author: CAIAZZA, J,

text:
    Iovanella v. Lawrence County

      Daniel I. Herman, for plaintiff.

      John W Hodge, for defendant.
    September 25, 1989
   CAIAZZA, J,

The legal issue before the court is narrow in its scope. Have the Lawrence County Commissioners violated the provisions of the Sunshine Act, 65 P.S. §271 et seq.?

The relevant facts appear in the following sequence of events.

On November 4, 1988, the Lawrence County Board of Commissioners issued a media release stating that they had voted to close the Hill View Manor. The progeny of the press statement can be traced to a series of collective bargaining sessions which failed to produce a labor contract. During the course of the protracted negotiations a series of issues were discussed, including the difficulty experienced by the County of Lawrence in recruiting and maintaining patient care staff.

The major events which foreran the media release issued on November 4, 1988 are fundamen-. tally not in dispute.

(1) A collective bargaining session was scheduled for November 4, 1988.

(2) The county was anticipating a formal response to its proposals submitted to the union in which it offered to buy out sick leave, utilize a new scheduling system, and provide special levels of compensation to direct care providers.

(3) The union presented a counterproposal which raised collateral bargaining issues.

(4) The county reacted by rejecting the union’s approach as non-responsive to their proposal.

, (5) A stalemate in the collective bargaining process was reached.

(6) When the position of the union was communicated by the county’s negotiator to the Board of Commissioners, a decision was made by the commissioners to discontinue operating Hill View Manor as an intermediate care nursing facility.

Section 272 of the Sunshine Act appears as follows: .

“§272. Legislative findings and declaration
“(a) Findings — The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decisionmaking [sic] of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.
“(b) Declarations — The General Assembly hereby declares it to be the public policy of this commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in this act.” 65 P.S. §272.

Inherently there often exists a fragile tension between the republic and democratic forms of government. The framers of our system of government did not opt to entrust the survival of the new union of states to a pure democracy, as alluded to in the Sunshine Act. W¿ are governed by a republic. Decisions are made by elected officials who receiye the proxy of the people and we thus become bound by their judgment.

However, each citizen has both the right and the duty to have a voice in the decision-making process. Obviously, the exchanged dialogue cannot be bellicose. And the effect of the participation of the citizenry in the actual business of government and a meaningful consideration of its views produces an alliance, or partnership, which inherently advances a common good.

The ideal mixture will often produce a covenant between the government and its people that rests on a shared commitment to adequately satisfy, where possible, the needs of our society. Polarized views, which by their nature produce antagonism, should be discarded and the energy which is exerted to fight a worthy battle can then be used to advance a worthy cause.

Judges are usually at their worst when their decisions depart from an analysis of the law and their discussion strays to a consideration of social issues. While the methodology of the decision-making process should remain intact, some cases warrant a minor departure from the usual standard, especially where some nudging may effectuate a course of conciliation. Here, it does not appear that the decision of the Board of Commissioners was bottomed upon an impersonal intent to evict the residents of Hill View Manor. Following a series of management and patient care considerations, a firm determination was made to discontinue the operation of the Hill View Manor as a county-operated nursing home. However, a segment of the citizenry became equally firm in its resolve to maintain Hill View Manor as a viable facility. With undaunted perseverance, a course of action has been pursued aimed at shielding the Hill View Manor residents from the incertitude which they may suffer if the County of Lawrence disaffiliates itself from Hill View Manor. Their goal is clear — to preserve for the future the harborage offered by Hill View Manor.

Perhaps the view of the court is both rhetorical and utopian, but placed in juxtaposition, the goals of plaintiff — and those people he seeks to protect — seem in some meaningful fashion to parallel a responsibility of defendant. A detente of sort should be reached. The drawn swords should be turned into plowshares. The energy (and money) now being expended by both sides should be marshalled and then used to advance the . common interest of caring for the infirm and the indigent of Lawrence County. We do have a moral commitment to serve each other. And that responsibility, which is not a cleverly concocted myth, should.be honored by both the government and its people in some way. After all, we are only temporary caretakers of the turf we lay claim to as lawyers, clerks, doctors, laborers, commissioners and judges. Perhaps we should seize the opportunity.

FINDINGS

The Sunshine Act, supra, defines a “meeting” in the following manner:

“ ‘Meeting.’ Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action,” 65 P.S. §273.

It is clear from the evidence presented to the court that the November 4, 1988 meeting attended by the three members of the Board of Commissioners was a prearranged gathering held for the purpose of discussing information and formulating strategy relative to the collective bargaining agreement which the county was attempting to negotiate with the labor union which represented certain Hill View Manor employees. For that purpose alone it was appropriate for the meeting to be conducted in executive session. Section 278(a)(2) of the Sunshine Act states as follows:

“(a) Purpose —An agency may hold an executive session for one or more of the following reasons:
“(2) To hold information, strategy and negotiation sessions related to the negotiation or arbitration of a collective bargaining agreement or, in the absence of a collective bargaining unit, related to labor relations and arbitration.” 65 P.S. §278(a)(2).
However, following the clisquieting attempt to reach a labor accord during the course of the executive session, the County Commissioners then “reached a decision that Hill View Manor must be closed.” See November 4, 1988 press release issued by the Board of Commissioners. Their reasoning was “based on a number of factors, however, by far and away the most significant ones were the persistent inability of Hill View Manor to attract and maintain a qualified, skilled staff of employees, and concern for the quality of patient care.” Id.

The act defines agency business in the following manner:

“ ‘Agency business.’ The framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action.” 65 P.S. §273.

To engage in a discussion during the course of an executive session which results in a decision to close a county-managed intermediate care nursing facility is a policy-making determination which falls within the definition of “agency business” and is, consequently, a violation of the Sunshine Act. The decision process utilized to close the facility was obviously based upon a series of considerations detailed in the November 4, 1988 press release. While each of the reasons advanced by the Board of Commissioners to close Hill View Manor are collaterally attached to the aborted attempt to reach a labor accord, the consequences which may have been engendered by the failure to effectuate a collective bargaining agreement are matters that should have been discussed in detail during the course of a public meeting. It would be injudicious to conclude that the impetuous decision to close Hill View Manor following the breakdown of labor negotiations is authorized by a provision of the Sunshine Act which allows an agency to hold information, strategy and negotiation sessions related to the negotiation or arbitration of a collective bargaining agreement.

Next, the county asserts that even if a violation of the Sunshine Act occurred during the process of the November 4, 1988 meeting, the breach was. cured by the subsequent meeting held on November ,8, 1988. The court cannot place its imprimatur upon an illegal act, albeit inadvertent, merely because the county ratified its earlier decision at a subsequent meeting. To hold otherwise would vitiate the spirit of the Sunshine Act and encourage a broadening of the issues brought up for discussion during the course of an executive session. Pursuant to the provisions of the predecessor statute, the Open Meeting Law, improper action which was taken by an agency could be ratified at a subsequent meeting which was properly constituted. The Sunshine Act is more strict in its standards. “Clearly, the new law protects the public’s interest to witness agency discussions — not just the formal action. Thus, once a discussion has taken place at an invalid meeting, the public's interest is not rectified by mere ratification.”

Lastly, the county asks:

“(1) What interpretation should be placed upon the command given in 65 P.S. §283 that: ‘A legal challenge under this act shall be filed . . . within 30 days from the discovery of any action that occurred at a meeting which was not open at which the act was violated. . .?’ ”

Section 282 of the Sunshine Act fundamentally establishes a statute of limitations. A statute of limitations defense is an affirmative defense which must be pleaded in a responsive pleading under the heading “new matter.” See Pa.R.C.P. 1030. A perusal of the pleading filed by the county reveals that the statute of limitations as a defense has not been raised.

CONCLUSIONS

The Board of Lawrence Couiity Commissioners violated the Sunshine Act, 65 P.S. §271 et seq., by deciding on November 4, 1988 to close Hill View Manor.

The Board of Lawrence County Commissioners did not meet on November 4, 1988 with the intent and purpose of violating the Sunshine Act.

DECREE NISI

Now, September 25, 1989, the actions of the Lawrence County Board of Commissioners relevant to the sale or closure of Hill View Manor adopted at the November 4, 1988 executive session are hereby declared to be invalid as being violative of the Sunshine Act, 65 P.S. §271, et seq.

        . 65 P.S. §251-254.

      . 136 Pitts. Leg. J. 39 (1988).

      . The county refers us to the provisions of 42 Pa.C.S. §5522 which utilize the words “shall” and “must.” There is no dispute that the statute cited by the county is a statute of limitation and not a legislative mandate. In the same fashion, the Sunshine Act utilizes a similar phrase, viz., “shall be filed.”


source: Caselaw Access Project

author: WOLFE, P.J.,

license: Public Domain

text:
    Davis v. Clear Lake Lumber Inc.

      David Swanson, for plaintiffs.

      Mark Mioduszewski, for defendants.
    December 8, 1989
   WOLFE, P.J.,

Defendant Conewango Valley Country Club has filed preliminary objections to plaintiffs’ complaint seeking damages to approximately nine acres of plaintiffs’ property by cutting and destroying trees and surface damage to the land.

The basis of the complaint, in essence, is that plaintiffs and Jane W. Kopf entered into a right-of-way agreement with defendant Conewango Valley Country Club Inc., which right-of-way was assigned by Conewango to defendant Clear Lake Lumber Inc. The purpose of the right-of-way was for Conewango to gain access to its property for cutting and removal of timber thereon. Plaintiffs allege Conewango’s assignee wrongfully entered plaintiffs’ premises “without permission or authority and cut down and destroyed all trees and timber having a stump diameter of. 15 inches or greater over an area of approximately 9 acres of plaintiffs’ land.”

