author: NEALON, J.,

text:
    C.S. v. Colony Insurance Company

      William F. Anzalone, for plaintiff C.S. in no. 05 CV 569 and plantiff C.H. in no. 05 CV 570.

      C. Daniel Higgens, for plantiff C.J.C. in no. 05 CV 571.

      Kevin J. Dempsey, for plantiff M.L. in no. 05 CV 586.

      Joseph W Demmeler, for defendant Colony Insurance Company.

      Zygmunt R. Bialkowski, Jr., for defendant Merchants & Businessmen’s Mutual Insurance Company.

      Kevin James Simon, pro se.
    March 29, 2010
   NEALON, J.,

The professional liability insurer for a foster care placement service has filed a motion to strike the certificate of readiness in these declaratory judgment actions and argues that the scope of its duty to indemnify cannot be determined until the underlying tort actions instituted by the plaintiffs have been concluded. The plaintiffs seek an adjudication that their personal injury claims are governed by the insurer’s medical incident coverage and higher liability limits rather than its sexual abuse coverage and lower policy limits. Any declaratory judgment ruling concerning the applicable coverage and policy limits will depend upon the findings made by the juries in the underlying suits with regard to the cause of the plaintiffs’ injuries. Therefore, for the reasons set forth in greater detail below, the certificate of readiness will be stricken without prejudice to the plaintiffs’ right to recertify these declaratory judgment actions for a non-jury trial following the conclusion of the underlying tort actions.

I. FACTUAL BACKGROUND

Four juveniles have filed tort actions in Monroe County naming Juvenile Rehabilitation Services Inc. (JRS) as a defendant. Defendant Colony Insurance Company provided professional liability coverage to JRS for the policy period from 3/07/2000 to 3/07/2001. Defendant Merchants & Businessmen’s Mutual Insurance Company furnished excess insurance to JRS for the same coverage period at issue.

According to the common averments set forth in the complaints that have been filed in the underlying tort actions, JRS is engaged in the business of foster care placements and was responsible for placing M. S., J. W.,, C. J. C. and M. L. in the foster care of defendant Kevin James Simon between July 1999 and August 2000. At the time, Simon was a transvestite who impersonated himself as a female named Anna Hart who was purportedly, married to a male companion, James Hart. While the four juveniles were in his foster care, Simon sexually assaulted the juveniles and repeatedly subjected them to anal intercourse, oral sex, and pornographic materials. On May 16,2001, Simon pled guilty to indecent deviate sexual intercourse, aggravated indecent assault, indecent assault, endangering the welfare of children, corruption of minors, and obscene and other sexual materials and performances, and is currently incarcerated at the Grater-ford state correctional institution. (See C. S. v. Juvenile Rehabilitation Services Inc., No. 658 Civil 2002 (Monroe Co.), docket entry no. 1, ¶¶3-6, 8, 10-11; C. H. v. Juvenile Rehabilitation Services Inc., No 659 Civil 2002 (Monroe Co.), docket entry no. 1, ¶¶3-6, 8,10-11; C. J. C. v. Juvenile Rehabilitation Services Inc., No. 7651 Civil 2001 (Monroe Co.), docket entry no. 1, ¶¶5-13; M. L. v. Juvenile Rehabilitation Services Inc. No. 2002 Civil 7281 (Monroe Co.), docket entry no. 1, ¶¶3-4,9-11, 14-16).

The four juvenile victims maintain that JRS was negligent for failing to conduct an appropriate background check of Simon before placing them in his foster care. The juveniles submit that a proper pre-placement assessment would have revealed Simon’s true sexual identity and pedophilic propensities and disclosed his three criminal convictions and two outstanding arrest warrants. The four minors further assert that following their foster care placement with Simon, JRS compounded its initial negligence and recklessness by neglecting to conduct periodic interviews and inspections regarding their safety and care. The juveniles seek to recover damages from JRS for the physical, psychological and financial harm that they have sustained and will continue to suffer as a result of JRS’s reckless and negligent conduct. (See C. S., supra, at ¶¶12-17, 19; C. H., supra, at ¶¶12-17, 19; C. J. C, supra, at ¶¶16-18,20; M. L., supra, at ¶¶ 18,20-25). '

Colony Insurance’s policy (#AP502511) affords professional liability coverage in the amount of $1,000,000 per claim/$3,000,000 per incident for damages resulting from a “medical incident” which is defined by the policy as “meaning] any act, error or omission in the furnishing of professional health care services.” (Colony Insurance Policy No. AP502511, section 1(1 )(a) and section VI(7), attached as exhibit E to the complaint filed in M. L. v. Colonial Insurance Company, No. 05 CV 586 (Lacka. Cty.)). The policy also contains a “sexual and/or physical abuse coverage” declaration which provides “coverage only with respect to sexual and/or physical abuse liability as indicated and subject to the limits of liability set forth in this coverage form.” The coverage form applicable to that sexual abuse rider affords lower coverage limits in the amount of $ 100,000 per claim/$ 100,000 per incident. The term “abuse” is defined by that coverage declaration as meaning “sexual abuse, assault and/or battery of a person or persons proximately caused by one or more of your employees or proximately caused by your failure to properly supervise.” {Id., sections 1(1), III and VI(1)).

Colony Insurance contends that it will be obligated to provide maximum liability coverage of $100,000 for the four juveniles’ tort claims if it is determined that their damages were caused by either (a) sexual abuse by Simon whom the minors have alleged was JRS’s ostensible or apparent agent or (b) JRS’s failure to “properly supervise” Simon. Since the averments contained in the underlying complaints allege actions which potentially fall within Colony Insurance’s coverage, it has furnished a defense to JRS in the Monroe County tort actions. However, inasmuch as Colony Insurance disputes whether it must indemnify JRS under its medical incident or sexual abuse coverage, the four juveniles have instituted the above-captioned declaratory judgment proceedings seeking an adjudication that Colony Insurance’s “general liability limits rather than sexual abuse limits” apply to their tort claims. See C. S. v. Colony Insurance Company, No. 05 CV 569, dkt. entry no. 1, p. 6; C. H. v. Colony Insurance Company, No. 05 CV 571, dkt. entry no. 1, p. 6; C. J. C. v. Colony Insurance Company, No. 05 CV 571, dkt. entry no. 1, p. 5; M. L. v. Colony Insurance Company, No. 05 CV 586, dkt. entry no. 1 p. 6.

Over the objection of Colony Insurance, the minor plaintiffs filed a certificate of readiness pursuant to Lackawanna County R.C.R 214 requesting the assignment of these declaratory judgment actions to a judge for the scheduling of a non-jury trial. Colony Insurance has presented a motion to strike the certificate of readiness and asserts that any declaratory judgment ruling concerning the extent of its duty to indemnify is not ripe for disposition until such time as the juries in the tort actions have determined “whether [the minors’] injuries are solely from sexual abuse or are from other alleged actions by JRS.” (defendant’s brief in support of motion to strike, p. 8). The four juveniles counter that discovery has been completed in these declaratory judgment cases and that the breadth of Colony Insurance’s duty to indemnify can be decided based upon the language of the policy. (Plaintiff M. L.’s brief in opposition, pp. 13-17.)

II. DISCUSSION

The Declaratory Judgments Act, 42 Pa.C.S. §7531 et seq., may be invoked to interpret the obligations of the parties under an insurance contract, including the question of whether an insurer has a duty to defend and/or to indemnify, a particular party under the policy. See General Accident Insurance Company of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997); Genaeya Corp. v. Harco National Insurance Company, 2010 WL 892095 at *3, ¶5 (Pa. Super. 2010). An insurer’s duty to defend an insured is distinct from and broader than its duty to indemnify an insured and is determined solely by the allegations of the complaint in the underlying action. Kvaerner Metals Division of Kvaerner U.S. Inc. v. Commercial Union Insurance Company, 589 Pa. 317, 330 & n.7, 908 A.2d 888, 896 & n.7 (2006); Old Guard Insurance Company v. Sherman, 866 A.2d 412, 416 (Pa. Super. 2004). If the underlying complaint contains allegations which, if true, would potentially bring the claims within the policy coverage, the insurer has an obligation to defend its insured in that litigation. American and Foreign Insurance Company v. Jerry’s Sport Center Inc., 948 A.2d 834, 845 (Pa. Super. 2008); Housing & Redevelopment Insurance Exchange v. Lycoming County Housing Authority, 58 D.&C.4th 321, 339 (Lacka. Cty. 2001), aff’d, 809 A.2d 1096 (Pa. Commw. 2002).

