author: SCHILLER, Member,

text:
    In re Anonymous No. 120 D.B. 88
    Disciplinary Board Docket no. 120 D.B. 88.
    July 21, 1989
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SCHILLER, Member,

Pursuant to rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

HISTORY OF PROCEEDINGS

In September 1982, the petitioner voluntarily went on inactive status because he was not actively engaged in the practice of law. On November 14, 1988, petitioner filed the petition for reinstatement from inactive status along with the special reinstatement questionnaire.

Pursuant to rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the petition was referred to Hearing Committee [ ] consisting of [ ], sitting alone. Following a hearing which was held on February 9, 1989, the hearing committee member filed a report with the Disciplinary Board on May 3, 1989 in which the member recommended petitioner’s reinstatement to the practice of law. No exceptions to this report and recommendation were filed by the Office of Disciplinary Counsel.

The Disciplinary Board adjudicated the matter on June 30, 1989.

FINDINGS OF FACT

The Disciplinary Board substantially adopts the following findings of fact set forth in the hearing committee report:

(1) Petitioner is 45 years old and resides at [ ].

(2) After his graduation from law school in 1968, petitioner passed the bar exam, then taught for two years and then was admitted to the practice of law in the commonwealth in 1970.

(3) Petitioner has not actively practiced law at any time since his admission to the bar.

(4) Petitioner was actively engaged as an officer in the operation of his family’s business, [A] Company, from 1970 until it was sold in 1987.

(5) For several years and at the present time, petitioner has been active in managing the affairs of a. number of corporations owned by the [B] family (the “[B] Group”).

(6) In his activities on behalf of both [A] and the [B] Group petitioner has long and frequently acted, in addition to other capacities, much the way corporate house counsel might operate — involving himself in and directing the legal affairs of the companies, hiring outside counsel and coordinating and directing their work.

(7) Petitioner has been actively involved in the analysis, discussion and application of thej legal principles and rules of a number of complicated and sophisticated areas of the law since 1970 and up to the present time, including: labor law, workplace health and safety legislation and regulation, contracts and sales law, environmental law, corporate finance, estate planning, taxation and real estate.

(8) Two “highly regarded” and qualified members of the bar of the commonwealth, [C], Esq. and [D], Esq., have worked closely with him on a number of complex legal matters and each testified without hesitation or qualification to his superior acumen, knowledge, sophistication and judgment in connection with the complex legal issues that they handled and discussed with him. A third “highly respected” member of the bar, [E], Esq., submitted an affidavit in petitioner’s behalf, attesting to the superior level of petitioner’s current knowledge of legal principles relevant to matters on which they worked together.

(9) Petitioner testified that, although he has not taken any specific courses, he has kept abreast of certain areas of the law by attending seminars, and for a time he actively maintained a law library related to those matters with which he most frequently dealt.

(10) It is petitioner’s present intention to act as actual (as opposed to de facto) corporate house counsel for the [B] Group, but he may buy and then operate another business, or he may engage in the full-time practice of law.

(11) Petitioner testified that he realizes that there are certain areas of the law with which he has maintained no contact since law school and that, if he opened an office for the practice of law, he would refe^r matters involving such areas to others.

DISCUSSION

In this case, petitioner, a formerly admitted attorney who has been on inactive status, has the burden of demonstrating that he has the moral qualifications, competency and learning in the law required for admission to practice in the Commonwealth of Pennsylvania. Rule 218(c)(3)(h).

This rule states a general standard without elaboration which may result in confusion about how to apply the standard. However, it is a much more lenient standard than the one applied to the petition of reinstatement of a disbarred or suspended attorney as stated in rule 218(c)(3)(i). See e.g., Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 381, 363.A.2d 779 (1976).

The sole issue in this case is whether petitioner has the competency and learning in the law required for admission to the practice of law. Petitioner has never been subject to disciplinary action and his transfer to inactive status was voluntary. Petitioner testified to the reason for his inactive status:

“Since I did not hold myself out as a lawyer to the public, I dropped from active status only because I did not see any point of sending in money every year [to the Disciplinary Board for attorney registration]
. . . I didn’t realize that after a time of maintaining the inactive status, it would require [more] than sending in a current year’s dues to change that status.”

Moral Qualifications

As stated above, petitioner’s moral qualifications are not at issue. Petitioner has easily met his burden on this point. During the course of the evidentiary hearing on reinstatement, two witnesses unequivocally testified to petitioner’s high moral character and his standing as a respected member of the community. Furthermore, Disciplinary Counsel has not questioned petitioner’s moral character nor have they attempted to submit evidence to impeach petitioner’s integrity.

The Disciplinary Board has found that petitioner possesses the requisite moral qualifications to be reinstated to the practice of law in the Commonwealth of Pennsylvania.

Competency and Learning in the Law

Two attorney witnesses testified quite forcefully on petitioner’s behalf that he has acquired and exhibited a firm grasp of the legal principles relevant to issues faced by corporate management. An attorney witness testified: “that as a practical matter and as a fact, petitioner served as a de facto house counsel to [A] Company as well as its chief executive.” The testimony of the other attorney witness included extensive and descriptive examples of the wide variety of legal matters petitioner had competently been involved with while managing the affairs of a number of corporations.

Although petitioner has not taken any specific courses, he has attended approximately six seminars. Disciplinary Board Rule 89.279, which requires petitioners to complete courses which meet the current schedule of subjects, does not apply to petitioner in this case. Rather, as stated in the rule, it applies to formerly admitted attorneys who have been disbarred or suspended for more than one year.

However, keeping the public’s protection in mind, a theoretical concern exists that petitioner would lack the skill and knowledge of the law if he chose to open a general practice. This concern arose from petitioner’s admitted unfamiliarity with a number of areas of the law. If petitioner is reinstated to the practice of law it is an unqualified reinstatement with full privileges which allows petitioner to practice any type of law he chooses. One may argue that petitioner’s reinstatement should be conditioned on petitioner’s successful completion of courses in other areas of law. However, there is no rule to allow the board to reinstate with conditions. The Supreme Court of Pennsylvania is of the view that if a lawyer is to be reinstated to active status, such reinstatement should be without conditions. In re Anonymous No. 64 D.B. 82, 27 D.&C. 3d 141 (1985).

The board does not think petitioner’s unfamiliarity with a number of areas of the law is an insurmountable hurdle blocking reinstatement. The board adopts the reasoning of the hearing committee: “that most, if not the overwhelming majority of lawyers today practice law in a few areas to the virtual or actual exclusion of all others.” Petitioner has demonstrated his superior level of knowledge of legal principles relevant to corporate matters and is not required to be adept in every aspect of the law. This would be impossible.

During the evidentiary hearing for reinstatement, petitioner was asked what he would do if a client had a legal problem in an area of law petitioner was unfamiliar with. Petitioner gave the following response:

“I can assúre you that I will refer that person to either the county referral service or to a larger firm that I know to be of good quality that might have someone or to an individual who handles it. I not only would not have the desire, I would not have the interest either to move outside of my field. I have always been veiy careful, even when I was in business, to not only stay with my field but when a new field came along, as OSHA was new, environmental was new, before I waded in, I went to either hear someone speak, take a seminar, get the books, read about it before shooting from the hip. So all of that showed a further assurance to the board that I would in no way accept a client in an area in which I didn’t feel veiy comfortable.”

The Disciplinary Board has found that petitioner possesses the requisite competency and learning in the law to be reinstated to the practice of the law in the Commonwealth of Pennsylvania.

In light of the foregoing and giving consideration to the fact that the Office of Disciplinary Counsel has determined not to oppose the instant petition for reinstatement by virtue of a letter to that effect filed on May 8, 1989, this board agrees that petitioner should be reinstated to the practice of law in the Commonwealth of Pennsylvania.

CONCLUSIONS OF LAW

The Disciplinary Board of the Supreme Court of Pennsylvania finds and concludes as follows:

(1) Petitioner has the moral qualifications for readmission to the practice of law in the Commonwealth of Pennsylvania.

(2) Petitioner has the competency and learning in the law required for readmission to the practice of law in the Commonwealth of Pennsylvania.

(3) Petitioner’s resumption of the practice of law in the Commonwealth of Pennsylvania will not be detrimental to the integrity and standing of the bar or the administration of justice, nor will it be subversive of the public interest.

(4) Petitioner should be reinstated to the practice of law in the Commonwealth of Pennsylvania and should be admitted to the Bar of the Supreme Court of Pennsylvania.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends to the Supreme Court of Pennsylvania that the instant petition for reinstatement of [petitioner] to the practice of law in the Commonwealth of Pennsylvania be granted by your honorable court, and further recommends costs be borne and paid for by said petitioner. A statement of such expenses is appended to the instant report.

Dr. Gilbert dissents.

Messrs. Douglas, Gilardi and Stoelker and Ms. Heh did not participate in the adjudication.

ORDER

And now, September 12, 1989, the report and recommendations of the Disciplinary Board dated July 21, 1989, are approved and it is ordered that [petitioner], who has been on inactive status, has never been suspended or disbarred, and has demonstrated that he has the moral qualifications, competency and learning in law required for admission to practice in the commonwealth, shall be and is hereby reinstated to active status as a member of the bar of this commonwealth. The expenses incurred by the board in the investigation and processing of the petition for reinstatement shall be paid by the petitioner.


source: Caselaw Access Project

author: KELLER, Member,

license: Public Domain

text:
    In re Anonymous No. 41 D.B. 73
    Disciplinary Board Docket no. 41 D.B. 73.
    January 30, 1990
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

KELLER, Member,

Pursuant to rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

HISTORY OF PROCEEDINGS

Petitioner was admitted to the bar of the Supreme Court of Pennsylvania in September 1963. He has not applied for admission nor has he been admitted to any other organized bar. By order of the Supreme Court of Pennsylvania dated August 7, 1973, petitioner was suspended from the practice of law for a period of two years. The suspension arose out of petitioner’s representation of the victims of a bus accident in New Jersey on August 9, 1969. Petitioner was charged with and pleaded nolo contendere to soliciting clients, knowingly submitting inaccurate medical bills to insurance carriers, and intentionally failing to file retainer letters on behalf of his clients with the prothonotary of [ ] County.