The complaint alleges Clear Lake was acting as the agent, servant and employee of Conewango and under its control, direction and supervision with regard to the removal of Conewango’s timber from its land.

The complaint seeks compensatory damages by pleading same generally and punitive damages based on the allegation, “Defendants in all their actions complained of herein, conducted themselves in a wanton, reckless, willful and intentional manner, knowing that their conduct was not in accord with law and with the right-of-way agreement and in reckless . disregard of the plaintiffs’ property and rights.”

Finally, plaintiffs seek treble damages for the wrongful destruction of the timber by defendants.

We will dispose of the preliminary objections serially.

I .

Preliminary Objections in the Nature of a Demurrer

This demurrer addresses the failure of the complaint to impose vicarious liability as a matter of law . on Conewango for the negligent acts of Clear Lake. This argument is based in Conewango’s position Clear Lake, as an assignee, is an independent contractor and not an agent of Conewango, and as such an independent contractor cannot vicariously impose liability as an agent may do if acting within the scope of the agent’s employment.

We have no problem agreeing with Conewango’s cases and holdings thereof cited in its brief: Drexel v. Union Prescription Centers Inc., 582 F.2d 781, 785 (3d Cir. 1978): Restatement (Second) of Agency §244; Smalich v. Westfall, 440 Pa. 409, 415, 269 A.2d 476, 481 (1970). However, it would be error to declare as a matter of law Clear Lake was acting as an independent contractor in face of plaintiffs’ allegations to the contrary. Simply because the right-of-way agreement between plaintiffs and Conewango is ex contractu, the formality of assigning that contract to Clear Lake does not per se render the latter an independent contractor. The components to consider in the relationship of principal-agency are as cited by Conewango in Stepp v. Renn, 184 Pa. Super. 634, 637, 135 A.2d 794, 796 (1957), which include, inter alia:

“Control of the manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or the job; whether work is a part of regular business of the employer, and also the right of employer to terminate the employment at any time.”

Instantly, there is a genuine issue of fact of the status of Clear Lake to Conewango, and this burden of proof is placed with plaintiffs at time of trial by a fair preponderance of the credible evidence to satisfy the agency allegation and if failure thereof, a directed verdict will be entered as a matter of law. Further, there may well exist a mixed issue of law and fact at time of trial of the status of defendants, inter se, and therefore the court may not grant a demurrer under these circumstances.

11

Preliminary Objections in the Nature of a Demurrer

This demurrer speaks to plaintiffs’ claim for treble damages for the wrongful cutting and removal of plaintiffs’ standing timber. The claim is founded in section 3 of the Act of March 29, 1824, P.L. 152. This act was subsequently amended in 1939 and thereafter amended in 1971, changing the gradation of the offense from a misdemeanor to a summaxy offense, and finally the act was totally repealed by enactment of the current Pennsylvania Crimes Code in 1972 and the accompanying Repealer Act of 1972.

There are no appellate court cases addressing this issue of damages plaintiff claims subsequent to 1972; however, we have been given the case of Hall v. Horstman Builders Inc., 37 D.&C. 3d 255 (1984), wherein the court discussed the historical creation of the act, the subsequent amendments and the repealer thereof, concluding treble damages were no longer available.

Plaintiffs acknowledge the holding of Hall, supra, but argue the rules of construction as cited in 1 Pa.C.S. §1974 preserve the right of treble damages despite the repeal of the statute which created treble damages. Our reading of the Statutory Construction Act compels an opposite conclusion. The statute provides:

“Whenever a statute which created a personal or property right in degradation of the common law is repealed as absolute or by a code which does not contain expressed provisions with respect to such personal or property right, the repeal shall not be construed to revive the prior inconsistent common-law rule, but such repeal shall be construed as a recognition by the General Assembly that such personal or property right has been received into and has become a part of the common law of the commonwealth.”

It is plaintiffs’ argument treble damages did not exist at common law and treble damages are in degradation of common law and the right was created by the initial legislation in 1824. From this foundation plaintiffs -argue since the statute was repealed the right to treble damages becomes part and parcel of the common law, notwithstanding treble damages did not exist at common law. We have difficulty in following this logic in light of the language of 1 Pa.C.S. §1978. Read closely, the language does not support plaintiffs’ interpretation. The statute simply says, quite clearly, when a statute creates a right not in existence at common law and is subsequently repealed, “the repeal should not be construed to revive the prior inconsistent common law rule. . ..” The statute necessarily recognized there was indeed a common law prior to the statute permitting treble damages or, if not treble damages, a degree of damages for wrongful cutting of timber. Here, there was no common-law right to treble damages; therefore, it should be clear when the legislature created that right by statute and subsequently repealed it there is nothing to revive at common law, which is, of course, in keeping with the interpretation of section 1978, and since the right to treble damages is a creature of the legislature its repeal terminates the right to treble damages that was created.

Finally, plaintiffs’ rely on Quinn v. Marazza, 7 D.&C. 3d 168 (1978), and a case preceding the repeal of the statute, Commonwealth v. Musser Forests Inc., 394 Pa. 205, 146 A.2d 714 (1958). Because Commonwealth v. Musser Forests Inc., supra, was cited in Quinn, supra, we will not discuss the latter. We also do not accept the holding of Quinn v. Marazza for the reason the court did not specifically address any objections filed to a claim for treble damages. The commonwealth objected to the allegations that the claim of plaintiff was for punitive damages, and the court in discussing the sufficiency of the pleadings under rule 1019 found, “Clearly, if the facts of the complaint are proven at trial, plaintiff will be entitled to treble damages. Damages for wrongful conversion of trees has long been recognized in the law as justifying double or treble damages as a compensation and not necessarily as a penalty. See Commonwealth v. Musser Forests Inc. ” It is apparent the court was thinking in terms of the right of plaintiff to punitive damages as contrary to treble damages as compensatory damages. Indeed, instantly, plaintiffs have filed a claim for punitive damages which we subsequently address.

We hold now under the law as we understand it without guidance from the appellate courts plaintiffs are not entitled to treble damages due to the repealed statute.

It is our opinion currently if plaintiffs are entitled to recover damages the damages will be based on the fair market value of the trees as they existed prior to their cutting with additional damages as to their fair market value at full growth as if plaintiffs elected to harvest the trees.

Ill

Preliminary Objections in the Nature of a Demurrer

This demurrer speaks to plaintiffs’ claim for punitive damages. Defendants argue the allegations of the complaint are insufficient on which to base punitive damages. Paragraph 15 of the complaint alleges:

“Throughout the time periods referred to in the preceding paragraphs, both of the defendants in all their actions complained of herein, conducted themselves in a wanton, reckless, willful and intentional manner, knowing that their conduct was not in accord with law and with the right-of-way agreement and in reckless disregard of the plaintiffs’ property and rights.”

In Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 464 A.2d 1243 (1983), the court rendered an erudite opinion on punitive damages, therein citing numerous cases the right to punitive damages is a “mere incident to a cause of action,” further quoting:

“Thus, the purpose of punitive damages is twofold, to punish the wrongdoer and to deter both him and others from engaging in similar conduct in the future.” (citations omitted)

The court further stated:

“Nonetheless, a court may not award punitive damages merely because a tort has been committed. Additional evidence must demonstrate willful, malicious, wanton, reckless or oppressive conduct.” (citations omitted)

The court observed that the foregoing rule requires plaintiff to meet an additional burden as to outrageous, egregious conduct of the defendant.

In the recent case of Kirkbride v. Lisbon Contractors, 521 Pa. 97, 555 A.2d 800 (1989), the court held punitive damages need not have a reasonable relationship to compensatory damages.

In terms of pleading, the court held in Witchey v. Lisi, 17 D.&C. 3d 131 (1980), and observed Pennsylvania has adopted Restatement (Second) of Torts, §908, permitting punitive or exemplary damages for conduct which is outrageous, based upon defendant’s evil motive or reckless indifference to the rights of others, “Punitive damages are not awarded for mere, inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.”

Instantly, plaintiffs’ cause of action is based upon negligence in trespassing upon plaintiffs’ property, and paragraph 15 is a pleading in conclusion of the conduct of the defendants that their conduct was not in accord with law and with the right-of-way agreement. We find no fault in utilizing words such as wanton, reckless, willful and intentional; however, to support an award of punitive damages the pleadings must state in what manner defendants’ conduct was egregious arid intentional. We appreciate this may border on objections to evidentiary pleading; however, if plaintiffs can appropriately plea defendants traversed over the property line into plaintiffs’ premises knowing where the property line was, this would be an example of willful and intentional conduct that clearly would support awarding of punitive damages.

We will therefore grant this preliminary objection.

Defendants’ additional objections that punitive damages are not awardable for breach of contract is without merit in that plaintiffs’ complaint is founded in negligence despite the assignment of a contract, which is not dispositive of plaintiffs’ right to elect a remedy.

Defendants’ objection punitive damages are not awardable for trespass upon real property or the cutting of timber is without merit.

IV

Defendants’ Motion for More Specific Complaint

This preliminary objection is to paragraphs 11 and 12 of plaintiffs’ complaint in that plaintiffs fail to allege the amount of damages claimed.

