author: TUMOLO, Member,

text:
    In re Anonymous No. 62 D.B. 87

      Disciplinary Board Docket no. 62 D.B. 87
    January 19, 1989
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TUMOLO, Member,

Pursuant to rule 208(d), Pa.R.D.E., the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above petition for discipline.

HISTORY OF PROCEEDINGS

On March 2, 1987, respondent pled nolo conten-dere to one count of recklessly endangering another person in violation of 18 Pa.C.S. §2705. Respondent was sentenced to 30 days non-reporting probation, a $2,000 fine, and 200 hours of community service. The probaition and conditions were successfully completed.

' By order of the Supreme Court of Pennsylvania dated September 3, 1987, respondent was suspended from the practice of law pursuant to Pa.R.D.E. 214.

A petition for discipline was then filed by the Office of Disciplinary Counsel on September 25, 1987. On or about October 12, 1987, an answer was filed by respondent through his counsel to the petition for discipline. Hearing Committee [ ] was then assigned to hear the evidence.

Due to the hearing schedule of both respondent’s counsel and the members of the hearing committee, a hearing was not held until May 19, 1988. The Office of Disciplinary Counsel presented its case by stipulation. Respondent presented character testimony as to his reputation. Respondent then testified. '

A briefing schedule was then established. The notes of testimony were received on July 20, 1988. Petitioner requested and was granted an extension until August 18, 1988 to file the briefs in the captioned matter.

After reviewing the briefs, the hearing committee first decided an issue specifically reserved at the May 19, 1988 hearing. At that hearing, both sides offered to present evidence concerning the facts underlying respondent’s conviction. The hearing committee reserved the issue at that time. After reviewing the briefs, the committee determined that since the petition for discipline was based solely on the conviction, no examination of the underlying facts was appropriate.

FINDINGS OF FACT

(1) Respondent is 40 years of age and was admitted to practice law on October 15, 1984 in the Commonwealth of Pennsylvania.

(2) Respondent received his undergraduate degree in anthropology from [ ] College in 1969. While performing his undergraduate training, respondent took a one and one-half year of absence to work in VISTA.

(3) Respondent, in 1970, received his master’s degree in anthropology from the University of [ ]. Respondent has also taken course work toward his doctorate in anthropology.

(4) In 1972 and 1973, respondent lived in the Amazon jungle to study a group of Indians.

(5) Respondent taught anthropology at [ ] College from 1974 until 1978. During the same time period, respondent started an import-export company called [A] Gallery. The purpose was to allow native people in Latin America to sell items produced by them in the United States without having to share a portion of the profit with any middleman.

(6) Respondent received his legal training from [ ] Law School. He began his training in 1981 and graduated in 1984.

(7) Respondent was admitted to practice law in Pennsylvania on October 15, 1984. He was also admitted to practice law in the State of New Jersey. He has also been admitted to practice law in the U.S. District Court for the Eastern District of Pennsylvania.

(8) Respondent practiced law in [ ], Pa. from the date of his admission until his interim suspension by the Supreme Court of Pennsylvania pursuant to Pa.R.D.E. 214 of September 3, 1987.

(9) Prior to his suspension, respondent practiced as a sole practitioner with his last office address located at [ ]. Respondent’s primary emphasis in his practice was adoption and real' estate matters.

(10) Except for the present matter, respondent has no prior disciplinary record.

(11) Respondent had been active with committees in the [ ] Bar Association. Respondent served as a volunteer mediator in the landlord/tenant section of the [ ] Municipal Court.

(12) Respondent was also very active in community matters. Respondent was active in local politics at the ward and committee level. Respondent became active with the Neighborhood Development Center and the Neighborhood Housing Network in [ ]. In 1986, respondent served on the Board of Directors of the [ ] Pan-American Association. This organization has the purpose of providing understanding between people in the United States and people in Latin America.

(13) When respondent was able to practice law, respondent performed a fair amount of pro bono work.

(14) Respondent, in 1986, assisted the District Attorney’s Office of [ ] County in investigating a baby-selling scheme which he had uncovered.

(15) Respondent fully agreed to the stipulation entered by petitioner in the captioned matter.

(16) The stipulation provided as follows:

“(i) Respondent was bom in 1948 and was admitted to practice law in the Commonwealth of Pennsylvania on October 15, 1984. His last office for the practice of law was located at [ ].
“(ii) On March 2, 1987 respondent entered a plea of nolo contendere to and was found guilty by the Honorable [B], Judge of the Municipal Court, [ ], of the offense of recklessly endangering another person in violation of 18 Pa.C.S. §2705. A true copy of the criminal transcript is attached hereto, made a part hereof and marked Exhibit P-1.
“(iii) On that date respondent was sentenced to 30 days’ non-reporting probation, a fine of $2,000, $25 in costs, plus 200 hours of community service.
“(iv) On September 3, 1987, in accordance with rule 214, Pa.R.D.E., the Supreme Court of Pennsylvania entered an order immediately suspending respondent and referring to the Disciplinary Board the conviction of respondent in the Municipal Court of [ ] at M.C. no. [ ], for the institution of a formal proceeding before a hearing committee to determine the extent of final discipline to be imposed. A true copy of said order is attached hereto, made a part hereof and marked Exhibit P-2.
“(v) Respondent admits that by reconnecting the gas service at [ ], on January 4, 1986, he knowingly endangered the lives and safety of other persons, in violation of 18 Pa.C.S. §2705.
“(vi) Respondent admits that the facts set forth in paragraphs 2, 3 and 5 herein constitute violations of Disciplinary Rules 1-102(A)(3) and 1-102(A)(6).“

(17) Respondent has successfully completed all the conditions of probation.

(18) Respondent has continued to provide community service in excess of the 200 hours, primarily in the area of housing with the Neighborhood Housing Network.

(19) Respondent fully complied with his interim suspension and properly notified his existing clients and filed the appropriate certificate of compliance with the Disciplinary Board of the Supreme Court of Pennsylvania.

(20) Since his suspension from the practice of law, respondent was allowed to reactivate his real estate agent license by the Pennsylvania Real Estate Commission. Respondent has made full disclosure to the Real Estate Commission of his conviction and suspension.

(21) Since respondent’s suspension, his main source of income has been from acting as an intermediary in international adoption matters.

(22) Respondent testified he has not practiced law at any time since his suspension from the practice of law.

(23) Respondent established a business registered as International Families that has the purpose of assisting people secure children from overseas for private adoption.

(24) Respondent sought advice from the Honorable [C], Administrative Judge of the Court of Common Pleas, Family Division, as to what he could be as an intermediary. Judge [C] agreed respondent could continue to act as an adoption intermediary but could not appear in court unless he was represented by separate counsel.

(25) Pennsylvania statute allows a lay person to act as an intermediary in adoption matters (23 Pa.C.S. §2102).

(26) Respondent has acted as an adoption intermediary four times since his suspension from the practice of law.

(27) Respondent testified he did not provide legal adyice in the role of adoption intermediary.

(28) Since his suspension, respondent has maintained his knowledge in the changes in the law. He regularly reads the Pennsylvania advance sheets. He has continued to subscribe to various legal-publications.

(29) Respondent has read and became familiar with both the old and new Code of Professional Responsibility. If respondent is allowed to again practice law, he fully agrees to comply with all his ethical obligations.

(30) Attorney [D] testified respondent was presently acting as an adoption intermediary for him.

(31) Respondent testified to his great remorse and embarrassment over his misconduct and the fact that it was an aberration. The respondent assured the hearing committee he would never repeat the misconduct.

