author: DOWLING, J.,

text:
    Maguire v. Ohio Casualty Insurance Co.

      Jefferson J. Shipman, for plaintiffs.

      Timothy I. Mark, for defendant Ohio Casualty Insurance Co.
    March 11, 1991
   DOWLING, J.,

In his masterpiece of satiric drama, The Trojan War Will Not Take Place, the French dramatist Jean Giraudoux envisioned a frantic series of attempts by both Hector and Ulysses to avert the outbreak of the celebrated Homeric conflict. At one point, all seems lost when a Trojan reports that a Greek ship has presented its colors, as it passed Troy, in a manner usually used only when passing a cattle-ship. But as the Trojans seethe over this insult to their honor, Hector quiets them by reinterpreting the gesture as a homage to Troy’s fertility and agricultural productivity. However, this linguistic sleight-of-hand ultimately proves to be of no avail; and as the curtain falls on the outbreak of war, following the killing of a Trojan poet, the prophetess Cassandra intones ominously, “The Trojan poet is dead; and now the Greek poet will have his say.”

There does indeed seem to be a limit to which even the most accomplished master of language can alter the meaning of a fixed gesture or text; and the case at bar is an indication that there are times when even the most accommodating reading of a passage will not allow for the interpretation sought by certain parties.

The instant case relates to an automobile accident which occurred on January 20, 1989. Plaintiff Mark J. Maguire was operating a vehicle owned by his father, plaintiff Thomas W. Maguire. The collision tragically took the life of the driver of the other vehicle, June Zart.

Thomas Maguire was insured through the Ohio Casualty Insurance Company (also known as West American Insurance Company). After a pair of civil actions was commenced in Dauphin County, plaintiffs to this action notified Ohio Casualty of the pendency of litigation and asked that it assume responsibility for their defense. Ohio Casualty had secured releases from five parties to this action and declared that, through its payments to these parties, it had exhausted the $100,000 policy limit, and was therefore excused from any further obligation to plaintiffs.

On August 1, 1990, plaintiffs initiated the current suit, seeking declaratory relief compelling Ohio Casualty to pay for the defense costs of the two suits pending against plaintiffs. On November 7, 1990, Ohio Casualty filed a motion for judgment on the pleadings, or, in the alternative, a motion for summary judgment.

The entire case centers on a particular passage from the policy held by Thomas Maguire at the time of the accident. It reads:

“We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. . . .” (emphasis supplied)

No party to this case questions that Ohio Casualty’s payments under the policy in question have reached the $100,000 limit. But it is plaintiffs’ contention that the language of the above passage is ambiguous and must be so construed against the insurer so as to require Ohio Casualty to defend plaintiffs in the extant suits. Plaintiffs say in their brief: “It is submitted that a reasonable person, reading the first highlighted statement above, would interpret that to mean that in addition to, or following, exhaustion of the policy limits the insurance company will pay all of the defense costs.”

Indeed, this assertion of plaintiffs might have been regarded as accurate — but only if one ignored the second highlighted statement, referring to the end of the insurer’s duty to defend after the limit of liability had been exhausted. We find this language, taken in its totality, to be as unambiguous in its meaning and intent as any string of Anglo-Saxon words in our experience has proven to be; and it is a small but telling point that plaintiffs are unable to cite any case, statutory or Restatement authority to support their interpretation of this passage in the first of the two sections of their brief.

In the second portion of their argument — where plaintiffs seek to argue that there is a recognized legal duty on the part of an insurer to defend an insured, without regard to the exhaustion of policy limits — plaintiffs do cite several examples of case law; but not, in our view, in a fashion that supports the credibility of their argument. For example, plaintiffs cite the case of American Contract Bridge v. Nationwide Mutual Fire Insurance Co., 752 F.2d 71 (3d Cir. 1985), for the proposition that “the insurer has the duty to indemnify and the separate duty to defend the insured in any lawsuit potentially covered by the policy.” The case does, indeed, say that; but the key issue in American Contract, supra, was the question of whether a defense can be required of an insurer even where the allegations made against the insured are false and fraudulent, or where third-party allegations can act as the trigger for an insurer’s defense responsibilities. In the case currently at bar no one, including Ohio Casualty, questions the nature of the insurer’s defense responsibilities, only the extent of them after policy limits have been reached — a point that was not even in controversy in American Contract.

Similarly, plaintiffs invoke the precedent of Simmons v. Jeffords, 260 F.Supp. 641 (E.D. Pa. 1966), for the notion that a duty to defend does not terminate upon an exhaustion of policy limits. This is a fundamental misreading of the Simmons case, which held that an insurer, bound by a policy whose language promised defense services to the insured without reference to the exhaustion of policy limits, could not avoid its responsibilities simply by offering to pay the amount of the policy into court, without also defending the action. This has nothing to do with the scenario in the instant case, where the insurer has already defended the insureds in the past (to the point of securing releases from five parties to the action), up to the enumerated limits of the policy. It is one thing for a party to charge, as did the aggrieved insured in Simmons, that his carrier has, from the outset, left him naked on the field of legal battle, with neither sword nor squire to serve his turn. It is quite another to say, as do plaintiffs currently before us, that having been promised (and received) weapons of defense sufficient for a Thirty Years War, their protector is now bound to fight on in their behalf in a subsequent Hundred Years War, for which neither provision nor agreement was made in their written contract of insurance. This is a distortion of the principles set forth in Simmons which cannot be countenanced.

But by far the most telling point made in a case cited by plaintiffs — and it is, regrettably, a thrust that further undercuts their position, rather than shielding it — is contained in the text of Commercial Union Insurance Co. v. Pittsburgh Corning Corp., 553 F.Supp. 425 (E.D. Pa. 1981). There, the court was also confronted with a clause providing for an insurer’s responsibilities for the defense of an insured; and, because this fact situation is of striking relevance to the case now at bar, we shall quote it in its entirety:

“(b) Construction of Defense Clause
“Because the clause at issue in the defense motions is (from the insurer’s perspective) at best ambiguous, the policy must be construed in the insured’s favor. The ambiguity concerning the insurer’s defense obligations is evident from both the policy language and the cases construing similar language.
“The relevant policy language reads:
“ "With respect to such insurance as is afforded by this policy, the company [Travelers] shall:
“ ‘(a) defend any suit. . . .
“ ‘and the amounts so incurred, except settlements of claims and suits, are payable by the company in addition to the applicable limit of liability of this policy.’
“The insured maintains this language means that the insurer must defend ‘any suit’ which might give rise to the type of liability to which the policy is directed. The insurer interprets the clause ‘such insurance as is afforded’ to limit defense obligations both by type and amount of coverage. Both interpretations are reasonable and plausible. Therefore, on its face, the policy term must be found ambiguous. But see McCarthy cases cited in note 11, infra. This finding of ambiguity is borne out by the insurance industry’s later redrafting of policies to eliminate the problem posed by the defense motions. A typical newer policy says that the insurer ‘shall not be obligated to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.’” Id. at 429. (emphasis supplied)

It can hardly escape our notice that the remedial language cited by the Commercial Union Court, in the passage italicized above, and which was intended as a corrective to the very problem discussed therein, is a virtual carbon copy of the qualifying phrases contained in the policy in the case at bar. Thus, to find in favor of plaintiffs in the instant matter, we would have to, at least by implication, set ourselves up in opposition to the findings of District Justice Giles in Commercial Union, supra; and plaintiffs before us now can hardly be heard to complain if we accept the validity of the legal reasoning contained in a case which they themselves have brought to our attention.

Accordingly, we enter the following

ORDER

And now, March 11, 1991, we hereby dismiss plaintiffs’ request for declaratoiy relief and deny their motion for summary judgment, and grant the motion of defendant Ohio Casualty Insurance for judgment on the pleadings.

      . The parties from whom Ohio Casualty had secured the releases were (1) the estate and wrongful death beneficiaries of June Zart; (2) the Odd Fellow’s Home of Pennsylvania; (3) the insurance carrier for one Yanko Resick; (4) Capital Area Transit; and (5) the Pennsylvania Department of Transportation. The pleadings currently before us are vague as to the degree and manner of the involvement in the accident of the second, third, and fourth parties named; but it hardly matters for our purposes-here, since $97,510 of the $100,000 went to the estate of June Zart.

      . The exact language of the Simmons policy was as follows:

        “Personal Liability Policy — The insurance company whose name appears on the declarations page forming a part of this policy . . . agrees with the insured, named in the declarations made a part hereof, ... in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to all of the terms of this policy:
      “I. Coverage L — Personal Liability — To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the company shall defend any suit against the insured alleging such bodily injury and property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement, of any claim or suit as it deems expedient. . ..

      “II. Supplementary Payments — With respect to such insurance as is afforded by this policy for personal liability coverages the company shall pay, in addition to the applicable limit of liability:
      “(a) all expenses incurred by the company, all costs taxed against the insured in any defended suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon. ...” (emphasis supplied)

      . Nor has it passed unremarked by us that the insurance policy in the case of American Casualty Co. v. McCaleb, 178 F.2d 322 (5th Cir. 1950), which fathered what footnote 11 in the Commercial Union case refers to as the “McCaleb line [of cases which] generally holds to some extent the insurer must defend although indemnification coverage maybe exhausted,” is also a virtual carbon copy of the passage quoted above from Simmons, supra, i.e. a text which lacks any of the explicit restrictions based on policy limits which figure so prominently in the instant case.


source: Caselaw Access Project

author: WHITE, P.J.,

license: Public Domain

text:
    Commonwealth v. Beatty

      Marie T. Veon, assistant district attorney, for the Commonwealth.

      Harry Wayne Beatty, in propria persona.
    January 28, 1991
   WHITE, P.J.,

We have for consideration the petition for writ of habeas corpus filed by defendant, Harry Wayne Beatty. Without consideration of the merits of this motion, defendant’s motion is dismissed.

Defendant, Harry Wayne Beatty, has been charged with criminal homicide, specifically murder of the first degree in violation of 18 Pa.C.S. §2502(a) and murder of the third degree in violation of 18 Pa.C.S. §2502(c) in the death of his father, Harry DeWayne Beatty, on or about August 12, 1990, in Jackson Township, Venango County, Pennsylvania. Defendant, upon arrest, was incarcerated in the Venango County Jail and remains there as he has been unable to raise bail. Defendant, being indigent, is represented by the Venango County Public Defenders who have entered an appearance in the above-captioned matter. To date, the Venango County Public Defenders remain counsel of record for defendant and defendant has not waived counsel in order to proceed pro se.

Defendant, since his arrest and incarceration, has had numerous communications with this court and attempted pro se filings. To date, these communications have been addressed as merely informational communications. The current communication, however, appears as a proper petition for writ of habeas corpus filed by defendant. We, therefore, are faced with deciding whether to schedule a hearing and consider the merits of defendant’s petition or to disregard the petition without a hearing on the merits.

Allowing a defendant to file pro se motions while being represented by counsel creates confusion and, at times, inconsistent approaches or strategies in defenses available to the defendant. This would also create an undue burden upon the court in attempting to decide which motions to consider, in what order should the motions be addressed, and if the motions are frivolous, are sanctions available and to whom are they chargeable. It is difficult for defense counsel to plan defense strategies if the defendant is allowed to file pro se motions, unchecked and without consideration of whether it is without merit or inconsistent with defense strategies.

The Pennsylvania Constitution affords a defendant in a criminal prosecution the right to an attorney. Pa. Const. art. 1, §9. The United States Constitution also provides this same right. U.S. Const. amend. VI. The U.S. Supreme Court has interpreted this right to include a right to self-representation in a state criminal trial. Faretta v. California, 422 U.S. 806 (1975). However, in order to exercise this right of self-representation, the defendant must render an expressed, knowing and intelligent waiver of his right to counsel. Id. See also, Pa.R.C.P. 318, and Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978). A defendant in a criminal case, therefore, clearly has the right to self-representation in a state criminal matter, which includes the filing of pro se motions.