Paragraph 11 of the complaint lists eight items of damage without itemizing the dollar loss.

Plaintiffs argue they are entitled to allege general damages under one or both of the theories of trespass to land and breach of contract. We suggested at time of argument this invariably poses problems at time of trial when, as here, plaintiffs are advancing a mixture of what plaintiff perceives to be an action in contract as well as in tort without specifically identifying the nature of the claim. Rule 1020 of Rules of Civil Procedure permits the pleading of more than one cause of action and mandates each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.

Defendants are entitled to know the theory of recovéry upon which plaintiffs are proceeding without guessing what their defense may be as plaintiffs advance their respective actions at time of trial.

Addressing paragraph 11 specifically, some of the allegations of damages are clearly those that can be liquidated and others are unliquidated; e.g. 11(a) pleads plaintiffs have suffered a loss of use of their land (unliquidated). Paragraph 11(c) pleads plaintiffs have suffered irreparable damage in the loss of timber, loss of potential growth of timber and loss of profits from the manufacture of timber into lumber and other wood products (liquidated).

Paragraph 12 alleges plaintiffs retained a consulting forester to determine the amount of their loss and to plan and supervise reclamation and restoration work (of the land). “The cost of such services will be proved at trial.”

Plaintiffs’ reliance on 4 Standard Pa. Practice 2d, paragraph 23.18, following cases cited when, as a general rule, damages are sought for property destroyed or injured by defendants’ negligence it is not necessary, to aver the value of each particular item, is inappropriately applied in the instant case. The genesis of this rule stems from automobile and highway traffic damages and clearly not to damages to realty as here. ‘

It is apparent plaintiffs know the loss to the timber cut and removed as well as to the surface damage that will be incurred by reclamation work in that plaintiffs have retained a consulting forester to make this determination. These damages are clearly liquidated damages in that they lend themselves to a reduction to dollars and cents. Unliquidated damages are those which the law permits recovery despite the fact it is impossible to reduce the damage to a monetary amount.

Rule 1021(b) requires a pleading demanding relief for unliquidated damages to state if the amount claimed is or is not in excess of $10,000, and (c) in counties having rules governing compulsory arbitration the plaintiff shall also state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration referral by local rule.

We recognize we could relegate defendants to extensive discovery to determine the species of trees alleged to have been cut, the board feet thereof and the value pertaining to each. This seems to us to be totally unnecessary in light of plaintiffs’ burden of proof at time of trial which, for. the most part, the claim is for liquidated damages. Rule 1019(f) requires averments of time, place and items of special damage shall be specifically stated. •

We therefore grant this preliminary objection and order plaintiffs to state specifically the number and species of trees cut and the determined value thereof as plaintiffs perceive the damage. Also plaintiffs shall itemize the damage to the surface of the realty, costs of restoration and reclamation as plaintiffs perceive that cost to be.

Paragraph 11(a) and paragraph 11(b) may be pled generally without itemization. Plaintiffs shall state the cost of the retained forester. Plaintiffs shall comply with rule 1021(b) and (c) as is appropriate.

Finally, although not directed by the court, we strongly suggest plaintiffs give due consideration if plaintiffs perceive their entire action is in tort, contract, or a combination of both; and if the latter, to comply with rule 1020 of Rules of Civil Procedure.

For these reasons we enter the following

ORDER

And now, December 8, 1989, the preliminary objection in nature of a demurrer of defendant Conewango re agency/independent contractor issue is denied to be determined at time of trial.

The preliminary objection in nature of a demurrer of defendant Conewango re awarding of treble damages to plaintiffs is sustained.

The preliminary objection of defendant Conewango re punitive allegations is sustained and plaintiffs are granted leave to file an amended complaint to plead specifically and in what manner defendants’ conduct rises to an award of punitive damages if compensatory damages are recovered.

The preliminary objection of defendant Conewango for more specific complaint is granted as to paragraphs 11 and 12 of plaintiffs’ complaint, and plaintiffs are granted 20 days to amend the complaint in compliance with the opinion herein addressing paragraphs 11 and 12.


author: RAUP, P.J.,

text:
    BLaST Intermediate Unit 17 v. CNA Insurance Companies

      Michael L. Banks and David Bahl, for plaintiff.

      Karen M. Costello and Walter Tilley III, for defendant.
    March 8, 1990
   RAUP, P.J.,

The parties’ cross-motions for summary judgment arise out of plaintiffs, Blair, Lycoming, Sullivan and Tioga Counties Intermediate Unit 17, claim against defendants to pay the amount of a judgment entered against BLaST in a federal court action, Arnold V. BLaST Intermediate Unit 17, no. 83-0300 (M.D. Pa.). For the following reasons, we grant BLaST’s motion for summary judgment, and deny CNA’s cross-motion.

Summary judgment must be filed if the pleadings, discovery on file, and any supporting affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). The undisputed facts of the case are as follows.

From 1973 until July 1985, CNA provided BLaST with a Board of Education (BEL) liability insurance policy. Pursuant to the policy, CNA agreed to cover all losses which BLaST became legally obligated to pay as a result of any claims made against Intermediate for wrongful acts. The policy defines “loss” as:

“Any amount which the assured or the school district are legally obligated to pay, including but not limited to, any amount which the school district may be required or permitted to pay as indemnity to an assured, for a claim or claims made against assured for a wrongful act and shall include but not be limited to damages, judgments, settlements and costs, cost of investigation and defense of legal actions (excluding from such cost of investigation and defenses, salaries of officers or employees of the school district or any other governmental body) claims or proceedings and appeals therefrom, costs of attachment or similar bonds; provided always, however, such subject of loss shall not include fines imposed by the law, or matters which shall be deemed uninsurable under the law pursuant to which this policy shall be construed.”

The policy further defines “wrongful act” as:

“Any actual or alleged errors or misstatement or misleading statement or act or omission or neglect or breach of duty by the assureds in the discharge of their duties, individually or collectively, or any mat-. ter claimed against them solely by reason of their being or having been assureds during this policy period.”

The policy contains several exclusions from coverage, and in 1974, the exclusions were amended as follows:

“The insurer shall not be liable to make any payment for loss in connection with any claim against the assureds, and/or the school district . . . for any amounts due under the terms of any contractual obligation; however, except with respect to construction or demolition contracts this exclusion shall not apply to fees, costs and expenses of the investigation, defense or appeal of any claim or suit or arbitration or administrative proceedings resulting from any failure to perform or any breach of contract.”

The parties’ dispute centers on an interpretation of this exclusionary provision. A judgment in the amount of $161,026 was entered against BLaST in a sex-discrimination lawsuit filed in the U.S. District Court for the Middle District of Pennsylvania, Arnold v. BLaST Intermediate Unit 17, no. 83-0300. (M.D. Pa.) This action was based on the allegation that BLaST had hired a male teachers’ aid at a higher salary than female teachers’ aids were paid. The complaint sought relief under the Equal Pay Act, 29 U.S.C. §206(d). Title 7 of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) et seq.; 42 U.S.C. §1983; and Title 9 of the Civil Rights Act of 1974, 20 U.S.C. §1681.

The Title 7 and Title 9 claims against BLaST were dismissed with prejudice prior to entry of judgment, and the judgment against BLaST under section 1983 was vacated on appeal. Judge Muir, of the Federal District Court, entered judgment for the plaintiffs in the Arnold case in the amount of $161,026 plus interest solely on claims under the Equal Pay Act.

In his opinion entering judgment for the plaintiffs in Arnold, Judge Muir noted that the jury had concluded that the jobs of the female and male teachers’ aids were substantially equal. He concluded that BLaST had erred,in determining the salaries, but in so doing, it did not engage in intentional discrimination or misconduct. Therefore, although BLaST’s conduct was wrongful, it was not in bad faith.

Following entry of judgment against it, BLaST refused to pay on the grounds that all of its funds had been specifically designated for special education programs for handicapped children in the four-county area which the Intermediate Unit serves.

Eventually, however, BLaST did satisfy the judgment plus interest out of those special education funds.

BLaST had advised CNA of the federal lawsuit, and CNA had paid the cost of defending that action. After BLaST paid the judgment, it notified CNA that it had done so and requested reimbursement. CNA refused, and continues to refuse, on the ground that while the judgment is a loss which was a result of BLaST’s wrongful conduct, it is not covered by the BEL policy because it is ¿ contractual obligation which comes within the above-quoted exclusionary provision.

BLaST argues that coverage should be granted because the judgment is not a contractual obligation. Rather, the Middle District Court in Arnold found that BLaST made a wrongful determination of the salaiy to be paid to the male teacher aid rather than breaching terms or conditions of employment for teacher aids as a group. In support of its position that the judgment does not arise out of a contractual obligation, BLaST cites two cases in which the same exclusionary provision which is at issue here was decided against CNA. In Employers Mutual Casualty Company v. Sioux City Community School District, no. CL19-10933 (D. Iowa 1980), the U.S. Department of Labor sued the school district because it paid lower wages to female employees who performed jobs of the same skill, effort and responsibility under similar working conditions, than it paid to male employees. The government’s claim arose out of an alleged violation of the Fair Labor Standards Act, 29 U.S.C. §201 et seq. (into which the Equal Pay Act was incorporated as 29 U.S.C. §206(d) in 1963), and sought back pay for all employees against whom the school district had allegedly discriminated. The school district was insured under a BEL policy which is identical to the policy in the present case. After the suit between the Department of Labor and the school district was settled and the school district paid the judgment, the school district requested reimbursement from CNA. CNA refused on the same ground that it asserts here. In its opinion, the Iowa District Court cited numerous cases for the proposition that the obligation of employers under the Fair Labor Standards Act are statutory rather than contractual in nature. Based on those cases, the court concluded that:

“The money damages involved herein did not arise ‘under the terms of any contractual obligation.’ The court further concludes that Continental’s policy exclusion referred to in paragraph 6 is not applicable since the payment of the claim under the Fair Labor Standards Act was not the payment of an amount due under the terms of any contractual obligation. The court further concludes that the Continental policy provides coverage for the above-mentioned payments made by EMD and the school district. . .” Id. at 8.