(32) Respondent failed to immediately report his conviction to the Disciplinary Board as required by rule 214(a), Pennsylvania Rules of Disciplinary Enforcement. Respondent testified that he had “bad advice” from his former counsel.

(33) Respondent failed to investigate personally his responsibilities under the Rules of Disciplinary Enforcement as an attorney convicted of a crime.

CONCLUSION

Respondent violated Disciplinary Rules 1-102(A) (3) and (6).

DISCUSSION

This matter involves evaluating the nature of discipline for respondent who has stipulated to violating Disciplinary Rules 1-102(A)(3) and (6) by reconnecting gas pipes of his rental property, thereby endangering the lives and safety of others.

The record shows that respondent has satisfactorily complied with all the conditions of his probation and of his interim suspension. It has also been demonstrated that respondent has kept abreast of changes in the law during his suspension period.

Furthermore, he has expressed that his embarrassment and remorse at his aberrant misconduct. This is a case which warrants a short suspension. In re Anonymous No. 46 D.B. 84, 39 D.&C. 3d 234 (1986). It certainly does not warrant at this point in the procedural history of this matter imposing on respondent the necessity of applying for readmission.

The board concludes that a three-month suspension retroactive to September 3, 1987, the date of his interim suspension, is the appropriate discipline.

It should be noted that any suspension in excess of three months would require that respondent be subjected to the lengthy reinstatement procedure that is required by PaR.D.E. 218(a). Since respondent has already been under suspension for over a year, any period in excess of three months would make the discipline totally disproportionate to the violations. Pa.R.D.E. 218(a) does not refer to interim suspension determined without a hearing, and as a consequence no application for readmission is required unless the adjudicated suspension exceeds three months. See In re Anonymous No. 71 D.B. 84, 35 D.&C. 3d 120 (1985), and In re Anonymous No. 67 D.B. 86, 48 D.&C. 3d 201 (1988).

RECOMMENDATION

In light of the foregoing findings and discussion, the Disciplinary Board recommends that respondent, [. ], be suspended from the practice of law for a period of three months retroactive to September 3, 1987, the date of his interim suspension. Respondent should be directed to pay the costs of this proceeding.

Messrs. Keller and Eckell did not participate in this adjudication.

ORDER

And now, February 10, 1989, upon consideration of the report and recommendations of the Disciplinary Board dated January 19, 1989, and respondent’s petition, it is hereby ordered that [respondent] be and he is suspended from the bar of this commonwealth for a period of three months, retroactive to September 3, 1987, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.

ORDER

And now, this February 23, 1989, on certification by the Disciplinary Board that respondent, [ ], who was suspended by order of this court dated February 10, 1989, for a period of three months, retroactive to September 3, 1987, has filed a verified statement showing compliance with all the terms and conditions of the order of suspension and rule 217, Pa.R.D.E., and there being no outstanding order of suspension or disbarment, [ ] is hereby reinstated to active status, effective immediately.

       While the circumstances in this case do not merit an exhaustive review of the underlying facts, the board does not generally approve of simply placing the conviction into evidence without the facts leading to the conviction being reviewed.


source: Caselaw Access Project

author: O’MALLEY, J.,

license: Public Domain

text:
    Kivlin v. Allstate Insurance Co.
    June 1, 1989

      Nicholas E. Fick, for petitioner.

      Joseph P. Lenahan, for respondent.
   O’MALLEY, J.,

This case involves the all too prevalent situation wherein an insurance policyholder, believing he has coverage under the language of the policy he has paid for, is informed by the insurer, when payoff time comes, that such is not to be the case.

The matter began on June 27,1987 when Michael Kivlin Jr., a minor, the son of Michael Kivlin Sr. and Mary Rose Kivlin, petitioners, was struck, while riding his bike in the City of Scranton, by a vehicle operated by one John J. DeStefano. It is alleged that the boy sustained severe and permanent injuries requiring substantial medical care. Metropolitan Property and Liability Insurance Company, the insurer of DeStefano’s vehicle, tendered the sum of $50,000, the limit of the insurance coverage under the policy to Mr. and Mrs. Kivlin as the natural guardians of their minor son but it is further alleged that the costs of the injuries he sustained far exceed this amount. The Kivlins aver that DeStefano’s vehicle was an underinsured motor vehicle under the Pennsylvania Motor Vehicle Financial Responsibility Law (75 Pa. C.S. § 1701 et seq.); that respondent Allstate Insurance Company was the insurance carrier on two vehicles the petitioners owned at the time of the accident and that their son was covered under the uninsured/underinsured motorist provisions of the policy. A request for payment has been refused by Allstate on the grounds that young Kivlin is not a “resident relative” which would allow him to be an insured under the terms of the policy. The rationale for this attitude is Allstate’s contention that the parents were separated at the time with the boy residing exclusively with his mother whom herself had no policy coverage by respondent, and that a declaratory judgment must first determine if the minor is a person insured before he can invoke the policy’s arbitration clause. The Kivlins agree they were separated at the time of the accident but argue that they had joint custody of the boy and that the vehicles of both the parents were insured under the policy. They requested Allstate to appoint an arbitrator. Allstate has refused to do this and, instead, has instituted suit for a declaratory judgment. A rule was obtained on February 6, 1989 by the Kivlins upon Allstate to show cause why the petition they presented for appointment for an arbitrator should not be granted in the instant case.

The petition will be granted.

The pertinent terms of the subject insurance policy read as follows:

“Uninsured and Underinsured Motorists Insurance — Coverage SS.—
“We will pay damages for bodily injury, sickness, disease or death which a person insured is legally entitled to recover from the owner or operator of ah - insured or underinsured auto. Injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured or underinsured auto. The right to benefits and the amount payable will be decided by agreement between the person insured and Allstate. If the person insured and we can’t agree, the decision will be made by arbitration.
“If a persons insured sues a person believed responsible for the accident, we aren’t bound by any resulting judgment unless we received reasonable notice of the pendency of the suit resulting in the judgment and had a reasonable opportunity to protect our interests in the suit.
“Persons Insured —
“(1) You and any relative who resides in your household.
“(2) Any person while occupying your insured auto, and
“(3) Any other person who is legally entitled to recover because of bodily injury to you, a relative who resides in your household, or any occupant of yoür insured auto.”

If the language of a policy prepared by the insurer is ambiguous or obscure, the language will be construed most favorably to the insured. Blocker v. Aetna Casualty & Surety Company, 232 Pa. Super. 111, 332 A.2d 476 (1975). A general policy exists favoring arbitration of contractual differences. Wolf v. Baltimore, 250 Pa. Super. 230, 378 A.2d 911 (1977). It has been noted in text that:

“In cases arising under the uninsured and under-insured motorist provisions in the typical automobile policy, the courts have generally taken an extremely broad view of the scope of the arbitration agreement and held that under the agreement the parties contemplated that all disputes would be arbitrated.” Feldman, Pennsylvania Trial Guide, Vol. 1, at 16.5.