In contrast, an insurer’s duty to indemnify arises only where the insured is held liable for a claim that is actually covered by the policy. Whole Enchilada Inc. v. Travelers Property Cas. Co. of America, 581 F. Supp.2d 677, 694-95 (W.D. Pa. 2008); West American Insurance Company v. Lindepuu, 128 F. Supp.2d 220, 225 (E.D. Pa. 2000). Therefore, “[u]nlike the duty to defend, the duty to indemnify cannot be determined merely on the basis of whether the factual allegations of the complaint potentially state a claim against the insured.” Regis Insurance Company v. All American Rathskeller Inc., 976 A.2d 1157, 1161 (Pa. Super. 2009) (quoting American States Insurance Company v. State Auto Insurance Company, 721 A.2d 56, 63 (Pa. Super. 1998)). As a result, “the duty to defend may be triggered even if it is later determined by a court that there is no actual coverage and, thus, no duty to indemnify,” Jerry’s Sport Center, 948 A.2d at 852, but a finding that the insurer does not have a duty to defend under the policy will preclude the existence of a duty to indemnify the insured. Kvaerner Metals, 589 Pa. at 330 n.7, 908 A.2d at 896 n.7.

As noted above, Colony Insurance has furnished a defense to JRS in the pending Monroe County actions in accordance with its contractual duty to defend. Colony Insurance also acknowledges that it may ultimately have a duty to indemnify JRS if JRS is found liable for damages in one or more of those tort actions. The juveniles contend that Colony Insurance’s medical incident coverage and concomitant policy limits of $1,000,000/ $3,000,000 are applicable whereas Colony Insurance submits that its duty to indemnify may be governed by its sexual abuse coverage and corresponding $100,000 policy limits depending upon the Monroe County juries’ findings. Specifically, Colony Insurance maintains that its sexual abuse coverage and limits will apply if the juries conclude that the minors’ damages were caused by (1) sexual abuse by Simon and that Simon was the ostensible or apparent agent of JRS, or (2) JRS’s failure to properly supervise. Hence, Colony Insurance posits that any ruling concerning its indemnification obligations and applicable policy limits should be stayed until the Monroe County juries have determined the proximate cause of the juveniles’ injuries.

Courts are vested with the discretion under the Declaratory Judgments Act to defer any decision regarding an insurer’s duty to indemnify until the underlying litigation has been concluded. See Pressley v. Travelers Property Casualty Corporation, 817 A.2d 1131, 1142 (Pa. Super. 2003) (“The decision regarding the duty to indemnify can await the resolution of the underlying action and a court may specifically decline to rule on the issue of indemnity.”); Unionamerica Insurance Company Ltd. v. Johnson, 806 A.2d 431, 434 (Pa. Super. 2002) (finding that “[i]t was premature for the trial court to rule on the indemnity question” and stating that “[t]he duty to indemnify arises only if, after trial on the third-party claim, it is determined that the loss suffered is covered by the terms of the policy.”). Under the federal Declaratory Judgments Act, 28 U.S.C. §§2201-2202, and the ripeness standard articulated in Step-Saver Data Systems Inc. v. WYSE Technology, 912 F.2d 643, 647 (3d Cir. 1990), the federal district courts in Pennsylvania have similarly concluded that courts should refrain from deciding an insurer’s duty to indemnify until liability against the insured has been conclusively established in the underlying litigation. See TDY Industries Inc. v. National Freight Transportation Inc., 2009 WL 691947 at *11 (W.D. Pa. 2009) (“As a general rule, a court entertaining a declaratory judgment action in an insurance coverage case should refrain from determining the insurer’s duty to indemnify until the insured is found liable for damages in the underlying action.”); Whole Enchilada, 581 F. Supp.2d at 695 (“An insurer will have a duty to indemnify when liability against the insured is conclusively established.”); American States Insurance Company v. Component Technologies Inc., 420 F. Supp.2d 373, 375-76 (M.D. Pa. 2005) (finding that determination of the duty to indemnify must await resolution of the underlying suits against the insured); Cincinnati Insurance Companies v. Pestco Inc., 374 F. Supp.2d 451, 464-65 (W.D. Pa. 2004) (holding that duty to defend was not ripe for adjudication until the insured’s liability was decided in the underlying action); Allstate Insurance Company v. Lombardi, 2003 WL 21666090 at *3 (E.D. Pa. 2003) (“. . . where it is determined that the insurer does have a duty to defend, and where the liability of the insured in the underlying action has not yet been determined, the issue of indemnification cannot be addressed or resolved by the declaratory judgment court.”), aff’d, 142 Fed. Appx. 549 (3d Cir. 2005); Sphere Drake PL.C. v. 101 Variety Inc., 35 F. Supp.2d 421, 431 (E.D. Pa. 1999) (“. . . when the claims in the underlying action have not yet been decided by the state court, the inquiry of the court hearing the declaratory judgment action is limited to an analysis of an insurer’s duty to defend because the indemnification issue, by contrast, requires the resolution of the merits of the underlying dispute.”).

Citing General Accident Insurance Company of America v. Allen, 547 Pa. 693, 692 A.2d 1089 (1997), the juveniles assert that the scope of Colony Insurance’s duty to indemnify may be decided in these declaratory judgment proceedings prior to the conclusion of the Monroe County cases. In Allen, three grandchildren filed a tort action against their grandfather who sexually molested them and their grandmother who “should have been aware of her husband’s conduct and . . . failed to protect the grandchildren.” Id., at 696-97, 692 A.2d at 1090. Unlike the cases at bar, “[t]he underlying civil action [in Allen] proceeded to trial before a jury prior to disposition of the declaratory judgment action.” Id., at 697, 692 A.2d at 1091. Jury verdicts were returned in favor of the grandchildren and against both grandparents. On appeal, the verdict against the grandfather was affirmed, but the judgment against the grandmother was reversed on the basis that she had no legal duty to control her husband’s conduct under the circumstances. Id., at 698 & n.4, 692 A.2d at 1091 & n.4.

The grandparents’ insurer claimed that it did not owe the grandparents a duty to defend or indemnify them for sexual abuse liability since the policy contained an exclusion for intentional acts. The grandchildren countered “that special interrogatories presented to the jury in the civil action indicated that the jury had determined that [the grandfather] was liable for negligent infliction of emotional distress and that [the grandmother] was liable for negligent conduct found to be a substantial factor in bringing about the harm done to the children.” Id., at 699, 692 A.2d at 1091. The trial court in Allen found that the grandparents’ coverage was inapplicable to the insureds’ intentional conduct and liability for punitive damages, but concluded that the insurer had a duty to defend the grandparents with respect to the negligence claims. Id., at 699, 692 A.2d at 1092.

After the Superior Court quashed the insurer’s appeal as interlocutory, the Supreme Court reversed and held that the ruling pertaining to the duty to defend was final and appealable even though the trial court had not specifically deterniinedthe insurer’s duty of indemnification. In so holding, the Supreme Court reasoned:

“The [insureds] argue . . . that the trial court has not disposed of all claims because the court cannot determine the duty to indemnify until the underlying action is fully resolved, including the exhaustion of all appeals. The question before a court in a declaratory judgment action is not whether the insurer owes indemnification in a specific amount, which would be a premature inquiry absent a full resolution of the underlying action. Instead, the question is whether the insurer has a duty to indemnify the insured in the event of liability in the underlying action. A court can answer such a question because it is within the scope of a court’s power pursuant to the Declaratory Judgments Act.” Id., at 707, 692 A.2d at 1095. (emphasis in original)

The juveniles’ reliance upon Allen is misplaced. Allen does not compel an advisory adjudication regarding the scope of Colony Insurance’s duty to indemnify its insured, JRS, under a particular coverage declaration prior to the resolution of the Monroe County actions. Colony Insurance concedes that it has a duty to indemnify JRS in the event that JRS is found liable in the tort action(s). What cannot be determined in advance is whether indemnification is governed by the medical incident coverage and liability limits or the sexual abuse coverage and policy limits. That determination will depend upon the Monroe County juries’ findings in any special verdict interrogatories that are presented to them. See e.g., Allen, 547 Pa. at 699, 692 A.2d at 1091. If the juries find that the juveniles’ injuries were caused by JRS’s pre-placement conduct in failing to perform an appropriate background check of Simon prior to placing the juveniles in his foster care, Colony Insurance Company’s medical incident coverage and limits will apply. However, if the juries conclude that the minors’ damages were caused by JRS’s failure to properly supervise Simon’s foster care following their placement, or that their injuries were caused by Simon’s sexual abuse while he was an ostensible or apparent agent of JRS, the sexual abuse coverage and limits will govern. See USX Corp. v. Adriatic Insurance Company, 99 F. Supp.2d. 593, 612 (W.D. Pa. 2000) (“Where the underlying action has been resolved by a jury, the insurer’s duty to indemnify is determined by the material facts established at trial.”).

