Coyne, 555 Pa. 21, 722 A.2d 1022, 1025 (1999). Pursuant to that analysis, legislation that significantly interferes with the exercise of a fundamental right will be upheld only if it is necessary to promote a compelling state interest and is narrowly tailored to effectuate that state purpose. Nixon, [576 Pa. 385, 400-401,] 839 A.2d 277, 286-87; Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982).”

Marriage has long been established to be a “basic civil right of man, fundamental to our very existence and survival.” Loving v. Commonwealth of Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824 (1967). Further, intimate activities of married couples fall within the right to privacy, also a protection guaranteed to individuals. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

While the right of marriage and the right of privacy bear a relationship to one another, they are not identical, each providing its own parameters for protection. This becomes important when considering these protections in the context of a same-sex marriage, which represents an expansion of the traditional concept of marriage, as well as formal recognition of that expansion by the government. In essence, there are two questions which must be posed: first, whether the right of privacy bestowed on consenting adults, permitting them to engage in intimate activity without government interference, also guarantees a right to marry; and secondly, whether the fundamental right of marriage contemplates same-sex marriages.

The right of privacy in homosexual relationships is established in the case of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (2003). In Lawrence, the United States Supreme Court struck down a Texas statute making it a crime for two persons, if of the same sex, to engage in certain intimate sexual conduct, namely, sodomy. The Supreme Court found that intimate activities of homosexual adults is protected. This right is founded upon the right to liberty under the Fourteenth Amendment, which encompasses the right to privacy.

In its opinion, the court discussed the historical development of the right to privacy in the context of intimate relationships. They note the beginning point to be the Supreme Court’s decision in Griswold, a case where the court struck down a law prohibiting the use of contraception drugs, devices and counseling. In Griswold, the protected interest was considered within the context of the marriage relationship. However, after Griswold came the case oí Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), a case where the court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. A similar case cited was Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), where the court invalidated a New York law forbidding the sale or distribution of contraceptive devices to persons under 16 years of age. In both Eisenstadt and Carey, the protection of privacy rights regarding sexual relationships was extended to unmarried persons. In Eisenstadt, the court stated:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id., 405 U.S. at 453, 92 S.Ct. at 1038.

Thus, protections under the right to privacy are afforded to conduct associated with intimacy of consenting adults, whether the adults are heterosexual or homosexual, married or single. There is no greater right to privacy for married individuals, nor is the right contingent on a marriage or other commitment.

In Lawrence, the court expressly declined to extend its holding to governmental recognition or sanctioning of homosexual marriages. 539 U.S. at 578, 123 S.Ct. at 2484. Therefore, under the current state of the law, we find that the right of consenting adults to engage in intimate conduct, without governmental interference, does not involve or guarantee the right to require a government to grant the parties a marriage.

Correspondingly, we find that the fundamental right to be married does not contemplate same-sex marriages. Fundamental rights granted to the United States and Pennsylvania citizens by the Constitutions are basic, inherent rights, rights which form the very foundation of our status as free citizens. These rights are, therefore, longstanding in nature, based on history and tradition. As stated by Justice Goldberg in his concurrence in the Griswold case:

“In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the ‘traditions and (collective) conscience of our people’ to determine whether a principle is ‘so rooted (there) *** as to be ranked as fundamental.’ Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332. The inquiry is whether a right involved ‘is of such a character that it cannot be denied without violating those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” ***.’ Powell v. State of Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158. ‘Liberty’ also ‘gains content from the emanations of *** specific (constitutional) guarantees’ and ‘from experience with the requirements of a free society.’ Poe v. Ullman, 367 U.S. 497, 517, 81 S.Ct. 1752, 1763, 6 L.Ed.2d 989 (dissenting opinion of Mr. Justice Douglas).” 381 U.S. at 493-94, 85 S.Ct. at 1686-87.

Marriage is, of course, an institution of longstanding. Justice Goldberg, again in his Griswold concurrence, calls the family “a relation as old and as fundamental as our entire civilization.” Id. at 496, 85 S.Ct. at 1688. It is not an overstatement to say that the family is the basic unit of society. It represents one man and one woman coming together to form one being. From this union, comes offspring. Conversely, a same-sex relationship deviates from this traditional concept, for the principles are like beings, without physical complement. They cannot foster offspring, except through artificial or adoptive means.

Of course, a same-sex couple can maintain a loving, monogamous relationship and the law cannot restrict such a relationship. This relational commitment, however, does not and could not qualify as a “traditional marriage.” Until very recently, same-sex marriages were not recognized in any state of the union, and have never been recognized in Pennsylvania. The proposition that a same-sex marriage passes the test of a fundamental right, described by the Pennsylvania Supreme Court as the type of right “inherent in man’s nature,” among the “basic rights of human beings,” and among the “Hallmarks of western civilization.” Western Pennsylvania Socialist Workers, 1982 Campaign v. Connecticut General Life Insurance Company, 512 Pa. 23, 30-31, 515 A.2d 1331, 1335 (1986), is unsupportable.

Pennsylvania appellate courts have spoken on the validity of a same-sex marriage, albeit in a different context. In DeSanto v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (1984), a case where a plaintiff seeking a divorce alleged that he and his partner had entered into a same-sex common law marriage, the Pennsylvania Superior Court affirmed the trial court which held, among other things, that as a matter of law, two persons of the same sex cannot contract a common-law marriage. In its opinion, the superior court noted that while Pennsylvania had not addressed this issue previously, other jurisdictions “have considered whether statutory or ceremonial marriage can be entered into by same-sex couples, and have uniformly held that it cannot be.” Id., 328 Pa. Super, at 184, 476 A.2d at 953. The court also observed that the statutory law in place at the time did not provide a definition of “marriage”, but found a strong inference that marriage, whether common-law or statutory, is limited to two persons of opposite sex. The court also cited cases which, by implication, reinforced the concept of marriage being between two persons of opposite sex. Id. at 186, 476 A.2d at 954.

In her brief, plaintiff categorizes section 1704 as discriminatory against homosexuals and patently unfair. She compares the restriction to the ban on interracial marriages, which was struck down by the United States Supreme Court. In her brief she states:

“Loving [v. Virginia], supra, specifically demonstrates that views on marriage and marriage itself have changed. What has not changed, however, is the fact that at the end of the day, courts have understood that liberty is not liberty if it is not enjoyed by all. While before the issue may have been interracial marriage, the time has now come to include gays in our definition of ‘we, the people’ ... As ridiculous as it sounds to have to actually state it . . . gays are people, although it is evidently something our legislature forgot. As the U.S. Supreme Court recently observed, ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.’ Lawrence v. Texas, 539 U.S. 558 at 579, 123 S.Ct. 2472, 2484, 156 L.Ed.2d 508, 526 (2003). It is time to change our definitions and extend that liberty and constitutional protections to ‘we the people.’”

This is a plea for social change, which plea implicitly recognizes that same-sex relationships cannot fall within the purview of a traditional marriage. If homosexuals had a fundamental right to be married to each other, this plea would be unnecessary.