BLaST also cites Indian River School District v. Continental Casualty Company, no. 79C-NO9 (Del. Superior Court 1980). Once again, this was a claim under the Equal Pay Act and the Fair Labor Standards Act by a school district employee who had allegedly been wrongfully terminated. The school district sought reimbursement for a payment of the judgment from its insurer, a subsidiary of CNA. The court ordered reimbursement, pointing out that an insurance contract is generally an adhesion contract; therefore, it must be liberally interpreted to protect the insured’s expectations. However, the court found that the equal-pay issue is not concerned with ambiguities in the policy language. Instead, the court stated:

“The District Court decision clearly, it appears, based the award of $21,402 on a finding of a violation of First Amendment rights, not a breach of contract. The computation of the amount of the award was based on the monetary obligations of the school district that would have been in effect because of the applicable statutes if the employee had not been improperly terminated; but the award was not made ‘under the terms of any contractual obligation.’ ” Slip op. at 1.

It is thus obvious that the court found that judgments which arise out of Equal Pay Act violations are statutory obligations as opposed to contractual. The court made this clear when it said:

“The obvious position of the insurer, that regardless of semantics, the board fired Eckard and thereby terminated some kind of. contract with him, upon which he was later ordered to be paid, ignores as well the sound basis for the adhesion contract rulings — the insurer had every opportunity to spell out in a few short words in its contracts, using its talented legal staff, that it excluded from coverage any act by any insured terminating any employee without a sound legal basis under contract or state law. The ‘reasonable expectation’ of the insured was that he was insured against making good-faith errors in judgment of this kind.” Id. at 2.

Based on the reasoning in the Indian River and Sioux City cases, supra, we accept BLaST’s arguments that the judgment in the present case was not a contractual obligation which BLaST incurred; therefore, the Intermediate Unit is entitled to reimbursement.

CNA has also raised the issue that on public policy grounds, it should not be forced to reimburse BLaST for the amount of the judgment. It cites Central Dauphin School District v. American Casualty Company, 493 Pa. 254, 426 A.2d 94 (1981) in support of its position. In that case, the Pennsylvania Supreme Court ruled that a school district could not recover from CNA the amount it returned to taxpayers following invalidation of an illegal occupation tax. The court concluded that public policy precludes a school district from levying unlawful taxes as a means of producing revenue. Because the tax is illegal, there was no loss within the meaning of the insurance policy issued by CNA. Id. at 260, 426 A.2d at 97.

In arguing that the tax was covered by the insurance policy, the school district contended that it acted in good faith and was guilty only of negligence in failing to pass a lawful taxing resolution. The court disagreed, saying:

“The validity of tax measures is not determined by the good or bad faith or negligence or lack of negligence of the governmental unit imposing the tax. Taxation is a governmental function controlled by constitutional provisions and statutory direction. The exercise of this function must strictly comply with constitutional and statutory controls.” Id. (citations omitted)

In our opinion, the Central Dauphin case is distinguishable from the case at bar. The Central Dauphin decision was clearly a limit on the school district power to levy taxes, a governmental function which is controlled by constitutional provisions. In the present case, however, Judge Muir clearly found that BLaST’s actions in setting salaries for teachers’ aids was a form of negligence. The amount the teachers’ aids are to be paid is not governed by constitutional direction; therefore, we cannot say as a matter of law that the public policy of the Commonwealth of Pennsylvania has been violated so as to deny BLaST coverage under its BEL policy. Accordingly, we issue the following

ORDER

And now, July 21, 1989, for the reasons set forth in the foregoing discussion, it is hereby ordered and directed that the motion for summary judgment filed by BLaST Intermediate Unit 17 is granted, and the cross-motion for summary judgment filed by CNA Insurance is denied.

       We note that CNA Insurance Company is a holding company for several insurance companies, including American Casualty Company of Reading. For ease of reference, both defendants will be referred to as CNA throughout this opinion.


author: RUBRIGHT, J.,

text:
    Commonwealth v. Haldeman

      Edward M. Brennan, assistant district attorney, for the commonwealth.

      David J. Rossi, for defendant.

      May 1, 1990
   RUBRIGHT, J.,

This matter is presently before the court on defendant’s omnibus pretrial motions in which they seek the suppression of evidence on the grounds that the affidavit of probable cause is insufficient to allow the issuing authority to determine probable cause to issue ■ a search warrant. A hearing was held at which the commonwealth introduced the search warrant and affidavit as an exhibit.

The affidavit of probable cause provides as follows:

“Information received from one Robert Gwinn who purchased marijuana this date from said residence at approx. 1800 hours from Nancy Haldeman for $25. Informant stated that he purchased approx, one-eighth oz.”

Defendants argue that the search warrant was improperly issued because the affidavit did not establish the reliability of the informant and it contained nothing to corroborate the information.

In determining the propriety of the issuance of the search warrant, we may only consider the affidavit which was sworn to before the issuing authority. Pa.R.Crim.P. 2003(b). The standard for analyzing probable cause for a search warrant based upon an informant’s statements to police is the “totality of the circumstances” standard as announced by the U.S. Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983). The test has been stated as follows:

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding] that probable cause existed.’ Jones v. United States, [362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed. 2d 697 (1960)].” Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985), quoting Illinois v. Gates, 462 U.S. at 238-9, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548.

Although the affidavit in the instant case sets forth the “basis of knowledge” of Robert Gwinn, that being his purchase of marijuana from Nancy Haldeman, the affidavit includes nothing from which the district justice could conclude that the information he supplied to the police was reliable. The fact that the informant was named in the affidavit, although a factor to consider in determining whether probable cause exists, is not sufficient to support a finding of probable cause. Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978).

The affidavit did not set forth the circumstances under which the information was supplied. Therefore, we cannot ascertain from the affidavit itself whether Robert Gwinn voluntarily approached the police and told them he had purchased marijuana, whether he had been arrested and supplied the information upon questioning by the police, or whether he supplied the information under some other circumstances. Certainly, the circumstances are highly relevant in determining the informant’s reliability. In addition, the affidavit does not indicate that the police conducted any investigation in an effort to corroborate the information supplied by Mr. Gwinn. Finally, even assuming the reliability of the informant, the affidavit does not include any information from which one could conclude that there was more marijuana in the home.

For all of the reasons listed above, we find that the affidavit was insufficient to establish probable cause to search defendant’s residence. Accordingly, we enter the following

ORDER OF COURT

And now, May 1, 1990, it is hereby ordered that defendant’s omnibus pretrial motions are granted and all evidence seized as a result of the search of defendants’ residence is suppressed.


author: SUBERS, J,

text:
    Viola v. Savar

      Edward N. Flair Jr., for plaintiff.

      Peter Delcollo, for defendants.
    February 21, 1990
   SUBERS, J,

Plaintiffs appeal from the court’s order sustaining defendants’ preliminary objections and thereby striking plaintiffs mechanics’ lien claim and complaint for failure to conform to the Mechanics’ Lien Law of 1963, 49 P.S. §1101, et seq.

Plaintiff is a Pennsylvania corporation and is engaged in the business of builder and general contractor. Defendants, husband arid wife, are the owners of real estate at 2309 Barren Hill Road, Lafayette Hill, Pennsylvania.

The parties entered into a written contract on October 22, 1987, to renovate the Barren Hill Road structure for $35,500.

A dispute between the parties in February 1988, resulted in a work stoppage on the project. On June 10,1988, plaintiff filed a mechanics’ lien against the real estate at 2309 Barren Hill Road for $24,419. i6. On September 20, 1988, plaintiff filed a complaint to obtain judgment on the. lien.

Ori October 17, 1988, this court, per Judge Brown, permitted service to be effectuated by posting either at the Barren Hill Road property or at 2322 Harts Lane, Lafayette Hill, Pa. The complaint was reinstated on October 25,1988, and service was effectuated on October 28, 1988.

Defendants filed their preliminary objections and motion to strike on November 16, 1988. Plaintiff answered defendants’ preliminary objections on December 12,1988. On December 20,1989, this court entered an order sustaining the defendants’ preliminary objections and striking plaintiffs mechanics’ lien claim and complaint.

Plaintiff has now filed a concise statement of matters complained of pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), which states, as follows:

“Direction to file statement of matters complained of
“The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of in the appeal no later than 14 days after entry of such order.”

ISSUE

Did the court properly sustain defendant’s preliminary objections and strike' plaintiff’s mechanics’ lien claim and complaint based thereon?

DISCUSSION

Plaintiff argues that this court improperly sustained defendants’ preliminary objections and granted their motion to strike. We do not agree.

The relevant rule of law is that a claim for a mechanics’ lien which is self-contradictory is defective and may, if the defect is substantial, be stricken off. Morrison v. Hendersen, 126 Pa. 216, 17 Atl. 599 (1889). In the instant case, we find that plaintiffs mechanics’ lien claim is self-contradictory, and that the defect is substantial enough to justify striking the claim and the corresponding complaint.