The U.S. Constitution and the Pennsylvania Constitution give a defendant the right to be represented by counsel and also give the right to self-representation; however, this does not create a hybrid right whereby the defendant may be represented by counsel and also represent himself. The Superior Court, in Commonwealth v. Williams, 270 Pa. Super. 27, 410 A.2d 880 (1979), in addressing the issue of hybrid representation, stated: “There is . . . a distinction between the constitutional right to proceed pro se pursuant to a valid waiver of a right to counsel and a right to proceed pro se and with counsel.” Relying on cases from other jurisdictions, the Superior Court held that a criminal defendant has no Sixth or 14th Amendment right to act as co-counsel where he is already represented by an attorney and that a decision to permit such hybrid representation is better left to the sound discretion of the trial court. Id. The U.S. District Court for the Eastern District of Pennsylvania, in Hall v. Dorsey, 534 F.Supp. 507 (1982), while addressing a civil rights action, 42 U.S.C. §1983, brought by a defendant against an officer of the Delaware County Court of Common Pleas for refusing to accept pro se filings, dismissed the civil action holding there to be no right to “hybrid” representation. The court, in reaching this conclusion, stated:

“Under federal law, a criminal defendant has the right to appear pro se or by counsel. This right is guaranteed both by the Constitution and by statute. The federal right, however, is disjunctive; a party may either represent himself or appear through an attorney. There is no right to ‘hybrid’ representation — simultaneously pro se and by counsel.
“Pennsylvania law also gives the accused the right to counsel and the right to defend himself. Like the federally-created rights, these state rights have consistently been interpreted to be disjunctive. The accused has the right to be heard by himself; the accused has the right to be heard by his counsel; but not both.
“Thus, under both federal and state law, an accused who appears by counsel possesses no right to proceed pro se.” Id. at 508-9. (footnotes omitted)

We conclude that a defendant represented by counsel has no right to “hybrid” representation, specifically representation simultaneously pro se and by counsel. As long as a defendant has counsel of record, this court will not consider any motions or filings done pro se unless the filing relates only to the issue of continued representation by present counsel of record.

Defendant, in the instant action, has previously been represented by the Public Defender’s Office of Venango County, and continues to be represented by this counsel. Since defendant has no right to hybrid representation, we will not consider any pro se motions filed by defendant while represented by counsel.

For the foregoing reasons, defendant’s petition for writ of habeas corpus is dismissed.

ORDER OF COURT

And now, January 28, 1991, defendant’s petition for writ of habeas corpus is dismissed.


author:
FRIEDMAN, Member,
     LARSEN, J.,

text:
    In re Anonymous No. 111 D.B. 89
    Disciplinary Board Docket no. 111 D.B. 1989.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

July 20, 1990

FRIEDMAN, Member,

Pursuant to Pennsylvania Rule of Disciplinary Enforcement 208(d), the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to this honorable court with regard to the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

Respondent, born in 1947, was admitted to practice law in Pennsylvania in 1972. He currently maintains an office for the practice of law at [ ].

On October 18, 1989 the Office of Disciplinary Counsel filed a petition for discipline against respondent, alleging the following violations:

(A) D.R. 1-102(A)(4) — conduct involving dishonesty, fraud, deceit or misrepresentation;

(B) D.R. 9-102(A) — funds of a client to be maintained in an identifiable bank account, which funds are to be segregated from funds belonging to the lawyer;

(C) D.R. 9-102(B)(3) — requiring a lawyer to maintain complete records of client funds and to render appropriate accounts to the client;

(D) D.R. 9-102(B)(4) — requiring a lawyer to promptly pay to a client the funds the client is entitled to receive;

(E) R.P.C. 1.3 — requiring a lawyer to act with reasonable diligence and promptness in representing a client;

(F) R.P.C. 1.4(a) — requiring a lawyer to keep a client informed about the status of a matter;

(G) R.P.C. 1.15(b) — requiring a lawyer to promptly deliver funds of a client to the client and, upon request, to render a full accounting.

On January 16, 1990 a hearing was held before Hearing Committee [ ]. The parties submitted a stipulation which was incorporated into the committee’s findings of fact. The committee also made additional findings of fact. The only testimony received by the hearing committee was the testimony of respondent.

On May 7, 1990, the hearing committee filed its report and recommendation. The hearing committee found violations of D.R. 9-102(A), D.R. 9-102(B)(3), D.R. 9-102(B)(4), R.P.C. 1.4(a) and R.P.C. 1.15(b). The committee did not find violation of either D.R. 1-102(A)(4) or R.P.C. 1.3. The hearing committee recommended that respondent receive a private reprimand and a two-year period of probation.

On May 29, 1990 petitioner filed a brief on exceptions to the hearing committee’s report and recommendation. Petitioner alleged that the hearing committee had erred in failing to find a violation of D.R. 1-102(A)(4) and R.P.C. 1.3. Petitioner furthermore contended that the hearing committee had erred in finding that respondent had remedied his client difficulties. Petitioner further objected to the recommended disposition and alleged that probation was contrary to Disciplinary Board rules and procedures.

On June 22, 1990 the matter was considered by the Disciplinary Board.

FINDINGS OF FACT

The board adopts the following findings of facts which were the subject of the stipulation:

(1) Petitioner, whose principal office is located at 300 North Second Street, Commerce Building, Third Floor, Harrisburg, Pennsylvania 17101, is vested, pursuant to Rule 208 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct by any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, [ ], Esq., was born in 1947, admitted to practice law in Pennsylvania in 1972, and currently maintains an office for the practice of law at [ ].

(3) In July 1987 respondent settled for $25,000 a personal injury action for [B]. On July 29, 1987 respondent deposited a $25,000 settlement draft of the [C] Insurance Company to respondent’s checking account no. [ ] at the [D] Bank. This account is designated “General Account” and was utilized by respondent as a general office account. Such conduct was continuing in nature as no part of the escrow funds represented by the $25,000 settlement was ever maintained in any escrow account.

(4) Upon receipt of the $25,000 settlement for [B], respondent was entitled to a contingent fee of $8,333.33. Respondent’s fee was to be prorated between [B] and the [E] Life Insurance Company, which had a subrogation interest relative to medical payments.

(5) The exact amount of the subrogation interest of [E] Life had not been determined as of the receipt of the $25,000 settlement. By letter of June 19, 1987 respondent advised [B] that the medical payments might total $4,813.81 but that the correct figure was subject to a determination of what the insurer had paid.

(6) On August 13, 1987 respondent should have maintained as escrow funds $16,666.67 relative to [B] as that amount of the $25,000 settlement net of respondent’s fee of $8,333.33. On that date, respondent’s account only contained a balance of $14,123.85, representing a shortage of $2,542.82. This shortage was caused by the payment on August 13, 1987 of check no. 720, dated August 11, 1987, in the amount of $4,700, drawn on the account, and payable to respondent. The proceeds of the check for $4,700 were not used for any purpose relating to [B]. This conduct constituted a conversion by respondent to his own use of $2,542.82 in [B] settlement funds.