If the parties’ indemnification issue involved a determination of whether JRS was an insured under the policy language or was otherwise eligible for coverage based upon a stipulated set of facts, a declaratory judgment ruling with respect to Colony Insurance’s duty to indemnify would be warranted. But the juveniles’ declaratory judgment complaints request a determination that Colony Insurance’s “general liability limits rather than sexual abuse limits” apply, and as the Supreme Court has expressly stated, the question of “whether the insurer owes indemnification in a specific amount... would be a premature inquiry absent a full resolution of the underlying action.” Allen, 547 Pa. at 707, 692 A.2d at 1095. Until such time as the Monroe County juries have determined the proximate cause of the four juveniles’ injuries, it would be inappropriate for the declaratory judgment court to make that finding or to decide Colony Insurance’s indemnification obligations based upon hypothetical scenarios. See Victoria Insurance Company v. Mincin Insulation Services Inc., 2009 WL 90644 at *6 (W.D. Pa. 2009) (“A decision on the duty to indemnify would be contingent on the outcome of the underlying lawsuit, thus requiring a court to make a decision on hypothetical facts.”). As U. S. District Judge James Munley has aptly cautioned in declining to address an insurer’s duty to indemnify prior to the conclusion of the underlying state court action:

“Our judgment would merely provide advice and guidance to plaintiff as to how to proceed through settlement negotiations. This is precisely the type of abstract disagreement that the ripeness doctrine is designed to avoid. Therefore, we will dismiss the instant case without prejudice to plaintiff’s ability to file suit following the imposition of liability in the underlying suit by settlement or otherwise.” American States Insurance Company, 420 F. Supp.2d at 376.

We agree that any declaratory judgment ruling concerning the extent of Colony Insurance’s duty to indemnify would be premature and merely advisory prior to the resolution of the tort actions against JRS. Consequently, guided by Judge Munley’s sound reasoning, we will strike the plaintiffs’ certificate of readiness without prejudice to their right to recertify these declaratory judgment cases following the disposition of the underlying actions.

ORDER

And now, March 29, 2010, upon consideration of “defendant Colony Insurance Company’s motion to strike plaintiff M. L.’s certificate of readiness,” the plaintiffs’ responses thereto, and the memorandum of law submitted by the parties, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that “defendant Colony Insurance Company’s motion to strike plaintiff M. L.’s certificate of readiness” is granted and that the certificate of readiness filed by plaintiff M. L. is stricken, without prejudice to the right of any party to recertify these declaratory judgment actions for a non-jury trial following the conclusion of the underlying tort actions which are currently pending in the Court of Common Pleas of Monroe County.

      .Three of the Monroe County actions also name Kevin James Simon as a defendant. See C. S. v. Juvenile Rehabilitation Services Inc. and Kevin James Simon a/k/a Anna Hart, No. 658 Civil 2002 (Monroe Co.); S. S. v. Juvenile Rehabilitation Services Inc. and Kevin James Simon a/k/a Anna Hart, No. 7651 Civil 2001 (Monroe Co.) C. H. v. Juvenile Rehabilitation Services Inc. and Kevin James Simon a/k/a Anna Hart, 659 Civil 2002 (Monroe Co.). The fourth Monroe County action does not include Kevin James Simon as a party, but does name Wordsworth Academy t/a/d/b/a Wordsworth at Shawnee as a defendant. See M. L. v. Juvenile Rehabilitation Services Inc. and Wordsworth Academy, No. 2002 Civil 7280 (Monroe Co.)

      . In three of the tort actions, the juveniles have specifically averred that Simon was the ostensible agent of JRS. See C. S. v. Juvenile Rehabilitation Services Inc., supra, dkt. entry no. 1 at ¶9, 21; S. S. v. Juvenile Rehabilitation Services Inc., supra, dkt. entry no. 1 at ¶9; C. H. v. Juvenile Rehabilitation Services Inc., supra, dkt. entry no. 1 at ¶¶9, 21. Under Pennsylvania law, a principal may be liable for the tortious conduct of an ostensible or apparent agent even if the tortfeasor is not the actual agent or employee of the principal. See Loyle v. Hertz Corporation, 940 A.2d 401, 407-08 (Pa. Super. 2007), app. denied, 598 Pa. 775, 958 A.2d 1048 (2008); Myers v. Garfield & Johnson Enterprises Inc., 2010 WL 165867 at *15-16 n. 18 (E.D. Pa. 2010). In all four Monroe County cases, the juveniles have alleged that JRS failed to properly supervise their foster care following their placement with Simon. See C. S. v. Juvenile Rehabilitation Services Inc, supra, at ¶19; S. S. v. Juvenile Rehabilitation Services Inc., supra, at ¶16; C. H. v. Juvenile Rehabilitation Services Inc., supra at ¶19; M. L. v. Juvenile Rehabilitation Services Inc., supra, dkt. entry no. 1 at ¶18.


source: Caselaw Access Project

author: STEINBERG, J.,

license: Public Domain

text:
    Commonwealth v. Phelan

      Joseph Stauffer, deputy district attrney, for Commonwealth.

      Christopher M. Shipman, for defendant.
    April 6, 2010
   STEINBERG, J.,

On May 5,2005, the petitioner, Matthew Phelan, was found guilty after a jury trial of theft by unlawful taking (2 counts), receiving stolen property (2 counts), access device fraud (7 counts), and criminal conspiracy. The petitioner was convicted of entering secured lockers at the Bethlehem YMCA and removing cash and credit cards belonging to their members. Those credit cards were then used to purchase various items, including laptop computers, at local businesses. The petitioner was so adept at his crimes that he would access the lockers without leaving any visible damage to the locks, and the credit cards would be used before the victims had completed their workouts at the YMCA. On July 14, 2005, the petitioner received a total sentence of not less than six nor more than 12 years in a state correctional institution.

Post-sentence motions were filed on July 22, 2005, and after a hearing thereon, the motions were denied on December 23,2005. On January 20,2006, a timely notice of appeal was filed. On September 15, 2006, the judgment of sentence was affirmed by the Superior Court. Thereafter, a petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on March 20, 2007.

The petitioner filed his first petition under the Post Conviction Relief Act (PCRA) on March 19, 2008. It was alleged that Lisa Reinisch, the wife of the co-defendant William Reinisch, would provide testimony that “directly contradicts the incriminating testimony of William Reinisch presented at trial regarding the events at issue.” Following three continuances at the request of petitioner’s counsel, an evidentiary hearing on that petition was scheduled for December 15,2008. At that hearing, this court entered an order dismissing the PCRA petition because “the defendant has no testimony to present and has been unable to subpoena the expected witness Lisa Reinisch....” No appeal was filed from that order.

A second PCRApetition was filed on January 26,2010 in which the petitioner contends that he has obtained cellular telephone records that purportedly show that he was not in the vicinity of the crimes. Due to the time-bar provisions of the PCRA, on February 3,2010, this court issued an order notifying the petitioner of our intention to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907(1) unless the petitioner filed a response within 20 days. A response was filed by counsel for the petitioner on February 22, 2010, in which he acknowledges he possessed the telephone records since November of 2007. Additionally, the petitioner, in that response, attempts to avoid the time-bar by asserting: (1) he was unaware Mr. Reinisch was in custody since November 24,2008; and (2) the pendency of a “petition for habeas corpus” and a “motion to alter or amend the judgment of the district court in the United States District Court” tolled the jurisdictional time limits of the PCRA.

DISCUSSION

The time for filing a PCRApetition “including a second or subsequent petition” is within one year of the date the judgment becomes final The statutory exceptions in section 9545(b)(1) are limited to the following:

“(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
“(h) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
“(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.”

Additionally, “[a]ny petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.”

Here, the petitioner contends that the newly discovered evidence exception to the timeliness requirement applies under 42 Pa.C.S. §9545(b)(l)(ii). See Commonwealth v. Johnson, 945 A.2d 185 (Pa. Super. 2008). Under this exception, the petitioner, to avoid the time-bar, must plead and prove that the facts upon which the claim is predicated were unknown to him and could not have been ascertained by the exercise of due diligence. Commonwealth v. Bennett, 593 Pa. 382, 392-93, 930 A.2d 1264, 1270 (2007). See also, Commonwealth v. Taylor, 933 A.2d 1035, 1040-41 (Pa. Super. 2007) (Apetitioner fails to meet his burden when the facts asserted were merely unknown to him. A petitioner must also explain why his asserted facts could not have been ascertained earlier with the exercise of due diligence.).

The petitioner’s current petition was filed more than two-and-one-half years after the judgment of sentence became final on June 18, 2007. The reasons for failing to file the second PCRA petition until this year fall far short of the due diligence requirement. In particular, upon the petitioner’s request, this court entered an order on December 21, 2006, requiring Verizon Wireless to provide to the petitioner the cellular telephone records of the petitioner for January 29,2004 and January 30,2004, the dates of the crimes. The petitioner admits that these cellular telephone records were accessible to him, and were in fact in his attorney’s possession since November of 2007. A time period of more than two years elapsed between when these records were actually turned over by Verizon Wireless and when the second PCRA was filed. Clearly, this petition was filed outside the 60-day parameter set forth in section 9545(b)(2). Furthermore, Mr. Reinisch was in custody since November of 2008 and a review of the petitioner’s documentation demonstrates that the exception provisions are inapplicable. See Commonwealth v. Chester, 586 Pa. 468, 473, 895 A.2d 520, 523 (2006). (Newly discovered evidence exception not applicable where trial counsel’s arrest and prosecution for DUI was a matter of public record and, therefore, accessible by the petitioner.)