The defect in plaintiffs claim is found in paragraph four. Plaintiff alleged that the parties on December 7, 1988, orally modified their pricing arrangement in that the cost of the project was changed from a fixed price of $35,500 to an amount determined on a cost plus percentage basis. However, plaintiff proceeds to use the original contract price of $35,500 from which he subtracts certain charges credited to defendants and arrives at the principal amount due of $24,419.16. This court cannot readily ascertain from the lien claim that plaintiff properly continued to use the original contract price as the base figure to compute the lien amount, and then that the- amount claimed is properly due plaintiff.

Even if plaintiff properly used the original contract price as the' base figure to compute the lien amount, we still find that the mechanics’ lien claim is flawed. The Mechanics’ Lien Law of 1963 requires that the lien claim contain a statement of labor and materials furnished by the claimant, and the degree of specificity required of that statement depends on the applicable subsection of 49 P.S. §1503. Title 49 P.S. 1503(5) and (6) provide, respectively, as follows:

“§1503. Contents of claim
“The claim shall state:
“(5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a general statement of the kind and character of the labor or materials furnished: ,
“(6) in all other cases than that set forth in clause (5) of this section, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof;. . .”

In the case at bar, plaintiff allegedly modified its contract from a fixed price, and is therefore no longer governed by 49 PtS. 1503(5), but by 49 P.S. 1503(6). Plaintiff did not comply with 49 P.S. 1503(6) and supply a detailed statement of the kind and character of the labor or materials furnished. Instead, plaintiff has attached to its claim a tremendous pile of photocopied exhibits, which include many illegible documents used to verify the work done by the claimant. The court cannot determine the accuracy of the claim with the materials supplied.

Therefore, because we find that the defects in plaintiffs claim are substantial, and because work ceased on the project two years ago, plaintiffs claim has been dismissed with no leave to amend.

CONCLUSION

The order sustaining defendant’s preliminary objections and striking plaintiffs mechanics’ lien claim and complaint filed thereon was proper and, therefore, should be affirmed.


author: TOOLE, J.,

text:
    Ciavarella v. Hanover Township

      James T. Lesko, for plaintiff.

      Peter J. Savage, for defendants.
    March 5, 1990
   TOOLE, J.,

This case comes before us pursuant to an appeal by Frank J. Ciavarella from a refusal of Hanover Township to provide a requested copy of a line-item-by-line-item worksheet supporting a proposed amended budget for 1990.

Frank Ciavarella, a Hanover Township resident and taxpayer, went to the municipal building on January 16, 1990, and requested a copy of a proposed and advertised amended budget for 1990. He received a one-page summary sheet. A request to examine the line-item-by-line-item worksheets which obviously gave rise to the one-page summary sheet was denied. On January 17, 1990, Mr. Ciavarella again appeared, requested and was refused the right to inspect and photocopy, the amended budget on a line-item-by-line-item basis. A subsequent letter from counsel requesting the information was also rejected and denied.

Ciavarella bases his right to examination on the so-called “Right to Know Act,” Act of June 21,1957, P.L. 390, as amended, 65 P.S. §66.1 et seq. Essentially Ciavarella contends that the worksheet used as a basis for compilation of the summary sheet he was given is a public record which must be made available to him and any other requesting taxpayer. The township counters that they provided the only instrument required by law and that the worksheets employed by any commissioner or any other person in the budgetary computations are not public records. .

We begin with the recognition that the appropriate remedy for a person denied a request to examine and inspect public records would be an appeal to this court under the Right to Know Act. See 65 P.S. §66.4. See also, Barton v. Penco, 292 Pa. Super. 202, 436 A.2d 1222 (1981).

We turn then to the issue of whether or not the worksheets sought in this matter constitute a “public record” which is defined in the act as follows:

“(2) ‘Public Record.’ Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons. . .”

Ciavarella contends that the one-page sheet provided to him was obviously based upon a worksheet cbmpilation. He does not seek and indeed he is not entitled to any worksheet of any particular official. What he does seek is to inspect the worksheet which supports the compilations which appear on the one-page summary sheet furnished to him. He contends in effect that this worksheet constitutes a decision by the agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons as provided in the act.

In asserting his right to examine the requested document or documents, Ciavarella relies principally on the concept that the requested document constitutes a public record. Our focus is then on that portion of the definition which reads: “Any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.” As the court noted in Pennsylvania Association for Children and Adults with Learning Disabilities v. Commonwealth, Department of Education, 91 Pa. Commw. 531, 498 A.2d 16 (1985), this language is to be read as including, but not limited to, “decisions which establish, alter, abolish or deny rights, privileges, immunities, duties or obligations.”

There is no question that the township supervisors are required to prepare a proposed budget reflecting as nearly as possible the estimated revenues and expenditures needed by the township for the budgetary year. The budget is required to be prepared on a uniform form which is prepared and furnished as provided in th,e act. Final action is not to be taken on any proposed budget until after at least 10 days’ public notice. The proposed budget is directed to be published or otherwise made available for public inspection at least 20 days prior to the date set for the adoption of the budget. The township commissioners, after making such revisions and changes therein, as appear advisable, must adopt the budget not later than December 31. The township commissioners are then required to file a copy of the adopted budget with the office of the Department of Community Affairs (see P.S. §56701). The commissioners have, of course, the right to amend the budget provided there is a period of 10 days’ public inspection of the proposed amended budget after notice. See section 56701.1.

The township contends that the worksheet for the proposed amended budget is nothing more than an estimate which was not binding upon anyone and so could not be construed as a minute, order or decision of the Board of Commissioners of Hanover Township and as such are not public records. In support of their position, they cite Butera v. Commonwealth of Pennsylvania, Office of Budget, 29 Pa. Commw. 343, 370 A.2d 1248 (1977). Ciavarella, on the other hand, cites Young v. Armstrong School District, 21 Pa. Commw. 203, 344 A.2d 738 (1975).

It is clear that the budgetary form completed and made available for inspection by the Hanover Township Commissioners was based upon some compilation or worksheet. If that worksheet does not in an of itself represent a decision by the commissioners, it certainly “constitutes an essential component of [the commissioners’] decision” by an agency within the meaning of the act. This is the sort of record which obviously provides the basis for the figures which have been placed upon the form made available for public inspection. This worksheet is the sort of record which explains the accuracy of the proposed budget. It is true that the commissioners are not bound to the figures in the worksheet or in the budget as they are subject to amendment and/or final adoption. However, we do note that it is unlawful to prepare and advertise notice of a proposed budget when the same is knowingly inaccurate. We believe the definition of public record in the act is broad enough to encompass the worksheet sought in this case. We see no difference between the worksheets in this case and the records involved in Young v. Armstrong School District, 21 Pa. Commw. 203, 344 A.2d 738 (1975) and Patients of Philadelphia State Hospital v. Commonwealth, 53 Pa. Commw. 126, 417 A.2d 805 (1980) and the statistical data involved in Pennsylvania Association for Children and Adults with Learning Disabilities v. Commonwealth, Department of Education, 91 Pa. Commw. 531, 498 A.2d 16 (1985).

While we find Butera, supra, instructive, we do not believe it controls or resolves the present issue. We believe the worksheet here involved is different or distinguishable from the departmental budget reports in that case. These figures were more than informational. Indeed, unless amended, they would fix the taxpaying obligation of the township residents.

In any event, we believe the inspecting public should, as a matter of right, be entitled to inspect and to copy, if necessary, not just the one-page summary sheet offered in this case but the right to examine and analyze the line-by-line items which give rise to the computations shown on the summary. To permit or require inspection only of the summary sheet does not in any way promote the spirit or the letter of the law. There is no real benefit in examining a summary sheet unless the data upon which it is based is also available for taxpayer perusal. It is only in this way that the inspecting public can determine whether the proposed budget is or is not inaccurate.

For any and all of the foregoing reasons, we enter the following

ORDER

The Board of Commissioners of Hanover Township is ordered and directed to make available for inspection and photocopying the worksheet or compilation employed and utilized in the preparation of the proposed amended budget which was made available for inspection and provided to petitioner.


author: HOUSE, P. J.,

text:
    Commonwealth v. Leet

      George Kepple, district attorney, for the commonwealth.

      Joseph F. Canuso, for defendant.
    February 27, 1989
   HOUSE, P. J.,

In this case we must confront an issue of considerable interest and importance. Does a deputy sheriff have legal power to make a traffic stop and/or arrest? We agree with the commonwealth that, in general, law enforcement authorities have such powers as are granted them by statute. In the case of sheriffs and their deputies, however, there are no statutes which specifically define the duties of or powers exercisable by such officials. In the absence of statutory authority, the sheriffs police powers, if any he has, must of necessity be based upon the common law. Historically, the sheriff has been a most important figure and, in medieval England, that officer was described as “the principal conservator of the peace within his bailiwick.”

The office of sheriff, as it has evolved through the centuries, has had two primary functions: First, there has been the above-mentioned function of the keeping of the public peace and order and, second, the still-evolving function of action as an arm of the courts by serving the court’s process, executing and enforcing the court’s orders, taking custody of the court’s prisoners and providing security for the court’s operations.