(7) By check no. 722, dated August 17, 1987, drawn on the account and payable to [B], respondent distributed $13,456.80 to [B]. The final amount due [B] was subject to respondent’s determining the exact amount of the medical subrogation, and any other obligation payable from the settlement proceeds.

(8) By letter of September 14, 1987 the [E] Life Insurance Company advised respondent that the total of their subrogation interest was $3,277.89. After deducting the pro rata share of respondent’s legal fee, [E] was due $2,185.26. At or about this time respondent was also advised that $730 was due from his client to [F] Associates Inc., which amount was to be paid from the settlement.

(9) On or about October 29, 1987 respondent deposited, or caused to be deposited, $2,185.26 to his account. Concurrently, respondent wrote check no. 792 for $2,185.26, payable to [E] Life, in satisfaction of the subrogation interest. The $2,185.26 deposit was required because of respondent’s conversion to his own use of escrow funds of [B], These funds were produced from personal funds of respondent and accepted by [E] Life in full satisfaction of [B’s] obligation.

(10) On or about October 29, 1987 respondent’s wife paid $730 from some source other than the account in satisfaction of [B’s] debt to [F] Associates Inc. These funds were produced from personal funds of respondent or his wife.

(11) The payments of $2,185.26 and $730 made by or on behalf of respondent, on or about October 29, 1987, represent a total of $2,915.26 in [B] escrow funds that respondent failed to maintain in an escrow account and that he had converted to his own use.

(12) Subsequent to respondent’s payments made on or about October 29, 1987 on behalf of [B], respondent failed to provide [B] with an accounting of the disbursements made from the $25,000 settlement. Respondent had made total distributions of $24,708.39 ($8,333.33 in fees; $13,456.80 to [B]; $2,185.26 to [E] Life; $730 to [F] Associates Inc.) from the $25,000 settlement and the balance of $291.61 was due to [B], The $291.61 was thereafter not maintained in any escrow account and represents additional escrow funds respondent converted to his own use.

(13) Respondent was aware that during and subsequent to October 1987 petitioner was investigating respondent’s handling of the [B] settlement funds. Despite this, respondent has never formulated any accounting for the [B] settlement or made any independent determination of whether [B] had received all he was due from the settlement.

(14) The $291.61 was paid by respondent to [B] on August 2, 1989, without any accounting, and only after petitioner suggested such payment seemed appropriate. The records maintained by respondent for the [B] funds and the account were incomplete and inaccurate.

(15) Respondent’s failure to account to his client is a continuing violation. Prior to April 1, 1988 this conduct was governed by the Disciplinary Rules of the Code of Professional Responsibility. Subsequent to April 1, 1988 this conduct is governed by the Rules of Professional Conduct.

(16) Respondent’s failure, subsequent to the determination of the subrogation amount in September 1987, to pay [B] the balance due him of $291.61 from the July 1987 settlement until August 2, 1989 was a continuing violation, governed by the Disciplinary Rules and the Rules of Professional Conduct, before and after April 1, 1988, respectively.

(17) Copies of the following documents are authentic, material and relevant, except as specifically noted, to these proceedings and they may be submitted as evidence:

(a) June 8, 1989 letter of inquiry from petitioner to respondent.

(b) July 5, 1989 letter of respondent to petitioner in reply to petitioner’s June 8, 1989 letter of inquiry. All references to [G] and [H] are not relevant.

(c) July 18, 1989 letter of petitioner to respondent. All references to [G], [H], [I], and [J] are not relevant.

(d) August 2, 1989 letter of respondent to [B] and copy of enclosed check no. 1345 of respondent for $291.61 payable to [B].

(e) August 3, 1989 letter, without enclosures, of respondent to petitioner in reply to petitioner’s letter of July 18, 1989. All references to [H], [J], and [I] are not relevant.

The following additional findings of fact were found by the hearing committee and adopted by the board:

(1) Respondent is 42 years of age and has two boys from a first marriage and two girls, ages 3 and 6, by a second marriage.

(2) Respondent resides at [ ] and is a sole practitioner with his office located at [ ].

(3) Respondent graduated from [ ] School of Law in 1972, graduated cum laude and made law review. From 1972 through 1981 he was employed by [K] Legal Services as a staff attorney and for the last three years as director of litigation with responsibility for supervising 45 attorneys. In 1982, he commenced private practice.

(4) From 1981 through 1987, family problems developed with his two children by his first marriage. Visitation became a serious problem, the children had constant problems in school and falling grades, and they adopted antisocial attitudes. Court action by respondent to gain custody of the boys was unsuccessful in 1985. The boys came to live with respondent in the summer of 1986 and it was the intention of respondent that they stay for the following school year. The older son, [L], did not want to stay and returned to his mother. The younger son, [M], remained with respondent. [L’s] grades were poor during the school year and he refused to visit respondent. At approximately Easter 1987, [M] decided he did not want to stay with respondent. [M] lost interest in outside activities and his grades declined. In June 1987, [M] ran away from home and a petition filed by respondent to obtain custody was unsuccessful.

(5) In addition to devoting a great deal of time, energy and thought to correcting the family problems, respondent had serious back problems which required hospitalization in the fall of 1987 for a herniated disc and pneumonia, and he did not return to his office until January 1988. His personal problems consumed a great portion of his life, including his professional life.

(6) When the client’s $25,000 settlement check came to respondent’s office, respondent’s escrow account was confused in that it did not balance. Respondent admitted that he was not paying attention to his business or the practice of law. During his recuperation from his hospitalization and illness, he determined to return to his office, assume control of the books, review all files, identify any problems and contact clients and he performed those tasks upon his return to his office.

(7) Respondent was appointed as an arbitrator in [ ] County for two terms, was a former member of the Board of Directors of the [ ] County Bar Association, ran the pro bono program for the bar association for five years in cooperation with the bar and legal services, has been court-appointed counsel for dependent children since 1985 and is the solicitor for the [ ] Leasing Authority.

(8) Respondent did not intend to cheat his client.

(9) Disciplinary counsel reviewed respondent’s books and did not find any problems prior to or subsequent to the [B] matter.

(10) Respondent had three prior informal admonitions which occurred around the same time as the [B] matter.

(11) Respondent completely cooperated with Disciplinary Counsel during its investigation.

DISCUSSION

The board has no difficulty in affirming the hearing committee’s holding that respondent violated D.R. 9-102(A), D.R. 9-102(B)(3), D.R. 9-102(B)(4), R.P.C. 1.4(a) and R.P.C. 1.15(b). Petitioner, however, contends that the hearing committee erred in finding no violation of D.R. 1-102(A)(4) and R.P.C. 1.3.