The petitioner also contends that the PCRA time limits were tolled between January 22,2009 and December 29,2009, by the pendency of a “petition for habeas corpus” and a “motion to alter or amend the judgment of the district court” in the United States District Court. This argument is without merit. The Pennsylvania Supreme Court in Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999), rejected the argument that the time for filing a PCRA is tolled while an appellant pursues federal habeas corpus relief. The court specifically stated the time limitations established in the PCRA are jurisdictional in nature and are not subject to the doctrine of equitable tolling, “save to the extent the doctrine is embraced by section 9545(b)(1)(i)-(iii).” Id. at 329, 737 A.2d at 222. The court reasoned that “[t]o allow tolling of the PCRA’s time limitations where a writ for federal habeas relief has been filed would undermine the federal policy of initial state review, and in fact, would encourage initial review in the federal system.” Id. at 330, 737 A.2d at 223. See also, Commonwealth v. Lambert, 765 A.2d 306 (Pa. Super. 2000).

The next obstacle facing the petitioner is the standard of review applied to his second PCR\ petition. The petition “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003), quoting Commonwealth v. Carpenter, 555 Pa. 434, 447, 725 A.2d 154, 160 (1999). The petitioner has failed to demonstrate that “the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged.” Id, quoting Commonwealth v. Morales, 549 Pa. 400, 409-10, 701 A.2d 516, 520-21 (1997). The petitioner engaged in a scheme with his co-defendant William Reinisch where the petitioner stole money and credit cards and William Reinisch used the credit cards to make purchases. The facts demonstrate that the petitioner is neither innocent, nor the victim of proceedings that resulted in a miscarriage of justice. The petitioner’s convictions for theft by unlawful taking, receiving stolen property, access device fraud, and criminal conspiracy offenses “reflects the reality that the accused is entitled to a fair trial, not a perfect trial. . . .” Commonwealth v. Watson, 945 A.2d 174, 177 (Pa. Super. 2008), quoting Commonwealth v. West, 834 A.2d 625, 634 (Pa. Super. 2003).

Finally, there is no absolute right to an evidentiary hearing. The PCRA court can decline to hold a hearing if the court, “upon review of the motion, answer, and other matters of record, is satisfied that there are no genuine issues of material fact and that relief is not warranted.” Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542 (1997); Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008).

Based on the foregoing, this court lacks the jurisdiction to hear the petitioner’s petition for relief under the PCRA because the petitioner is time barred. Accordingly, the second PCRA petition is denied.

ORDER

And now, April 6, 2010, upon consideration of the petitioner’s “second motion for post-conviction relief” filed on January 26,2010; it appearing that on February 3, 2010 this court provided notice to the parties of our intention to dismiss the petition without a hearing unless the petitioner responded within 20 days; it further appearing that counsel for the petitioner filed a “response of post-conviction relief petitioner, Matthew Ward Phelan, to order of court” on February 22,2010; it further appearing that after consideration of that response, as well as the entire history of this case, the current PCRA petition is untimely pursuant to 42 Pa.C.S. §9545(b) and this court lacks jurisdiction to consider the petition; and it further appearing that the petitioner has failed to make a strong prima facie showing to demonstrate that a miscarriage of justice may have occurred entitling him to a hearing on a second PCRA petition; it is hereby ordered for the reasons explained in the attached opinion that the petitioner’s “second motion for post-conviction relief” is dismissed.

The petitioner is advised that he has the right to appeal this order to the Superior Court of Pennsylvania by filing a notice of appeal with the clerk of courts, criminal office of Lehigh County within 30 days of the date of this order. The clerk is directed, pursuant to Pa.R.Crim.P. 907(4), to forward a copy of this order and opinion to the petitioner by certified mail, return receipt requested at SCI Mercer, I.D. no. GG9571, 801 Butler Pike, Mercer, PA 16137 and Attorney Christopher Shipman, I.D. no. 79385, 318 Spring Garden Street, Easton, PA 18042.

      . 18 Pa.C.S. §3921(a).

      . 18 Pa.C.S. §3925(a).

      . 18 Pa.C.S. §4106(a)(1).

      . 18 Pa.C.S. §903.

      . Commonwealth v. Phelan, 237 EDA 2006 (Pa. Super. September 15, 2006).

      . 42 Pa.C.S. §9541 et seq.

      . Motion for post-conviction relief, 3/19/08, ¶9.

      . See order dated December 15,2008.

      . “Response of post-conviction relief petitioner, Matthew Ward Phelan, to order of court,” ¶2.

      . 42 Pa.C.S. §9545(b)(1), (3).

      . 42 Pa.C.S. §9545(b)(2).

      . Second motion for post-conviction relief, 1/26/10, ¶9.


author: GRINE, P.J.,

text:
    Raspanti v. Hendricks

      Clifford Bidlingmaier III, for plaintiff.

      Melanie Bork, for defendant Hendricks.

      David M. Ginsberg, for defendant Tabolsky.

      Elizabeth Dupuis, for defendant Hendricks/Tabolsky Investments.

      Chena L. Glenn-Hart, for defendant Continental Real Estate Management Inc.
    May 4, 2010
   GRINE, P.J.,

Presently before the court are motions for summary judgment filed by defendant Continental Real Estate and defendant Rodney Hendricks and Hendricks/Tabolsky Investments.

DISCUSSION

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2. Defendant Continental Real Estate’s motion for summary judgment is based on their assertion that they were not managing 500 East Beaver Ave. at the time of the fire at issue and therefore had no duty to plaintiff. Continental also claims that if they did have a duty at that time, they did not breach that duty. The party moving for summary judgment has the burden of proving that no genuine issue of material fact exists. Accu-Weather Inc. v. Prospect Communications, 435 Pa. Super. 93, 644 A.2d 1251 (1994). The court finds that whether or not Continental had a duty, and what time period that duty encompassed, is an issue of material fact, and this issue is disputed by plaintiff. The court may grant summary judgment only where, examining the record in the light most favorable to the non-moving party, the moving party’s right to it is clear and free from doubt. Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411, 415, 664 A.2d 139, 141 (1995). The court does not believe that defendant Continental Real Estate has established that their right to summary judgment is clear and free from doubt, therefore, summary judgment is denied.

Defendant Rodney Hendricks, individually and Hendricks/Tabolsky Partnership also filed amotion for summary judgment. Hendricks claims that there is no evidence that Hendricks breached a duty, that there is no evidence of negligence, that punitive damages are improper in this case, that there is no evidence of pain and suffering, and that a loss of consortium claim is unavailable. “[Wjith all summary judgment cases, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Ertel v. Patriot-News Company, 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996), citing Pennsylvania State University v. County of Centre, 532, Pa. 142, 144-45, 615 A.2d 303, 304 (1992). The court finds that there are obvious issues of material fact as to whether Hendricks breached a duty, whether Hendricks was negligent and whether there is evidence of pain and suffering. Plaintiffs withdrew their claim for punitive damages without prejudice. An order to that effect was entered on April 21, 2010.

The court does agree with Hendricks that plaintiff cannot make a claim for loss of consortium. “Damages for loss of consortium are available only to spouses, and do not include a parent’s loss of society and companionship of her child.” Department of Public Welfare v. Schultz, 579 Pa. 164, 168, 855 A.2d 753, 755 (2004). Plaintiff’s claim that the issue was not settled in Depart ment of Public Welfare v. Shultz, because the Superior Court states “Thus, we do not resolve the issue of whether the Wrongful Death Act, outside the context of sovereign immunity, permits recovery of such damages in a suit against a private party.” Id. at 167, 855 A.2d at 754. Following that statement, the Superior Court goes on to explain why a parental loss of consortium is not available. Additionally, the Commonwealth Court has since agreed with defendant Hendricks’ view of the Shultz decision. The Commonwealth Court specifically found that “under Schultz, parents may not recover for non-economic loss of consortium of a child.” Vrabel v. Commonwealth, 844 A.2d 595, 600 (Pa. Comrnw. 2004). The court finds that the current state of the law in Pennsylvania does not allow a parent to recover under a theory of loss of consortium stemming from the death of a child. Therefore the court grants defendant Hendricks’ motion for summary judgment as it pertains to plaintiff’s loss of consortium claim and dismisses the loss of consortium claim with prejudice.

ORDER

And now, May 4, 2010 the court enters the following order:

(1) Defendant Continental Real Estate’s Motion for Summary Judgment is denied.

. (2) Defendant Hendricks’ motion for summary judgment is denied except as it pertains to plaintiff’s loss of consortium claim. Defendant Hendricks’s motion for summary judgment as it pertains to plaintiff’s loss of consortium claim is granted and plaintiff’s loss of consortium claim is dismissed with prejudice.


author: CARPENTER, J,

text:
    Commonwealth v. Elmore

      Christopher Eric Parisi, assistant district attorney, for Commonwealth.

      Timothy Peter Wile, assistant public defender, for defendant;
    May 27, 2010
   CARPENTER, J,

FACTUAL AND PROCEDURAL HISTORY

Appellant, Darrell Elmore, appeals from the judgment of sentence entered on March 29, 2010, following his conviction of six counts of possession with intent to deliver, two counts of criminal conspiracy, six counts of possession of a controlled substance, two counts of drug paraphernalia and resisting arrest.