The Pennsylvania Supreme Court, has long expressed the view that all . questions arising under this clause should be determined by arbitration. Allstate Insurance Company v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972) and cases cited therein. In National Grange Mutual Insurance Company v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968), the court said that court proceedings should not be read into the agreement to arbitrate. Along these lines it quoted with approval the dissent in Rosenbaum v. American Surety Company of New York, 11 N.Y. 2d 310, 229 N.Y.S. 2d 375, 183 N.E. 667 (1962):

“We should not read into the agreement a provision for piecemeal treatment of a specified area of dispute by two separate and distinct procedures. If we do so, we will be adding a new type of cause to an already overburdened court calendar with its attendant delay, personal effort and financial burden, which could be expeditiously and promptly disposed of in the manner upon which the parties have agreed. The policy endorsement was drawn by the company for which the insured paid an extra premium and now finds, six years after the fatal injury, that she has not yet been able to pin the company down to its clearly expressed obligation. If there is any ambiguity which I do not concede, then under accepted rules of interpretation it must be resolved against the company.” Rosenbaum, supra.

Allstate argues that the question of whether the minor is an insured under its policy able to enforce the arbitration provisions is one that must be dealt with by a declaratory-judgment action, not arbitration under the policy terms. This argument is not the one accepted by the Pennsylvania state courts. In Allstate Insurance Company v. Taylor, 434 Pa. 21, 252 A.2d 1618 (1969) the matter to be determined was whether a graduate student attending a Pennsylvania. University was “a resident of same household” of the policyholder, namely his father who resided in California. The court held that a declaratory-judgment action was not the way to proceed but rather that the dispute between the parties arising under the uninsured motorist provision should have been settled by arbitration. In Preferred Risk Mutual Insurance Company v. Martin, 436 Pa. 374, 260 A.2d 804 (1970) the question was whether a foster child of the policyholder was under a clause which afforded coverage, inter alia, to “the named insured and, while residents of the same household, the spouse of such insured and the relatives of either.” Holding that arbitration was the correct procedure, the court stated:

“In a long series of cases, we have consistently held that all disputes arising under the uninsured motorist clause of the standard insurance policy must be settled by arbitration.” Martin, supra.

Citing Taylor, supra, it held that the question of coverage — whether a person comes within the definition of “insured” under the policy — is to be determined by arbitration.

In Hartford Insurance Group v. Kassler, 227 Pa. Super. 47, 324 A.2d 521 (1974) it was stated:

“We do not believe that a court must entertain a declaratory-judgment action when the parties to the contract have agreed upon a forum to resolve disputes, and one of the parties insists that forum be employed ... To permit a declaratory-judgment proceeding would render the parties’ agreement to arbitrate negatory.” Kassler, supra.

Respondent states the proposition that, “In order to be an insured, Michael Kivlin Jr. must be a resident in the named insured’s household.” Apparently it is given that Mr. and Mrs. Kivlin are separated. Respondent then claims, which the Kiv-lins deny, that the minor resides exclusively with Mrs. Kivlin who is not a named insured on the policy. Allstate then argues that thus, the minor is not a “resident relative” and further, that it must first be determined by declaratory judgment, whether the minor was an “insured” so as to be able to enforce the arbitration clause to begin with. We believe this to be an exercise in legal sophistry and an attempt by Allstate to evade the arbitration it agreed to by having the heart of the matter, i.e. coverage, determined in the declaratory-judgment proceedings. The rule to which all the Pennsylvania state cases conform is that where the application or construction of the uninsured/underinsured motorist clause is at issue the dispute is within the exclusive jurisdiction of the arbitrators; the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional legislative or administrative mandate, or against public policy, or unconscionable. Webb v. United Services Automobile Association, 227 Pa. Super. 508, 323 A.2d 737 (1974). We hold that the issues raised here are matters for arbitration and not for a declaratory-judgment proceeding.

ORDER

Now, June 1, 1989, for the reason set forth in the accompanying opinion, it is hereby ordered and decreed that the petition for appointment of arbitrator is granted; the parties shall each appoint an arbitrator within 30 days of the date of this order.

      . Filed in the Court of Common Pleas of Lackawanna County under the caption Allstate Insurance Co. v. Michael Kivlin Jr., a Minor By and Through his Parents and Natural Guardians, Michael Kivlin Sr. and Mary Rose Kivlin, Individually, no. 89-CIV-666.

      . We note in passing that courts have shown a willingness to interpret the word “household” broadly. See Mazzilli v. Accident Casualty Ins. Co. of Winterthur, Switzerland, 170 A.2d 800 (N.J. 1961) — parents, although separated, and child still part of same household.


author: DAVISON, /.,

text:
    In re Dennis Thomasik, License no. E-5173

      Kenneth W. Makowski, for the Liquor Control Board.

      A.T. Gillespie Jr., for. appellant.

      April 3, 1989
   DAVISON, /.,

We have before us for consideration the appeal of Dennis Thomasik, owner of V.C.’s Soup’r Sandwiches, 3300 Lehigh Street, in the South Mall in western Salisbury Township, Lehigh County, Pennsylvania, from the decision of the Pennsylvania Liquor Control Board on September 16, 1988, denying Thomasik’s application for a retail dispenser’s license for an eating place.

We begin with a determination of the appropriate standard of review. Section 471 of the Liquor Code, 47 P.S. §4-471, provides:

“[T]he court so appealed to shall, in the exercise of its discretion, sustain, reject, alter or modify the findings, conclusions and penalties of the board, based upon the findings of fact and conclusions of law as found by the court.”

Our Supreme Court has recently concluded that the role of the trial court in appeals cases is to conduct a de novo review, and in the exercise of its statutory discretion, make its own determination of the facts and applicable law, regardless of whethér the court hears new evidence or merely reviews the evidence presented to the board. Adair v. Pa. Liquor Control Board, 519 Pa. 103, 114, 546 A.2d 19, 25 (1988).

In the case sub judice, no factual dispute existed, Thomasik waived his right to a board hearing, and therefore, the board’s decision was based solely on Thomasik’s application and the board’s interpretation of section 461 of the Liquor Code. As both sides agreed to a stipulation of facts before this court, and no new evidence was presented, we now have before us de novo a question of statutory interpretation, relating to Thomasik’s application, the stipulated facts, and the board’s findings of fact.

The following findings of fact were made by the board:

“(1) The application has been filed under the provisions of section 461 of the Liquor Code, which provides that one retail license of any class, exclusive of licenses granted to airport restaurants, municipal golf courses, hotels, privately owned public golf courses and clubs, may be granted for each part of a municipality which is separated by another municipality.
“(2) The separate portion of Salsbury [sic] Township, Lehigh County, for which the new retail dispenser eating place license is sought, currently has one restaurant license in effect, which closes the quota specified under section 461 of the Liquor Code.
“(3) By letter dated September 16, 1988, the board denied the licensee’s application, as the quota is filled and its granting was barred by section 461 of the Liquor Code.”

In framing his argument, appellant relies exclusively upon the fact that Salisbury Township is a split municipality, in which the fourth and fifth wards (commonly referred to as western Salisbury) do not physically touch the first, second and third wards. He contends that the legislature added a provision to section 461 purporting to allow residents of each portion of a split municipality to have the same rights to consume or purchase alcoholic beverages as the residents of the other portion:

“§4-461. Limiting number of retail licenses to be issued in each municipality
“(a) No license shall hereafter be granted by the board for the retail sale of malt or brewed beverages or the retail sale of liquor and malt or brewed beverages in excess of one of such licenses of any class for each two thousand inhabitants in any municipality, exclusive of licenses granted to airport restaurants, municipal golf courses, hotels, privately owned public golf courses, as defined in this section, and clubs; but at least one such license may be granted in each municipality and in each part of a municipality where such municipality is split so that each part thereof is separated by another municipality. ...”

Appellant’s counsel resourcefully argues that even though two restaurant licenses already existed in western Salisbury Township at the time of his application, he is entitled nonetheless to acquire an eating place license on the theory that each part of a split municipality is entitled to at least one license of each class.