Insofar as the sheriff’s duties in connection with the courts are concerned, there can be no doubt whatsoever that the sheriff and his deputies do have the power (derived from the court itself) to enforce the court’s directives by stop and arrest at least where violation of the directives occurs in the presence of the sheriff and/or his deputies. Likewise, there can be little doubt that the sheriff and his deputies retain their historic powers as peace officers, that is, the power to stop and/or arrest where breaches of the public peace or public order occur in the presence of such officers or concerning which they have reliable information.

Bouvier’s Law Dictionary (Francis Rawle’s 3d Revision) 8th ed., West Publishing Co. (1914) contains a rather comprehensive discussion of the office of sheriff and of powers of arrest generally.

Bouvier indicates that “any peace officer...sheriff...may without a warrant arrest any person committing a felony in his presence;...or committing a breach of the peace, during its continuance or immediately afterwards;...whether acting on his own knowledge or facts communicated by others ...and not unless the offense amount to a felony.” Bouvier at 243.

Bouvier quoting others states that in feudal times the sheriff “grew to be the ruler of the country, responsible for its revenues, military force, police, gaols and courts, and the execution of the writs of the Curia Regis.” Bouvier at 3058. But Bouvier goes on to outline the later history of the office in which most of the above powers waned and/or were stripped away and the sheriff had evolved into “an attendant of the courts of law.” Indeed Bouvier quotes Maitland as stating that “the whole history of English justice and police might be brought under this rubric — the Decline and Fall of the Sheriff.”

Thus, it is quite safe to conclude that the sheriffs office which crossed the ocean and was embedded in the Pennsylvania Constitution was a much less powerful and comprehensive office than that which existed in England in the early centuries after the Norman Conquest.

Bouvier ascribes to the sheriff the power “to pursue and to take all traitors, murderers, felons and rioters” and states that it is the sheriffs duty “to preserve the peace within his bailiwick or county.”

Thus, it does appear that the office of sheriff, at the time of its enshrinement in the Pennsylvania Constitution, carried with it the power to arrest for felony violations as well as for breaches of the peace.

At the time of the initial adoption of our constitution, virtually all felonies were then common-law felonies as opposed to statutory felonies. Today, by statute, all common-law felonies have been abolished and we now have nothing but statutory felonies. Thus, a question exists as to whether the sheriffs powers to arrest for felony still survives. However, that question is not before us and we do not decide it.

Neither Bouvier, supra, nor any other source we have been able to find attributes to the sheriff the power to arrest on view or upon information for misdemeanor offenses or for statutory offenses of any description.

“Peace officer” is defined in Webster’s New International Unabridged Dictionary (2d ed.) as “A civil officer whose duty it is to preserve the public peace, as a sheriff or constable. Policemen are made peace officers by statute.” (emphasis supplied)

By contrast, “police” is defined, inter alia, as: “the department of government charged with the prevention, detection, and prosecution of public nuisances, crimes, etc.”

While there may be room for controversy, it does appear that there is an historic and fundamental difference between the duties and functions of-sheriffs and the duties and functions of police.

The Pennsylvania Constitution in Article 9, section 4 provides that county officers shall include, inter alia, “sheriffs.” However, neither the constitution nor statutes define “sheriff’ or the powers of the office.

Under the Pennsylvania Constitution the legislative power is vested in the General Assembly. That body has seen fit to enact statutes which create or authorize the creation of state and municipal police departments. The General Assembly has further selected these police arms so created by it to be the enforcers in the execution of the laws enacted by it. Perhaps by inadvertence, but almost certainly by design, the General Assembly has never seen fit to enact legislation either defining the áheriff s powers or specifying that the sheriff shall have general police powers insofar as statutory enactments are concerned.

The commonwealth argues in the case at bar that the sheriff has common-law police powers but, as shown above, we do not have an exclusively common-law government. Ours is a constitutional government and the powers granted to the branches of that government are therein defined. The constitution taken together with the lawful enactments of the legislature constitute the “policy” of the commonwealth and the “police” are the designated enforcers of that “policy.” It is, thus, no accident that these two words “policy” and “police” are from the same word root and that, indeed, in earlier times they were used interchangeably.

Obviously, since the police are but creatures of the legislature, they can have and exercise only those powers delegated to them by legislative enactment. Thus, the conclusion seems compelled that in Pennsylvania, at least, the powers of police officers are purely statutory. Does this mean that there are and can be no “common-law” police powers?

Pennsylvania unquestionably is a common law state in the sense that Pennsylvania has always considered that its body of law incorporates the so-called English common law. But that does not mean that the powers wielded under feudal English common law by the lord of the manor or local knight or sheriff are now necessarily to be attributed to the modern counterparts of those ancient officers. The lord of the manor, the knight and the sheriff all then had a hand in maintaining peace and order and in enforcing the “law,” i.e. the king’s will. Today the lord of the manor sits in Parliament and knighthood is an honorarium in England and a justice of the peace in America. Only the sheriff survived the trans-Atlantic crossing and, then, apparently only in his capacity as a peacekeeper and as an executor of the court’s process. In examining the whole history of this commonwealth, we have not found nor have we been shown that the office of sheriff in Pennsylvania has ever claimed or historically exercised general police powers — that is, powers to enforce statutory enactments as opposed to peacekeeping powers.

These who argue that the medieval sheriff may have had general arrest powers overlook the fact that the English common law was never a fixed and static thing. Over the centuries the common law evolved and, presumably, continues to evolve in the land which gave rise to it.

In any event, it is not the English common law as it existed at the time of King John and Magna Carta that has been incorporated into our body of law in Pennsylvania. Rather, it is the English common law as it existed at the time of our Declaration of Independence in 1776 to which we must look for guidance and common-law precedent.

As we observed above, we are aware of no then-existing common law precedent for general arrest or police powers in a sheriff although it is clear that the sheriff retained his historic peacekeeping powers and power to arrest for felony.

The Vehicle Code contains an “Enumeration of police powers” at 75 Pa.C.S. §6109 and also contains a provision as to who may arrest without a warrant at 75 Pa.C.S. §6304. The first of these sections of the code (section 6109) refers to the delegation to local municipalities of the power to enact local laws or regulations as to certain traffic matters. It does not relate to police or peace officers as such. The latter section (section 6304) sets out that the code is to be enforced by the Pennsylvania State Police; by “other police officers” in some cases; and preserves any powers of arrest “conferred by law.”

As we have demonstrated, the sheriff and his deputies are not police officers and we can find no statutes otherwise bestowing upon them the powers of arrest for violations of statutes in general or for violations of the Vehicle Code in particular.

It should be noted that, while the Crimes Code itself is silent as to who has the power to arrest for violations of its provisions, it does provide that all common-law crimes are abolished (18 Pa.C.S. §1079G). Both the Vehicle Code and the Crimes Code appear to be complete statutory schemes which completely cover their subject matter so as to leave no room for other common-law offenses or common-law enforcement powers.

The only published Pennsylvania case we have found or which we have been cited to, which attributes criminal investigation powers to the office of sheriff is Miller v. Klunk, 15. D.&C. 3d 599 (1980), an Adams County case, which was concerned with financial matters and not with the issue of the arrest powers, if any, of the sheriff. Miller simply does not bear upon the issue before us.

The case of Commonwealth v. Shoop, 108 Dauphin Rep. 426 (1988) involved the arrest or attempted arrest by two deputy sheriffs of an election official. In that case, our sister court directly concluded that the deputies were not “police officers” and, in support thereof cited Venneri v. County of Allegheny, 12 Pa. Commw. 517, 316 A.2d 120 (1974); Allegheny County Deputy Sheriffs Association v. Pennsylvania Labor Relations Board, 95 Pa. Commw. 132, 504 A.2d 437 (1986), as well as other Commonwealth Court cases. While the Commonwealth Court cases cited above have been concerned with labor relations issues involving sheriffs and their deputies, they, together, rather exhaustively review the history and traditional powers of the office of sheriff and, tacitly, conclude that sheriffs and their deputies are peace officers and not police officers.

The commonwealth cites a.passage in the lower court’s opinion in Commonwealth v. Venneri, 121 Pitts. Leg. J. 366 (1973) as support for its position that sheriffs and their deputies have general arrest powers. That case relates to the sheriff of Allegheny County and his employees and the opinion openly states that it was the “present sheriff’ who “resuscitated” the ancient powers of the office in engaging “in criminal investigations” and making a total of “544 arrests.” The Allegheny County Court found this very recent activity “to be entirely proper and not subject to judicial restriction.”

However, while we agree that the courts must not “restrict” the otherwise legitimate powers of the sheriff, the true issue to be decided here is whether, in fact and in law, the modern office of sheriff possesses general law enforcement powers so as to enable him and his deputies to make traffic stops and engage in other forms of statutory enforcement. We do not believe that the very recent activities of one or a few sheriffs in Pennsylvania casts any light on this important issue or points the way to its resolution.

We believe that in A.D. 1989, it is neither reasonable nor legally sound to ascribe to the office of sheriff powers that it may or may not have possessed in A.D. 1100 at common law in medieval Britain. The passage of many centuries in which those powers have unquestionably declined and/or went unused and/or were delegated to others by legislative enactment has effectively extinguished the sheriffs powers if, indeed, any existed at common law.

We are satisfied that the General Assembly has amply demonstrated in numerous enactments that it is fully conscious of the difference between a “peace” officer and a “police” officer. Significantly, that body has never seen fit, in all the centuries of its existence, to designate sheriffs and their deputies as “police officers” or to delegate to them any general or special law enforcement powers whatsoever.