Courts should be reluctant to identify a right as fundamental when not clearly required by the constitution or established precedent. A court who finds a fundamental right where none exists bypasses the legislative process and denies the people a voice in effecting social policy, in essence, trumping democracy by judicial fiat. This concern is particularly crucial when the relief sought is, as here, a request to change the status quo. Here, there is no basis for finding that a same-sex marriage falls within the traditional concept of marriage.

Because no fundamental right has been implicated, application of the rational basis test is appropriate. As the Pennsylvania Supreme Court stated Khan, 577 Pa. at 185, 842 A.2d at 947:

“We must determine whether the Act bears a real and substantial relationship to a legitimate legislative purpose and is neither arbitrary nor discriminatory. Nixon, [576 Pa. 385, 400,] 839 A.2d 277, 286-87. Whether a statute is wise or whether it is the best means to achieve the desired result are matters left to the legislature, and not the courts. Moreover, the General Assembly is presumed to have investigated the question and ascertained what is best for the good of the profession and the good of the people. See Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952), rev’d on other grounds, Commonwealth v. Schab, 477 Pa. 55, 383 A.2d 819 (1978). As long as there is a basis for finding that the statute is rationally related to a legitimate state interest, the statute must be upheld.”

The objective sought to be achieved by our legislature in passing the amendment to section 1102 and adding section 1704 to the marriage law was to clearly set forth the law in Pennsylvania on the definition of marriage. The legislature recognized that Pennsylvania has a longstanding tradition that marriage is a union between a man and a woman and that same-sex marriages were never recognized. They note that the existing tradition was confirmed by the Pennsylvania Superior Court in De-Santo. The legislature’s goal here was to reiterate and clarify, to take what was implicitly recognized, and state it explicitly. The amendment did not expand, limit, alter or otherwise change the law of the Commonwealth of Pennsylvania.

As such, the legislation did not impose an inequality on homosexuals. The language is straightforward and simple. No construction of the statutes should be given beyond that which is plainly stated.

Maintaining and preserving the institution of marriage in Pennsylvania represents a reasonable protection and a proper and lawful exercise of the police power of the Commonwealth, which is available to preserve the public health, safety, welfare, and morals of its citizens. See Loving, supra, 388 U.S. at 7, 87 S.Ct. at 1821. In her concurrence in Lawrence v. Texas, 539 U.S. at 585, 123 S.Ct. at 2488, Justice O’Connor expressly found the preservation of the traditional institution of marriage to be a legitimate state interest, stating: “unlike the moral disapproval of same-sex relations... other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

For these reasons, we find that the statutes in question are based on a legitimate state interest and, therefore, find that the statutes pass constitutional muster.

One final point should be addressed. Plaintiff has a concern that she has no available remedy in Pennsylvania, and since she does not qualify under the residency requirements of Massachusetts, she is unable to obtain a divorce. While it is true that Pennsylvania cannot grant her a divorce, there is no reason why she cannot seek relief under section 1704, requesting the court to have her marriage declared void.

We enter the following order:

ORDER

And now, March 15, 2010, on the court’s motion to review subject matter jurisdiction of the above-captioned divorce, and after hearing held and review of the applicable law, this court finds that it is without subject matter jurisdiction to grant a divorce or ancillary relief under the Pennsylvania Divorce Code. Accordingly, the above-captioned case is hereby Dismissed.

      .23 Pa.C.S. §3301(c).

      . Apparently, the parties are not permitted to obtain a divorce in Massachusetts for failure to qualify under the residency requirements, although the parties were permitted to be married there. Massachusetts General Law, chapter 207, §19, requires the parties to file their intention to be married at least three days prior to the date of their marriage and does not appear to establish any residency requirements. However to obtain a divorce, the parties have to reside in the Commonwealth of Massachusetts for one year preceding the commencement of the action or be domiciled in Massachusetts. MGL, chapter 208, §§4 and 5.

      .23 Pa.C.S. §1102.

      . U.S. Constitution, Article IV, Section 1 states, in part: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”

      .28 U.S.C. §1738C.

      . Article I, Section I, of the Pennsylvania Constitution states:

        “Section (1) Inherent rights of mankind

      “All men are born 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.”

      . Plaintiff cites Article I, Section 26 and Section 28, of the Pennsylvania Constitution which state:

        “Section (26) No discrimination by Commonwealth and its political subdivisions

      “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.

        “Section (28) Prohibition against denial or abridgment of equality of rights because of sex

      “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

      . Plaintiff’s “memorandum of law in support of this honorable court having subject matter jurisdiction to dissolve the marriage in Kern v. Taney” eighth unnumbered page.

      . The Pennsylvania Supreme Court in Small v. Horn, 554 Pa. 600, 615 n. 13, 722 A.2d 664, 672 n. 13 (1998), states: “Pennsylvania’s equal protection provision is set forth in Article I, Section 26, of the Pennsylvania Constitution,... [and] is analyzed under the same standards used by the United Supreme Court when reviewing equal protection claims under the Fourteenth Amendment.” (citation omitted)

      . The Pennsylvania Commonwealth Court in Doe v. Miller, 886 A.2d 310, 314 (Pa. Commw. 2005), states: “Substantive due process protections afforded under the Pennsylvania Constitution and the United States Constitution are analyzed the same and are thus coextensive.”

      . In Nixon v. Commonwealth of Pennsylvania, 576 Pa. at 400-401, n.15, 839 A.2d at 287-88, n.15, the Pennsylvania Supreme Court noted that for substantive due process challenges, the rational basis test is more restrictive under the Pennsylvania Constitution as set forth in the case of Gambone v. Commonwealth, 375 Pa. 547, 551, 101 A.2d 634, 636-37 (1954).

      . At the time of this decision, common-law marriages were valid in Pennsylvania, but are no longer recognized.

      . Plaintiff’s “memorandum of law in support of this honorable court having subject matter jurisdiction to dissolve the marriage in Kern v. Taney, ” tenth unnumbered page.

      . The Loving case cannot be relied upon by plaintiff as a basis for implicating social change to the traditional concept of marriage. Loving involved a statutory denial of marriage to interracial couples, an invidious discrimination based on race, a suspect classification, and does not involve an expansion of the definition of marriage.


source: Caselaw Access Project

author: MINORA, J,

license: Public Domain

text:
    Albright v. Lombardo

      George A. Reihner and Frank J Tunis Jr., for petitioners.

      Linda Lombardo, pro se.

      Michael G. Crotty and Joseph Sileo, for respondent Newton Township.
    March 2, 2010
   MINORA, J,

I. INTRODUCTION

This case was commenced by petitioners Richard and Sandra Albright filing an emergency petition for special injunction. This court granted said petition, petitioners’ posted a $ 1,000 bond, and on November 18,2009 a hearing was held before this court as to whether a preliminary injunction should be issued.

Petitioners and respondent Newton Township by and through their counsel have provided the court with post-hearing briefs. We now consider the matter ripe for disposition. With that in mind, we submit the following.

II. FINDING OF FACT

The findings of facts in this case as determined by the court are supported by the credible, probative and relevant evidence established during the hearing and the submissions of the parties, and accepted as true by the court.

(1) In September of 1990, Newton Township approved final plans for the subdivision of Phase II of the Summit Lake Acres development. N.T. 11/18/09, atp. 10.