D.R. 1-102(A)(4) prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. The hearing committee found that respondent had no intent to be “dishonest, fraudulent, deceitful, or misrepresentative.” Petitioner contends that respondent’s admission that he converted his client’s funds constitutes a violation of D.R. 1-102(A)(4). We find petitioner’s argument to be persuasive.

Respondent stipulated that he converted his client’s funds to his own use. (stipulation of fact nos. 6, 11 and 12). He is bound by the stipulation. Disciplinary Rule 89.131. The committee’s finding that petitioner had no intent to cheat his client is not dispositive. The fact that he converted the funds to his own use constitutes a violation of D.R. 1-102(A)(4). Office of Disciplinary Counsel v. Kanuck, 517 Pa. 160, 535 A.2d 69 (1987); Office of Disciplinary Counsel v. Kissel, 497 Pa. 467, 442 A.2d 217 (1982).

Petitioner also excepts to the committee’s finding that there was no violation of R.P.C. 1.3 which requires a lawyer to act with reasonable diligence and promptness in representing a client. Petitioner bases its argument on respondent’s failure to pay the balance owed his client, $291.61, for a period in excess of two years. The testimony, however, indicated that respondent was not aware that these funds were owing until notified by petitioner. Upon receipt of notification, respondent made prompt payment. Although respondent certainly should have prepared an accounting at time of distribution his failure to do so does not violate R.P.C. 1.3. The purpose of R.P.C. 1.3 is to prevent procrastination and undue delay. See comment to R.P.C. 1.3. As the committee found, respondent sued and settled the case in a timely manner. His inadvertent, failure to remit the settlement balance was not the product of procrastination. We agree that no violation of R.P.C. 1.3 has been established.

We have also adopted the committee’s additional findings of fact. Petitioner excepts in part to additional finding no. 6. There is sufficient testimony on the record to support the committee’s findings that respondent did “return to his office, assume control of the books, identify any problems and contact clients.” Contrary to the petitioner’s argument, the committee did not find that all problems were satisfactorily resolved by petitioner at that time. Petitioner’s exceptions are therefore unfounded.

DISPOSITION

The committee recommended that respondent receive a private reprimand and be placed on probation for a period of two years. Petitioner contends that respondent should be suspended. We agree with petitioner.

The conversion of a client’s funds is a serious breach of trust. In re Anonymous No. 32 D.B. 83, 37 D.&C. 3d 198 (1984). As such, the imposition of public discipline is appropriate. The extent of the public discipline, however, depends upon the mitigating or aggravating circumstances of the case. Office of Disciplinary Counsel v. Ewing, 496 Pa. 35, 436 A.2d 139 (1981).

We have adopted the hearing committee’s additional findings of fact which indicate multiple mitigating factors. During the time period in which the conversion occurred, respondent was having serious personal difficulties including family and health problems. Furthermore, a review of respondent’s records by petitioner revealed no other financial improprieties. With the exception of three informal admonitions which occurred during the same time period, respondent enjoyed a clean record. Respondent furthermore has made substantial efforts to resolve his personal difficulties. He also has made great strides in resolving the prior difficulties with his practice. Most importantly, however, is the committee’s finding that respondent did not intend to permanently deprive his client of the client’s funds.

As is often stated, the primary purpose of our system of discipline is to protect the public from unfit attorneys and to maintain the integrity of the legal system. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). We believe, under the circumstances of this case, that petitioner’s recommendation of a three-month suspension is both appropriate and consistent with that purpose. Office of Disciplinary Counsel v. Kochel, 515 Pa. 449, 529 A.2d 1075 (1987).

RECOMMENDATION

The board unanimously recommends that respondent be suspended from the bar of the Commonwealth for a period of three months. It is further recommended that the costs of these proceedings be paid by respondent.

Ms. Heh did not participate in the adjudication.

ORDER

And now, October 16, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated July 20, 1990, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of three months. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

October 16, 1990

Mr. Justice Larsen files a dissenting statement in which Mr. Justice Papadakos joins.

DISSENTING STATEMENT

LARSEN, J.,

I dissent from the entry of the order suspending respondent from the Bar of the Commonwealth for a period of three months.

Respondent, [ ], converted client funds to his own use and thus, was found to have violated our Disciplinary Rules. Respondent has a prior history of discipline.

On September 10, 1990, this court in a similar case, Office of Disciplinary Counsel v. [A], suspended respondent for a period of three years for commingling and conversion of client funds. Respondent in that case also had a prior history of discipline.

The disparity between the discipline imposed by this court in the [A] case (three-year suspension) and in the case at bar (three-month suspension) is unjustified. This court should not look lightly upon any case involving the conversion of client funds. I would suspend respondent in this case, like respondent in [A], for a period of at least three years.

Justice Papadakos joins this dissenting statement.


author: KELTON, J.,

text:
    Haines v. Neshaminy Mechanical Inc.

      Ira G. Barrows, for plaintiff.

      Robert M. Hammond, for defendants.
    February 26, 1991
   KELTON, J.,

We have been asked to determine whether a jury verdict in favor of defendant shocks the conscience of this court. We find the verdict shocking and will grant plaintiff’s motion for a new trial.

This matter arose from a motor vehicle accident which occurred on the afternoon of March 12, 1987. Plaintiff, Kuma Haines, was operating an automobile in her proper lane of travel on a two-lane, snow-covered highway. Defendant, James Zaino, driving a pick-up truck in the oncoming lane, lost control of his vehicle and crossed the center line into plaintiff’s lane, striking her car and pushing it off the highway. As a result of the accident, plaintiff’s head hit the metal of the car and part of the dashboard came down on her knee. She was taken to Delaware Valley Medical Center where the emergency room report listed her injuries as a sprained left shoulder and contusion of the left knee and thigh.

Plaintiff subsequently complained of neck, shoulder and back pain which prevented her from doing her normal household chores, sleeping through the night or attending any of her children’s school activities. She was unable to return to her position as a library aide for three months.

Plaintiff was diagnosed by her family physician as having suffered a cerebral concussion, cervical dorsal strain and lumbosacral strain and sprain. He prescribed physical therapy, and plaintiff received 35 treatments over a five-month period following the accident. In addition, plaintiff wore a neck brace as well as a back brace for support once she returned to work. Plaintiff consequently brought this action for her alleged personal injuries resulting from the collision. After a two-day jury trial, a verdict was rendered for defendant. The matter is now before us on plaintiff’s post-trial motion for a new trial, or in the alternative, judgment n.o.v.