On November 4, 1988, petitioner filed this petition for reinstatement with the Disciplinary Board. On November 7, 1988, the matter was referred to Hearing Committee [ ], comprised of [ ]. At the reinstatement hearing held on March 10, 1989, petitioner was represented by [ ]. Petitioner testified on his own behalf and petitioner’s wife [ ] also testified on behalf of her husband. Office of Disciplinary Counsel was represented by [ ], assistant disciplinary counsel. By its report filed November 3, 1989, the hearing committee recommended that petitioner be reinstated to the practice of law. No exceptions to the report of Hearing Committee [ ] have been filed by either petitioner or Office of Disciplinary Counsel. On November 28, 1989, the matter was referred to board member William L. Keller for review and recommendation. The matter was adjudicated on December 8, 1989.

FINDINGS OF FACT

(1) Petitioner received a B.S. degree in economics from the University of [ ] in 1960.

(2) In 1959, petitioner entered [ ] Law School and received an LL.B. degree in 1962. Petitioner was editor in chief of the [ ] and received various academic honors.

(3) In September 1972, [petitioner] enrolled at [ ] Law School and earned a LL.M. degree in 1973. [Petitioner] earned an S.J.D. dégree from [ ] Law School in 1984.

(4) [Petitioner] clerked for the Honorable [A] of the United States Court óf Appeals for the [ ] Circuit from August 1962 to July 1963.

(5) [Petitioner] was employed as an associate at [B] from 1963 through 1967.

(6) From 1967 until October 1971, [petitioner] was employed as an associate by [C] and maintained a private practice of approximately 40 or 50 cases in [ ], Pa-

(7) In approximately October 1971, [petitioner] voluntarily left the practice of law.

(8) When [petitioner] left the practice of law, his cases for [C] were handled by other members of the firm and his private practice clients were referred to seven other attorneys.

(9) In December 1972, [petitioner] was contacted by the University of [ ] for a teaching position and accepted an offer of employment as a faculty member in January 1973.

(10) At the time of his employment, [petitioner] was unaware whether any disciplinary action had been taken or was threatened against him.

(11) Since 1973, [petitioner] has been employed as a professor of law by the University of [ ], specializing in constitutional law, civil rights, administrative law, and federal procedure.

(12) Since September 1973, [petitioner] has also taught at [ ] Law School, [ ] University School of Law, [ ] University in [ ] School of law, and [ ] University in [ ].

(13) In 1983 and 1984, [petitioner] declined to teach professional responsibility at the University of [ ] and in 1984 advised [D], associate dean of the law school, that he “did not comply with every rule in the applicable Code of Responsibility when [he] practiced.”

(14) Since September 1973, [petitioner] has been employed as a legal advisor or consultant on the basis of his expertise as a professor of law by various attorneys, including [E], Esq. (assistant attorney general of the Commonwealth of [ ]), [F] in [ ], and [G], Esq., in [ ].

(15) On all occasions, [petitioner] advised those who employed him that he was not licensed to practice law and, on several occasions, informed them that he had been suspended from the practice of law.

(16) Since July 1973, [petitioner] has not. been engaged in the practice of law and has not held himself out to the public as an attorney licensed to practice law in any jurisdiction.

(17) [Petitioner] has never accepted a referral fee from an attorney or any other source for any case since July 1973, but has received non-contingent fees from others for the value of his expertise as a legal scholar.

(18) In 1978 or 1979 and again in 1982, [petitioner] inquired about reinstatement to the Disciplinary Board of the Supreme Court of Pennsylvania, but declined to pursue reinstatement because of his concern for retribution from [¶] who was Dean of the University of [ ] School of Law from 1977 through 1987.

(19) [Petitioner] successfully completed the Pennsylvania Basic Practice Course in [ ] in December 1988.

(20) In addition to his teaching responsibilities, [petitioner] has written approximately 18 or 19 law review articles, reads a substantial number of current cases, teaches continuing legal education courses in the Commonwealth of [ ], and maintains an extensive private library of law-related books and periodicals. He is actively engaged in legal scholarship, and intends to maintain his familiarity and knowledge of Pennsylvania law.

(21) [Petitioner] acknowledges the wrongful nature of his conduct leading to suspension and is remorseful for his prior wrongdoing.

(22) Petitioner has never been charged with or convicted of a crime in any other jurisdiction. Petitioner has not been involved in any other disciplinaiy proceedings.

DISCUSSION

In order for petitioner to gain reinstatement to the practice of law before the bar of the Supreme Court of Pennsylvania, he has the burden of demonstrating, by clear and convincing evidence, that he has both the moral qualifications and the competency and learning in the law required for admission to practice in this commonwealth. In addition, he has the burden of demonstrating that his resumption of the practice of law. will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. See rule 218(c)(3)(i) of the Pennsylvania Rules of Disciplinary Enforcement.

Moral Qualifications

Petitioner pleaded nolo contendere to the charges of soliciting clients, knowingly submitting inaccurate medical bills to insurance carriers and intentionally failing to file retainer letters on behalf of his clients with the prothonotary of [. ] County. Although petitioner denied knowledge of the false medical bills, he did not assert a defense to the disciplinary charges because he felt that a two-year suspension was warranted for what he felt was improper professional conduct on his part.

Petitioner has fully admitted to his wrongdoing and is remorseful for his past conduct. Petitioner’s own words are worthy of repetition:

“I am embarrassed by what I did. I look upon it and I can’t stand the person that I was. I feel that I am contrite and recognize the wrong done. . .. But I now follow the dictates of my faith rather than what feels good or what is going to be best for my income or even my family. It’s a religious test. I think if I ever prepare a witness for testimony or do something like that, I would probably do it a lot differently now than the way I used to do it. Maybe I wouldn’t get an adequate award, but that’s the way it would have to be done.”

Since the start of his suspension on July 3, 1973, petitioner has not engaged in the practice of law and has never held himself out to the public as an attorney. When asked by various attorneys for legal assistance, petitioner on each occasion informed the attorney for whom he performed the work that he was not authorized to practice law. On several occasions, petitioner admitted that he was suspended from the practice of law. In addition, petitioner has never accepted a referral fee from an attorney or any other source for any case since July 1973, but has received non-contingent fees from others for the value of his expertise as a legal scholar.

Petitioner has not been charged or convicted of any other crimes. He has not been involved in any prior disciplinary proceedings.

The Disciplinary Board has found that petitioner possesses the requisite moral qualifications to be reinstated to the practice of law in the Commonwealth of Pennsylvania.

Competency and Learning in the Law

Since 1973, petitioner has been employed as a professor of law by the University of [ ], specializing in constitutional law, civil rights, administrative law, and federal procedures. He also has taught at [ ] Law School, [ ] University School of Law, and [ ] University in [ ]. Because of his expertise as a professor of law, petitioner has been employed by various attorneys and organizations as a legal advisor or consultant. In addition, petitioner has written approximately 18 or 19 law review articles, reads a substantial number of current cases, including Pennsylvania Supreme Court cases, and teaches continuing legal education courses in the Commonwealth of [ ]. Petitioner also maintains an extensive private library of law-related books and periodicals. He maintains a subscription to all the Federal reports, U.S. Law Week, and Harvard Law Review.

Petitioner has successfully completed the Pennsylvania Basic Practice Course in [ ] in December 1988. However, petitioner has testified that if reinstated, he does not have any plans to actively practice law in the state of Pennsylvania. Petitioner stated:

“I do not intend to leave [ ]. I intend to stay at [ ] right now until I retire of old age which will be in about 10 years now. What will happen after that, I don’t know ... I might come back to [ ]. I don’t have any plans to practice law full-time for money. Certainly I would be glad to have a public interest case, pro bono work, in Pennsylvania as in other states.”

In light of these facts, petitioner has proven, by clear and convincing evidence, that he has the competency and learning in the law required for reinstatement to practice law in this commonwealth.

Resumption of the Practice of Law

Petitioner has been greatly affected by his suspension from the practice of law. He has suffered and learned from his past transgressions. As petitioner stated in his own words:

“What I think about almost every day is that I am certified as not worthy to practice law and that has affected my self-esteem and my competence and deprived me of something essential to my person.”

Petitioner also testified that he had been seeing a psychiatrist up until 1972 to help him cope with the aftermath of leaving the law and the pressure it had put on his family. Petitioner stated that these problems have been resolved. Petitioner does not have any problem in regard to substance abuse or alcohol abuse. He has never been treated for such problems nor for any related medical problem.

Petitioner is now motivated and dedicated to a reformed life. When asked by the chairperson at the reinstatement hearing whether petitioner would see the same pressures that led to the stress which caused him to withdraw from the practice of law, petitioner made the following reply:

“Those pressures would not return. You see the stress . . . was the stress of a guilty conscience. It wasn’t the stress of trial work or the work load. I enjoyed that. . . There won’t be [that] type of stress. There will be great pride and a return of my self-respect rather than stress.”