(2) The plan was duly recorded and filed of record in the Lackawanna County Recorder of Deeds office on September 13, 1990 at map book 6A, pages 1209 and 1210. N.T. 11/18/09, atpp. 8-12.

(3) Phase II of the development consisted of approximately 42 residential lots for development as single-family dwelling units. Exhibit P-2, Phase II plans.

(4) The approved plan incorporated a note stating “lot number 50B will be combined with lot number 50A.” Exhibit P-2, Phase II plans, N.T. 11/18/09, at p. 11.

(5) The approved plan incorporated a note stating the minimum lot size required is 40,000 square feet. Exhibit P-2, Phase II plans.

(6) At the time the plan was prepared, approved and filed, the developers owned lot 5 0B but the developers did not own lot 50A. N.T. 11/18/09, at p. 62.

(7) At the time the plan was prepared, approved and filed, the developers, as owners of lot 50B, made an unambiguous decision to restrict development on lot 5OB. Such unambiguous decision was expressed in two different unambiguous ways. First, the note on the Phase II subdivision plan that “lot number 5 OB will be combined with lot number 50A”, and second the note that the minimum lot size required for the development would be 40,000 s.f.

(8) During Phase I of the Development, lot 50A was sold to a third party. N.T. 11/18/09, at p. 62.

(9) Petitioners relied upon the notes contained in the Phase II subdivision plan, when purchasing lot 51 in Phase II of the development. N.T. 11/18/09, at pp. 12-13.

(10) Due to the notes in the Phase II subdivision plan, petitioners received the benefit of having larger homes and lot sizes in the development.

(11) Phase I and Phase II of the development were developed/constructed at different points of time and have different conditions/restrictions on development. N.T. 11/18/09, at p. 7.

(12) Phase I and Phase II are extremely close in proximity. N.T. 11/18/09, at p. 52.

(13) Petitioners’ property is located in Phase II, but directly across the street from petitioner are lots located in Phase I. Exhibit P-2, Phase II plans.

(14) Respondent Lombardo purchased lot 5 0B in the spring of2009, prior to which it was under the ownership of the developer of the development. N.T. 11/18/09, at p. 62.

(15) The deed which conveyed lot 5OB to respondent Lombardo contained/referenced the recording of the Phase II subdivision plan. April 19, 2009 deed attached to respondent Newton Township’s proposed findings of fact, conclusions of law and legal argument.

(16) Lot 5 0B is approximately one-half acre, which is less than 40,000 square feet. N.T. 11/18/09, at pp. 34-35.

(17) Neither lots 50A nor 50B meet the minimum lot size of 40,000 s.f. The combined square footage of lots 50Aand50B is 45,071.95 s.f.N.T. 11/18/09, atp. 12.

(18) On December 5, 2007, the township board of supervisors rendered a decision finding lot 5 0B was “grandfathered” in under the prior ordinances, and could be built on as a one-half acre lot. N.T. 11/18/09, at p. 22.

(19) The township sent a letter dated March 12,2008, notifying respondent Lombardo of their decision finding lot 50B as a buildable one-half acre lot. N.T. 11/18/09, atp. 23.

(20) In reliance upon the March 12,2008 letter respondent Lombardo purchased lot 50B, and was issued a building permit on November 9,2009 to construct ahorne on lot 50B. N.T. 11/18/09, at p. 37.

(21) Once petitioners observed construction activity on lot 50B, they initiated this equity action. N.T. 11/18/09 at p. 30.

III. LEGAL ISSUES

Respondent Newton Township raises four defenses to petitioners’ request for injunctive relief. These are (1) lack of jurisdiction by this court because petitioners failed to appeal the issuance of the building permit to the zoning hearing board, (2) lack of jurisdiction by this court because petitioners failed to appeal the board of supervisors’ December 5, 2007 decision, (3) the language contained within the Phase II subdivision plans is insufficient to create a restrictive covenant on lot 5OB, and (4) petitioners’ emergency petition should be barred by the doctrine of laches.

Respondent Newton Township’s challenges to the jurisdiction of this court are in contradiction to Pennsylvania case law. It is their contention that petitioners should have filed an appeal from the board of supervisors’ December 5,2007 decision or appeal the issuance of the building permit to the zoning hearing board. Respondent’s arguments are only valid if this court concludes that the notes contained in the Phase II subdivision plan are deemed not to be restrictive covenants running with the land. Landowners may properly invoke the court’s equity jurisdiction to enforce restrictive covenants. Perrige v. Horning, 440 Pa. Super. 31, 39, 654 A.2d 1183, 1186-87 (1995) (landowners could enforce by injunction certain unambiguous notes in a subdivision plan).

Further, if we were to accept respondent Newton Township’s allegations that petitioners should have appealed the board of supervisor’s December 5,2007 decision and the issuance of the building permit, then we must also accept the position that the original developers of the development should have appealed the original approval by the township of the Phase II plan with the two unambiguous conditions noted on the map. No appeal of the original approval of the development was taken, and thus the original developers would have waived their right to appeal. This failure to appeal the two original unambiguous conditions moots the December 5,2007 decision of the township’s board of supervisors and their argument removing jurisdiction of this case from the court.

Therefore, this issue was properly brought before this court and this court has subject matter jurisdiction over the determination of what these unambiguous notes legally mean. This court must determine whether or not the conditions/notes contained in the Phase II subdivision plan are restrictive covenants running with the land, and if they are restrictive covenants then whether an injunction should he issued to enforce said covenants.

Respondent Newton Township’s assertion of the defense of laches is also without merit. It is the opinion of this court that until such time as respondent Linda Lombardo began the process of building a home on lot 50B, petitioners’ awareness of their need for equitable relief or an injunction did not arise. As petitioners’ promptly filed this suit once construction began on lot 5OB, the defenses of laches is not applicable.

Further, the doctrine of unclean hands could bar respondent Newton Township from prevailing on the defense of laches. A party seeking equitable relief must have clean hands; any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is a sufficient cause for closing the doors of a court of equity to one tainted with inequitableness. Penn Square General Corporation v. County of Lancaster, 936 A.2d 158 (Pa. Commw. 2007). Because laches is an equitable remedy, party asserting laches must come before the court with clean hands. Mrkich v. W.C.A.B. (Allegheny County Children & Youth Services), 801 A.2d 668 (Pa. Commw. 2002).

Respondent Newton Township has shown no prejudice resulting from the delay, and respondent Lombardo has filed no memorandum asserting the defense of laches. Because prejudice has not been shown by either party, we find that the defense of laches is inapplicable and meritless.

Therefore, the issues before the court are: (1) whether there are restrictive covenants which run with the land, and (2) if there are restrictive covenants which run with the land, whether a preliminary injunction should be granted to enforce the restrictive covenants?

IV. LEGAL ANAYLSIS

Black’s Law Dictionary defines a restrictive covenant as “a private agreement, usually in a deed or lease, that restricts the use or occupancy of real property, especially by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put.” Covenant (8th ed. 2004), see also, Doylestown Township v. Teeling, 160 Pa. Commw. 397, 405, 635 A.2d 657, 661 (1993). A covenant running with the land is defined as “a covenant that, because it relates to the land, binds successor grantees indefinitely. The land cannot be conveyed without the covenant.” Black’s Law Dictionary, Covenant (8th ed. 2004); see also, Doylestown supra.