Appellant was involved in a large-scale drug operation along with his two co-defendants, Diyon Jefferson and Darron Barnett. The drug operation, which involved the selling of cocaine, marijuana and heroin, was run out of two principal locations, 603 West Main Street, Norris-town, apartment number 2 and 558 Chain Street, Norristown.

On December 12,2008, a search warrant was executed on 603 West Main Street, apartment number 2. (Bench trial 1/11/10 pp. 181-83.) Once inside, Detective David Holtzman, of the Montgomery County District Attorney’s office, County Detective Bureau, encountered Jefferson, Barnett and Danielle Barfield. Id. at 183. The search of the premises uncovered $322 on Barnett’s person, and two Sentry safes in the kitchen. Id. at 185-86. The first Sentry safe concealed 33 bags of heroin with a Bently stamp, 191 bags of heroin, a 9 millimeter handgun and an unloaded magazine for that handgun. Id. at 187-90. The second Sentry safe concealed 201 blue bags of crack cocaine, four knotted sandwich bags containing 201 individual bags of crack cocaine and $1,200 in U.S. currency. Id. at 191,193. In the kitchen area of the apartment, a Triton T2 digital scale, a blender and measuring cup, all with cocaine residue, were found. Id. at 192. The search of the bedroom area revealed twelve small blue bags of crack cocaine, seven plastic vials of marijuana with a butterfly imprint, seven bags of heroin with a Bently imprint, an SKS assault rifle with a fully loaded magazine and a Taurus gun case for a .40 caliber weapon. Id. at 194-98.

While the search was being conducted, appellant was encountered by the front door of apartment number 2 by Lieutenant Stephan Forzato of the Montgomery County District Attorney’s Office, Narcotics Enforcement Team. After a brief altercation with appellant, appellant was arrested and subsequently searched. (Suppression hearing 1/10/10 pp. 35-46.) Detective Erick Echevarria, a detective in the Montgomery County Detective Bureau, Narcotics Enforcement Team conducted the search of appellant’s person. (Bench trial v. 2, 1/12/10 p. 39.) On appellant, the detective found 79 small packets of cocaine in yellow bags weighing 6.99 grams, approximately four ounces of marijuana and $1,323. Also seized were two sets of keys. Id. at 42, 49. One of the keys opened one of the Sentry safes. Id. Also, the detective noticed that appellant had the smell of dog feces on him. Id. at 43. During processing, Appellant gave his address as 558 Chain Street. (Bench trial 1/11/10 p. 210.)

The investigation led officers to conduct surveillance of 558 Chain Street later on December 18, 2008. Id. at 51. The surveillance began at 1 p.m. and lasted for about two hours. Id. During that time, Detective James Vinter of the Montgomery County District Attorney’s office, Narcotics Enforcement Team, observed six individuals approach that location. Id. Each would knock on the door, and when there was no answer, a few of those people would then look in the window. Id. After seeing no activity inside 558 Chain Street, two of the individuals were then followed to 603 West Main Street. Id.

Subsequently, a search of 558 Chain Street was conducted. Detective Vinter was able to open the front door by using one of the keys recovered off of appellant. Id. at 64. Upon entering, Detective Vinter observed feces from a pit bull puppy all over the apartment Id. at 62. The search uncovered in significant part, 80 yellow bags containing crack cocaine in the kitchen cabinet, 43 bags of crack cocaine in the kitchen, 3 bags of cocaine on the kitchen table, 42 blue bags of crack cocaine on the kitchen table, a chunk of crack cocaine on a glass plate along with a razor blade, box of sandwich bags, bag of rubber bands, a Triton T2 scale. Id. at 56-59.

On January 10,2010, a suppression hearing was conducted. At the conclusion of which, we denied appellant’s motion to suppress. On that same date, a three-day bench trial commenced. We found appellant guilty of the aforementioned charges. On March 29, 2010, we sentenced appellant to an aggregate term of eight to 26 years’ imprisonment. This timely appeal followed.

ISSUES

I. Whether This Court Properly Denied Appellant’s Motion To Suppress.

DISCUSSION

I. This Court Properly Denied Appellant’s Motion To Suppress

The suppression hearing established the following relevant facts.

On December 18, 2008, a SWAT team made entry at the 603 West Main Street location, apartment number 2. (Suppression hearing 1/11/10 p. 38). Lieutenant Forzato entered after the SWAT team, and assisted with the execution of a search warrant, which authorized the search of “all persons present inside the apartment.” Id. at 36, see also, search warrant, “C-S 1.” Lieutenant Forzato was familiar with the investigation, and knew from confidential informants that firearms were present at that location, including a large assault rifle and handguns. Id. He also knew that individuals inside that location were handling these firearms during controlled buys. Id. Once inside that location, a fully loaded SKS assault rifle, along with an attachment for a grenade launcher was found. Id. at 38. A 9 millimeter semi-automatic handgun was also uncovered. Id. at 39. Also significant was an empty box for a .40 caliber Taurus semi-automatic and ammunition for that weapon, which was also discovered. Id.

At approximately 6:40 a.m., while the search was in progress, appellant came within a step of the front door of apartment 2. Lieutenant Forzato was standing in the hallway, with other detectives, just outside the apartment, which is on the first floor. Id. at 40. He was wearing a ballistic vest that read “police” in bold white letters. Id.

The entry way into this particular apartment building involved an unlocked door, then there was a vestibule and then a second set of doors that was locked. Id. The second set of doors led right into a hallway, and apartment 2 was directly to the left. Id. Also, there was a set of stairs in the hallway that led to the second floor apartments. Id. Three apartments were on the first floor. Id.

Lieutenant Forzato saw appellant come in from the first door to the vestibule. Id. at 42. Appellant’s head was down, his right hand was visible and his left hand was in his hoody pocket. Id. Appellant opened the second set of doors, and went towards apartment number 2. Id. Appellant was within one step from the door of apartment number 2. Id. Appellant did not see Lieutenant Forzato and the other detectives, initially. He only looked up when the lieutenant said, “Where are you going?” Id. At that point, appellant looked at Lieutenant Forzato’s vest and the word “police.” Id. The lieutenant then said, “What’s in your hand?” Id. Appellant did not respond.

Appellant then turned to his left, still with his left hand in his pocket, and he started leaving the apartment building. Id. at 43. Appellant made it through one set of doors. Id. The lieutenant made the decision that there was a possible danger to him and the others when appellant was not willing to reveal what was in his hand, together with his knowledge of the weapons that were on the premises. Id. He was afraid that there might be a gun in appellant’s pocket and that appellant might use it. Id. Lieutenant decided to take action. He went for Appellant’s left hand, and said “stop.” Lieutenant Forzato grabbed appellant’s hand. Id. Appellant tried to run away, he fell down, he resisted, he fought, threw elbows and kept his left hand away as best he could. Id. at 43-44.

During the struggle, the lieutenant was able to feel a large and rounded bulge near appellant’s concealed hand. Id. at 44. His concern was that there was possibly a weapon there. Id. at 45. The lieutenant explained that he knew before he encountered appellant approaching the apartment that an empty box for a firearm was uncovered during the search. Id.

After appellant was arrested, he was searched. In part, the search uncovered two sets of keys. One of the keys opened a Sentry safe inside apartment number 2, in which drugs and a firearm were concealed. Another key was later found to open the front door at 558 Chain Street.

When reviewing the denial of a suppression motion, the standard of review employed by our appellate court is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the prosecution prevailed in the suppression court, only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole, may be considered. Where the record supports the factual findings of the trial court, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Hall, 929 A.2d 1202, 1206 (Pa. Super. 2007).

First, on appeal appellant asserts that he was not within the scope of the search warrant for the premises and persons at 603 West Main Street, apartment number 2. Appellant argues that police had no reasonable suspicion to stop, detain, search or question him when he walked into the common area of 603 West Main Street. Further, appellant contends that the police had no reasonable basis to believe that he was involved in criminal activity at that location.

Next, on appeal appellant contends that the Norristown Police lacked probable cause to search his pockets when he refused an officer’s direction to stop. Appellant argues that the police had no reasonable suspicion that he was engaged in any criminal activity. Additionally, appellant asserts that the police failed to articulate what they felt during a pat-down was readily apparent to be either a weapon or contraband making the “plain feel” doctrine inapplicable. Further, appellant claims that the police lacked reasonable suspicion that he was armed and dangerous so as to justify a Terry search. Because these two issues involve the same analysis, we will address them simultaneously.

“Although generally disfavored, an ‘all persons present’ warrant is constitutional when the totality of circumstances establish a sufficient nexus between the persons to be searched, the location, and the original activity suspected.” Commonwealth v. Hawkins, 880 A.2d 678, 680 (Pa. Super. 2005) (citing, Commonwealth v. Graciani, 381 Pa. Super. 626, 630, 554 A.2d 560, 561 (1989). “So long as there is good reason to suspect or believe that anyone present at the anticipated event will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment.” Commonwealth v. Heidelberg, 369 Pa. Super. 398, 402, 535 A.2d 611, 614 (1987).