The rather novel question of statutory interpretation involves the meaning of the phrase “of any class” in section 461 of the Liquor Code.

Two types of licenses are mentioned in 47 P.S. §4-461(a), namely, licenses which permit the retail sale of malt or brewed beverages and licenses which permit the retail sale of liquor and malt or brewed beverages. The words “one such license of any class” follow and refer to the delineation of these two categories.

A retail dispenser’s license for an eating place, as defined in 47 P.S. §1-102, permits the retail sale of malt or brewed beverages only. A restaurant liquor license allows the sale of liquor in addition to malt or brewed beverages. Id. Upon careful review, we agree with counsel for the board’s argument that the plain meaning of the clause “in excess of one such license of any class” is that a retail dispenser’s license for an eating place and a restaurant liquor license are both licenses which count against the quota for each municipality or section of a municipality that is physically split off from the rest.'

Since two restaurant licenses exist in western Salisbury Township, section 461 prohibits the granting of retail dispenser’s license for an eating place. This was the finding of the board, and we likewise perceive the statutory language to be clear and unambiguous. If the statutory language consisted of “each class,” as appellant appears to suggest, rather than “any class,” a different interpretation would be possible, but as it stands, “the statute must be given its plain and obvious meaning.” In re Pittsburgh Beer Corp., 216 Pa. Super. 71, 77, 260 A.2d 493, 495 (1969). This interpretation is consistent with the purpose of regulatory legislation in this area which has always been to restrain, rather than promote, the sale of alcoholic beverages. That is why legislative quotas have been imposed limiting the number of licenses in municipalities. Appeal of El Rancho Grande Inc., 496 Pa. 496, 506, 437 A.2d 1150, 1155 (1981), appeal after remand, 78 Pa. Commw. 592, 467 A.2d 1381. In the current mandatory jail sentence DUI era that policy seems as viable as ever.

Appellant asserts that in ruling against him, the board reversed the position it took in 1976 when it approved a restaurant liquor license in western Salisbury Township even though a club license was already in existence. A close reading of section 461 specifically excludes, for quota purposes, clubs as well as airport restaurants, municipal ánd privately owned public golf courses, and hotels from the general rule requiring a ratio of one license of any class for each two thousand inhabitants. See 47 P.S. §4-461(a), supra. Therefore, it appears that the board was justified in granting the restaurant hquor license in 1976.

Lastly, appellant seeks to buttress his position by relying upon the asserted drafter of the split municipality language of section 461. While perhaps of interesting historical significance, the purported expression of intent is not legally persuasive. Its source is not a legislator, but an admitted drafter, and it was not arguably contemporaneous to the enactment, having been uttered some 28 years post-enactment. See 1 Pa.C.S. §1921 (c)(7); Commonwealth, Higher Education Assistance Agency v. Abington Memorial Hospital, 478 Pa. 514, 521, 387 A.2d 449, 444 (1978). See also, Hoffman v. Pennsylvania Crime Victim’s Compensation Board, 46 Pa. Commw. 54, 58, 405 A.2d 1110, 1112 (1979) (remarks or understanding of individual representative not binding when endeavoring to ascertain legislative intent); In re Tarlo’s Estate, 315 Pa. 321, 172 Atl. 139 (1934) (views of drafter not entitled to great weight in determining meaning).

Accordingly, finding that applicable law, as passed by the legislature, does not support appellant’s position, we are obliged to sustain the decision of the Pennsylvania Liquor Control Board and dismiss this appeal.

ORDER

Now, April 3,1989, upon consideration of the briefs of counsel and after argument thereon, and for the reasons expressed in the accompanying opinion, it is ordered that the appeal of Dennis Thomasik from the decision of the Pennsylvania Liquor Control Board is hereby denied and dismissed.

       An eating place license is one of several types of retail dispenser licenses; others include restaurant, club, distributor and hotel licenses.


author: BAYLEY, J.,

text:
    Mallios v. Bureau of Liquor Control Enforcement
    September 11, 1989

      William C. Kolias, for appellant.

      Michael S. Sherman, for appellee.
   BAYLEY, J.,

On May 16, 1988, the Bureau of Liquor Control Enforcement issued a citation, no. 87-2915, against James J. and Evdokia Mallios, t/a Paradise Hotel, licensee. The citation charged that both narcotics trafficking and gambling took place at their licensed premises in Mechanicsburg, Cumberland County. Hearings were held before an administrative law tribunal on November 30 and December 2, 1988. On February 24, 1989, an administrative law judge issued an opinion in support of an adjudication dismissing the citation as untimely filed. The bureau appealed the order to the Pennsylvania Liquor Control Board.

On August 4, 1989; the PLCB, in an opinion in support of an order, stated:

“The sole issue is a question of law: Does section 471(a) of the Liquor Code (47 P.S. §4-471 (a)) mandate that a citation be issued within one year of the alleged date of violation, or does it mandate that a citation be issued within one year from the date the BLCE learns of the violation?” (emphasis in original)

After analyzing the issue the board concluded that the administrative law judge erred in dismissing the citation. It entered the following order:

“The decision of the ALJ [administrative law judge] is reversed and the matter is remanded to them to proceed with the case on its merits.”

The licensee appealed the board’s order to this court. On August 22, 1989, we routinely entered a stay order and set a hearing for October 23, 1989. On August 31, 1989, the Bureau of Liquor Control Enforcement, Pennsylvania State Police, filed motions to dismiss the appeal and strike the stay order. Appellee sets forth two reasons for the relief requested. First, it maintains that the order of the PLCB remanding the case to the administrative law judge to proceed on its merits is interlocutory. Secondly, it maintains that section 471 of the Liquor Code, 47 P.S. §471(b), prohibits a licensee from appealing an order of the PLCB to a court of common pleas unless the licensee was fined or its license was suspended or revoked. Section 4-471(b) provides in pertinent part:

“In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the adjudication of the administrative law judge, there shall be a right of appeal to the board. The appeal shall be based solely on the record before the administrative law judge. The board shall affirm the decision of the administrative law judge if it is based on substantial evidence; otherwise, the board shall reverse the decision of the administrative law judge. In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the decision of the board, there shall be a right to appeal to the court of common pleas in the same manner as herein provided for appeals from refusals to grant licenses. Each of the appeals shall act as a supersedeas unless, upon sufficient cause shown, the reviewing authority shall determine otherwise; however, if the licensee has been cited and found to have violated section 493(1) insofar as it relates to sales to minors, section 493(10) insofar as it relates to lewd, immoral or improper entertainment or section 493(14), (16) or (21), or has been found to be a public nuisance pursuant to section 611, or if the owner or operator of the licensed premises or any authorized agent of the owner or operator has been convicted of any violation of the Controlled Substance, Drug, Device and Cosmetic Act, or of 18 Pa.C.S. §5902 or 6301, at or relating to the licensed premises, its appeal shall not act as a supersedeas unless the reviewing authority determines otherwise upon sufficient cause shown.” (emphasis supplied)

The licensee in the present case was not fined nor was its license suspended or revoked. Accordingly, there is no “right” for it to appeal the order of the PLCB to this court. Under section 471(b), a licensee may only file an appeal to a court of common pleas (1), from an order of the PLCB, and (2), when it has been fined or its license is suspended or revoked. Accordingly, we will grant relief on the motions of the bureau. The effect of our order will allow the case to be returned to the administrative law judge to proceed on the merits pursuant to the Board’s order of remand. If the administrative law judge ultimately enters an order fining the licensee or suspending or revoking its license, the licensee may appeal that order to the PLCB. The licensee may only file an appeal to this court from an order of the PLCB where it has been fined or its license has been suspended or revoked.