A covenant requires a promise found in a conveyance. Morning Call Inc. v. Bell Atlantic-Pennsylvania Inc., 761 A.2d 139, 142 N.5 (Pa. Super. 2000). Covenants that run with the land are personally binding on the current holder, as well as any future successors in title. Treasure Lake Property Owners Association Inc. v. Meyer, 832 A.2d 477, 482 (Pa. Super. 2003). No formal or specific technical language is required to set forth a covenant running with the land, nor is it required that the covenant be expressed as such. Logston v. Penndale Inc., 394 Pa. Super. 393, 399, 576 A.2d 59, 61-62 (1990). (citation omitted)

“It is a fundamental rulé of contract interpretation that the intention of the parties at the time of contract governs and that such intent must be ascertained from the entire instrument. This same principle of contract law is equally applicable to the interpretation of restrictive covenants. In order to ascertain the intentions of the parties, restrictive covenants must be construed in light of: (1) their language; (2) the nature of their subject matter; (3) the apparent object or purpose of the parties; and (4) the circumstances or conditions surrounding their execution.” Vernon Township Volunteer Fire Department Inc. v. Connor, 579 Pa. 364, 374-75, 855 A.2d 873, 879 (2004).(internal citations omitted) Land use restrictions must be strictly construed and will not be expanded by implication. Buck Hill Falls Company v. Press, 791 A.2d 392, 397 (Pa. Super. 2002).

Notes in a subdivision plan create an enforceable restrictive covenant limiting lot size. Ballard v. Heppe, 403 Pa. Super. 441, 589 A.2d 266 (1991). Conditions contained in plan notes in a recorded subdivision plan are enforceable even if the conditions are not specifically set forth in the deeds conveying the lots created by the subdivision. Doylestown, supra, 160 Pa. Commw. at 406, 635 A.2d at 661.

It is the conclusion of this court that the notes on the Phase II subdivision plan are clear and unambiguous. The first note states “lot number 5 0B will be combined with lot number 50A.” This statement is clear in its direction of what will be done, and unambiguous in that it does not attach restrictions or terms on how or when this action must be taken. The second note states all lots will be a minimum of40,000 s.f. This too is clear in that it is a short direct statement, and unambiguous because there are no exceptions to the note.

Further, these notes were added to the plan so that the developer could receive final approval of the development from the township. These notes restrict the lot size and mandate two lots be combined. Read together in light of their purpose it is clear that in order for lot 50A or 5 0B to be developed, they needed to be combined into a single lot. These notes became conditions or prerequisites to final approval of the subdivision plan. “It is well established that a municipality may attach conditions to a subdivision approval, so long as the applicant accepts the conditions.” In re Busik, 759 A.2d 417, 421 (Pa. Commw. 2000). Because the conditions in the Phase II plan were added to the plan to receive final approval, they relate to the land and were intended to be binding on the current property owner and successors in interest. Therefore, the notes contained in the Phase II subdivision plan are restrictive covenants running with the land.

Since we have concluded that the notes contained in the Phase II subdivision plan are restrictive covenants running with the land we must now determine if a preliminary injunction should be issued.

“In order to establish grounds for a preliminary injunction, the moving party must prove that: (1) the injunction is necessary to prevent immediate and irreparable harm, which cannot be compensated by damages; (2) greater injury would result by refusing it than by granting it; (3) an injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) the [petitioner’s] right to relief is clear .... For a preliminaiy injunction to issue, the petitioner must establish every one of these prerequisites.” Pennsylvania State Education Association ex rel. Wilson v. Commonwealth, Department of Community and Economic Development, Office of Open Records, 981 A.2d 383, 385 (Pa. Commw. 2009). (internal citations omitted)

“An injunction can be an appropriate remedy where real property rights are concerned. These real property rights may take the form of a restrictive covenant or an easement. Restrictive covenants are generally disfavored by the law and may lose their utility through the passage of time, but covenants of recent vintage may be enforced by injunction.” Big Bass Lake Community Association v. Warren, 950 A.2d 1137, 1145 (Pa. Commw. 2008). (internal, citations omitted) It is clear that a deed for land may incorporate by reference the conditions of a subdivision plan, and the plan conditions then become enforceable in equity by the interested deed holder. Perrige, supra at 38, 654 A.2d at 1187. Conditions contained in a recorded subdivision plan are enforceable even if the conditions are not specifically set forth in the deeds conveying the lots created by the subdivision. Id, see also, Doylestown, supra at 405, 635 A.2d at 631. Aproperty owner has the duty to become aware of recorded restrictions in the chain of title and will be bound to such restrictions even absent actual notice. Vernon Township Volunteer Fire Department, supra at 375, 855 A.2d at 880.

In Gey v. Beck, 390 Pa. Super 317, 568 A.2d 672 (1990), the Superior Court laid out this court’s standard of review when deciding to enforce intentional violations of a covenant.

“We conclude that even in a case involving an intentional violation of a covenant, enforcement may not be had unless it will result in a significant benefit to the beneficiary of the covenant. However, the benefit shown must only consist in the benefit that the covenant was originally intended to convey. The party opposing enforcement has the burden of showing that significant benefit no longer exists. Thus, enforcement will appropriately be denied if the party opposing enforcement can prove that, through a change of surrounding neighborhood or for other reasons, enforcement of the covenant will no longer result in the benefit it was originally intended to achieve. Further, as we have already indicated, the fact that the benefit to result from enforcement may be relatively small is irrelevant where the violation was intentional.” 390 Pa. Super. at 382, 568 A.2d at 679. (footnote omitted)

In order to discharge the covenant, the burden of proof is on the one seeking release from a covenant, to show that the original purpose of the restriction has been materially altered or destroyed by changed conditions, and that a substantial benefit no longer extends to beneficiaries of the covenant by enforcement of the restriction. Vernon Township Volunteer Fire Department, supra at 376, 855 A.2d at 880, see also Doylestown, supra at 405, 635 A.2d at 661. If enforcement of a restriction would remove the intentional violation and have the effect of restoring the benefit, enforcement should be ordered. Gey, supra at 384, 568 A.2d at 681.

In the present case we find the violation of the restrictive covenants to be intentional. Both respondents, the township and Linda Lombardo, were aware of the notes in the Phase II subdivision plan, the restrictive covenants. This awareness is confirmed by virtue of their collective efforts to “grandfather” the lot into compliance. The developer of the Phase II subdivision was the person who sold the property to respondent Lombardo, and was also aware of these restrictions. The fact that respondent Lombardo sought .relief from the restrictive covenants from the township is further evidence that the parties knew of the restrictive covenants and intentionally attempted to circumvent the covenants. Therefore, the burden of proof is on the respondents to establish that the petitioner no longer receives the intended benefit from the restrictive covenants because of significant changes in the surrounding neighborhood.