In addition, three associates of petitioner prepared affidavits testifying to the truthfulness of petitioner’s testimony and to the fact that it would not be detrimental to the integrity and standing of the bar if petitioner were reinstated to practice law. Affidavits were prepared and signed by [I], Dean of the University of [ ] School of Law, [J], Esq., and [E], Esq.

CONCLUSIONS OF LAW

For the foregoing reasons the Disciplinary Board unanimously finds and concludes as follows:

(1) Petitioner has the moral qualifications for readmission to the practice of law in the Commonwealth of Pennsylvania.

(2) Petitioner has the competency and learning in the law required for readmission to the practice of law in the Commonwealth of Pennsylvania.

(3) Petitioner’s resumption of the practice of law in the Commonwealth of Pennsylvania will not be detrimental to the integrity and standing of the bar or the. administration of justice, nor will it be subversive of the public interest.

(4) Petitioner should be reinstated to the practice of law in the Commonwealth of Pennsylvania and should be admitted to the bar of the Supreme Court of Pennsylvania.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends to the Supreme Court of Pennsylvania that the instant petition for reinstatement of [petitioner] to the practice of law in the Commonwealth of Pennsylvania be granted by your honorable court.

The board further recommends that, pursuant to rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of said petition for reinstatement.

Mr. Stoelker and Ms. Heh did not participate in the adjudication.

ORDER

And now, March 15, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated January 30, 1990, the petition for reinstatement is granted.

Pursuant to rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: TRESSLER, J.,

text:
    In re Tina K.

      Richard J. Blasetti, guardian ad litem

      Stephen P. Imms Jr., for Office of Children and Youth.

      Wendy J. Goldenberg, for Jack K.
    November 30, 1988
   TRESSLER, J.,

On November 25, 1985, legal and physical custody of Tina K., eight and one-half years of age, was voluntarily transferred for a period of 30 days by her parents to the Office of Children and Youth Services of Montgomery County. The agency immediately obtained residential placement for the child at Silver Springs-Martin Luther School. Just prior to the conclusion of the permitted period of placement, OCY filed a dependency petition with the Juvenile Court alleging Tina K. was an ungovernable child because her parents were “unsuccessful at controlling (her) wild and hyper behavior.”

Richard Blasetti, Esq., having been appointed guardian ad litem, a hearing was held on December 18, 1985, before Juvenile Court Master Kent Al-bright, Esq., and the resulting master’s report filed January 3, 1986. Findings of fact and recommendations contained in this report affirmed both the child’s ungovernability and her need for continued residential placement at Silver Springs. Exceptions were not filed and the master’s recommendations became the order of the court.

On May 20, 1986, pursuant to 55 Pa. Code §3130.71 a placement review was conducted by Master Albright and his findings of fact and recommendations affirmed by the Honorable William Nicholas on July 18, 1986. The child’s continued placement was necessitated by an unaddressed alcohol dependency problem experienced by Mrs. K., parental inability to provide an emotionally secure environment, and the child’s own need for the therapy and structure offered by Silver Springs. At no time were allegations of sexual abuse, or inappropriate sexual conduct by the child mentioned.

From November 25, 1985, until August 1986, the physical custody of Tina K. was within the exclusive control of Silver Springs. Her parents enjoyed telephone contacts and approximately 12 home visits with theip daughter during this period. On August 20, 1986, nine months after the child had been committed to Silver Springs, OCY informed the court that Tina K. had been exhibiting inappropriate sexual conduct during the previous months of April and May. At a subsequent meeting with a psychotherapist, Tina K. explained her conduct by accusing her father (Jack K.) of sexually assaulting her. As a result of the child’s statements, OCY requested the court terminate all telephone contacts between the child and her parents and limit parental visitation to one hour every two weeks and then only under strict supervision by OCY. This request was granted, however, no petition alleging sexual abuse was immediately forthcoming thereafter, as the court had expected.

On November 24, 1986, approximately three months later, at a hearing originally scheduled as a placement review, OCY filed in open court a juvenile petition accusing Jack K. of sexually abusing his daughter and requesting her adjudication as a dependent/abused child. Jack K., having been given notice of the agency’s intention, agreed that an adjudication hearing could be conducted on this date. Accordingly, the hearing was held.

At the hearing, Sharon Fyffe, Christina Walton, and Judy Nessen, all social workers supervising Tina K. at Silver Springs, and Ralph Battinieri, a psychologist specializing in child abuse, retained by OCY, testified. All spoke of conversations with Tina K. in which she stated that her father had sexually assaulted her. Tina K. never testified herself, nor was any explanation offered by OCY to explain the reasons for her absence from the courtroom. Counsel for Jack K. objected to this testimony as hearsay and also raised the question of the child’s “unavailability” and the constitutionality of the statute.

The hearsay statements of Tina K. given to the aforementioned persons constituted the sole evidence against the father who emphatically denied the allegations. Moreover, Mrs. K., who according to OCY’s own affidavit disbelieved her daughter, was not present because of her death the previous month.

The hearsay statements of Tina K. were permitted into evidence pursuant to 42 Pa:C.S. §5986, which provides:

“A statement made by a child describing acts and attempted acts of indecent contact... with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding . . . involving that child . . . if a court finds that the time, content and circumstances of this statement provide sufficient indicia of reliability.”

During the hearing the court conducted a simultaneous dual inquiry. First, it decided whether the surrounding circumstances and alleged statements of Tina K. possessed “sufficient indicia of reliability” to bring them within the legislative hearsay exception cited above. The court decided this issue affirmatively for reasons cited on pages 143 through 145 of the notes of testimony.

Having found these statements admissible under 42 Pa.C.S. §5986, the court then considered them against the denials of Jack K. The court held that OCY had met its burden of proving, this sexual abuse against the father by clear and convincing evidence, and Tina K. was adjudicated a dependent/ abused child.

The record demonstrates that one troubling legal issue remained unresolved at the conclusion of the hearing and the court permitted all counsel to reserve this issue for future argument. It revolved around the fact that OCY had failed to produce Tina K. at the hearing and had offered no testimony to explain her absence. To the contrary, a review of the record indicates Tina IC. was perfectly capable of testifying. OCY’s own witnesses stated the child had recovered from her initial upset, was no longer withdrawn, had developed good friendships, and has ceased her sexually inappropriate conduct. Even their psychotherapist never stated that she would have been traumatized by a court appearance. No scintilla of evidence was introduced to suggest Tina K. was legally “unavailable.” OCY simply failed, or refused, to produce her at the hearing.

Realizing that the due process rights of the father had probably been jeopardized, the court agreed to review this issue and scheduled subsequent argument. Prior to the scheduling of this argument, counsel for Jack K. appealed to the Superior Court without filing exceptions to the court’s order or framing this issue in any manner. Since all parties still wished to brief and argue this issue before the lower court, it was agreed that the appeal be withdrawn, exceptions filed with the hearing judge and argument provided.

On June 1, 1986, “exceptions to the decision of the Honorable Paul W. Tressler” were filed on behalf of Jack K., citing 24 alleged errors. After argument on June 18, 1987, the court reversed its order of November 29, 1986, which had declared Tina K. to have been dependent/abused and reinstated her previous adjudication as a dependent/ ungovernable child. Custody continued to remain with OCY.

Reversal of the November 29, 1986 adjudication order was based solely upon a single issue; no other issues were addressed. Specifically the court found the failure by OCY to either produce Tina K. at the hearing, or, in the alternative, to establish her “unavailability” constituted a violation of the due process rights afforded her father, Jack K. He had been denied the opportunity to confront and cross-examine his accuser, and the court had been denied the opportunity to access the victim’s demeanor — all without reason.

On July 4, 1987, OCY appealed to the Superior Court alleging two errors committed by the lower court, one of which was withdrawn by letter dated August 10, 1987. The sole remaining issue for appellate review was whether the failure to produce Tina K. at the hearing, or in the alternative establish her “unavailability,” violated the due process rights of the alleged perpetrator. The language of 42 Pa. C.S., §5986 contains no such requirements.

The record clearly supports the lower court’s finding that the statements purportedly made by Tina K. were admissible under 42 Pa.C.S. §5986, because an “indicia of reliability” existed. Notwithstanding the statute, does the due process clause impose an additional condition upon such testimony before it can be introduced into evidence, i.e., “unavailability”?

In criminal prosecutions the U.S. Supreme Court has held that a declarant must either testify in court or be “unavailable” to the commonwealth if his statement, which is otherwise admissible as an exception to the hearsay rule, is to be introduced at trial. Ohio v. Roberts, 448 U.S. 56, 65 L.Ed.2d 597, 100 S.Ct. 2531 (1980); California v. Green, 339 U.S. 149, 26 L.Ed.2d 489, 90 S.Ct. 1930 (1970). The effort required of the prosecution to produce such a witness is a question of reasonableness. Child abuse proceedings in juvenile court, however, have been held to be civil in nature rather than criminal, and the Sixth Amendment is therefore inapplicable. In re A.M. and P.M., 365 Pa. Super. 516, 530 A.2d 430 (1987); In re M.W., 374 N. W. 2d 889 (S.D. 1985).