ORDER OF COURT

And now, September 11, 1989, the within appeal is dismissed and the hearing set on the appeal is canceled. The stay order entered on August 22, 1989, is stricken.

       The named appellee was the “Pennsylvania Liquor Control Board.” The licensee subsequently amended the caption to change the name of the appellee to “Bureau of Liquor Control Enforcement, Pennsylvania State Police.”


author: DAVISON, J.;

text:
    Commonwealth v. $510.50 in U.S. Currency
    January 26, 1990

      Richard R. Tomsho, assistant district attorney, for the commonwealth.

      Leighton Cohen, for defendant.
   DAVISON, J.;

We have before this court the district attorney’s petition to forfeit certain personal property seized by South Whitehall Township police in connection with a drug offense to which defendant has now pled guilty. For the reasons hereinafter specified, we sustain the commonwealth’s request.

While operating a motor vehicle on February 24, 1989, in South Whitehall Township, Lehigh County, defendant was arrested for various Motor Vehicle Code violations. When he was unable to provide proper identification, a search of the vehicle was made. Police discovered a small packet later determined to contain marijuana, a marijuana cigarette and a small suitcase in the rear of the vehicle. Defendant was then taken to police headquarters. There, a search of the suitcase revealed several more bags later determined to contain marijuana, a triple beam scale, a large quantity of plastic bags similar to the other bags that contained marijuana, and a bank bag containing $48.70 in coins. The total amount of marijuana confiscated was 205.7 grams, which resulted in defendant being charged with several drug law violations, namely, possession, possession with intent to deliver a controlled substance and possession of drug paraphernalia. A further search revealed, in close proximity to the same area where the suitcase was found, a photo album containing $462 of varying denominations in paper currency.

A hearing in this forfeiture matter was held on November 13, 1989, at which time the defendant testified that he is presently self-employed; all of his personal possessions were in the vehicle since, at that time, he had no permanent residence; he had previously sold marijuana to a select group of customers; the marijuana confiscated was packaged for sale; as a hobby, he maintained a collection of coins and currency; and the monies seized were part of his collection, although he offered no evidence as to their source of acquisition.

The deputy district attorney vigorously argues that the coin and currency collection seized is properly forfeited pursuant to 42 Pa.C.S. §6801(a)(6),- which states:

“(a) 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.
“(ü) . . . Such money and negotiable instruments found in close proximity to controlled substances possessed in violation of The Controlled Substance, Drug, Device and Cosmetic Act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act.”

The statutory language is clear. All money, regardless of the purpose for which it is maintained, is subject to forfeiture. There is no differentiation between general everyday circulated money and rare, uncirculated or collectible money. Simply stated, it appears that the legislature deemed money to be money, and if violative of The Controlled Substance, Drug, Device and Cosmetic Act, it is subject to forfeiture.

The statute creates a rebuttable presumption that all money found in close proximity to controlled substances constitutes proceeds from the sale of the controlled substance. The commonwealth points out that the subject money was in close proximity to the controlled substances. The bank bag of coins was found in the suitcase containing the marijuana. The photo album, which contained the currency, was located in the same area of the vehicle where the suitcase was discovered. We are satisfied that the location of both containers of money was sufficiently close to the controlled substances to trigger the statutory presumption. Accordingly, the burden then shifted to claimant to rebut the presumption that the money was drug proceeds. Commonwealth v. One 1985 Cadillac Seville, 371 Pa. Super. 390, 538 A.2d 71 (1988). The commonwealth contends, and we agree, that claimant has failed to meet his burden. In his defense, claimant contends that the coins and currency seized were part of his private coin collection, without any evidence as to source. Even if we accept defendant’s claim that the money seized was part of a hobby collection, he offers no proof that it was his private collection. Moreover, in the event this collection was indeed claimant’s private collection, he offers no proof that it was acquired lawfully. On the other hand, we consider the type and quantity of drug paraphernalia in Long’s possession; that the amount and packaged condition of the marijuana are consistent with those of a vendor, not simply a user; and that Long admitted he serviced a clientele.

We therefore are obliged to conclude that the coin and currency collection was a direct result of illegal drug sales, and consequently, defendant’s property rights are forfeited therein. Admitted drug dealers should not be permitted to benefit from illegal drug sales. That is the very pocketbook result the legislature intended.

ORDER

Now, January 26, 1990, upon consideration of the petition of the district attorney of Lehigh County, following a hearing on November 13, 1989, and for the reasons set forth in the accompanying opinion, it is adjudged that the 1978 Datsun, VIN JHL710893509, and$510.70inU,S. currency found therein, were used or intended to be used to facilitate violation of The Controlled Substance, Drug, Device and Cosmetic Act; and it is adjudged that the controlled substance of marijuana and drug paraphernalia are contraband and that no property rights exist in these items; therefore, it is ordered that the $510.70 in U.S. currency and the 1978 Datsun VIN JHL710893509, be forfeited to the County of Lehigh for the use of the district attorney of Lehigh County, who may, subject to applicable law: (1) retain, where appropriate, the property for enforcing The Controlled Substance, Drug, Device and Cosmetic Act; or (2) sell, where appropriate, the property that is not required to be destroyed by law and is not harmful to the public. The forfeited cash and sale proceeds of forfeited property are to be placed in the operating fund of the county, to be released, without restriction, subject to annual audit submitted to the Office of the Attorney General, for the use of the district attorney of Lehigh County to enforce the provisions of The Controlled Substance, Drug, Device and Cosmetic Act; monies placed in the account for law enforcement use shall, to the extent not expended by said district attorney at the end of a budget year or years, remain encumbered for use in law enforcement in the following or subsequent year or years; and said monies shall, for purposes of budgetary adoption and approval, be deemed to be continuing proceeds of the original forfeiture under the Controlled Substances Forfeitures Act; and it is further ordered that the controlled substance of marijuana seized, and the drug paraphernalia, subject to their use in other cases, be destroyed.

       Following the forfeiture hearing, defendant, on December 7, 1989, entered a guilty plea to possession with intent to deliver a controlled substance.


author: DAVISON, J.,

text:
    Williams v. Office of the Public Defender of Lehigh County
    February 19, 1990

      Anthony Spencer Williams, in propria persona.

      Thomas M. Caffrey and Lawrence J. Brenner, for defendants.
   DAVISON, J.,

Presently before this court are preliminary objections by defendants County of Lehigh, Office of Lehigh County Public Defender, and Fredrick E. Charles, Aaron Matte, Michael E. Brunnabend, Edward Eidelman and Dennis G. Charles, Esqs., arising from legal representation of plaintiff, as public defenders, for various criminal charges during 1983 through 1985. For the reasons hereinafter specified, we are obliged to sustain the preliminary objections.

Pa.R.C.P. 401 provides:

“(a) Original process shall be served within the commonwealth within 30 days after the issuance of the writ or the filing of the complaint.
“(b)(1) If service within the commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the commonwealth within the time prescribed by rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon ‘reissued’ in the case of a writ or ‘reinstated’ in the case of a complaint.
“(4) A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by rule 404 after reissuance, reinstatement or substitution.”

Plaintiff’s complaint alleges various instances of legal malpractice, the last being November 18, 1985. According to the sheriffs returns, service was made June 3, 1987, upon “the Office of the Public Defender” and separately upon Robert Magee. Service upon the public defender’s office is not tantamount to service on individual public defenders.