After hearing the credible, probative, and relevant evidence at the hearing it is the conclusion of this court that the respondents have not established their burden of proof. Respondent Lombardo was not able to testify as to any significant changes to Phase II of the development. Further, Frances Walters testified as to lot sizes less than 40,000 s.f.; however there was no showing that these lots were in Phase II of the development, or not part of Phase I which had lesser restrictions. Petitioner received a benefit by having minimum lot sizes of 40,000 s.f. and also having lots 50A and 50B combined. Houses built are larger and yet ground coverage is less due to the larger lot size. There has been no showing that the character of the neighborhood has so changed in the interim that petitioner no longer receives this benefit. As such it is the conclusion of this court that a preliminary injunction should be issued to enforce the restrictive covenants in place in the Phase II subdivision of the Summit Lake Acres development, and bar any development of lots 50A and 5 OB until their ownership is united or until the two lots are developed as one contiguous lot of 40,000 s.f or more in conformity with the recorded Phase II subdivision plan and the restrictions it contains.

To revisit the necessary elements under Pa.R.C.P. 1531 and at Wilson supra. First, the injunction is necessary to prevent immediate and irreparable harm which cannot be compensated by damages. Petitioners have established the unambiguous notes on the recorded subdivision plan are covenants running with the land and therefore are enforceable. Their harm would be a smaller home in a smaller lot than anywhere else in Phase II of the development. This atypical realty in proximity to petitioners devalues their realty.

Second, greater injury would result by refusing the relief than granting it. If respondent Lombardo was allowed to construct this atypical Phase II development then the necessity to commit waste by its removal could present itself. By granting the relief early in the project any waste arguments are minimized.

Third, the granting of the relief requested restores the parties as much as practical to their position status quo ante.

Fourth, the alleged wrong has been satisfactorily proven to be manifest and the relief narrowly tailored to abate it.

Fifth, the petitioner has shown these two plan notes to be unambiguous and clear and has also shown them to be the equivalent of a covenant running with the land. Therefore the petitioner has established that their right to relief is clear.

For preliminary injunctive purposes the petitioner’s burden was to establish each and every one of these prerequisites. We are persuaded that the petitioner has succeeded in that fashion, and accordingly we issue the appropriate order which follows. The parties may seek a further hearing on the permanency of this preliminary injunction at their discretion. It is so ordered.

ORDER

And now, March 2, 2010, a preliminary injunction is issued upon the respondents’ and the property known and identified as Lot 5 OB in the development known as Phase II of Summit Lake Acres in Newton Township, Pennsylvania, enjoining the construction of a house/ dwelling until such time as the ownership is united or until the two lots are developed as one contiguous lot of 40,000 s.f. or more in conformity with the recorded Phase II subdivision plan and the restrictions it contains. These parties may seek a hearing on the permanency of this preliminary injunction at their convenience.

      . Respondent Linda Lombardo, pro se, chose to not submit a post-hearing brief to the court.

      . “It is well-established that a municipality may attach conditions to a subdivision approval, so long as the applicant accepts the conditions. (citation omitted) It is equally well-established that acceptance of conditions imposed on a subdivision constitutes a waiver of future challenges to those conditions.” In re Busik, 759 A.2d 417, 421 (Pa. Commw. 2000).

      . In order to establish laches, a respondent must establish (1) a delay arising from the complaining party’s failure to exercise due diligence, and (2) prejudice to the respondent resulting from the delay. White v. Township of Upper St. Clair, 968 A.2d 806 (Pa. Commw. 2009).

      . Lot 50B in the development known as Phase II of the Summit Lake Acres development in Newton Township, Pennsylvania.

      . “Lot number 50B will be combined with lot number 50A” and all lots will be a minimum of 40,000 s.f.


author: LASH, J.,

text:
    Commonwealth v. Caraballo

      Catherine J. Nadirov, assistant district attorney, for Commonwealth.
    • Amy J. Shaffer, assistant public defender, for defendant.
    March 18, 2010
   LASH, J.,

The matter before this court is the motion of the defendant, Henry Antonio Caraballo, to have the above-captioned matter transferred from adult criminal court to juvenile court, pursuant to the decertification procedures set forth in section 6322 of the Juvenile Act. The Commonwealth has charged defendant with, among other things, robbery, a felony of the first degree under 18 Pa.C.S. §3701(a)(l)(ii), and criminal conspiracy to commit robbery, also a felony of the first degree under 18 Pa.C.S. §903(a)(l), based on an incident alleged to have occurred on December 11, 2006. At that time, defendant was a minor, having been born on October 14,1989. A hearing on the motion was held before this court on March 12, 2010.

The incident was alleged to have occurred at the Memmo home in Lower Heidelberg Township, Berks County, Pennsylvania, and was alleged to have involved defendant and three co-conspirators, his older brother, Omar Caraballo, defendant’s girlfriend, Kimberly L. Weniger, and an associate, Tyler Minggia. The three co-conspirators were all adults.

At the aforesaid time and place, the four individuals entered the Memmo household. At that time, Mrs. Carol Memmo, and her son, Cameron, were home. According to the probable cause, Mrs. Memmo was in her bedroom on her cell phone when four masked individuals with guns entered her room and waved to her, saying “Come on, lady,” pushing her into Cameron’s room. They began rummaging through Cameron’s drawers, asking where the money was hidden, then told Mrs. Memmo to “not look at them.” One of the co-conspirators duct taped Mrs. Memmo’s eyes, mouth, arms, upper body, and legs. She then heard someone striking Cameron. She then heard someone going through her drawers, then a statement from one of them that they were “going to the basement.” At that time, the four individuals escorted Cameron to the basement, then brought Mrs. Memmo and placed her on a chair and tied her down with a string of Christmas lights. Mrs. Memmo heard them pulling file cabinet drawers out and throwing things around, then heard a scuffle, followed by the four individuals going upstairs. In due course, the individuals left the residence and Mrs. Memmo was able to free herself. After doing so, she found Cameron in the basement under a filing cabinet and other furniture, sitting in the comer wearing a blood soaked shirt. The Memmos later ascertained that several items were stolen from the property, the loss being estimated at $8,842.

The probable cause also stated that an additional victim, Collin Woomer, happened to arrive at the Memmo residence just as the four individuals were leaving. The individuals grabbed Woomer, brought him into the Memmo kitchen, then struck him across the face. While he was lying on the kitchen floor, one of the three males pointed a handgun, believed to be 9 millimeter, and demanded money from him. While three of the individuals exited from the kitchen into the garage, one remained with the gun, and asked the others if he should kill Woomer.

The probable cause also states that two fingerprints were lifted from the duct tape used to tape up Mrs.. Memmo, which matched the fingerprints of defendant.

The criminal complaint against defendant was not issued until October 16,2009. As a result, the charges are currently pending against defendant, who is now 20 years of age and who will turn 21 on October 14, 2010.

Under the Juvenile Act, the juvenile court has jurisdiction over “children” who are charged with “delinquent acts.” While defendant qualifies as a “child,” the Commonwealth asserts that the juvenile court does not have jurisdiction here because under these facts, the robberies charged against defendant are excluded from the definition of “delinquent act.” As set forth in section 6302:

“(2) [Delinquent acts] shall not include:
“(ii) Any of the following prohibited conduct where the child was 15 years of age or older at the time of the alleged conduct and a deadly weapon as defined in 18 Pa.C.S. §2301 . . . was used during the commission of the offense, which, if committed by an adult, would be classified as:
“(D) Robbery as defined in 18 Pa.C.S. §3701(a)(l)(i), (ii) or (iii)....
“(I) An attempt, conspiracy or solicitation to commit ... any ofthese crimes, as provided in 18 Pa.C.S. §§901 (relating to criminal attempt), 902 (relating to criminal solicitation), and 903 (relating to criminal conspiracy).”