This is not to say, however, that a person accused of child abuse in a dependency proceeding forfeits his right to confront and cross-examine witnesses. Rather, it means that such a right emanates from principles of due process rather than from the Sixth Amendment. Due process guarantees a minimum standard of fairness inherent in the truth-finding process even in civil proceedings. To determine whether due process has been violated, Pennsylvania has adopted the federal rationale contained in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed 2d 18 (1976), which balance three competing circumstances. These factors include:

“(1) The private interest affected by official action;
“(2) Risk of deprivation of this interest through adopted procedures and the value of additional or substitute procedural safeguards; and
“(3) The governmental interest, and the fiscal, and administrative burden the additional or substitute procedural requirements would necessitate.” Cruz v. Pa. Department of Welfare, 80 Pa. Commw. 360, 365, 472 A.2d 725, 728 (1984).

The competing interests in the instant matter are obvious. Society as parens patriae has a recognized interest in protecting its children from sexual abuse and reducing the intimidation of child witnesses in court. The opposing interest is governmental reluctance to invade the sanctity of the home and interfere with parental rights. “It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother.” In re Ririker, 180 Pa. Super. 143, 148, 117 A.2d 780, 783 (1955).

While one must agree that the stringent Sixth Amendment standards associated with criminal cases are not applicable to this proceeding, it is equally obvious that substantial due process rights are guaranteed. The competing interests in dependency/abuse cases are significantly greater than those associated with most other civil proceedings. Indeed this court believes that many parents, if faced with the unattractive alternatives of imprisonment, or loss of their children, would unhesitatingly choose imprisonment as less onerous. The Pennsylvania legislature confirmed this fact when it adopted “clear and convincing evidence” as the standard of proof in child abuse cases, rather than the “preponderance of the evidence” standard applicable to other civil proceedings.

Pennsylvania courts have held that in dependency proceedings, due process guarantees to parents the right to be represented by counsel, cross-examine witnesses, preserve testimony via a record, and assure that the fact-finder will have an opportunity to observe the demeanor of witnesses. In the Interest of Leslie H., 329 Pa. Super. 453, 478 A.2d 876 (1984); Interest of Jones, 286 Pa. Super. 574, 429 A.2d 671 (1981). OCY insisted the need to protect child witnesses in alleged sexual abuse situations is so compelling that the aforementioned parental rights must be sacrificed. The agency cites 42 Pa.C.S. §5986 as legislative support for this position.

If the agency’s position is correct, once the court determined the “time, content and circumstances of this statement provided sufficient indicia of responsibility,” hearsay statements issued by the child would be admissible under any circumstance. Accordingly the agency could intentionally withhold abused children from testifying in court, even though these children were perfectly competent to testify, free of trauma and capable of taking the stand. This court refuses to treat the due process rights of-parents accused of child abuse in such a cavalier manner.

The issue in the instant matter is not whether the due process rights of parents accused of sexual abuse should be ignored or lessened when a child is so traumatized by the courtroom that she is incapable of giving testimony. Rather the issue is whether a parent’s due process rights can be totally ignored in a dependency proceeding when the child is not traumatized and is capable of testifying.

Three facts are clearly supported by the record in the instant matter. First, sufficient “indicia of reliability” existed to bring the hearsay statements of Tina K. within the legislative hearsay exception established by 42 Pa.C.S. §5986. Second, none of the statements of Tina K. to third parties fall within the parameters of traditional common-law exceptions to the hearsay rule. Third, no testimony was ever presented to demonstrate Tina K. was incapable of testifying in this court proceeding.

The inherent danger of hearsay statements are precisely those concerns which are protected by a party’s due process rights. Historically hearsay evidence was excluded from trial because the declarant was not subjected to the solemnity of the oath, neither the adversary nor the trier-of-fact were able to observe the demeanor of the declarant, and the adverse party lacked the opportunity to 'cross-examine the declarant. All of these affect thé ability to evaluate a witness’s credibility and are inherent due process concerns.

Hearsay exceptions, however, have developed over .the centuries which permit out-of-court statements to be introdüced into evidence under certain circumstances. All such exceptions possess an inherent reliability which guarantees their accuracy thereby permitting their introduction into court without being subjected to some of the accepted truth-testing procedures. Hearsay statements, however, do not all possess the same quality of reliability. In some instances the circumstances under which they are offered suggest greater reliability than others and cause the out-of-court statement to assume a life of its own. Much of this value exists because these statements are made in a context very different from trial and thereafter are usually irreplacable at trial as substantive evidence.

A second form of hearsay has some inherent reliability but no separate contextual importance apart from the trial; it is only a weaker substitution for live testimony. When this type of situation arises, the out-of-court declarant should appear in court and be subject to cross-examination unless he is not available to so appear. In other words, live testimony is preferred over hearsay testimony, but hearsay, if of the quality specified, is preferred over the complete loss of declarant’s statement.

Examination of the Federal Rules of Evidence demonstrates this distinction. Federal Rule 803 enumerates hearsay exceptions which are admissible into evidence regardless of whether the declarant is available for trial. Among those cited are exceptions for excited utterances, present sense impressions, then-existing mental, emotional ' or physical conditions, statements for the purpose of medical treatment, and others of similar nature. All are made under circumstances which assume a life of their own which differs from the trial process. For example, an excited utterance is deemed reliable because the declarant is speaking reflexively while under the influence of the startling event. Since one cannot produce the same event at trial, the declarant’s reflective statement at that proceeding does not have the same high assurance of credibility as the original statement. Accordingly, the witness’s “unavailability” does not affect the reliability of this type of original statement.

On the other hand Federal Rule 804(b) contains exceptions of a different nature. They include former testimony, statements under belief of impending death, statement against interest, statement of personal or family history, and other similar exceptions. While all possess an indicia of reliability, here the former testimony is merely a weaker version of the live testimony which could be presented at trial. As a result, the rules require an out-oTcourt declarant be present to testify unless he is “unavailable” as defined by Federal Rule 804(e).

The circumstances surrounding the statements of Tina K. are more analogous to those exceptions noted in Federal Rule 804(b) than those contained in Federal Rule 803. There was never a suggestion that these statements constituted excited utterances, or conformed tó any other recognized common-law exception; the basis of their admission was completely statutory. Nor did the setting in which the statements were given assure reliability on a par with those contained in. Federal Rule 803. To the contrary, judicial reliability was founded upon the child’s language and sexual conduct, and her emotional upset.

The record reflects that the child’s emotional upset could have been attributable to the serious prolonged illness of her now-deceased mother, and her atrocious language and advanced sexual conduct a reflection of her close relationship with a peer at Silver Springs who had been sexually abused. Further her anger toward her father over her initial placement with OCY was an established fact. Cross-examination of the child and opportunity for the court to have observed her demeanor under oath were essential to a fair determination of the issues under the facts of this case. Tina K. should have testified in this proceeding, and if she was unable to testify because of trauma, her “unavailability” should have been judicially determined.

Another argument, implicit in the conduct of OCY in this case, is that 42 Pa.C.S. §5986, creates a presumption of child trauma in those situations where an indicia of reliability supports the child’s statement, and therefore the child need never testify. A similar argument has been rejected recently by the U.S. Supreme Court in Coy v. Iowa, 108 S. Ct. 2798 (1988). Although a criminal case, involving a defendant’s Sixth Amendment right, the issue and analogy are strikingly similar.

In that case the U.S. Supreme Court held unconstitutional an Iowa statute that created a presumption of trauma in sexually abused children. Mr. Justice Scalia, writing for the majority, noted, “Since there have been no individualized findings that these particular witnesses need special protection, the judgment here could not be sustained by any conceivable exception.” Coy v. Iowa, supra, at 2803. In the instant matter, the court not only failed to make such findings, but unlike the victims in Coy v. Iowa, supra, she never appeared in court at all.

Finally, the language of the statute in question leaves much to be desired. First, it creates a general standard to be employed by the courts when determining whether a child’s statement concerning sexual abuse has sufficient “indicia of reliability” to qualify as a hearsay exception. The court is ordered me'rely to consider the “time, content and circumstances” of the statement. No direction is given as to how these factors are to be applied or their relative priority, leaving judges to employ and interpret these words and their circumstances differently.

While this is not fatal to the statute, it gives this court some concern that there is no assurance of consistent judicial interpretation in future cases absent appellate review. Nor are these standards as clear and unequivocal as those associated with recognized common-law hearsay exceptions. In light of this, the due process rights of a parent should not be taken lightly. At a minimum the alleged child victim should either appear and testify in court, or be declared “unavailable” by the court prior to the introduction of the hearsay statement.

It is interesting to note that the Pennsylvania legislature had considered the issue of witness “unaváilability” in another piece of legislation. Senate Bill no. 1361 of 1984, subsequently vetoed by Governor Thornburgh, created a similar hearsay exception in criminal cases. It read as follows:

“(A) General Rule — An out-of-court statement made by a child victim or witness describing indecent contact. . . not otherwise admissible by statute or rule of evidence is admissiblé in evidence in any criminal proceeding if:
“(1) The court finds the evidence is necessary, and that the time, content and circumstances of the statement provides sufficient indicia of reliability.
“(2) The child either:
“(i) testifies at the proceeding; or
“(ii) is unavailable as a witness if there is corroborative evidence of the act.”

This court does not suggest that due process considerations necessitate corroborative evidence in civil proceedings as required in the criminal area under the aforementioned Senate Bill. The court does believe, however, that a minimum requirement of “unavailability” is necessaiy to guarantee fundamental fairness.

Assuming arguendo the validity of the court’s analysis, Cruz v. Commonwealth of Pa., Dept. of Welfare, supra, requires us to consider a final factor when determining whether the due process rights of a person are violated. Is the fiscal or administrative burden imposed upon OCY so onerous as to render the remedy inappropriate? The proposed remedy for admitting a child’s hearsay statement into evidence is to either produce the child-victim at the hearing, or to establish her “unavailability” to the court’s satisfaction. In considering the importance of the rights being protected, it is difficult to imagine a less onerous or non-burdensome requirement.