Defendants Matte, Brunnabend, Eidelman and the Messrs. Charles have simply not been served. Personal service was not made within 30 days of the filing of the complaint, and the complaint has not been timely reinstated. Moreover, the appropriate statute of limitations appears to be the two-year limit specified in 42 Pa.C.S. §5524(2). Paragraph 16 of the complaint alleges November 18, 1985, as the last date of asserted legal malpractice. The complaint was not properly served nor timely reinstated, and the statute of limitations has now expired. Therefore, we are obliged to dismiss this action as to these defendants.

Although the public defender’s office was properly served, county counsel asserts immunity under the Pennsylvania Political Subdivision Torts Claim Act, 42 Pa.C.S. §8541:

“Except as otherwise provided in this subchapter no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

Does the public defender’s office constitute a “local agency”? Title 42 Pa.C.S. §8501 defines local agency as “[A] government unit other than the commonwealth government. This term includes an intermediate unit.” Title 16 P.S. §9960.3, the Public Defender Act, provides:

“In each county except the County of Philadelphia, there shall be a public defender, appointed as herein provided. Two or more counties may cooperate in the appointment of a public defender, as provided in the intergovernmental cooperations of the Constitution of Pennsylvania or as provided by law.”

Since each county (except Philadelphia) is mandated to maintain a public defender’s office, we conclude that the County of Lehigh and the Office of the Public Defender of Lehigh County is a county agency and entitled to immunity.

There are limits on immunity. These limitations appear in 42 Pa.C.S. §8542:

“§8542. Exceptions to governmental immunity
“(a) Liability imposed — A local agency shall be fiable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
“(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
“(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of this office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, ‘negligent acts’ shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.”

Section 8542(b) permits liability if the alleged act involves vehicle liability; care, custody or control of personal property; real property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; and care, custody or control of animals. Legal malpractice is not within the enunciated exceptions. Therefore, we hold that the public defender’s office is immune and we sustain the preliminary objections.

ORDER

Now, February 19, 1990, upon consideration of the briefs, and for the reasons set forth in the accompanying opinion, it is ordered that the preliminary objections of defendants County of Lehigh, Lehigh County Public Defender’s Office, Fredrick E. Charles, Aaron Matte, Michael Brunnabend, Edward Eidelman and Dennis G. Charles, alleging improper service and failure to state a cause, of action, are hereby sustained and the action as to the within-named defendants is hereby dismissed.

      . Although plaintiff names both the County of Lehigh and the Lehigh County Office of Public Defender as individual defendants, we regard them, for the purposes of this litigation, as one and the same.

      . The immunity enjoyed by the county and public defender’s office coextensively inures to the individual public defenders under 42 Pa.C.S. §8545.


author: LAWRENCE,

text:
    Township of Cheltenham v. Tudor Insurance Company
    February 9, 1990

      Marvin L. Wilenzik, for plaintiff Township of Cheltenham.

      Joshua Wall, for defendant Tudor Insurance Company.
   LAWRENCE,

This is Hartford Accident and Indemnity Company’s appeal from this court’s December 4, 1989 affirmance of its order of September 12, 1989 granting partial summary judgment to the Township of Cheltenham as to the issue of Hartford’s duty to defend the township in an underlying federal civil rights action. -

FACTS

This case arises out of a petition for declaratory judgment brought by Cheltenham Township and the individual officials of the township against its insurers Tudor Insurance Company and Hartford Accident and Indemnity Company. The township sought to determine whether the insurers were obligated to defend the township under its contracts of insurance with Tudor and Hartford following the commencement of suit by the underlying plaintiff, Second and Ashbourne, a partnership, which alleged federal civil rights violations charging that the township’s delay in approving a land development plan for an apartment complex caused it to suffer damages.

There is no dispute that the policies of insurance issued by Tudor and Hartford to the township were in full force and effect at the time the underlying action was filed. Tudor issued a public official liability policy providing “errors and omissions” coverage on the following basis:

“[I]f, during the policy period, any claim or claims are . . . made against it as a result of any Wrongful Act, the company shall have the right and duty to defend any suit against the insured seeking damages on account of such Wrongful Act, even if any of the allegations of the suit are groundless, false or fraudulent.”

The definition of “wrongful act” contained in the policy is as follows:

“(c) ‘Wrongful Act’ shall mean any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty including misfeasance, malfeasance and nonfea-sance by an insured, as public official or employee of the public entity.”

At the same time, Hartford has issued a Comprehensive General Liability Insurance Policy containing the following pertinent provision:

“[T]he company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations are groundless, false or fraudulent...”

Hartford’s Form L-3991, entitled Supplementary Coverage Endorsement — Personal Injury and Additional Insured (Employees) states as follows:

“(1) The insurance afforded under the coverage for bodily injury liability is extended to apply to damages because of personal injury . . .
“(2) When used in reference to this insurance: ‘personal injury’ means injury sustained by any person or organization and arising out of a personal injury offense committed during the policy period within the policy territory. ‘Personal injury offense’ means (a) false arrest, detention or imprisonment, or malicious prosecution; (b) libel, slander, defamation, disparagement or violation of an individual's right of privacy; or (c) wrongful entry or eviction or other invasion of the right of private occupancy.”

Hartford’s general liability policy does not contain any exclusions for civil rights violations.

On July 12, 1989, the township filed a motion for partial summary judgment with respect to the insurer’s duty to defend. On September 12, 1989, this court granted plaintiffs’ motion as to the duty to defend as to both Tudor and Hartford. Hartford filed a petition for reconsideration. After oral argument on the petition for reconsideration, on December 4, 1989, this court affirmed its earlier order. Hartford filed a timely appeal.

DISCUSSION

The central issue that confronts this court is whether the policy issued by Hartford, specifically, the supplemental coverage endorsement providing coverage for personal injury offenses arising out of “wrongful entry or eviction or other invasion of the right of private occupancy” entitles the township to a full defense from Hartford

Under Pennsylvania law, an insurance company is obligated to defend an insured whenever the complaint filed by the injured party may potentially come within the policy’s coverage. Gedeon v. State Farm Mutual Automobile Insurance Company, 410 Pa. 55, 188 A.2d 320 (1963). The duty to defend remains with the insurer until the insurer can confine the possibility of recovery to claims outside the coverage of the policy. Cadwallader v. New Amsterdam Casualty Company, 396 Pa. 582, 152 A.2d 484 (1959); Seaboard Industries Inc. v. Monaco, 258 Pa. Super. 170, 392 A.2d 738 (1978). An insurer is obligated to defend the entire claim if some of the allegations in the complaint fall within the terms of the coverage and others do not. American Contract Bridge League v. Nationwide Mutual Fire Insurance Company, 752 F.2d 71 (3d Cir. 1985).

Further, in construing an insurance policy, if the words of the policy aré clear and unambiguous, the court must give the words their plain and ordinary meaning. Where ambiguous, insurance contracts are to be strictly construed against the insurer. Pacific Indemnity Company v. Linn, 766 F.2d 754 (3d Cir. 1985).

Hartford argues that the accepted and plain meaning of “a wrongful entry or eviction or other invasion of the right of private occupancy” is illegal searches and seizures, illegal entries into, or improper evictions of individuals from their private residences and does not include the allegations asserted against the township in the underlying action. This court does not agree that this provision should be construed so narrowly.