Nevertheless, under the Juvenile Act, defendant may request disposition within the juvenile system through the process of “decertification.” In determining whether to decertify a case to juvenile court, the trial court must find that the juvenile has established “by a preponderance of the evidence that the transfer will serve the public interest.” 42 Pa.C.S. §6322(a). Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003). Section 6322 goes on to state:

“In determining whether the child has so established that the transfer will serve the public interest, the court shall consider the factors contained in section 6355(a) (4)(iii).

Those factors are as follows:

“(A) the impact of the offense on the victim or victims;
“(B) the impact of the offense on the community;
“(C) the threat to the safety of the public or any individual posed by the child;
“(D) the nature and circumstances of the offense allegedly committed by the child;
“(E) the degree of the child’s culpability;
“(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and
“(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:
“(I) age; (II) mental capacity; (III) maturity; (IV) the degree of criminal sophistication exhibited by the child; (V) previous records, if any; (VI) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child; (VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction; (VIII) probation or institutional reports, if any; (IX) any other relevant factors.” Commonwealth v. Sanders, 814 A.2d at 1250-51.

In his presentation, defendant claims that, after consideration of all the facts and circumstances, his case should be decertified and heard by juvenile court because, among other things, he has no prior criminal record, he lacks criminal sophistication, and that he is amenable to treatment. He presented evidence that he is gainfully employed and is currently seeking to obtain a GED. He has always been polite and respectful at home. This allegation is out of character and was due to his being influenced by his girlfriend, his older brother, and the other individual, all of whom were adults.

Defendant’s mother testified regarding two significant personal events, which greatly affected defendant. The first was defendant’s father’s untimely death. Secondly, was the birth of defendant’s child from his relationship with co-conspirator, Kimberly L. Weniger. Defendant’s mother testified that these events have changed defendant, who is currently behaving in a mature manner and ready to assume adult responsibilities. Previously, he could not be characterized as a bad child, but was lazy and did not apply himself, particularly in school.

The Commonwealth argues against decertification. The primary thrust of their argument relates to the serious nature of the charges, the effect on the victims and the community, and the adequacy of dispositional alternatives under the juvenile court system, given the fact that the defendant will turn 21 years of age this October, ending by law the juvenile court’s jurisdiction over him.

Prior to review of the decertification factors, this court shall address a preliminary jurisdictional issue. To disqualify the acts alleged to have been committed by defendant from the definition of delinquent acts, it is required, among other things, that a “deadly weapon . . . was used during the commission of the offense.” The allegations do state that at least one gun was used during the commission of the offense, but it is not clear whether the defendant, or one of the other co-conspirators, possessed that gun. The question then is whether the phrase “used during the commission of the offense” could include use by any of the four co-conspirators, or is it necessary that the defendant be using the gun to disqualify his case from being processed under the Juvenile Act.

The law regarding interpretation of a statute is set forth in Commonwealth v. Dickson, 591 Pa. 364, 372-73, 918 A.2d 95, 100 (2007), as follows:

“In interpreting a statute, we must ascertain and effectuate the intention of the General Assembly. See 1 Pa.C.S. §1921(a). When statutory language is clear and free from all ambiguity, it generally furnishes the best indication of legislative intent; we must not disregard the statutory language under the pretext of pursuing its spirit. 1 Pa.C.S. §1921(b); Bowser v. Blom, 569 Pa. 609, 807 A.2d 830, 835 (2002). Accordingly, areviewing court should resort to other considerations to determine legislative intent only when the words of the statute are not explicit. 1 Pa.C.S. § 1921(b); O’Rourke v. Commonwealth, Department of Corrections, 566 Pa. 161, 778 A.2d 1194, 1201 (2001). Finally, while minding our other principles of statutory construction, we must construe all penal provisions strictly in favor of defendants’ liberty interests. 1 Pa.C.S. § 1928(b)(1); cf. Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876, 879 (1988) (‘ [Wjhere an ambiguity exists in the language employed by the legislature in a penal statute, it should be interpreted in a light most favorable to the criminally accused.’). But see id. at 880 (‘while strict construction of penal statutes is required, however, courts are not required to give words of a criminal statute their narrowest meaning or disregard evident legislative intent.’).”

We are not aware of any appellate precedent construing the applicable provisions of section 6302. However, we do find guidance from appellate case law interpreting statutory and regulatory language addressing similar concerns, albeit in a different context. In Dickson, the question was whether the mandatory sentence enhancement on a person who visibly possesses a firearm during the commission of a crime of violence, as set forth in 42 Pa.C.S. §9712, applies to an unarmed defendant, where his co-conspirator brandishes a firearm during the commission of the offense. Section 9712 provides, in pertinent part:

“(a) Mandatory sentence. — ... [A]ny person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g)... shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement....”

. In reversing the Superior Court, who had affirmed the trial court, the Supreme Court determined that section 9712(a) shall only apply to a defendant who “visibly possesses a firearm or a firearm replica,” not to any unarmed co-conspirators.

In Commonwealth v. Phillips, 946 A.2d 103, 113 (Pa. Super. 2008), the court was called upon to review the deadly weapon enhancement set forth in section 303.10 of the Pennsylvania Sentencing Code which states, in pertinent part:

“(a) Deadly weapon enhancement.
“(1) When the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/possessed matrix (section 303.17). An offender has possessed a deadly weapon if any of the following were on the offender’s person or within his immediate physical control:
“(i) Any firearm, (as defined in 42 Pa.C.S. §9712) whether loaded or unloaded . . . .” (emphasis in original)

The Superior Court distinguishes Dickson by the language of the applicable provision, finding that actual possession of the deadly weapon by a defendant was not required to permit employment of the deadly weapon enhancement of the sentencing guidelines, it being sufficient that the defendant was in close proximity to the firearm, sufficient to place the firearm “within his immediate physical control.”

From these cases, we observe that the appellate courts construed the language in the respective provisions literally, giving plain meaning to the words, and being careful not to extend the scope of the provisions beyond the parameters set forth.

Comparing the provision at bar, we find it to have a lower threshold then either the mandatory sentence provision or the deadly weapon enhancement provision. Unlike those provisions, section 6302 does not require possession by the defendant, nor immediate proximity to the weapon. It is only necessary that the weapon was used in the commission of the offense. Implicitly, since the provision does not require possession by the defendant, the use could be by a co-conspirator, so long as it was used during the commission of the offense. If the General Assembly had intended the provision to require the defendant to be in possession of the firearm, it would have so stated, as it did in the mandatory sentence enhancement provision. Accordingly, we find that the Commonwealth properly determined that the juvenile court did not have jurisdiction over this matter and that the matter should properly be prosecuted in adult court.