Procedurally, assuming due notice, the court could conduct an in camera hearing with the child on the issue of “unavailability” immediately prior to the hearing on the merits. At this proceeding the child would be examined by the court, and the attorneys in chambers, with appropriate' cross-examination being made available to defense counsel; the accused would not be present at this time but would enjoy private communication with his counsel. Any additional witnesses testifying at the pretrial hearing would be subjected to the same truth-testing procedures inherent in other judicial proceedings.

Nor would a factual determination of whether a child witness was “unavailable” be difficnlt to undertake. Pennsylvania statutory and case law has established well-defined examples of witness “unavailability” for the purpose of admitting prior statements into evidence. In addition the inherent weakened position of child abuse victims in court requires an expansion of this term to include several instances common to such witnesses.

A model statute has been proposed by the Young Lawyers Section of the American Bar Association concerning this issue. Among the grounds listed as establishing “unavailability” are the following:

“(i) the child’s death;
“(ii) the child’s absence from the jurisdiction; “(in) the child’s total failure of memory;
“(iv) the child’s persistent refusal to testify despite judicial requests to do so;
“(v) the child’s physical or mental disability;
“(vi) the existence of a privilege involving the child;
“(vii) the child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason;
“(viii) substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceedings, or by means of videotaped deposition or closed-circuit television.”

All of the aforementioned grounds except (viii) can be established without benefit of expert testimony and therefore impose no additional financial burden upon OCY. Proving that a child is likely to be severely traumatized by a courtroom appearance does require expert psychiatric testimony, however, even here the expense is minimized because such experts are usually involved with the abused child prior to the hearing anyway. The only additional expense would be generated by court attendance. Fiscal and administrative considerations are not sufficiently compelling to override an accused’s due process rights.

In conclusion, fundamental fairness requires that a parent accused of sexually abusing his child be given an opportunity to confront and cross-examine that child in dependency proceedings. These rights, however, will be limited to permit a child’s hearsay statements into evidence under two circumstances. First, if the child testifies at the hearing and is subject to cross-examination, a prior hearsay statement may come in as both corroborative and/or substantive evidence. On the other hand, if a child does not testify at the hearing, the hearsay statement may still be introduced, but only if the court finds that the reason the child failed to testify was because he or she was “unavailable.”

In the instant matter the court never had the opportunity to determine whether Tina K. was “unavailable” to testify; her appearance had been arbitrarily withheld by OCY. Thus the court was required to reverse the decision rendered in this dependency proceeding.

Based on the above considerations, the adjudication order of the undersigned dated November 29, 1986 is hereby reversed.

      . 55 Pa. Code §3130.71 requires OCY to review the status of any child in placement no less frequently than once every six months.
      “The child’s first review shall occur no later than six months from the date of placement. Subsequent periodic review — those following the first review — shall be held no later than six months from the date of the previous periodic review.”

      . It is significant that while most of this alleged conduct had occurred prior to the placement review held May 20, 1986, it was never mentioned during that proceeding.

      . The last two sentences of the written information submitted by OCY to the court explained the basis for these requested modifications:
      “If Mr. [K] admits to the sexual abuse and can accept treatment we will re-evaluate the phone contact and visitation schedule. Due to Mrs. [K’s] inability to trust he'r child’s statements and totally believe her daughter regarding the abuse, I am requesting the same restrictions for her also.”

      . “The procedure employed in Cruz, viz., seems to us to strike a rational balance between the competing interests. We adopt, then, those safeguards as the minimum necessary to satisfy due process concerns”. In the Interest of Leslie II., 329 Pa. Super. 453, 457-8, 478 A.2d 876, 878 (1984).

      . See Commonwealth v. Ludwig, 366 Pa. Super. 361, 531 A.2d 459 (1987) for an excellent discussion of this issue in a criminal proceeding.

      . Myers, Hearsay and the Child Abuse Victim, 38 Baylor L. Rev. 775 (1986).

      . Fed. R. Evid. 803.

      . Fed. R. Evid. 804(b).

      . Commonwealth v. Haber, 351 Pa. Super. 79, 505 A.2d 273 (1986)

      . The lower court has held the accused’s due process rights were violated in this matter but never addressed the issue of whether the statute was constitutional. However, if one’ assumes the legislative failure to include “unavailability” in the instant act was intentional because of the prior language of Senate Bill no. 1361 of 1984, then 42 Pa.C.S. §5986 is unconstitutional to that extent.

      . See 42 Pa.C.S. §§5917 and 5934 and the cases decided thereunder.

      . Eatman, R. Buckley, Protecting Child Victim/ Witnesses, National Legal Resource Center for Child Advocacy and Protection, Washington, D.C. (1986) at 5.
      See also Whitcomb, Debra, Prosecution of Child Sexual Abuse; Innovation in Practice, Nat’l. Inst, of Justice/Research Brief (November 1985) for a list of those states which have adopted legislation defining “unavailability.”


author: VOGEL, P.J.,

text:
    Commonwealth v. $1,580 Cash

      LettyA. Kress, assistant district attorney, for the commonwealth.

      William F. Mabon, for defendant.
    February 13, 1990
   VOGEL, P.J.,

This decision concerns a forfeiture action which was filed by the Commonwealth of Pennsylvania, Office of Attorney General, on May 9, 1989. The property in question is $1,580 U.S. currency which was seized on January 16, 1989, pursuant to a consent search of a vehicle driven by Gregory A. Lewis and stopped by the Pennsylvania State Police for a speeding violation. The money was taken from the passenger and registered lessee of the vehicle, Thomas Patrick of 1279 Schenectady, Brooklyn, New York 11226. Subsequently, an answer and claim for the money was filed by Patrick Thomas of 1279 Schenectady Avenue, Brooklyn, New York 11203, on August 15, 1989.

A hearing and oral arguments were held before this court on October 13, 1989. On December 29, 1989 this court handed down an order granting petitioner’s, Commonwealth of Pennsylvania, petition for forfeiture and condemnation of May 9, 1989. Defendant appealed the aforementioned order on January 29, 1990.

Both parties agree that it is petitioner’s responsibility to prove by a preponderance of the evidence that the currency in question should be forfeited under the Controlled Substances Forfeitures Act, 42 Pa.C.S. §6801(a)(6)(i)(A), (B) which provides as follows:

“§6801. Loss of property rights to commonwealth
“(a) Forfeitures generally — The following shall be subject to forfeiture to the commonwealth and no property right shall exist in them:
“(6)(i) All of the following:-
“(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.
“(B) Money, negotiable instruments, securities or other things of value used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act.

This court found that based upon the facts as presented, petitioners have successfully proven by a preponderance of the evidence that the $1,580 U.S. currency taken from defendant’s vehicle on January 16, 1989 is forfeitable under the aforementioned act.

The evidence presented by the commonwealth established that on January' 16, 1989, Troopers Genero Mitchell and Steven McDaniel, of the Pennsylvania State Police, stopped a Ford Taurus with registration ZFG-463 for speeding on the Pennsylvania Turnpike at Milepost 4044 in Montgomery County at approximately 1:20 a.m. The vehicle was occupied by two Jamaican males and one Afro-American female. The vehicle was leased to Thomas Patrick who was a passenger in the vehicle. The vehicle was driven by Gregory A. Lewis. Both males identified themselves with the above names and indicated they were from New York.

Trooper Mitchell asked for a consent search after spotting a bottle of beer on the floor of the car. Consent was given by Mr. Lewis and not objected to by Mr. Patrick. Both men were patted down for safety reasons. Trooper Mitchell found on Thomas Patrick $1,580 cash wrapped in 15 individual packages of $100 and one package with $80. A “beeper” was found on defendant’s person.

No controlled substances were located in the vehicle and neither was any luggage. When asked to explain the origin of the money, Thomas Patrick indicated it was from his carpet business and he was looking for a carpet to buy to transport it back in the Ford Taurus. Thomas Patrick could not offer any details of his business, nor did. he, have a business card or know what his income was from the carpet business for the last year.

Due to the amount of money, nature of the packaging, existence of a pager device, and the race and origin of the occupants of the car, the troopers called in a drug-detection dog named “Bubba” to search the vehicle and money for the presence of any controlled substances. The dog gave positive indications for the presence of narcotics in the vehicle and on the money. A positive indicátion by a drug-detection dog indicates the property was in contact with a controlled substance. In this regard, it is worthy of mentioning that “Bubba,” the drug-detection dog, had a 95-percent find rate and had successfully completed several drug-detection courses.

In addition to the aforementioned evidence produced by the commonwealth on Friday, October 13, 1989 they also presented testimony from expert witness Trooper Milton Finn of the Region I strike force for narcotics. Trooper Finn testified that cocaine is sold in the Montgomery County area for $100 per gram and that drug dealers commonly wear paging devices to be located by their customers. Trooper Finn also testified that New York is a source city for drug trafficking and that Jamaicans were very active in illegal drug distribution.

Finally, it is also worthy to note that when Thomas Patrick answered the petition for forfeiture he claimed his name to be Patrick Thomas of the same address. Accordingly, this would indicate he leased the vehicle under an assumed name. Defendant chose not to present any testimony at the hearing before this court on October 13, 1989.

As previously stated this action is covered under The Controlled Substances Forfeitures Act, 42 Pa.C.S. §6801 et seq. The act provides that money or other things of value “furnished or intended to be furnished by any person in exchange for a controlled substance” or “used or intended to be used to facilitate any violation” of the drug laws is forfeit-able. 42 Pa.C.S. §6801(a)(6)(i)(A), (B).