Plaintiff avers that the jury’s verdict was against the weight of the evidence and the law. Review of such a question necessitates consideration of all the evidence as presented. Weaver v. Firestone Tire and Rubber, 267 Pa. Super. 548, 407 A.2d 45 (1979). A new trial should be granted if it is found to be so contrary to the evidence as to shock the conscience of the court. Giovanetti v. Johns-Manville Corporation, 372 Pa. Super. 431, 539 A.2d 871 (1988); Peair v. Home Association of Enola Legion No. 751, 287 Pa. Super. 400, 430 A.2d 665 (1981). Clearly, the verdict rendered in the instant case against plaintiff does shock the conscience of this court.

The jury was presented with unequivocal evidence of defendant’s negligence. Plaintiff and defendant both testified that defendant’s vehicle was out of control, that defendant crossed over the yellow lines in the road into plaintiff’s lane, and that the impact took place in plaintiff’s lane of traffic.

Defendant testified that the weather conditions were snowy and cold at that time of day and that his lane was snow-covered. (N.T. Vol. I, at 94.)

“Well, I seen that the road was icy and snowy, and I was starting to, you know, because when you come down to that part of the road, you slow down, you know, and I could see there was snow and ice on the road, and when I started to come around the bend coming down the hill, the truck just veered off to that, to the other lane. Instead of going with the turn, the truck just went, you know, into the other lane.” (N.T. Vol. I, at 95.)

Defendant testified as well that his truck was in perfect condition. (N.T. Vol. I., at 96.)

Plaintiff testified that she saw defendant’s vehicle coming towards her and that she did what she could to avoid a head-on collision:

“I saw this vehicle coming towards me, and I had come across this bridge where there’s a creek and the bridge goes over this creek area. I’d come across that and proceeded a short ways up. I saw this vehicle coming, and I saw him, he was in my lane. He was not totally in my lane, but his truck, he had the wheels turned on his truck like he was trying to get it under control, but it was obvious that it wasn’t going to do what he wanted it to do, and it just kept coming into my lane more and more, and I knew that if I didn’t get out of the way that it was going to be a head-on collision.” (N.T. Vol. I, at 20-1.)

From the testimony of the two participants, the jury could not reasonably have reached a verdict for defendant on the issue of liability. We find the jury’s verdict to be against the weight of the evidence as presented.

We also find the jury’s verdict to be against the law as it was explained by this court at trial. The jury completely disregarded the court’s instructions as to the applicable sections of the Motor Vehicle Code. As to section 3301:

“The first one says you have to drive on the right side of the highway, and it is in the code and it says that ‘Upon all roadways of sufficient width, a vehicle shall be driven on the right half of the roadway except as follows.’ And then there are a number of exceptions that don’t apply here.” (N.T. Vol. II, at 44.)
“If the driver lost control of the vehicle as a result of his negligence or as a result of unsafe driving pattern, then he would be liable for crossing the highway. On the other hand, if it’s something that happened without his negligence, then the other result would obtain, and he would not be liable for violation of this section or other sections.” (N.T. Vol. II, at 45.)

Section 3302:

“Another section I wanted to call to your attention is one that, what to do when you meet a vehicle going in the opposite direction. Again, here I think the answer is obvious under the code. It says that, ‘Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one lane of traffic in each direction, each driver shall give to the other, at least one-half of the main travelled portion of the roadway as nearly as possible.” (N.T. Vol. II, at 45-6.)

Section 3309:

“The next section has to do with roadways which are laned for traffic. It says, ‘When any roadway has been divided into two or more clearly marked lanes for traffic, the following rules apply: Driving within a single lane: a vehicle shall be driven as nearly as practicable entirely within a single lane, and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.’ ” (N.T. Vol. II, at 46.)

Section 3361:

“The next section is one which applies to a number of situations and a number of varying situations. It has to do with what’s called driving at safe speed. Now, I’m not talking about any particular speed limit here. This is driving at a safe speed in reference to the highway conditions. That section,


author: HOURIGAN, J.,

text:
    Tabaka v. Rossi

      William D. Hobson, for plaintiffs.

      Jay Martilloti, for defendants.
    January 16, 1991
   HOURIGAN, J.,

This matter is before the court on defendants’ preliminary objections.

HISTORY AND FACTS

Filed on September 4, 1990, plaintiff’s complaint alleges medical malpractice. On October 15, 1990, defendants filed the preliminary objections that are presently before this court; plaintiff’s response to the preliminary objections was filed on October 29, 1990.

DISCUSSION AND LAW

Defendants’ preliminary objections, in the nature of a motion to strike and a demurrer, focus upon paragraphs 19 and 20, respectively, of the complaint. These paragraphs appear as follows:

“(19) Patricia Tabaka as mother for the minor plaintiff has sustained lost wages, additional expenses for medication and surgery and lost opportunities to obtain additional income while providing day-to-day nursing care for her daughter.
“(20) Patricia Tabaka has also sustained pain and suffering, psychological trauma and emotional harm due to the negligent delay of defendants Dr. Patricia Rossi, Dr. Jacqueline Kirby, individually and as partners in the Pediatric Associates and Valley Pediatrics in properly diagnosing and treating the condition which minor plaintiff had been suffering from during most of her childhood.”

With regard to paragraph 19 of the complaint, defendants argue that plaintiff is not entitled to damages for “lost opportunities” insofar as there is no showing of reasonableness of certainty with regard to these damages. It is well settled that “damages need not be proved with mathematical certainty . . . and evidence of damages may consist of probabilities and inferences.” Hawthorne v. Dravo Corp., Keystone Div., 352 Pa. Super. 359, 376, 508 A.2d 298, 307 (1986). (citations omitted) Cases involving lost profits require that the fact and the amount of loss must be established with reasonable certainty: see Arta Inc. v. Ryan Corp., 110 Pa. Commw. 1, 531 A.2d 857 (1987). Damages may not be awarded on mere speculation or conjecture. See Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989). We agree with defendants that, based on the complaint, this particular claim is insufficiently pleaded; defendants are entitled to specific factual averments pertinent to the plaintiff’s alleged “lost opportunities to obtain additional income.”