In Haw kins, there was an “all persons present” warrant served on a residence. Id., 880 A.2d at 679. During the execution of the search warrant, the defendant arrived at the residence with three other individuals. Id. One of those individuals knocked on the door of the residence, and asked to speak with the target of the investigation. Id. The officer brought the four individuals into the residence and advised them of the existence of the warrant. Id. He then proceeded to search all of them. Id. The officer found a bag of cocaine and a bag of marijuana in the defendant’s pocket. Id. The defendant was arrested. Id.

The defendant filed a pretrial motion to suppress the evidence, which was denied by the trial court. Id. The defendant appealed, challenging the trial court’s suppression ruling, arguing that his search was not authorized by the “all persons present” warrant. Id. at 680.

In reviewing the trial court’s ruling, our Superior Court analyzed whether the arrival at the scene of a residence, that is the subject of an ongoing search pursuant to a search warrant, satisfies the “all persons present” search warrant. Id. 680-81. The Hawkins court held that where the totality of circumstances establish a sufficient nexus between the persons to be searched, the location, and the Original activity suspected, an “all persons present” warrant is constitutional. Id. at 680. The Hawkins court noted four factors sufficient to justify an “all persons present” warrant as follows:

“In Heidelberg, we found a sufficient nexus to justify issuance of an ‘all persons present’ warrant based upon the fact cocaine sales had been observed between the occupant and other persons at the house within 24 hours of the application for the warrant, a large quantity of cocaine was believed to be kept at the house, the place to be searched was a private residence, and the crime suspected involved contraband which could easily be hidden on the body____We reasoned that the likelihood that anyone present at the time of the execution of the warrant might be involved in the cocaine distribution or be willing to hide evidence of the operation on their person was sufficient to justify issuance of the ‘all persons present’ warrant.” Hawkins, 880 A.2d at 680.

In this case, while the search of the apartment was still in progress, appellant was within one step of the apartment before the police made any contact with him. (Suppression hearing 1/11/10 p. 42.) Detective Forzato had every reason to believe that appellant was going to enter apartment number 2 had he not encountered the police there. He was not in the common area of the apartment building, he was not walking towards another apartment on the first floor and he was not attempting to access the stairs which headed towards the second floor.

There was a sufficient nexus to justify the search of any individual present at 603 West Main Street during the execution of the warrant. There were multiple targets in this investigation, which were observed by a number of confidential informants dealing crack cocaine and heroin. (Suppression hearing 1/11/10 p. 37); see also, affidavit of probable cause, dated 12/17/08, C-l. These confidential informants described a large-scale, ongoing drug sales operation. Id. The location to be searched was a private residence, and the crime involved drugs which could be easily hidden on the body. Therefore, the “all persons present” warrant was justified. Accordingly, the search of appellant was lawful, and all items seized as a result of that , search were admissible.

Alternatively, we determined that Lieutenant Forzato did possess reasonable suspicion that either criminal activity was afoot or that appellant was armed and dangerous. “[T]o establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in ■light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.” See Commonwealth v. Reppert, 814 A.2d 1196, 1204 (Pa. Super. 2002) (citing Commonwealth v. Cook, 558 Pa. 50, 57-58, 735 A.2d 673, 677 (1999)). “The question of whether reasonable suspicion existed at the time [the officer conducted the stop] must be answered by examining the totality of the circumstances to determine whether the officer who initiated the stop had a ‘particularized and objective basis ’ for suspecting the individual stopped.” Id. at 1203-1204 (emphasis in original) (quoting, In re D.M., 566 Pa. 445, 449, 781 A.2d 1161, 1163 (2001)). Therefore, the fundamental inquiry of a reviewing court must be an objective one, “namely, whether ‘the facts available to the officer at the moment of the [stop] warrant a man of reasonable caution in the belief that the action taken was appropriate. ”’Id. at 1204 (quoting, Commonwealth v. Zhahir, 561 Pa. 545, 551, 751 A.2d 1153, 1156 (2000)).

In this case, Lieutenant Forzato articulated specific facts from which he could infer that appellant might be armed and dangerous. Appellant was approaching apartment number 2, and was within one step of the apartment before he noticed Lieutenant Forzato, who was clearly marked as a police officer. Appellant had his left hand concealed in his pocket. Knowing that two firearms and an empty firearm case was found in the apartment, the lieutenant was afraid that appellant had a weapon. The Lieutenant requested appellant to remove his left hand, appellant turned to his left, in an attempt to leave. Lieutenant Forzato was concerned that appellant would turn and fire at the numerous officers inside the apartment building. (Suppression hearing 1/11/10 p. 46.) When appellant refused to remove his concealed hand from his pocket, and attempted to leave, Lieutenant Forzato had every reason and valid concern to take action. And when the lieutenant did so, and appellant resisted him, it escalated into probable cause to arrest for resisting arrest under 18 Pa.C.S. § 5104.

Accordingly, the lieutenant was authorized in making an arrest without a warrant for a misdemeanor committed in his presence, and his search of appellant subsequent to arrest was proper. Therefore, the evidence that was seized subsequent to a lawful arrest was admissible.

Appellant’s last issue on appeal asserts that the Norristown Police perpetrated an illegal search when they seized keys from appellant and then proceeded to use those keys in an attempt to open doors without first obtaining a search warrant. Appellant argues that he possessed a reasonable expectation of privacy in the areas secured by the locks to which the keys seized from him fit and any search of those secured areas had to be made pursuant to a warrant.

As detailed above, the search of appellant was proper; therefore the keys that were seized from him were admissible. The only new issue presented here is whether appellant possessed a reasonable expectation of privacy in the Sentry safe, and in the unlocking of the front door of 558 Chain Street. We found that appellant did not.

After appellant was arrested, he was searched pursuant to that arrest. In part, the search uncovered two sets of keys. One of the keys opened a Sentry safe inside 603 West Main Street, apartment number 2, in which drugs and a firearm were concealed. Another key was later found to open the front door at 558 Chain Street. Appellant did not have an expectation of privacy in 603 West Main Street, apartment 2. Additionally, the Sentiy safes would have been opened and the evidence inevitably discovered. Additionally, appellant gave his address as 558 Chain Street.

CONCLUSION

Based on the forgoing analysis, the March 29, 2010 judgment of sentence should be affirmed.

      . The testimony from the suppression hearing of Lieutenant Forzato was stipulated to at the bench trial. (Bench trial v. 2, 1/12/10 p. 66.)

      . Section 5104 reads as follows:
      “A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.” We found that that is what occurred under the facts of this case. 18 Pa.C.S. §5104.


author: KNISELY, J.,

text:
    Asset Acquisition Group LLC v. DeJesus

      Benjamin Bibler, for plaintiff.

      Richard A. Estado, for defendants.
    April 6, 2010
   KNISELY, J.,

Before the court are plaintiff’s and defendants’ cross motions for summary judgment. At issue is whether defendants’ partial payments constitute constructive acknowledgment of a debt from 2000 under the acknowledgment doctrine thereby tolling the statute of limitations as to joint debtors.

BACKGROUND

On May 26, 2000, defendants entered into a motor vehicle sales contract with Faulkner Chevrolet for a 1996 Chevrolet Camaro in the amount of $21,969, including financing. Defendants subsequently defaulted on their finance payments. Charter One Auto Finance, named in the contract, repossessed the vehicle in or around April of 2001. The following month, Charter One sold the vehicle and claimed a deficiency from the sale. Nearly seven years later, on February 11, 2008, plaintiff, Asset Acquisition Group, filed the instant civil action against defendants alleging that defendants are in default of the contract. Plaintiff alleges that the contract was assigned to it and seeks a balance of $4,055.56 plus attorneys fees and accruing interest. Defendants filed their answer with new matter. They admitted to being in default of the contract, but denied owing the balance claimed by plaintiff. Defendants also asserted the claim is barred by the statute of limitations.

Instantly before the court are plaintiff’s and defendants’ motions for summary judgment.

DISCUSSION

Pennsylvania Rules of Civil Procedure govern summary judgment. Specifically, under rule 1035.2, the court shall enter judgment “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense [which] could be established by additional discovery [or expert report].” Toy v. Metropolitan Life Insurance Company, 593 Pa. 20, 33-34, 928 A.2d 186, 194 (2007) (citing Pa.R.C.P. 1035.2(1)). Courts considering motions for summary judgment view the record in the light most favorable to the non-moving party. Id. at 195. The moving party bears the burden of proving no genuine issues of material fact exist. Stimmler v. Chestnut Hill Hospital, Pa. 981 A.2d 145, 154 (2009). All doubts as to the existence of genuine issues of material fact are resolved against the moving party. Id.