Once the commonwealth has borne the burden of proof by a preponderance of the evidence, Commonwealth v. Landy, 240 Pa. Super. 458, 362 A.2d 999 (1976), and this court believes they have, the burden then shifts to the claimant to show: “(1) [t]hat the claimant is the owner of the property or the holder of a chattel mortgage or contract of , conditional sale thereon[;] (2) [t]hat the claimant lawfully acquired the property^ and] (3) [t]hat it was not unlawfully used or possessed by him.” 42 Pa.C.S. §6802(j)(l)-(3).

Thus, in the case at bar the burden of proof has shifted to defendant, and he has failed to satisfy the burden required under 42 Pa.C.S. §6802(j)(l)-(3).

One of the standards the appellate courts of Pennsylvania have applied in determining whether to sustain the forfeiture of money, is evidence of drug dealing coupled with lack of evidence of legitimate income, Lappas v. Brown, 335 Pa. Super. 108, 483 A.2d 979 (1984). The aforementioned standard is clearly satisfied by the facts and circumstances of the instant action.

Furthermore, in U.S. v. $199,514. U.S. Currency, 681 F.Supp. 1109 (E.D. N.C. 1988) and Michael LaChance v. The Drug Enforcement Administration, 672 F.Supp. 76 (E.D. Wis. 1987), the respective courts determined that one of the primary factors in determining forfeiture exists when a “drug defection dog makes a positive alert to the traveler’s money or luggage.” The aforementioned primary factor, when coupled with collateral factors that tend to create a whole picture, is sufficient proof that forfeiture is appropriate.

In the instant action, defendant, Patrick Thomas, was stopped carrying $1,580 in U.S. currency which caused Bubba, a drug-detection dog with a 95-percent find rate, to alert positively. This primary factor, coupled with the following important factors:

• (1) the $1,580 cash was wrapped in 15 bundles of $100 each, which amount was known to be the purchase price of a gram of cocaine in Montgomery County;

(2) defendant, Patrick Thomas, was wearing a beeper on his person;

(3) defendant, Patrick Thomas, was unable to give a credible explanation for why he was carrying such a large quantity of money wrapped up in bundles as it was;

(4) defendant, Patrick Thomas could not offer any documentation of his alleged carpet business even though' that is why he said he was there;

(5) defendant’s use of a rental vehicle leased under an assumed name;

leads this court to its conclusion that petitioner’s petition for forfeiture and condemnation of May 9, 1989 was properly granted.

While this court is aware of petitioner’s, Commonwealth of Pennsylvania, allegations and testimony relating to the fact that Jamaicans are one of the ethnic groups which has been identified with drug dealings, we do not agree with petitioner that this is a collateral factor to be considered in determining whether there have been sufficient grounds for forfeiture pursuant to 42 Pa.C.S. §§6801(a)(6)(i)(A),(B) and 6802(j)(l)-(3).

Thus, for all of the above reasons, the court’s order of December 29, 1989 regarding petitioner’s, Commonwealth of Pennsylvania, petition for forfeiture and condemnation of May 9, 1989 should be affirmed even though we recognize that if petitioner’s burden of proof had been more severe than a preponderance of the evidence, it would not have been successful.


author: LEVIN, J.,

text:
    Lundell v. Czajkowski

      William Patrick Delaney, for plaintiffs.

      Gary Eiben, for defendant Fort LeBoeuf School District.

      Stephen M. Elek, for defendants Leonard Czajkowski and Erie County Technical School.
    March 15, 1990
   LEVIN, J.,

Before this court are preliminary objections filed by defendants. The principal objection and primary subject of this opinion is defendants’ motion to strike on the grounds that plaintiffs claim is improperly based on an alleged violation of the Health and Safety Act, 43 P.S. §25-1 et seq.

This action arises out of an incident which occurred on February 15, 1989, at Erie County Technical School. Plaintiff, a minor, asserts that on that date, he was a student at the school, and was enrolled in a carpentry class taught by defendant Czajkowski. Plaintiff alleges that while operating a table saw in this class, he was injured when his left hand came in contact with the blade. He further asserts that Czajkowski had removed or failed to replace the safeguards originally attached to this table saw, and that such conduct was a violation of, and constitutes a crime under, 43 P.S. §25-1 et seq.

Under normal circumstances plaintiff would be unable to hold the school district liable for such injuries as they would be shielded by governmental immunity under 42 Pa.C.S. §8541. Plaintiff is attempting to remove this shroud of governmental immunity by the assertion that Czajkowski’s behavior constituted wanton and willful misconduct. Under Pennsylvania law, the cloak of immunity is lifted in cases where it is determined that the employee of a local agency has caused personal injury as a result of an act which constituted a crime or willful misconduct, 42 Pa.C.S. §8550. It is plaintiffs argument that removal of the guards on the table saw was a crime or a violation under 43 P.S. §25-6, and that, therefore, there can be no governmental immunity. Plaintiff is utilizing this statute to establish a violation of the requisite standard of care. Such statute states:

“§25-6. Removal of Guards
“No person shall remove or make ineffective any safeguard, safety appliance or device attached to machinery except for the purpose of immediately making repairs or adjustments, and any person or persons who remove or make ineffective any such safeguard, safety appliance or device foj repairs or adjustments shall replace the same immediately upon the completion of such repairs or adjustments.”

Subsequent sections of the Health and Safety Act outline the penalties to which an individual may be subject for a violation of the provisions of the act. 42 P.S. §25-15.

Defendants’ position is essentially that standards of the Health and Safety Act apply only to the work place and employer/employee situations. Defendant, in doing so, asserts that plaintiff cannot base his cause of action on the statute as it is unavailable in a student/school district scenario. Defendant argues that only compensated employees are protected by this statute. Defendant bases the employer/employee requirement on 43 P.S. §25-1 as follows:

“§25-1. Definitions
“The term ‘establishment’ shall mean any room building or place within the commonwealth where persons are employed or are permitted to work for compensation of any kind to whomever payable, except farms or private dwellings, and shall include those owned or under the control of the commonwealth and any political subdivision thereof as well as school districts.”

As previously cited, the only limitation with regard to the Health and Safety Act is that it applied to conditions in “establishments” as defined by 43 P.S. §25-1. There is no question, upon an independent examination of the statute, that the classroom in which plaintiff was taught was such an establishment.

Words and phrases shall be construed according to the rules of grammar and according to their common and approved usage. 1 Pa.C.S. §1903. The words of this statute are free from ambiguity on this subject. A schoolroom is “a place within the commonwealth where persons are employed” (teachers) or “permitted to work for compensation of any kind, to whomever payable.” Further, a classroom is part of the “school district” which is specifically listed as an establishment under the statute. There is no requirement that the injured party, in this case a student, be one of the compensated or employed parties. The statute requires that a person in the room be employed or compensated, but as long as that requirement is met, the room is an establishvment. The exact language requires compensation “to whomever payable.”

The legislature could have specifically excluded non-employees from the statute’s protection but did not; the failure to do so indicates that they did not wish to exclude such persons from the protection of the statute. A statute or ordinance such as this may properly be construed as intending to protect all persons against the particular hazard. The harm to plaintiff was caused by the exact hazard that the statute seeks to protect against. The only element of the statute limited to employers or employees is the imposition of the penalties. The employer/employees are the parties to be held to the requisite standard of conduct to prevent this precise harm.

In ascertaining the intention of the General Assembly in the enactment of a statute, the presumption that the assembly does not intend an absurd result may be used. 1 Pa.C.S. §1922(1). The logic of words should yield to the logic of reality. Brandéis, Louis D., in DiSanto v. Pennsylvania, 273 U.S. 34 (1927). An argument that health and safety standards may be invoked as standards of care only when an employee is injured is absurd. The injured-party plaintiff could potentially be any person rightfully present in such an establishment who falls victim to the substandard equipment. To find otherwise would permit schools to engage in what is “criminal activity” under this statute, with impunity toward their victims if the victim is anyone other than an employee. Students would be rendered victims of crime without remedy. Neither common sense nor an interpretation of the statute allows such a result. In fact, an interpretation of the statute would demand otherwise. A statute must be read in the “broad context of the evils it aimed at and the good it hoped for.” Jackson, Robert H., in United States ex rel. Marcus v. Hess, 317 U.S. 537, 577 (1943). There is no logical reason to construe this statute to protect only employees. The statute’s goal is to protect anyone rightfully in the establishment or workplace from injury due to faulty, defective equipment. The statute contemplated situations like the case at bar by specifically listing the school districts as establishments. Plaintiff student was an intended member of the class that this statute seeks to protect.

Defendant cites two cases to support his position. In both cases students attempted to invoke the predecessor to the current Health and Safety Act in an effort to hold a school district liable for personal injuries. In one case it was alleged that a violation of the Health and Safety Act constituted a nuisance. Both courts found the statute applicable to places where persons work for compensation and to employees, but not students. See Soley v. Nelson, 7 D.&C. 2d 12 (1955); Golish v. School District of the Borough of Windber, Somerset County, 15 Somerset Leg. J. 125 (1950).

These cases are distinguishable for two reasons. First, plaintiff is not basing his action on the Health and Safety Statute. He is utilizing the statute as a vehicle to define the requisite standard of care in a school environment, and to escape the potential defense of sovereign immunity. Secondly, this is nó longer the law in Pennsylvania. Courts have upheld the application of the standards of conduct enumerated in the Health and Safety Statute to establish requisite standards of care or a lack thereof in personal injury actions. Wood v. Smith, 343 Pa. Super. 547, 495 A.2d 601 (1985).