Turning then to the factors set forth in section 6322, we initially note that the offense was extremely serious. This was a home invasion which occurred when residents of the home were present. One of the residents and an acquaintance were assaulted. The victims were aware of the presence of a gun, and the acquaintance was threatened with death. Several of the charges are graded as felony one crimes.

These crimes also caused significant adverse impact on the victims. Their safety and security were threatened. Two were beaten and all were in fear of their well-being. During the court proceeding, conducted several years after the incident, the stress upon Mrs. Memmo and Woomer, who both testified, was palpable. The victims will likely experience psychological and emotional effects for years to come. Fortunately, there were no long-term physical effects from the incident. The property loss was substantial, but not devastating.

Likewise, there was likely a significant effect on the community. The community is suburban and affluent. The presence of any type of violence of this nature would normally be rare, if not nonexistent.

Turning then to the defendant, we find he does possess qualities which appear to make him amenable to treatment. He had no prior involvement in the court system. It is likely that his degree of criminal sophistication is slight, unlike his brother and co-conspirator Minggia, who were previously known to the criminal justice system. It is likely that defendant’s girlfriend came up with the idea to burglarize this home, as she was an acquaintance of Cameron Memmo. Defendant may have been influenced by his girlfriend or by his brother, but that is not clear from the record.

There is some indicia that defendant is currently moving toward a productive and responsible adult life. This is borne through his maintaining employment and his actions toward being a responsible parent. On the other hand, his choice of girlfriend, the volatile relationship between them and the resulting protection from abuse order, as well as the allegations of indirect criminal contempt, establish that defendant still possesses personal issues which must be addressed if he is to be accepted as a mature, responsible adult.

An important concern regarding the defendant’s amenability to treatment relates to the time constraints on the juvenile system in the event the matter remains in juvenile court. The seven months between now and the date of defendant’s 21st birthday is hardly sufficient to properly address the concerns stemming from the seriousness of the offense, or the needs of the community, nor is an adequate time frame for proper supervision and oversight of the defendant. Further, the actual time frame would be less than seven months, as the adjudication hearing would have to be processed first. The goals of treatment, supervision, and rehabilitation, which are the hallmarks of the balanced and restorative juvenile justice system, are simply not quantitatively available for this defendant in juvenile court. Conversely, these goals are available in the adult system, a system which is not restricted by any time constraints, but could monitor and supervise the defendant for several years, depending upon the extent of his sentence.

We find, therefore, that it would not serve the public interest to have the matter decertified. Assuming defendant is found to have committed the offenses, there must be accountability for their commission, at a level beyond that which the juvenile court is capable. As stated, at the very least, there would have to be some extensive supervision, and possibly treatment. The protection of the community and the impact on the victims also require sanctioning beyond that which is accomplished by the juvenile court system. Accordingly, we enter the following order:

ORDER

And now, March 18, 2010, upon consideration of the motion of defendant, Henry Antonio Caraballo, to decertify the above-captioned matter, and after hearing held, the motion is hereby denied.

      . 42 Pa.C.S. §6322.

      .42 Pa.C.S. §6301 etseq.

      . 42 Pa.C.S. §6302 defines child as “an individual who is under the age of 18 years.”

      . 42 Pa.C.S. §6355(a)(4)(iii).

      . Subsequent to the incident, defendant was named as a defendant in a protection from abuse petition filed by his girlfriend, the co-conspirator, Kimberly L. Weniger, resulting in a final order being entered on October 22,2009, after defendant failed to appear. (C.C.P. of Berks County, docket no. 09-12630,1.D. #1.) Subsequently, there have been two indirect criminal contempt petitions filed against defendant, alleging that he violated the aforesaid protection from abuse order. Those contempt petitions are pending.

      . 42 Pa.C.S. §6302 “Delinquent Act” (2)(ii).

      . 204 Pa. Code §303.10.


author: ROSSANESE, S.J.,

text:
    PennDOT v. Roop

      Joanne Steinke Faul, for plaintiff.

      Timothy P. Wile, for defendant.
    March 22, 2010
   ROSSANESE, S.J.,

Biyan Keith Roop appealed to this court from the refusal of PennDOT to issue a license to operate a motor vehicle. His operating privileges had been revoked by PennDOT in February 1992 for three convictions of driving under the influence and two of driving under suspension between 1988 and 1990. He moved to Florida in 1992, and, while licensed there, he was convicted at least two more times of operating under the influence. As a result, his Florida operating privileges were permanently revoked under the laws of that state.

Mr. Roop returned to Pennsylvania, turned in his license and served his eight-year revocation. In December 2003 he was issued a probationary license. This was reissued several times, until December 2007, when PennDOT learned of the Florida revocation. In October 2008 he applied for a Pennsylvania learner’s permit. PennDOT issued that permit despite his disclosure of the Florida revocation. On March 17,2009 PennDOT notified Mr. Roop he was not eligible for a Pennsylvania license, and he filed his appeal.

We conducted a hearing on June 22,2009. The parties filed briefs, and on December 17, 2009 we denied Mr. Roop’s appeal.

Mr. Roop asserts, first, that article V(2) of the Driver’s License Compact, 75Pa.C.S. §1581 is an exception to the absolute prohibition of 75 Pa.C.S. § 1503(a)(1), which is:

“Persons ineligible for licensing. — The department shall not issue a driver’s license to, or renew the driver’s license of, any person:
“(1) Whose operating privilege is suspended or revoked in this or any other state ...

The relevant provisions of the driver’s license compact are:

“Article V
“Applications for new licenses
“Upon application for a license to drive, the licensing authority-in a party state shall ascertain whether the applicant has ever held or is the holder of a license to drive issued by any other party state. The licensing authority in the state where application is made shall not issue a license to drive to the applicant if:...
“(2) The applicant has held such a license, but the same has been revoked by reason, in whole or in part, of a violation and if such revocation has not terminated, except that after the expiration of one year from the date the license was revoked such person may make application for a new license if permitted by law. The licensing authority may refuse to issue a license to any such applicant if, after investigation, the licensing authority determines that it will not be safe to grant to such person the privilege of driving a motor vehicle on the public highways ...
“Article VI
“Applicability of other laws
“Except as expressly required by provisions of this compact, nothing contained herein shall be construed to affect the right of any party state to apply any of its other laws relating to licenses to drive to any person or circumstance, nor to invalidate or prevent any driver license agreement or other cooperative arrangement between a party state and a nonparty state.” (emphasis added)

Contrary to Mr. Roop’s assertion, article V(2) does not create an exception to the absolute prohibition on licensing in section 1503(a)(1). Article V(2), by its terms, only allows PennDOT the discretionary authority to issue a license if it is otherwise permitted by law to do so, and it is not. This is confirmed by article VI of the compact. That does not make the language of article V(2) surplus-age, as contended by Mr. Roop. Pennsylvania has simply chosen not to grant the discretion allowed by the driver’s license compact.

This interpretation is supported by decisions in other states that have absolute prohibitions on licensing a driver during an out-of-state suspension or revocation: Gwin v. Motor Vehicle Administration, 385 Md. 440, 869 A.2d 822, cert. denied, 546 U.S. 823 (2005); Girard v. White, 356 Ill. App.3d 11, 826 N.E.2d 517 (1st Dist. 2005); Tull v. Commissioner of the Department of Public Safety, 176 P.3d 1227 (Okla.Civ.App. 2007).