Here, both parties have moved for summary judgment, plaintiff alleges all material issues have been admitted as a result of defendants’ failure to respond to discovery demands. (Pl.’s mot. summ. j. ¶¶4-7.) However, defendants’ answers to both the complaint and motion for summary judgment aver that the claim is barred by the statute of limitations. (Defs.’ answer with new matter ¶ 12; defs.’ answer mot. summ. j. ¶¶7-8.) Plaintiff, in response, asserted the statute was tolled by way of payments made by Jamie DeJesus in 2007. (Pl.’s reply to new matter ¶1; pi’s summ. j. br.) Thus, in light of these contentions, the issue remains whether the statute of limitations bars the action as a matter of law.

The parties agree that the applicable limitations period for this breach of contract claim is four years. 42 Pa.C.S. §5525(a). Defendants defaulted on payments to Capital One Finance in 2001. The vehicle was repossessed and sold in the same year. Despite an obvious typographical error within its complaint, plaintiff does not contend that its cause of action was filed within the four-year limitations period. The alleged tolling of the statute did not occur until 2007. Thus, if the limitations period is not tolled, plaintiff’s claim is barred.

“Pursuant to the ‘acknowledgement doctrine,’ a statute of limitations may be tolled or its bar removed by a promise to pay the debt.” Huntingdon Finance Corp. v. Newtown Artesian Water Co., 442 Pa. Super. 406, 410, 659 A.2d 1052, 1054 (1995). Our Superior Court has considered the strict requirement for acknowledgement of debt:
“A clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute. There must, however, be no uncertainty either in the acknowledgement or in the identification of the debt; and the acknowledgement must be plainly referable to the very debt upon which the action is based; and also must be consistent with a promise to pay on demand and not accompanied by other expressions indicating a mere willingness to pay at a future time. A simple declaration of an intention to discharge an obligation is not the equivalent of a promise to pay, but is more in the nature of a desire to do so, from which there is no implication of a promise.” Id. (citations omitted)

There can be no more clear and unequivocal acknowledgement of a debt than actual payment. Id. However, where a debtor voluntarily risks a revived action by acknowledging the debt after the statute of limitations has run, courts will not expand the debt beyond that clearly acknowledged by the debtor. See id. at 410, 659 A.2d at 1054-55 (declining to extend acknowledgement of debt to include interest where payment consisted of entire amount of principal owed); see also, Makozy v. Makozy, 874 A.2d 1160, 1171 (Pa. Super. 2005) (children’s transfer of property as full amount owed plus letter to parents stating amount owed acknowledged debt for tolling purposes, but did not extend to corresponding interest on the loan).

In order for a partial payment to toll the statue of limitations, the payment must constructively acknowledge the debt from which a promise to pay the balance is inferred. Huntingdon, 442 Pa. Super. at 410, 659 A.2d at 1054; see also, Cole v. Lawrence, 701 A.2d 987, 990 (Pa. Super. 1997); Philadelphia v. Holmes Electric Protective Co., 335 Pa. 273, 6 A.2d 884, 888 (1939). Also, acknowledgement by partial payment must clearly identify “the entire antecedent debt.” Cole, supra; see also, Holmes v. Smith, 94 Fed. Appx. 905, 907 (3d Cir. 2004) (Smith’s making several payments totaling $26,000 did not acknowledge debt as it did not satisfy the precision required by Huntingdon).

Based on a thorough review of the record, the court finds no clear acknowledgement of the antecedent debt. Considering only the record, plaintiff fails to meet its burden of establishing the tolling of the limitations period. Attached to its motion for summary judgment, plaintiff includes an August 2001 letter from Charter One Finance, the finance company listed in the contract. The letter also lists a deficiency of $6,965.54 following repossession and disposition of the vehicle under account number ********. These letters and plaintiff’s assertion that Jamie DeJesus’ 2007 payments tolled the statute of limitations comprise the only conceivable favorable facts in support of acknowledging debt; however the court finds the foregoing falls substantially short of the clear and unequivocal acknowledgement required by Huntingdon.

Review of attachments to plaintiff’s brief in further support of motion for summary judgment perhaps makes the tolling issue a closer call, but the court may not consider facts contained in briefs as briefs are not part of the record. Erie Indemnity Co. v. Coal Operators Casualty Co., 441 Pa. 261, 265, 272 A.2d 465, 466-67 (1971). For purposes of review, the court will briefly address plaintiff’s brief in further support. Attached to its brief, plaintiff includes letters it sent separately to Emilia and Jamie starting in June of 2006. These letters were sent well after the statute of limitations expired. The initial letter names Charter One Bank as the “prior creditor” and lists a “current balance” of $4,148.11. Notably, the prior account number listed is * * * *_* * * * * *****. Then, on November 10,2006, Jamie began submitting checks to Asset Acquisition Group LLC with a reference to the new account number assigned by Asset Acquisition Group. The checks are signed by Asset Acquisition Group as the authorized signator for Jamie DeJesus.

While the attachments reveal a connection in reference to the checks submitted and the letters sent by Asset Acquisition there is no clear connection between the original debt, under Charter One Finance account number ******** and alleged balance of $6,965.54, to the debt alleged six years later by Asset Acquisition Group, referencing a different account number and new balance, and not listing the original balance. Without more, the court could not reasonably infer Jamie’s full acknowledgement of the debt owed. The court finds that under these specific circumstances, the strict standard oí Huntingdon is not met.

Additionally, to hold otherwise under the instant facts, would contravene the purpose of the four-year statute of limitations. See Huntingdon, 442 Pa. Super. at 411, 659 A.2d at 1055 (acknowledgement must be “patently clear and distinct and free from ambiguity” because it removes protection of the statute which serves to “protect individuals from suffering the continuing anxiety over the possibility of the commencement of action against them in the future.”). The United States Supreme Court has stated:

“Statutes of limitations, which are found and approved in all systems of enlightened jurisprudence, represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims intime comes to prevail over the right to prosecute them. These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” U S. v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356-57 (1979). (internal citations omitted)

Here, the record is devoid of documentation from which this court could in good conscience find sufficient acknowledgement of the 2000 debt. Defendant, Jamie DeJesus, who allegedly authorized payments to plaintiff, is now deceased. Accordingly, tolling the statute would offend public policy. Finally, even if the court assumed the statute of limitations was tolled by Jamie, the court could not toll the statute as to Emilia, a joint debtor.

A payment by one joint debtor does not toll the statute of limitations as to the other joint debtor. White v. Pittsburgh Vein Coal Co., 266 Pa. 145, 149, 109 A. 873, 875 (1920). Here, there is nothing in the record revealing any contact between Emilia and plaintiff. Although plaintiff attached, letters it sent to Emilia, there is no indication that Emilia received, read, or responded to the letters in any way. Rather, the attached checks indicate plaintiff was the authorized signator for Jamie only. Thus, even if the court tolled the statute of limitations as to Jamie, the statute would not be tolled as to Emilia.

Based on the record before it, the court concludes the requirements of Huntingdon are not met and the statute of limitations is not tolled.

Accordingly, the court enters the following:

ORDER

And now, April 6,2010, upon consideration of plaintiff’s and defendants’ cross motions for summary judgment, briefs, and responses thereto, it is ordered that defendants’ cross motion for summary judgment is granted.

      . Plaintiff alleged the contract between defendants and Faulkner Chevrolet was executed in 2007; however, the attached contract is dated May of 2000.

      . Where the statute of limitations is at issue, plaintiff bears the burden of establishing the tolling of this period. Corbett v. Weisband, 380 Pa. Super 292, 308, 551 A.2d 1059, 1067 (1988); see also, McNair v. Weikers, 300 Pa. Super. 379, 387-88, 446 A.2d 905, 909 (1982).

      . Review of other jurisdictions reveals that some jurisdictions require an express acknowledgement of further indebtedness and an express promise to pay the balance in order for partial payment to toll the statute of limitations, see E.B. Inc. v. Smith, 757 So. 2d 1017 (Miss. Ct. App. 2000); Clark v. University of Evansville, 784 N.E.2d 942, 174 Ed. Law Rep. 404 (Ind. Ct. App. 2003); McArthur v. Acme Mechanical Contractors Inc., 336 So. 2d 1306 (Miss. 1976); however, under Pennsylvania case law, partial payment may serve as constructive acknowledgement of debt from which a promise to pay is inferred. See Cole, 701 A.2d at 990. Although debt may be inferred by partial payment, the court observes that the standard for constructive acknowledgement is strict and requires acknowledgement of the full amount of debt. See id.

      . Of note, there are two identical letters, one to Emilia DeJesus and one to Jamie DeJesus. The amount listed in Emilia’s letter is crossed off and rewritten as $6,198.34 with no explanation provided and none apparent from the record.

      . Although litigants’ briefs, and attachments thereto, are not considered part of the record for purposes of summary judgment, the court selects to address the attached letters to moreover illustrate plaintiff’s shortcomings in the arguments it proffers in support of its motion. See Scopel v. Donegal Mutual Insurance Co., 698 A.2d 602, 606 (Pa. Super. 1997). To be sure, the court would reach the same conclusions with respect to plaintiff’s motion absent consideration of those attached letters.


author: JENKINS, J.,

text:
    Commonwealth v. duPont

      William Toal III, for Commonwealth.