Also, unlike the case scenarios cited by defendant in Golish and Soley, supra, plaintiff is not invoking the Health and Safety Act as the sole vehicle to hold the school liable nor does plaintiff seek to impose the penalties of 43 P.S. §25-15. Plaintiff is seeking to utilize the health and safety standards of 43 P.S. §25-6 as that of a reasonable man, and have those standards apply in this case as the appropriate-conduct standard that the school district and' its employees be held to.

Section 286 of the Restatement of Torts provides that:

“The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part:

“(a) to protect a class of persons which includes the one whose interest is invaded; and
“(b) to protect the particular interest which is invaded; and
“(c) to protect that interest against the kind of harm which has resulted; and
“(d) to protect that interest against a particular hazard from which the harm results.”

This section of the Restatement has been accepted by the Pennsylvania Supreme Court in Majors v. Broadhead Hotel, 415 Pa. 165, 205 A.2d 875 (1965). See also Congini by Congini v. Portersville Value Company, 504 Pa. 157, 470 A.2d 515 (1983). Comment (d) to section 286 provides in part that the court is free to adopt and apply the standard of conduct provided by statute when making its own judicial rules.

Under Pennsylvania law, this court may adopt the requirement of the Health and Safety Act as the appropriate standard of conduct in this case. See Wood v. Smith, 343 Pa. Super. 547, 495 A.2d 601 (1985). Thus, plaintiff may allege violations of said statute as a vehicle to remove the cloak of governmental immunity. In Wood, supra, plaintiff was a landowner, not an employer or employee, who sought to recover for injuries (death) due to a failure to comply with OSHA and ANSI standards governing scaffolding. In response to an argument seeking to limit the standards from applying in that case, the court adopted Restatement (Second) of Torts §286, and found that as a matter of law, OSHA and ANSI regulations were developed to protect any person rightfully on the scaffolding, not only employees. Similarly, plaintiff was rightfully on school district property using a table saw under Mr. Czajkowski’s supervision. Plaintiff was a victim of the exact harm the standards of the statute seek to prevent. See also, Dallas v. F.M. Oxford Inc., 381 Pa. Super. 89, 552 A.2d 1109 (1989).

Accordingly, this court finds that plaintiff has. properly utilized the standards of the Health and Safety Act to establish a violation of the requisite standard of care by school officials in an attempt to remove the cloak of governmental immunity. The Health and Safety Act penalizes the type of substandard conduct alleged without regard to whether an injury occurred. Once this misconduct is established, the focus of analysis switches to the Governmental Immunity Act, 42 Pa.C.S. §8550.

As to the defendants’ other preliminary objections, they will be discussed ad seriatim:

Defendants’ preliminary objections as to paragraphs 13, 22 and 23 in the nature of Conners objections are sustained due to the fact that they lack sufficient specificity in that they do not state which regulations and standards are violated.

The allegations contained throughout the complaint as to defendants’ criminal activity should also be stricken. The court will allow plaintiff to utilize the Health and Safety Act as a vehicle to avoid a sovereign immunity defense and to provide protection for an otherwise unprotected party, but as plaintiff does not seek to impose the penalty provisions of 43 P.S. §25-15, the criminal references shall be stricken.

ORDER

And now, March 15, 1990, it is hereby ordered, adjudged and decreed that defendants’ preliminary objections as to paragraphs 13, 22 and 23 for lack of specificity are hereby sustained, with leave granted to plaintiff to file an amended pleading within 30 days. Defendants’ objections as to plaintiffs utilization of the Health and Safety Statute are not sustained. However, defendants’ objections to any reference to the criminality of defendants’ behavior are sustained and such references are ordered stricken.


author: FRAMPTON, J,

text:
    MacHarg v. MacHarg

      James E. Douglas, for plaintiff.

      Nicholas S. Kladitis, for defendant.
    April 30, 1990
   FRAMPTON, J,

This matter comes before the court on a petition of plaintiff, Ann M. MacHarg, now known as Ann M. Becker, wherein we entered a rule to show cause upon defendant, David P. MacHarg Jr., why he should not be held in contempt for failure to pay alimony pursuant to a mutually entered into property-settlement agreement.

The facts which give rise to this petition are as follows: The parties were married, on December 29, 1967. Due to marital difficulties and irreconcilable differences the parties separated and entered into a separation and property-settlement agreement executed on Júne 16,1982. A complaint in divorce was filed on June 22, 1982, and a divorce decree was entered on November 12, 1982, by the Honorable Francis J. Fornelli of this court.

Several sections of the separation and property-settlement agreement are pertinent to the resolu-. tion of this issue. Section 4.04 of that agreement entitled Alimony ¡Temporary and Permanent, states in subparagraph (a):

“Husband agrees to pay to the Wife as alimony, the sum of $2,500 per month for a period of 13 years from the date of the signing of this agreement.
“The parties hereto specifically recognize that the alimony payable to the Wife is based upon Husband’s income of $100,000 per year. If, after three years, Husband’s income shall be in excess of $150,000 and the cost of living as that term is defined by the Consumer Price Index or. other comparable indexes in effect at the same time for Sharon, Pennsylvania, has risen 30 percent over the base year of 1982, then Wife shall have the right to seek an increase in alimony payments due her pursuant to the terms of this paragraph. Wife shall not have the right to seek any increase prior to January 1, 1985. At said increase hearing, if any, the parties hereto specifically agree that the trier of fact shall consider the following items: Her other earnings from whatever source, her marital status and the income of her future husband, if any, inheritance and bequests; her needs at the time such as housing, food expense and utilities;. . .” (emphasis supplied)

In subparagraph (b) of section 4.04 of the separation and property-settlement agreement the parties stated:

“The payment to Wife of alimony as set forth in paragraph 4.04 subdivision (a) heretofore shall continue for a period of 13 years unless earlier terminated by the terms of any of the subdivisions hereunder or the first to happen of the following:
“(1) Death of Wife or death of Husband. It is specifically understood and agreed that this agreement shall become null and void in the event of Wife’s death or Husband’s death and this agreement herein for alimony or support is not intended to and shall not inure to the benefit of Wife’s heirs or estate.
“(2) No decree in divorce having been entered within a reasonable time from the date of this agreement.” ,

In addition, section 2.03 of the agreement, which is entitled Enforceability and Consideration, states:

“This Agreement shall forever survive any action for divorce and decree of divorce and shall forever be binding and conclusive on the parties, and independent legal action may be brought to enforce the terms of this Agreement by either Husband or Wife until it shall have been fully satisfied and performed. . (emphasis supplied)

Finally, section 6.01 of the agreement, entitled Reduction to Court Order, states:

“The parties agree that this entire agreement shall be entered as a court order by the appropriate court of Mercer County, Pennsylvania, as a part of the divorce decree and that both of them will sign whatever papers are necessary in order to have the aforementioned paragraphs reduced to the full force and effect of a court order.”

The divorce decree entered by the court on November 12, 1982, states “[t]he post-nuptial agreement executed by the parties on June 16, 1982, is made a part hereof and incorporated by reference with the exception of paragraph 4.01 concerning custody the court order thereon may be obtained after a hearing at which time the proper parties are present before the court.” (emphasis supplied)

The crux of this dispute arose as a result of the remarriage of Ann MacHarg to George W. Becker on June 14, 1989. As a result of the remarriage, defendant, David P. MacHarg Jr., stopped paying the alimony provided for in section 4.04 of the separation and property-settlement agreement. Because of this dispute several actions have been filed in order to determine the validity of the separation and property-settlement agreement and to enforce its terms and conditions.

Plaintiff has filed a complaint in assumpsit alleging breach of contract at this term and number, seeking recovery of the sums allegedly owed by defendant under the separation and property-settlement agreement. Plaintiff in this action, Ann MacHarg, filed the identical complaint in assumpsit based on a breach of contract asking for the amounts allegedly owed under the separation agreement at no. 1259 C.D. 1989.

Defendant in this action, David MacHarg, filed a declaratory-judgment action at no. 1201 C.D. 1989 against Ann MacHarg, now known as Ann M. Becker, asking for first a declaratory judgment that the remarriage of the former Mrs. MacHarg terminated the alimony owed by Mr. MacHarg under section 4.04 of the separation and property-settlement agreement. Secondly in that action he asked for a declaratory judgment that the former Mrs. MacHarg was judicially estopped from filing an action in child support in the amount she is allegedly owed under section 4.04 of the separation and property-settlement agreement. The second count of the declaratory-judgment action stemmed from a support complaint filed by Ann MacHarg, now known as Ann Becker, at 435 D.R. 1989, asking for $833.33 per month per child for three children resulting in an alleged amount of support of $2,499.99 per. month, this amount being almost identical to the $2,500 per month provided for as alimony in section 4.04 of the separation and property-settlement agreement.

Finally, the matter currently before the court for disposition is the petition for contempt filed by plaintiff, Ann MacHarg, now known as Ann M. Becker, against David P. MacHarg Jr., at 627 C.D. 1982, asking the court to find defendant in contempt for failing to pay alimony pursuant to section 4.04 of the separation and property-settlement agreement.