Mr. Roop next contends that PennDOT’s issuance of the learner’s permit collaterally estops it from refusing to issue a regular license. Collateral estoppel and res judicata are applicable only to an adjudication on the merits by a court. Commonwealth, Department of Environmental Protection v. Fiore, 682 A.2d 860, 862 (Pa. Commw. 1996), allocatur denied, 550 Pa. 868, 704 A.2d 640 (1997); Whitford’s Liquor License Case, 166 Pa. Super. 48, 51, 70 A.2d 708, 710-11 (1950).

If Mr. Roop is contending that the issuance of the permit equitably estops the department from refusing to issue a license, he is also incorrect. Even if he had established the factual elements of an estoppel (which he did not, because he asserts no reliance) equitable estoppel cannot be based on the error of a government agency or employee that is contrary to law. Otherwise, governmental error would have the effect of amending statutes. Finnegan v. Commonwealth, Public School Employes’ Retirement Board, 126 Pa. Commw. 584, 590, 560 A.2d 848, 851 (1989), aff’d without opinion, 527 Pa. 362, 591 A.2d 1053 (1991). Issuance or renewal of alicense, with knowledge of facts that would justify its denial or revocation does not equitably estop a licensing authority from revoking or refusing to issue a license. Denier v. State Board of Medicine, 683 A.2d 949, 953 (Pa. Commw. 1996); Quinn v. Commonwealth, Bureau of Professional and Occupational Affairs, 168 Pa. Commw. 447, 453, 650 A.2d 1182, 1185 (1994), allocatur denied, 541 Pa. 646, 663 A.2d 697 (1995).

The action of PennDOT refusing to grant operating privileges to Bryan Roop was required by law. Therefore, we affirmed.

      . Misrepresentation of a material fact, made with knowledge or reason to know the other party would rely upon it, and inducement of the other party to act to its detriment because of justifiable reliance. E.g., Reform Congregation Oheb Sholom v. Berks County Board of Assessment Appeals, 839 A.2d 1217, 1221 (Pa. Commw. 2004), allocatur denied, 578 Pa. 691, 849 A.2d 1206 (2004).


author: KISTLER, J,

text:
    Commonwealth ex rel. Travers v. Tennis

      Otto Travers, pro se.

      Jeffrey M. Paladina, for defendant.

      March 15, 2010
   KISTLER, J,

Presently before this court is Otto Travers’ petition for writ of habeas corpus and Franklin Tennis’ motion to dismiss. Mr. Travers’ petition alleges that his due process rights have been violated because he was placed in administrative custody and has not been provided with a hearing or notice of the reason he is being confined to administrative custody in accordance with DOC policy.

Mr. Tennis filed a motion to dismiss the petition arguing that prison officials are accorded administrative discretion relating to inmate housing and therefore the alleged violation of DOC policy is not reviewable in a petition for writ of habeas corpus. Mr. Tennis also asserts that the action was not properly commenced and has failed to state any cognizable grounds for relief. A hearing was held on February 11,2010, at which counsel for the Department of Corrections was present and Mr. Travers was present via video conference. For the following reasons, the court Grants Mr. Tennis’ motion to dismiss.

BACKGROUND

On November 1, 2009, Mr. Travers was placed in administrative custody under investigation. On November 18, 2009, the investigation was completed and Mr. Travers’ institutional status was converted to pending upon Program Review Committee review. As of the date of the hearing on this matter, Mr. Travers has yet to have a hearing or receive information as to why he is being held in administrative custody. At the hearing Mr. Travers testified that he was not provided with a hearing and also was not provided with notice as to why he was being held in administrative custody.

DISCUSSION

The Superior Court of Pennsylvania in Commonwealth ex rel. Fortune v. Dragovich, infra, has described the availability of habeas corpus relief pertaining to prisoners in this Commonwealth:

“The availability of habeas corpus in Pennsylvania is both prescribed and limited by statute. See 42 Pa.C.S. §§6502 (power to issue writ); 6503 (right to apply for writ). Subject to these provisions, the writ may issue only when no other remedy is available for the condition the petitioner alleges or available remedies are exhausted or ineffectual. See [Commonwealth Dep’t of Corrections v.] Reese, 774 A.2d [1255,] 1260 [(Pa. Super. 2001)]. Thus, ‘habeas corpus should not be entertained . . . merely to correct prison conditions which can be remedied through an appeal to prison authorities or to an administrative agency.’ Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110, 113 (1971). Moreover, ‘it is not the function of the courts to superintend the treatment and discipline of prisoners in penal institutions.’ Id. Accordingly, the writ may be used only to extricate a petitioner from illegal confinement or to secure relief from conditions of confinement that constitute cruel and unusual punishment. See id.; Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 775 n.17 (Pa. Commw. 1997). ‘[T]he failure or refusal of prison authorities to exercise discretion in a particular way may not be reviewed in a habeas corpus proceeding. ’ Commonwealth ex rel. Tancemore v. Myers, 189 Pa. Super. 270, 150 A.2d 180, 182 (1959).” 792 A.2d 1257, 1259 (Pa. Super 2002).

Our courts have repeatedly held that grievances arising from prison officials’ exercise of discretion in superintending the placement of prisoners is not a cognizable basis for issuance of a writ of habeas corpus. Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259 (Pa. Super. 2002) (referencing Commonwealth ex rel. Tancemore v. Myers, 189 Pa. Super 270, 150 A.2d 180 (1959). “[T]he failure or refusal of prison authorities to exercise discretion in a particular way may not be reviewed in a habeas corpus proceeding.” Commonwealth ex rel. Tancemore v. Myers, 189 Pa. Super. 270, 274, 150 A.2d 180, 182 (1959) (citing as support Commonwealth ex rel. Woydakowski v. Burke, 175 Pa. Super. 519, 106 A.2d 678 (1954); Commonwealth ex rel. DiCamillo v. Burke, 172 Pa. Super. 10, 91 A.2d 916 (1952); Commonwealth ex rel. Sherman v. Burke, 364 Pa. 198, 70 A.2d 302 (1950)).

The Superior Court instructs, “ [Discretionary exercises are not immune from judicial scrutiny, they are appropriately addressed in a claim of deprivation of constitutional rights under color of state law as prescribed by the federal Civil Rights Act, 42 U.S.C. §1983.” Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259-60. The exception to this rule is that a habeas corpus may become reviewable, by this court where such claims are based on “patent and serious deprivations” of a constitutional right sufficient to establish “cruel and unusual punishment.” Id., 792 A.2d at 1260. In this matter the court determines that Mr. Travers’ petition for writ of habeas corpus does not allege any cruel and unusual punishment. Therefore this court is unable to address Mr. Travers’ petition for writ of habeas corpus as it should have been brought under section 1983 of the Civil Rights Act. As a result, Mr. Tennis’ motion to dismiss the petition for writ of habeas corpus is granted.

ORDER

And now, March 15, 2010, Mr. Tennis’ motion to dismiss Mr. Travers’ petition for writ of habeas corpus is hereby granted.