In the absence of any definition of the terms of this provision in the policy, as well as a dearth of Pennsylvania case law interpreting the language, this court relied on Town of Goshen v. Grant Mutual Insurance Company, 120 N.H. 915, 424 A.2d 822 (1980), in which the New Hampshire Supreme Court examined the identical provision at issue here to determine if coverage existed based upon similar third-party allegations.

The Town of Goshen sought a declaration as to its comprehensive general liability insurer’s duty to defend the town in a developer’s suit for wrongful delay of subdivision approval. The court held that the allegations against the town fell within the policy language and entitled the town to a defense.

The court rejected the insurer’s theory that tangible interference with the physical property itself was necessary to constitute an “invasion of the right of private occupancy.” Rather, the court concluded that the following averments, none of which alleged “physical” interference, were sufficient to bring the complaint within the ambit of policy coverage under this provision:

“[T]he planning board created economic hardships that destroy the viability of the complainant’s project, deprived him of his ability to ever recover the money, time and other resources invested in the development of his property, thus causing him substantial damage, and denied plaintiffs right to the free enjoyment of his property without due process of law.” Goshen, 424 A.2d at 824. The court also noted that since no express civil rights exclusion was written into the policy, any ambiguities should be construed in favor of the insured.

in the case at bar, the allegations of Second and Ashbourne’s complaint closely parallel those made against the town in Goshen, supra. These allegations include that the township’s actions in denying preliminary and final applications for approval were taken in order to frustrate Ashbourne’s development of a rental apartment complex upon the project and caused Ashbourne to incur an increased purchase price, additional engineering and land planning expenses, additional interest expense, legal fees, increased taxes and interest income and that the township’s actions denied Ashbourne the right to be free from the taking of its property and to the free enjoyment of its property without due process of law.

As in Goshen, supra, the language “invasion of the right of private occupancy” in the Hartford policy is ambiguous in the absence of any definition of these terms. Moreover, the Hartford policy had no exclusion for civil rights violations. Accordingly, this court concluded that, given the potential for coverage, Hartford was obligated to defend the township in the underlying action.

Hartford claimed this court erred in not following the reasoning of the New Hampshire Supreme Court in Town of Epping v. St. Paul Fire and Marine Insurance Company, 444 A.2d 496 (N.H. 1982), decided subsequent to Goshen, supra, and in which no duty to defend was found. Although it involved the same policy language in dispute here and similar underlying allegations, this court felt that Hartford’s reliance on Epping, supra, was misplaced.

In that case, the court determined that the presumption towards strict construction of policy language in favor of the insured could be rebutted by evidence of the parties’ prior dealings and the insured’s reasonable expectations as to coverage. The court had evidence before it indicating that the agent of the general liability insurer had promoted discussions with the town in an attempt to encourage town officials to purchase a public official liability policy which covered civil rights claims and which was available from another insurance company.

After the town selectmen had reviewed their existing coverage and been advised as to the distinct protection the public official coverage afforded the town, they decided not to purchase that coverage. Thus, there was unequivocal evidence that the town selectmen had been made aware through efforts of. their own insurance company that the géneral liability policy did not protect them against civil rights violations. The court held that because both parties knew that the township had not purchased protection against claims for civil rights violations, there was no duty to defend.

The court also observed that the fact that the town failed to provide notice to the general liability insurer of the civil rights complaint until four years after it was filed indicated that the town did not expect to be covered for such claims.

Unlike Epping, supra, the testimony of the township manager and the township’s insurance broker did not conclusively establish that the township knew that the general liability policy did not cover acts of the public officials. The following exchange took place at the deposition of Nicholas Melair, township manager.

Q: Did you ever have any discussion with your broker as to what was provided by the public official liability coverage and also provided by the CGL [comprehensive general liability] policy?
A: No.
Q: Did you ever have any discussion with anyone . . . as to whether the Hartford CGL policy covered public official liability prior to the Second and Ash-bourne cases?
A: No.
Q: Did you ever have any discussions with any of the carriers from whom you obtained public official liability policy as to what was covered by the policy?
A: No.

In addition, the township’s insurance broker, Irwin Shapiro, testified as follows:

Q: Did you ever advise the township that, going back to the time when you originally became its broker, that in your opinion, the Hartford CGL policy did not cover public official’s liability, for civil rights violation?
A: We never addressed civil rights.
Q: Did you ever advise the township that public official liability, any public official liability was not covered by the Hartford CGL policy?
A: No, I did not.
A further distinction between this case and Ep-ping, supra, is that the township notified Hartford of Second and Ashbourne’s complaint only two and one-half months after notifying Tudor, indicating that the township and the broker had not foreclosed the possibility that the Hartford policy applied as well. This was reflected in Mr. Shapiro’s testimony.
Q: Have you ever had any discussions with anyone from Hartford ... as to whether liability of the township or its officials for civil rights claims was covered under its CGL policy?
A: No.
Q: . . . You never had any such discussions?
A: Well, after the case was on record, everybody started looking as to where the civil rights aspect fell, but I’ve had no specific discussions with underwriters concerning that.
Q: Have you had any discussions, with anybody from Hartford’s claims department, whether its CGL covered this type of claim?
A: When we sent it in there was some discussion about it.

Epping, supra, does not stand for the proposition that the scope of coverage under a comprehensive general policy is determined by the mere existence of an errors and omissions policy. The purchase of public official liability coverage by the township does not suggest to this court that Hartford’s Comprehensive General Liability policy provides no coverage for certain civil rights violations in light of the deposition testimony. Under these circumstances, the undersigned did not err in finding the Hartford was obligated to defend' the township.

A secondary issue raised by Hartford was that, even assuming it had a duty to defend, this court should have apportioned the defense costs between Tudor and Hartford. Hartford makes reference to the “other insurance” clause in its general liability policy and to the distinction between Tudor’s “specific” policy and Hartford’s “general” policy, which Hartford claims requires Tudor to carry the primary burden of the defense costs. The court does not find either of these theories relevant to this case.

The Third Circuit Court of Appeals stated the rule applicable to this case in Pacific Indemnity Company v. Linn, 590 F.Supp. 643 (E.D. Pa. 1984), aff'd, 766 F.2d 754 (3d Cir. 1985):

“[B]ecause the duty to defend is independent of liability, each insurer owing Dr. Linn a defense . . . is required to contribute to the cost of defense in equal shares with any other insurer also obligated to defend Dr. Linn ...” Id. at 768.

Here, the situation was unique in that the jury found in favor of the township in the underlying federal action and, therefore, neither insurance carrier could confine the possibility of recovery to claims patently outside the coverage of its own policy. Thus, regardless of whether Tudor or Hartford would have been ultimately liable for indemnification to the insured, both are liable in equal amounts for the reasonable costs of the township’s defense.

       It is not seriously disputed by any of the parties that this provision would provide the only possible basis for coverage under the Hartford policy.


author: HOFFER, J.,

text:
    Commonwealth v. One 1987 Nissan
    January 5, 1990

      Johnna J. Deity, assistant district attorney, for the commonwealth.

      Marlin R. McCaleb, for claimant.
   HOFFER, J.,

At approximately 12:30 a.m. on October 4, 1988, Officer Thomas Kauffman of the Upper Allen Township Police Department stopped the above-captioned vehicle for being driven with a non-functioning headlight. The driver of the automobile is the owner-claimant in this action. While conversing with the driver, Officer Kauffman noted that the driver’s speech was slurred and his movements slow and deliberate. Officer Kauffman therefore requested the driver to take sobriety tests, whereupon the driver fell to the ground, vomited, and passed out.