DISCUSSION

The current controversy before the court is the proper method for enforcing mutually agreed upon separation and property-settlement agreements. The key determination in resolving this controversy is whether the settlement agreement was “incorporated” or “merged” into the divorce decree. If such agreements are “merged” into the divorce decree they lose their independent standing as a contract and become an order of court enforceable only under the provisions of the Divorce Code, 23 P.S. §101 et seq. Sonder v. Sonder, 378 Pa. Super. 474, 491, 549 A.2d 155, 164 (1988). However, if agreements are only “incorporated” into the divorce decree by reference fhe agreement retains its identity as a contract and is enforceable according to assumpsit and equity principals of law and cannot be enforced in accordance with the provisions of the Divorce Code. Id. The distinction between “merger” and “incorporation” is at the heart of the present controversy.

Plaintiff argues that by the wording of the divorce decree the separation agreement has merged into the divorce decree and therefore is enforceable by the court, pursuant to the provisions of the Divorce Code contained in 23 P.S. §101 et seq. Plaintiff further argues that pursuant to 23 P.S. §501(f) that the alimony payments in question are not an award of alimony as defined in that section and therefore are not modifiable by the court as a result of plaintiffs remarriage, but are enforceable pursuant to 23 P.S. §503.

Defendant’s position also seems to be that the agreement is merged into the divorce decree and as a result of merger the separation and property-settlement agreement has lost its identity as a contract and is therefore subject to the provisions of the Divorce Code, 23 P.S. §101 et seq. Specifically, defendant argues that 23 P.S. §501(e), which states that “[rjemarriage of the party receiving alimony shall terminate the award of alimony,” controls the issue now before the court. Defendant claims as a result of the merger of the agreement into the divorce decree that when plaintiff remarried her right to alimony terminated pursuant to the provisions of the Divorce Code, specifically 23 P.S. §501(e).

In order to better understand the arguments of both sides it is necessary to delve into the labyrinth that the appellate courts of this commonwealth have created by using the terms “merger” and “incorporation.” In Sonder v. Sonder, 378 Pa. Super. at 493, 549 A.2d at 165, the court held that, “[a]ny agreement which speaks of incorporation but rejects merger was intended by the parties not to be brought under the provisions • of sections 401, 501(e) and (f), and 503 for the enforcement of separation agreements.” The court continued by stating, “[ojnly by an order which does not reject merger, or requires court enforcement of the agreement, does it become part of the decree and have the effect of an order. By renouncing merger and failing to have language in the decree requiring enforcement as a court order, the contract survives.” Id. What the court in essence is stating is that even if the parties use the word “incorporation” but do not specifically reject merger in the property-settlement agreement, then the agreement is merged and loses its identity as a contract thereby becoming a part of . the court order subject to the provisions of the Divorce Code, specifically those contained at sections 501 ánd 503.

The Superior Court’s most recent pronouncement on this perplexing issue is contained in D’Huy v. D’Huy, 390 Pa. Super. 509, 568 A.2d 1289 (1990), where the court stated, “[W]e hold that where, as here, the parties to a property-settlement agreement have clearly and unambiguously expressed in their agreement an intent that their agreement will survive the entry of the divorce decree, the agreement survives the divorce decree and is not merged therein even where the decree incorporates the terms of the agreement. The property settlement remains an enforceable contract, not subject to the unilateral modification as a court order.” In footnote 3 of the D’Huy opinion the court specifically stated, “[T]o the extent that there is language in Sonder suggesting that the decree must expressly reject merger, such language is disapproved.” In D’Huy, the provisions of the settlement agreement regarding the enforcement provided specifically, “[I]n the event that the marriage of the parties hereto is terminated by divorce, this agreement shall nevertheless remain in full force and effect and shall survive the decree.” D’Huy, supra. Furthermore, the divorce decree in D’Huy stated; “incorporated herein and made a part of this divorce decree is the attached property-settlement agreement dated August 24, 1983, by and between Polly Ann D’Huy and Gerard D’Huy.” Id.

As previously stated, the current rule, as set forth by the Superior Court, in determining whether the property-settlement agreement is incorporated or merged into the divorce decree is to look to the language of the property-settlement agreement to determine the actual intent of the parties to determine whether they wished the property-settlement agreement to be incorporated and remain in full force and effect as a contract or to be merged and lose its identity as a contract and subject it to enforcement pursuant to the provisions of the Divorce Code.

In order for us to determine whether we can find defendant in contempt for failing to pay pursuant to the provisions of the separation and property-settlement agreement entered into by and between the parties it is necessary for us first to determine whether or not the provisions of the property-settlement agreement were “merged” or “incorporated” into the divorce decree. To make use of the Divorce Code’s enforcement provision of contempt we must find that the settlement agreement “merged” into the divorce decree. Despite the belief by both parties that merger did occur in the present case, we believe that it is clear from the language of D’Huy that the separation and property-settlement agreement in the present case did not “merge” into the divorce decree.

Initially, section 2.03 of the separation and property-settlement agreement between the parties hereto specifically stated “[t]his agreement shall forever survive any action for divorce and decree of divorce and shall forever be binding and conclusive on the parties, and independent legal action may be brought to enforce the terms of this agreement. . .” In addition, in section 4.04 of the separation and property-settlement agreement it is clear that the parties intended and anticipated that plaintiff could possibly remarry and not have her alimony discontinued when they stated in the provisions for increase of alimony that the trier of fact should consider “her marital status and the income of her future husband.” Even though section 6.01 of the agreement states that “the parties agree that this entire agreement will be entered as an order of court ... as part of the divorce decree,” it is clear that the intent of the parties was only to incorporate the agreement into the court order and not to have it merged. In addition, the divorce decree itself specifically stated that the agreement executed by the parties is “made a part hereof and incorporated by reference.”

We believe that if we were to apply a literal reading of the language of Sonder, which required that any agreement which speaks of incorporation but does not expressly reject merger is thereby merged, it would result in a grave injustice to Mrs. Becker by rejecting the clear intentions of the parties in the agreement and would result in this court engaging in semantic gymnastics which it will not do. The court in D’Huy specifically recognized such a mechanical result is not proper when it stated in footnote 3 that “to the extent that there is language in Sonder suggesting that the decree must expressly reject merger, such language is disapproved.” D’Huy, supra. Therefore, we find that the separation and property-settlement agreement in the present case was not merged into the divorce decree but was only incorporated by reference and it was the intent of the parties for it to “forever survive any action for divorce and decree of divorce and shall forever be binding. and conclusive on the parties.”

As a result of the agreement only being incorporated into the divorce decree and not being merged this court does not have the power to grant plaintiffs petition for contempt since the property-settlement agreement is not enforceable under the provisions of the Divorce Code, specifically 23 P.S. §503. The appropriate action which plaintiff should pursue in order to vindicate her rights would be to pursue the assumpsit action filed as a result of a breach of contract.

ORDER

And now, April 30, 1990, after hearing and argument and the court finding that plaintiffs petition for contempt is the inappropriate vehicle for enforcr ing the provisions of the separation and property-settlement agreement entered into by and between the parties, it is the order of this court that plaintiffs petition for contempt is hereby denied.

      . 23 P.S. §503 provides:
      “§503. Enforcement of arrearages —
      “If at any time a party is in arrears in the payment of alimony or alimony pendente lite as provided for in sections 501 and 502, after hearing, the court may, in order to effect payment of the arrearages:
      “(1) Enter judgment.
      “(2) Authorize the taking and seizure of the goods and chattels and collection of the rents and profits of the real estate of the party.
      “(3) Attach no more than 50 percent of the wages of the party.
      “(4) Award interest on unpaid installments. '
      “(5) Require security to insure future payments.
      “(6) Issue attachment proceedings, directed to the sheriff or other proper officer of the county, directing that person named as having failed, to comply with the court .order be brought before the court at such time as the court may direct. If the court finds, after hearing, that the said person willfully failed to comply with the court order, it may deem said person in civil contempt of court and in its discretion make an appropriate order including, but not limited to, commitment of said person to the county jail for a period not to exceed six months.
      “(7) Award counsel fees and costs.”

      . This court has considered, at length, in researching for this opinion the effect of the February 12, 1988 amendments to the Divorce Code, specifically section 401.1. Section 401.1 states in pertinent part:
      “(a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanctions set forth in this act to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement. . .
      “(c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.” (emphasis supplied)
      We believe that if 23 P.S. §401.1 were found to be retroactive that it would specifically answer the question currently before the court. However, the appellate courts of this commonwealth despite having several opportunities have not as yet addressed the issue of the retroactivity of section 401.1. In D’Huy, supra, the court in footnote 2 stated, “We do not reach the question of whether the amendments to the Divorce Code concerning merger/incorporation effective February 12, 1988, shall be retroactively applied to this case.” In addition, in Bell v. Bell, 390 Pa. Super. 526, 568 A.2d 1297 (1990), the court also- declined to address the question of whether the amendments to the Divorce Code should be retroactively applied. In dissenting opinions in D’Huy and Bell several judges suggested that the intent of the legislature was to have the February 12,1988 amendments apply retroactively and relieve the consternation within the family practice bar over the semantic battle between “merger” and “incorporation.”

        This court in Bires v. Stefanak, 4 D.&C. 4th 545 (1989), Acker, P.J., found that the February 12, 1988 amendments to the Divorce Code, specifically section. 401.1, were not to be retroactively applied and could not be used as a basis for requesting contempt as a result of failure to pay pursuant to a mutually entered into property-settlement agreement. We believe however, that, the present case can be decided and justice done without the use of section 401.1. This court would be hard pressed to find defendant in contempt even if section 401.1 were to be retroactively applied since the reason for the failure to pay is based on a reasonable and legitimate dispute as to the effect of the law and the effect it has on the property-settlement agreement.