Contrary to the commonwealth’s bald assertion in its brief, moreover, the Municipal Police Jurisdiction Act (Act 141; 42 Pa.C.S. §8951 et seq.) does not provide that a deputy sheriff is a municipal police officer. What Act 141 does say is that a municipal police officer is a person employed by a municipality as a police officer.

Merely because a deputy sheriff is a county employee does not mean that he becomes automatically a county police officer. Armstrong County has not created a county police force (if, indeed, it has the power to do so) and has not employed any persons as police officers. All that Armstrong County has done is authorize the hiring and compensation of sheriffs deputies.

We believe that the commissioners of Armstrong County would be quite surprised, unpleasantly so, to learn that they are or will be providing financial support to equip and man a general county-wide police force engaged in traffic patrols and criminal investigation and enforcement.

Next the commonwealth argues that, since the deputy sheriff has obtained the training required under the Municipal Police Officers’ Education and Training Program, he becomes authorized to make arrests pursuant to the Municipal Police Jurisdiction Act. Once again the commonwealth is attempting to put the bunny in the hat by simply asserting that the sheriffs operation is a police department of the county and that the deputy thus qualifies as a “police officer” or “municipal police officer.” But we can find no legislative enactment, county ordinance or resolution or other provision of law which designates the sheriffs department as a police department or confers upon the sheriff and his deputies the powers of police officers regardless of the training that such persons may have received.

Unquestionably, the General Assembly has the constitutional power to designate sheriffs and their deputies as “police officers” and to endow them with full powers of statutory enforcement. And if the General Assembly sees fit to enact legislation to so empower the office of sheriff, this court would be entirely comfortable with such a result. However, it would be a usurption of the authority of the General Assembly if we were to ascribe such police powers to the sheriff in the absence of legislative enactment.

Perhaps the legislature will soon turn its attention to the lack of any enactment defining the powers of the sheriffs and their deputies and thus end the uncertainty as to the powers of this important office.

The court invited and received an amicus curae brief in this case prepared by the Sheriffs’ Association of Pennsylvania. We have considered that brief and its arguments together with the commonwealth brief in this matter. Reluctantly, but correctly we believe, we have found those arguments unpersuasive. Taken together, they seem to argue that any doubt about the sheriff’s powers should be resolved in favor of the sheriff on the basis of the always difficult to define and now even more remote common law. We see it differently, however. This is a criminal case and it is defendant who is entitled to the benefit of any doubt that may exist.

An on-view traffic violation stop and/or arrest does not involve a breach of the peace. The purpose of such a stop is purely to vindicate and enforce a legislative enactment which relates to the movements of vehicular traffic on the public highways. We hold, albeit regretfully, that the deputy did not have the power or authority to stop and hold defendant for the arrival of local police. Since all of the evidence in this case flows from the unlawful stop, we hold it must now be suppressed.

ORDER OF COURT

And now, February 27, 1989, after hearing and the submission of written argument and briefs, and for the reasons contained in the annexed memorandum, defendant’s motion for suppression of evidence is granted and it is ordered, adjudged and decreed that all evidence obtained as a result of the stop/arrest of defendant by the sheriffs deputy be and now is suppressed and shall be inadmissable in any trial of defendant upon the charges brought against him in the above-captioned matter.


author: MORAN, J.,

text:
    In re Involuntary Termination of D.M.R.

      Christopher Spadoni, for petitioner.

      Jeffrey Greenwald, for respondent.

      Leonard Mellon, for minor child.

      March 17, 1989
   MORAN, J.,

This matter comes before the court following a non-jury hearing held before the Honorable William F. Moran on February 12, 1988. A second hearing was held on December 30, 1988. Following the taking of testimony and transcription of the notes of testimony, the parties were granted leave to file briefs with the court. After a careful review of the testimony, we make the following

FINDINGS OF FACT

(1) The minor child in this matter, D.M.R., was born on February 16, 1985.

(2) The natural mother of the minor child, D.M.R., is Lisa Retter.

(3) The natural father of the minor child, D.M.R., is John Rodriguez.

(4) The natural parents of the minor child, D.M.R., were not married at the time of conception or at any time subsequent to the birth of D.M.R.

(5) On October 21, 1986, Lisa Retter, the natural mother of the minor child, D.M.R., was murdered by the minor child’s natural father, John Rodriguez.

(6) On March 9,1987, John Rodriguez pled guilty to the murder of Lisa Retter. The plea was accepted for murder in the third degree. As a result of John Rodriguez’s guilty plea, he received a sentence of imprisonment of not less than 10 years, nor more than 20 years to be served in a state correctional institution.

(7) At present, John Rodriguez is imprisoned in the state correctional institution located at Camp Hill, Pa.

(8) On October 21, 1986, Kathy Snyder, the maternal grandmother of the minor child, D.M.R., retrieved D.M.R. from Mr. and Mrs. Juan Rodriguez, the paternal grandparents of minor child D.M.R.

(9) In December 1986, Kathy Snyder obtained an order of the court granting her physical custody of the minor child, D.M.R.

(10) Kathy Snyder retained physical custody of the minor child, D.M.R., from October 21, 1986 through March 1, 1987.

(11) John Rodriguez knew that the minor child, D.M.R., was in the care and custody of Kathy Snyder from October 21, 1986 through March 1, 1987.

(12) During the period October 21, 1986 through March 1, 1987, John Rodriguez had no contact or communication of any nature, either directly or through third parties, with Kathy. Snyder, concerning any matter, including the parenting of the minor child, D.M.R.

(13) From October 21, 1986 through March 1, 1987, John Rodriguez made no effort of any kind to contact or have communication with his daughter, the minor child, D.M.R.

(14) On March 1, 1987, physical custody of the minor child, D.M.R., was given by Kathy Snyder to her brother and sister-in-law, Douglas and Marcia Snyder, husband and wife.

(15) Douglas and Marcia Snyder, are respectively, the granduncle and grandaunt of the minor child, D.M.R.

(16) The minor child, D.M.R., has been in the exclusive physical custody of Douglas and Marcia Snyder from March 1, 1987 through the present time.

(17) On March 6, 1987, Douglas and Marcia Snyder obtained an order of this court transferring physical custody of the minor child, D.M.R., from Kathy Snyder to them.

(18) At some point during 1987, John Rodriguez, the natural father of the minor child, D.M.R., came to learn that Douglas and Marcia Snyder had obtained custody of the minor child, D.M.R.

(19) From March 1, 1987 through late August or early September 1987, Douglas and Marcia Snyder did not receive any telephonic communication, financial support, information concerning parenting, counseling, or direction in regard to the upbringing of the minor child, D.M.R., from John Rodriguez, the natural father of the minor child.

(20) From March of 1987 through the early fall of 1987, John Rodriguez made no effort to contact or communicate with Douglas and Marcia Snyder or the minor child, D.M.R.

(21) John Rodriguez, the natural father of the minor child, D.M.R. did not have any contact with either D.M.R. or any adults who were her primary caretakers during the period from October 21, 1986 through late August or early September 1987.

(22) John Rodriguez’s first attempt to contact D.M.R. since October 21,1986, came in late August or early September 1987.

(23) Sometime in the late summer or early fall 1987, Douglas and Marcia Snyder received a card from John Rodriguez which was addressed to the minor child. The card stated “I love you and miss you, Love, Daddy.”

(24) During the Christmas of 1987, Douglas and Marcia Snyder received two Christmas cards addressed to the minor child, D.M.R. from John Rodriguez, the natural father of the minor child.

(25) The three cards addressed to the minor child, D.M.R., did not contain any parenting instructions or directions regarding parenting, from the natural father, John Rodriguez, with respect to the minor child, D.M.R.

(26) The minor child, D.M.R. was approximately 18 months of age when John Rodriguez sent the first greeting card in late August or early September 1987.

(27) The minor child, D.M.R. was approximately 21 months of age when John Rodriguez sent two Christmas cards in December 1987.

(28) Douglas and Marcia Snyder, from March 1, 1987 through February 12, 1988, did not receive any instructions or inquisition from any third party on behalf of John Rodriguez concerning their care and custody of the minor child.

(29) John Rodriguez’s only effort to communicate with the minor child, D.M.R. has been three cards addressed to her. At no time has Mr.. Rodriguez, either personally or through the use of surrogates on his behalf, contacted the minor child herself or any of the adults who were her primary caretakers.

DISCUSSION

In this case, we are guided by the statute governing involuntary termination of parental rights.

23 Pa.C.S. §2511, in pertinent part, states as follows:

“(a) General Rule — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
“(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
“(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
“(b) Other considerations — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.”

In the case at bar, petitioners have alleged that the natural father of D.M.R. has, by his conduct, relinquished his parental claim to D.M.R. because of his continued failure to perform parental duties. Additionally, the petitioners, Douglas and Marcia Snyder, have alleged that the 10- to 20- year period of incarceration John Rodriguez will serve evinces a repeated and continued incapacity of the natural parent, John Rodriguez, to provide the minor child with essential parental care.

It is undisputed that the petitioners bear the burden of proof in this matter and their burden is to provide clear and convincing evidence that the statutory elements exist before termination is possible. In re Adoption of Sabrina, 325 Pa. Super. 17, 472 A.2d 624 (1984), citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed. 2d 559 (1982). With this standard in mind, we now turn to the merits of the instant petition.