Upon reviving, the driver volunteered that he had ingested LSD earlier in the evening, and produced several tabs of LSD from his wallet, which he was carrying in his hip pocket.. The driver was thereupon arrested and charged with various offenses, including violations of the Controlled Substance, Drug, Device and Cosmetic Act. Several months after the arrest, the commonwealth petitioned for forfeiture of claimant’s vehicle pursuant to 42 Pa.C.S. §6801(a)(4), and this court issued a rule to show cause why the requested forfeiture should not be effectuated. In response, and at a later hearing in this matter, the driver did not deny that he is the owner of the automobile, nor that he was driving it with LSD in his wallet; nevertheless, he disputes that the above facts subject his vehicle to forfeiture under 42 Pa.C.S. §6801(a)(4).

DISCUSSION

Title 42 Pa.C.S. §6801(a)(4) provides for forfeiture to the commonwealth of “[a]ll conveyances, including aircraft, vehicles, and vessels, which are used or intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of [controlled substances under 35 P.S. §780-101 et seq.]” The only exception to section 6801(a)(4) that pertains to the instant case provides that no vehicle is to be forfeited when the crime charged is possession of small amounts of marijuana that are not for sale. See 42 Pa.C.S. §6801(a)(4)(iv). Such forfeiture proceedings, while quasi-criminal in nature, are civil in form. Commonwealth v. 1978 Toyota, 321 Pa. Super. 549, 552, 468 A.2d 1125, 1126 (1983). Therefore, the commonwealth need only establish by a preponderance of the evidence that claimant’s automobile was involved with illegal drug activity. Commonwealth v. One 1984 Ford Bronco Truck, 121 Pa. Commw. 160, 164, 550 A.2d 597, 598 (1988). Once such evidence is produced, the burden shifts to claimant to contradict it. Id.

In the instant case, the claimant admits to having a small amount of LSD on his person while he was driving his automobile. He denies, however, that this fact is sufficient to subject the vehicle to forfeiture under 42 Pa.C.S. §6801. We must therefore determine whether the fact that a person possesses a small amount of a controlled substance while operating a vehicle can be construed as using the vehicle to “. . . in any manner facilitate the transportation . . . [or] possession. . .’’of the substance, thus subjecting the automobile to forfeiture to the commonwealth.

We note first that 42 Pa. C. S. §6801 is of fairly recent origin, having become effective only on June 30, 1988. The language of section 6801(a)(4) governing the forfeiture of vehicles and other conveyances is virtually identical to that of the former forfeiture statute at 35 Pa.C.S. §780-128(a)(4). The only significant difference between the old and new statutes lies in the types of narcotics violations that do not subject a vehicle to forfeiture. The former statute provided that a conveyance would not be forfeited when the only activity it was connected with was the unlawful possession of any controlled substance. See 35 Pa.C.S. § 780-128(a)(4)(iv). In contrast, as we have previously noted, the only exception to the forfeiture provisions of section 6801(a)(4) is the possession of small amounts of marijuana alone. We find it significant that in enacting 42 Pa.C.S. §6801(a)(4), the legislature used language identical with that of former 35 Pa. C. S. § 780-128(a)(4), except for the provision in the latter that the possession of controlled substances alone will not subject a vehicle to forfeiture. By dropping that particular exception while re-enacting the rest of the former statute verbatim, the legislature obviously intended that the only violation of the Controlled Substance, Drug, Device, and Cosmetics Act that will not subject a vehicle to forfeiture is the possession of small amounts of marijuana.

Because of section 680l’s recent origin, there are no Pennsylvania cases that we have found, after much research, that interpret it. We also note that case law under former 35 Pa.C.S. §780-128 does not aid us in the instant case, since the offense charged here is simple possession, which, as we have noted above, would not subject a vehicle to forfeiture under that statute. We therefore turn for guidance to the federal forfeiture law at 21 U.S.C. §881(a)(4), which contains virtually identical language to both the present and former Pennsylvania statutes. In Commonwealth v. One 1979 Lincoln Four-Door. Sedan, 344 Pa. Super. 171, 177, 496 A.2d 397, 400 (1985), our Superior Court noted that Pennsylvania has intentionally patterned its forfeiture statutes on the federal law, and therefore approved the use of case law under section 881 to construe corresponding forfeiture provisions under Pennsylvania law.

An examination of federal cases under 21 U.S.C. §881(a)(4) provides strong support for forfeiture of claimant’s vehicle in the instant action. First, federal cases have consistently held that the amount of narcotics present is irrelevant; even the possession of a minute amount of drugs will support forfeiture of a vehicle. United States v. $280,505, 655 F.Supp. 1487, 1497 (S.D. Fla. 1986). See also, United States v. One 1973 Jaguar Coupe, 431 F.Supp. 128 (S.D.N.Y. 1977) (two small packets of heroin); United States v. One 1971 Porsche Coupe, 364 F.Supp. 745, (E.D.Pa. 1973) (small package of cocaine). In addition, neither the fact that the controlled substance was for the possessor’s personal use rather than for distribution (see United States v. One 1975 Mercury Monarch, 423 F.Supp. 1026 (S.D. N. Y. 1976)), nor the fact that the drugs were on the person of a driver or passenger in the vehicle, rather than concealed directly within the automobile itself (see United States v. One 1973 Dodge Van, 416 F.Supp. 43 (E.D. Mich. 1976)), is a bar to forfeiture under section 881. Federal courts construing section 881 have consistently ruled that the mere fact that a controlled substance is present within a vehicle, boat or other conveyance is sufficient to mandate forfeiture, on the grounds that the vehicle was used to facilitate either the transportation (see United States v. One Clipper Bow Ketch Nisku, 548 F.2d 8 (1st Cir. 1977)) or the possession (see United States v. One 1973 Dodge Van, supra) of the substance.

The above case law, along with the plain language of 42 Pa.C.S. §6801(a)(4), mandates the forfeiture of claimant’s vehicle to the commonwealth. While forfeiture is harsh under the circumstances of this case, we have no doubt that the legislature intended such a result. By specifically declining to re-enact the former exception. for simple possession contained in 35 Pa.C.S. §780-128(a)(4)(iv) into 42 Pa.C.S. § 680(a)(4), the legislature gave notice that, with the exception of possession of small amounts of marijuana, the use of a vehicle to facilitate any violation of the Controlled Substance, Drug, Device and Cosmetic Act will subject that vehicle to forfeiture to the commonwealth.

We find, therefore, that the commonwealth has met its burden in demonstrating by a preponderance of the evidence that the automobile in question was in fact used to facilitate possession of a controlled substance. Indeed, claimant does not dispute that LSD was on his person while he was within the vehicle. Under the cases cited above, this fact is all that is necessary to subject the vehicle to forfeiture.

ORDER OF COURT

And now, January 5, 1990, the commonwealth’s petition for forfeiture is granted.

      . While we have found many judicial “orders” forfeiting vehicles, from other Pennsylvania counties, they have not been accompanied by written opinions.

      . The only difference between 21 U.S.C. §881(a)(4) and the Pennsylvania statutes is that under section 881, the use of a vehicle to facilitate the transportation, sale, receipt, or possession of any controlled substance subjects that vehicle to forfeiture; there is no exception in federal law for possession of small amounts of marijuana, as there is at 42 Pa.C.S. §6801(a)(4)(iv).

      . We assume that these types of forfeitures will become commonplace in this jurisdiction, regardless of the amount of controlled substance involved, and we assume that this procedure will be uniformly applied. This statute is, in effect, a “zero-tolerance” statute.