      George Bochetto, for defendant.
    May 19, 2010
   JENKINS, J.,

On January 26, 1996, duPont murdered Olympic wrestler and gold medalist Dave Schultz at duPont’s 800-acre estate in Delaware County. A jury convicted him of third-degree murder, and he was sentenced to 13-30 years imprisonment. Thereafter, duPont has enlisted one squadron of attorneys after another to seek relief for him in every conceivable judicial arena — all to no avail. His latest foray into this court was a petition for transfer outside prison walls to undergo medical tests to determine whether he should be transferred to a hospital, long-term nursing facility or hospice under 61 P.S. §81 (recodified at 42 Pa.C.S. §9777). The court denied his petition, and for the reasons provided below, this order should be affirmed.

Under specific circumstances, a sentencing court may permit a prisoner’s temporary transfer to a hospital, long-term care nursing facility or hospice care location. See 42 Pa.C.S. §9777. To obtain a transfer, the prisoner must prove, inter alia, that he is “seriously ill and is expected, by a treating physician, to not live for more than one year.” 42 P.S. §9777(a)(l)(iii).

In 2009, duPont filed a petition in this court “for allowance of medical examinations to explore a motion to modify sentence for medical reasons.” He failed to allege that a “treating physician” found that he is seriously ill and that his life expectancy is at most one year. Instead, the petition stated that his counsel believes his health is in danger based on counsel’s visits with duPont and “consultation with physicians and medical experts.” Petition, p. 3, ¶7; see also, petition, p. 4, ¶9 (referring to counsel’s “research and consultation with medical experts”). Moreover, the petition states that duPont intends to undergo tests to determine whether his maladies qualify as “serious illness.” Petition, p. 13, ¶52.

In response, the Commonwealth furnished affidavits of a prison physician and prison dentist averring that duPont is not seriously ill and is not expected to die within one year. Commonwealth’s answer to petition, exhibits A, B. The physician and dentist continued that duPont suffers from no medical or dental problems “that cannot be fully and appropriately treated by the department [of corrections].” Id.

The court denied duPont’s petition, without a hearing, reasoning:

“Section 81 [now section 9777] permits the prisoner to petition the sentencing court to ‘temporarily defer service of the sentence of confinement and temporarily remove the prisoner... for placement in a hospital, long-term nursing facility or hospice care location’ if the prisoner satisfies seven conditions enunciated in the statute. One such condition is that the prisoner is ‘seriously ill and is expected, by a treating physician, to not live for more than one year’ (the medical condition). 61 P.S. §81(a)(l)(iii). According to defendant’s motion, a treating physician has not actually found that he satisfies the medical condition. Instead, defendant’s motion requests medical examinations outside prison walls to determine whether he meets the medical condition. Section 81 does not provide for discovery outside prison walls to determine whether the defendant can satisfy the medical condition. The defendant cannot obtain relief under section 81 unless the prison physician (the ‘treating physician’ under section 81) determines after an examination inside prison walls that the defendant satisfies the medical condition.” Order dated October 27, 2009.

duPont subsequently filed a timely notice of appeal and timely statement of matters complained of on appeal.

duPont argues on appeal that the court erred in

“(1) concluding that only the prison physician can be considered the ‘treating physician’ under section 9777;
“(2) denying a hearing in which his attorneys could cross-examine the prison physicians who attached affidavits to the Commonwealth’s response;
“(3) accepting said affidavits without permitting him to present alternate opinions from non-prison physicians;
“(4) applying section 9777’s standards, which only apply to transfers, not to his request for a mere medical examination;
“(5) denying him due process by precluding ‘the opportunity of confrontation’;
“(6) finding that he did not meet his prima facie burden in his petition.”

None of these arguments pass muster under section 9777.

Section 9777 prescribes in relevant part:

“(a) Inmates committed to custody of department. — If an inmate is committed to the custody of the department, the department, the inmate or a person to whom the court grants standing to act on behalf of the inmate may petition the sentencing court to temporarily defer service of the sentence of confinement and temporarily remove the inmate committed to the custody of the department, or other facility, for placement in a hospital, long-term care nursing facility or hospice care location. The following shall apply:
“(1) The sentencing court may, approve the petitioner’s request to temporarily defer service of the sentence of confinement and place the inmate in a hospital or long-term care nursing facility under electronic monitoring by the department upon clear and convincing proof that all of the following apply:
“(i) The medical needs of the inmate can be more appropriately addressed in the hospital or long-term care nursing facility.
“(ii) The hospital or long-term care nursing facility requested by the petitioner has agreed to accept the placement of the inmate and to provide necessary medical care.
“(Hi) The inmate is seriously ill and is expected by a treating physician to not live for more than one year.
“(iv) There are not writs filed or detainers lodged against the inmate and the inmate is not subject to any court order requiring the inmate’s presence.
“(v) The placement in the hospital or long-term care nursing facility does not pose undue risk of escape or danger to the community. In making this determination, the sentencing court shall consider the inmate’s institutional conduct record, whether the inmate was ever convicted of a crime of violence, the length of time that the inmate has been imprisoned and any other factors the sentencing court deems relevant.
“(vi) The hospital or long-term care nursing facility has agreed to notify the department and the court of any material changes in health status of the inmate, the nature of the care provided or other information required by the department.
“(vii) Each agency representing the Commonwealth at a proceeding which resulted in an order committing or detaining the inmate, the state or local correctional facility housing the inmate and any registered crime victim have been given notice and an opportunity to be heard on the petition.” (emphasis added)

In light of the italicized language, duPont’s first argument on appeal — physicians other than prison doctors can be “treating physicians” — misses the point. Even if “treating physicians” can come from outside prison walls, no treating physician has averred that duPont is seriously ill or has a life expectancy of at most one year. duPont’s petiton merely asserts that counsel believed duPont was seriously ill based on counsel’s observations during prison visits and counsel’s “consultations” with physicians who did not personally examine or treat duPont. This does not meet section 9777’s requirement that a physician find duPont in failing health after treating duPont himself.

duPont’s second and fifth arguments — the denial of his right to cross-examine the prison physician and dentist who submitted affidavits in the Commonwealth’s response and the denial of his right of “confrontation”— can be addressed together. duPont might have enjoyed a right to a hearing and the right to confront the Commonwealth’s medical witnesses had his petition alleged prima facie evidence that met all of section 9777’s criteria. The petition, however, fails to allege that a treating physician found duPont seriously ill with a life expectancy of at most one year. Counsel’s claim that he saw duPont himself and consulted with experts outside prison does not fulfill section 9777’s “treating physician” requirement. Because his petition failed to allege prima facie evidence warranting relief under section 9777, duPont has no right to a section 9777 hearing and no right to cross-examine/ confront the prison officials.

duPont states in his third argument that the court improperly accepted the affidavits of the prison officials without permitting him to present alternate opinions from non-prison physicians. This is misleading. duPont had, and continues to have, the right to submit written opinions from non-prison physicians that he is in failing health. If a non-prison physician avers that he finds duPont in failing health after treating duPont himself, the court will further consider whether a section 9777 hearing is warranted. But in the absence of such documentation, the court will not take further action under section 9777.

In his fourth argument, duPont contends that section 9777 only applies to petitions for transfers to other medical facilities, not to his request for a mere medical examination outside prison walls. He is absolutely right: there is no law that permits prisoners such as duPont to undergo medical examination outside prison to determine whether they qualify for a transfer. In the absence of such a law, duPont cannot obtain a transfer unless (a) a physician treats him inside prison and concludes that he is in failing health, and (b) he satisfies all other requirements within section 9777.

Finally, duPont’s sixth argument that his petition states a prima facie claim for relief fails for the reasons given above, to wit, his failure to submit a treating physician’s affidavit that he is in failing health.

For these reasons, the court recommends that its order denying duPont’s petition be affirmed.

      . For direct appeal proceedings, see Commonwealth v. duPont, 730 A.2d 970 (Pa. Super. 1999), reargument denied, June 29, 1999, allocatur denied, 561 Pa. 669, 749 A.2d 466 (2000), cert. denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d 276 (2000). For PCRA proceedings, see Commonwealth v. duPont, 860 A.2d 525 (Pa. Super. 2004) (affirming this court’s lengthy opinion denying PCRA relief without a hearing), reargument denied (November 19, 2004), allocatur denied, 585 Pa. 695, 889 A.2d 87 (2005), cert. denied, 547 U.S. 1129, 126 S.Ct. 2029, 164 L.Ed.2d 782 (2006). For habeas corpus proceedings see duPontv. Stowitzky, 2008 WL 4283356 (E.D. Pa. 2008) (denying relief on basis of report and recommendation of United States Magistrate Judge Caracappa), certificate of appealability granted, no. 08-4305 (3d Cir. 6/16/09).

      . The court will also refer to these criteria collectively as requiring proof that the prisoner is “in failing health.”