It is undisputed that the natural father, John Rodriguez, did not have any contact with the minor child, D.M.R., and failed to perform his parental responsibilities for a period in excess of six months. In fact, the only communication between John Rodriguez and D.M.R. from October 21, 1986 through February 12, 1988, the date of the hearing on the instant matter, were three greeting cards addressed to D.M.R. It must be noted that at the time these cards were sent to D.M.R., the child was less than two years of age. Clearly, a child of such tender years is incapable of reading a greeting card. This “contact” by John Rodriguez is the equivalent of no contact with D.M.R. Since John Rodriguez did not have contact with D.M.R. for over six months, it would seem that this matter could be disposed of summarily. However, the added factor of John Rodriguez’s incarceration for the murder of D.M.R.’s mother must be taken into account by this court in determining whether or not to terminate John Rodriguez’s parental rights.

The law in the “novel” area of terminating the parental rights of an incarcerated parent is clear. The absence of a parent or failure of a parent to support a child due to incarceration is not conclusive on the issue of whether that parent has abandoned the child. In re Adoption of McCrea, 460 Pa. 210, 331 A.2d 652 (1975).

“However, a parent’s responsibilities are not tolled during his or her incarceration; rather we must inquire whether the parent utilized those resources available while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, that parent’s other rights may be forfeited. Therefore, although parental rights cannot be terminated based solely on the fact that a parent is incarcerated, that parent continues to have an affirmative duty to maintain [his] relationship with [his] child.” In re Adoption of Sabrina, 325 Pa. Super. 17, 26, 472 A.2d 624, 628-9 (1984). (citation omitted)

The Pennsylvania Superior Court in the case of In Interest of J.E.S., 365 Pa. Super. 291, 529 A.2d 514 (1987), affirmed a trial court order terminating the parental rights of an incarcerated parent. In J.E.S., the appellant father was incarcerated on a sentence of three and one-half years to 10 years imprisonment following a conviction for a charge of sexual abuse. For a period of 18 months, the appellant sent his two children a total of no more than four letters. “He did not send them any cards or gifts, he did not contribute to their support, he did not call, them on the telephone, and he contacted Children and Youth Services only once concerning his children shortly after he went to jail. In short, appellant > exhibited no real interest in and concern for the welfare of his children.” In Interest of J.E.S. at 293, 529 A.2d at 515.

It is clear that the inaction of John Rodriguez in regard to his parental duties is similar to the inaction of the appellant in J.E.S..

Respondent, John Rodriguez, states that this court must look to his exhibition of parental concern within the framework of the surrounding circumstances. It is contended by Mr. Rodriguez that by not contacting D.M.R., either personally or through surrogates, he has shown parental concern because of the unique situation concerning not only his incarceration but the death of D.M.R.’s mother. However, our interpretation of parental concern differs from Mr. Rodriguez’s interpretation.

“Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child’s life.” In re Burns, 474 Pa. 615, 624-5, 379 A.2d 535, 540 (1977).

A careful review of the evidence clearly indicates that John Rodriguez did not have contact with the minor child, D.M.R., for a period in excess of six months. From the beginning of the period Mr. Rodriguez has been incarcerated, he has not exerted himself in an effort' to utilize any of the available resources to preserve his parental relationship and “maintain a place of importance in the child’s life.” While the court is mindful of the fact that an incarcerated prisoner does not have all of the liberties and opportunities available to a parent in more normal circumstances, we are also mindful that Mr. Rodriguez has not attempted to overcome any of the obstacles in order to maintain a parental relationship with D.M.R.

Mr. Rodriguez posits the theory that any attempt(s) to contact the various custodians of D.M.R. during his period of incarceration would have been met with disapproval. While this may be true, Mr. Rodriguez’s relationship with the custodial caretakers of D.M.R. is secondary to his relationship with D.M.R. Mr. Rodriguez has not exhibited any affirmative effort to perform his duty as a parent. His decision to sit back and allow D.M.R.’s life to continue without his intervention for almost one year is not explained away by the claim that he did not want to “make things worse.” Simply stated, Mr. Rodriguez’s relationship with Kathy Snyder or Douglas and Marcia Snyder is not the relationship that is at issue. It is clear that John Rodriguez has consistently failed to perform his parental duties during the period October 21, 1986 through February 12, 1988. It cannot be said that three greeting cards addressed to a child less than two years old exhibits any significant or meaningful parental care.

. Additionally, we note that 23 Pa.C.S. §2511(b) states that the court shall give primary consideration to the needs and welfare of the child. By all accounts D.M.R. is being well cared for by Douglas and Marcia Snyder. Further, it is not disputed that John Rodriguez murdered the natural mother of D.M.R. It is difficult for this court to believe that D.M.R.’s needs and welfare are served by leaving her in limbo for at least eight years awaiting the possible, but not definite, release from prison of her father who readily admits to murdering her mother. This court believes that the best interests of D.M.R. are served by terminating the parental rights of her natural father, John Rodriguez. The termination of the parental rights of John Rodriguez will permit the legal adoption of D.M.R. by the only real parents that D.M.R. has known, Douglas and Marcia Snyder.

As previously stated, our decision to terminate the parental rights of John Rodriguez is based upon 23 Pa.C.S. §2511(a) (1). However, the petitioners also raise, as an alternative ground for terminating the parental rights of John'Rodriguez, section 2511(a) (2) which provides for the termination of parental rights .upon a finding of the repeated and continued incapacity of a parent which has caused the child to be without essential parental care necessary for the physical and mental well-being of that child.

We note that the Pennsylvania Superior Court in the case of In re Adoption of M.J.H., 348 Pa. Super. 65, 501 A.2d 648 (1985) affirmed the trial court’s order terminating the parental rights of a father who had murdered his children’s mother. The M.J.H. case is virtually on all fours with the case at bar. The only significant difference in the case at bar is that John Rodriguez received a 10- to 20- year sentence while the appellant in M.J.H. received a sentence of life imprisonment. The Superior Court, in noted that M.J.H. would be an adult when the appellee’s prison term ended. The Superior Court stated that “we decline to preserve in law a relationship which no longer exists in fact.” In re Adoption of M.J.H. at 80, 501 A.2d at 656. However, while John Rodriguez in all likelihood will not be in prison as long as the appellant in the Pennsylvania Superior Court has affirmed the termination of parental rights based upon the parent receiving a prison sentence of five to 10 years stating that the appellant would not have any meaningful and significant contact with the children. In re Stickler, 356 Pa. Super. 56, 514 A.2d 140 (1986). While our decision to terminate Mr. Rodriguez’ parental rights is not based upon section 2511(a)(2), the case law would support such a determination based upon his lengthy prison sentence.

Wherefore, we enter the following

DECREE

And now, March 17,1989, the petition of Douglas and Marcia Snyder is granted and the parental rights of John Rodriguez in the minor child, D.M.R., are hereby terminated.


author: REILLY, P.J.,

text:
    Haines v. County of Clearfield

      John Burge, for plaintiff.

      Kim C. Kesner, for defendants.
    January 22, 1990
   REILLY, P.J.,

On November 24, 1987, a deputy sheriff of Clearfield County was transporting a prisoner to the Clearfield County jail. Upon arriving at the jail the prisoner opened the rear door of the vehicle and fled on foot. The deputy pursued and with the aid of plaintiff, a bystander, subdued the prisoner after a struggle. Plaintiff maintains that he was injured as a result of his participation in the capture of the prisoner and this suit followed. Both defendants have filed preliminary objections seeking to dismiss the complaint on the basis that both defendants are protected by governmental immunity and therefore immune from suit. This court agrees and does herein dismiss plaintiffs complaint. >

This court is satisfied that both the county and the sheriffs office are protected in this matter under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. This act provides that liability may be imposed on political subdivisions only if two conditions are satisfied and if the injuries occur as a result of one of eight exceptions set forth in section 8542(b) of the act.

The two threshold conditions required are, first, the damages would be recoverable under common law or a statute creating a cause of action against one not having an immunity defense, and, second, the injuries must be caused by the negligent acts of the local agency or its employees acting within the scope of its office or duties, excepting therefrom acts of crime, fraud, malice or willful conduct.

In their objections, defendants concede the existence of the second condition but argue that plaintiff has not met the requirements of the first. This court will not address this issue as it is satisfied that even if plaintiff can meet both conditions, he cannot avail himself of any of the eight designated exceptions.

Plaintiff argues that he is entitled to recover under section 8542(b)(1) in that the deputy failed to properly secure the prisoner during the course of transporting him to the jail and likens the prisoner to “cargo.” This ingenious argument misses the intent of the vehicle exception. The statute specifically speaks of the operation of any motor vehicle. This court can find no casual connection between the operation of the deputy’s vehicle and the escape of the prisoner and must therefore find that plaintiff cannot avail himself of the vehicle exception to the governmental immunity statute. Moreover, as defendants have pointed out in their brief, the legislature did not waive governmental immunity in any of the eight exceptions set forth in the act where the harm is caused by the acts of third parties. See Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). Plaintiff herein was clearly injured by the acts of the prisoner wlio is a third party to the action and thus damages cannot be sought from defendants for liability caused by his acts.

While this court is of the opinion that a Good Samaritan answering the call for assistance from an officer of the law should be protected from losses suffered as a result of his response, it is nevertheless clear to this court that he cannot look to the county or to the sheriff under the provisions of the act as they now stand, and therefore the court must enter the following

ORDER

Now, January 22, 1990, following argument and briefs, it is the order of this court that preliminary objections filed on behalf of defendants ábovenamed be and are hereby sustained and plaintiffs complaint is dismissed.