With regard to paragraph 20, defendants’ demurrer argues that these allegations fail to state a cause of action upon which relief can be granted, particularly because plaintiff has failed to show that she has been injured by defendants’ conduct, and that such conduct has been intentional and/or reckless. We agree that the complaint fails to properly plead a claim for infliction of emotional distress.

Although we are cognizant of the landmark decision of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), we are guided by the court’s ruling in Barber v. Chang, 36 Cumberland L.J. 557 (1986). In that case, the parent plaintiff also sought recovery for mental distress, caused by that parent’s observation of the deterioration of the child who allegedly underwent a negligent course of medical treatment. The Barber court observed that there is no authority whatsoever for a parent to recover for mental distress by virtue of observing the physical decline of a child which allegedly resulted from negligent medical procedures. Therefore, defendants’ demurrer to paragraph 20 of plaintiff’s complaint is sustained.

ORDER

It is hereby ordered as follows:

(1) Defendants’ preliminary objections in the nature of a motion to strike to paragraph 19 of the complaint and in the nature of a demurrer to paragraph 20 of the complaint are sustained;

(2) Plaintiff shall file an amended complaint, relative to paragraph 19, in accordance with this opinion within 30 days of this date.

       The record indicates that defendants also filed their answer and new matter on November 15, 1990. This pleading is premature. White v. Rosenberry, 12 Lebanon Leg. J. 58 (1967), appeal dismissed 434 Pa. 115, 252 A.2d 707 (1968). However, in light of Pa.R.C.P. 126, we will disregard this irregularity.


author: VOGEL, P.J.,

text:
    Hayes v. Philadelphia Electric Co.

      Howard K. Trubman, for plaintiff.

      Frederic C. Wentz, for defendant Montgomery County.

      Gilbert P. High, for defendant Philadelphia Electric Co.
    January 22, 1991
   VOGEL, P.J.,

To understand the court’s determination it is necessary to set forth the rather complicated procedural history of this matter, commenced by the filing of a motion for leave to file amended complaint by plaintiffs, Carolyn Hayes et al., on March 12, 1990. On April 16, 1990, defendant Philadelphia Electric Company filed its answer with new matter to plaintiffs’ motion for leave to file an amended complaint.

Oral argument before the undersigned was heard on June 15, 1990, and by our order re plaintiffs’, Carolyn Hayes et al., motion for leave to file amended complaint filed March 12,1990, the motion was denied on August 15, 1990. Our order relied on the case of Jones v. Cheltenham Township, 117 Pa. Commw. 440, 543 A.2d 1258 (1988).

Plaintiffs’ counsel filed a motion to reconsider motion for leave to file amended complaint on August 22, 1990, asserting that plaintiffs’ counsel had not received a copy of the letter of July 25, 1990 which defense counsel had written to the court, although a copy was indicated, setting forth the Jones case, supra, as controlling authority. After a conference with counsel on September 27,1990, this court by its order of October 10, 1990, granted plaintiffs’ motion to reconsider motion for leave to file amended complaint of August 22, 1990, so that both counsel would have an opportunity to reargue the issue at hand.

Accordingly, on December 14, 1990, before a court en banc consisting of the undersigned and his honor, Samuel W. Salus II, reargument occurred. Hence this opinion and order.

The sole issue for consideration is whether or not plaintiffs, Carolyn Hayes et al., may file an amended complaint, thereby asserting a cause of action for willful or malicious failure to guard or warn against a dangerous condition on the land of the owner, Philadelphia Electric Company, so as to avoid defendant’s defense that plaintiffs’ original cause of action is barred by the Recreation Use of Land and Water Act, 68 Pa.C.S. §§4477-1 to 8. One provision of that act, namely, 68 Pa.C.S. §477-6, states in pertinent part:

“Nothing in this act limits in any way any liability which otherwise exists:
“(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”

The genesis of this case occurred on November 2, 1980 when plaintiffs’ decedent, Glenn Hayes, age 39, was fishing on the dam of the Philadelphia Electric Company when he did slip, skid, trip and/or fall into the Schuylkill River and unfortunately drowned, as set forth in the plaintiffs’ complaint of October 30, 1981, paragraphs 26 and 27.

Plaintiffs at page 30 of the complaint set forth:

“(30) Plaintiffs’ decedent’s injuries and death were the result of the carelessness, negligence, gross negligence, wantonness and reckless disregard for the safety of the decedent by the defendants, and each of them jointly and severally, in the following particular respects:
“(a) Failing to warn of dangerous conditions created or permitted to remain by defendants;
“(b) Allowing free and open access to an area that posed a severe danger of injury;
“(c) Disregarding the safety of recreational users of the area by failing to completely eliminate and/or correct a ‘known danger’ involving a substantial likelihood of serious injury which included:. . ..” (emphasis supplied)

As mentioned, on August 15, 1990, the court denied plaintiffs’ motion to amend complaint relying on Jones v. Cheltenham Township, 117 Pa. Commw. 440, 543 A.2d 1258 (1988), which held:

“The trial court did not commit an error of law, or abuse of discretion, in denying appellant leave to amend its complaint to add willful negligence. Appellant’s original complaint was an action in negligence. A new cause of action arises when a new theory or different kind of negligence than one originally raised is proposed. Junk v. East End Fire Dept., 262 Pa. Super. 473, 396 A.2d 1269 (1978). Appellant’s attempt to amend his action from negligence to willful negligence constitutes a new and different cause of action which was properly denied by the trial court. One of the primary reasons for disallowing amendments which create new causes of action, after the running of the statute of limitations, is to prevent prejudice to the adverse party. Id. at 491, 396 A.2d at 1278 citing Wilson v. Howard Johnson Restaurant, 421 Pa. 455 at 461, 219 A.2d 676 at 679 (1966).” (footnote omitted)

Upon careful review of the Jones case, supra, and the pleadings set forth in the plaintiffs’ original complaint, particularly paragraph 30, we are constrained to hold that plaintiffs should be permitted to file their amended complaint only as to an averment of willful misconduct and not malicious misconduct, thus circumventing the statutory prohibitions of 68 Pa.C.S. §477-3 and coming under the umbrella of 68 Pa.C.S. §477-6. Our reasoning is twofold, namely, a reading of paragraph 30 of the complaint clearly sets forth more than mere negligence, i.e., “gross negligence, wantonness and reckless disregard for the safety of the decedent . . . failing to completely eliminate and/or correct a known danger,” and thereafter setting forth the dangers in subparagraphs 30(c)(1), (2), (3), and (4). Thus, there is conduct averred far greater than the mere negligence aver-ments set forth in Jones, supra. Secondly, and most important, is the language set forth in Holland v. Commonwealth of Pennsylvania, Norristown State Hospital, 136 Pa. Commw. 655, 584 A.2d 1056 (1990), by the Honorable Dante R. Pellegrini, previously not known to the court, which stated in footnote 10:

“Thus, the MHPA imposes the requirement that Holland alleged gross negligence or willful misconduct on the part of Norristown. In her complaint, Holland alleges ‘wanton’ conduct on Norristown’s part. (R.R. 8a-9a). Black’s Law Dictionary defines a ‘wanton act’ as:
“ ‘One done in reckless disregard of the rights of others, . . . and is more than negligence, more than gross negligence, . . . equivalent in its results to willful misconduct. ’ Black’s Law Dictionary 1419 (5th ed. 1979). [emphasis supplied by Commonwealth Court] An allegation of ‘wantonness’ clearly satisfies the requirement of gross negligence or willful misconduct set forth in Goryeb v. Department of Public Welfare.

Indeed, what this court determines Judge Pelle-grini did was to equate “wanton” with “willful” misconduct. Thus, since plaintiffs’ original complaint expressly avers “wantonness,” we are hard pressed not to deny their right to amend their complaint to specifically aver the same in view of the broad discretion granted trial courts to permit this. Horowitz v. Universal Underwriters Insurance Co., 397 Pa. Super. 473, 580 A.2d 395 (1990), and Newcomer v. Civil Service Commission, 100 Pa. Commw. 559, 515 A.2d 108 (1986).

Finally, we see no violation of the statute of limitations as justifiably asserted in the Jones case, supra. Simply stated, a new cause of action will not be commenced by an amended complaint, rather a clarification of paragraph 30 to permit the averment of “willful misconduct” will arise. In this regard we note the exception set forth in 68 Pa.C.S. §477-6, namely, “willful or malicious” failure to guard or warn against a dangerous condition is in the disjunctive.

Accordingly, the following is appropriate.

ORDER

And now, January 22, 1991, after oral argument on December 14,1990, and consideration of briefs of counsel, the court’s order of August 15, 1990, re motion for leave to file amended complaint of plaintiffs, Carolyn Hayes et al., filed March 12, 1990, is revoked.

Motion for leave to file amended complaint of plaintiffs, Carolyn Hayes et al., filed March 12, 1990, is granted to permit the filing of an amended complaint confined to the averment of “willful misconduct” only, which amended complaint is to be filed within 20 days of the date of this order.

This court determines that a controlling question of law exists in which there is a substantial ground for a difference of opinion, and therefore an immediate appeal to the appropriate appellate court is permitted pursuant to 42 Pa.C.S. §702(b).

       We recognize that defendants rely on Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965), to assert there is a distinction between “willful” and “wanton,” citing Prosser on Torts. This conflict in definition will have to be decided by a higher court than ours.


author: LAVELLE, P.J.,

text:
    Khalil v. Pennsylvania Liquor Control Board

      Mark A. Barket, for petitioner.

      Paul T. Sosnowski, for respondent.
    March 22, 1991
   LAVELLE, P.J.,

Petitioner, Mustafa M. Khalil, t/a Rialto Encore, has appealed to this court the June 26, 1989 order of the Pennsylvania Liquor Control Board refusing his application for a new restaurant liquor license for the Rialto Encore restaurant in Lansford, Carbon County. The application was filed under section 461 of the Liquor Code, the so-called “resort area” exception.

On June 26, 1989, the Liquor Control Board, after hearing, made the following findings of fact in denying the application:

(A) The quota for Lansford, Carbon County, is two restaurant liquor licenses and there are presently 11 liquor licenses.

(B) The establishment proposed to be licensed is not located in a resort area.

(C) There is no evidence of necessity for an additional restaurant liquor license in Lansford, Carbon County.

We heard the appeal de novo, as we must, under section 464 of the Liquor Code, 47 P.S. §4-464. The record made at the board’s hearing was admitted into evidence and we heard additional testimony from petitioner. The entire record persuades us that the board did not abuse its discretion in finding that the proposed licensed premises is not located in a resort area. This conclusion is posited on the following

FINDINGS OF FACT

(1) Lansford has not been determined to be a resort area within the meaning of the Liquor Code.

(2) According to 1980 census figures, Lansford has a population of 4,466.

(3) The Rialto Encore restaurant is located at 52 West Ridge Street in Lansford, Carbon County, Pennsylvania, and it features Middle Eastern food.

(4) Petitioner, Mustafa Khalil, has been owner and operator of the Rialto Encore for 12 years, serving dinner from 5 p.m. to midnight, Tuesday through Sunday.

(5) The liquor license quota for Lansford is two and there are presently 11 restaurant liquor licenses counted against that quota.

(6) There are at least 20 different tourist attractions and activities in the Jim Thorpe area which is within 10 miles of Lansford. These include, with their distances from Lansford: Carbon County Opera House (12 miles); World Premiere Miniature Musical, music and art festivals, old-fashioned steam train rides (12 miles); Asa Packer Mansion (12 miles); St. Mark’s Church (12 miles); Model Train Museum (12 miles); Flagstaff Mountain Overlook (11 miles); whitewater rafting (15 miles); Mauch Chunk Lake (7 miles); Beltzville State Park (18 miles); Hickory Run State Park (20 miles); Camel-back Ski Area (30 miles); Split Rock Resort (25 miles); and Big Boulder Ski Area (25 miles).

(7) Most of the tourist influx and activity is in Jim Thorpe.

DISCUSSION

Initially, we note our scope of review in cases of this nature. The Commonwealth Court, in In re Chiavaroli, 54 Pa. Commw. 588, 592, 422 A.2d 1195, 1197 (1980), stated:

“It is well settled that the trial court ‘may not substitute its discretion for that of the Board and may reverse the Board only if it has committed a clear abuse of discretion or when de novo facts varying from those accepted by the Board are found.' Darlene Bar Inc. v. Commonwealth, Liquor Control Board, 51 Pa. Commw. 274, 276, 414 A.2d 721, 722 (1980). (citation omitted)”

Abuse of discretion was defined by the Superior Court in Manns v. Pennsylvania Liquor Control Board, 207 Pa. Super. 340, 217 A.2d 848 (1966). Quoting from its opinion in Appeal of Zermani, 73 Pa. Super. 428, 98 A.2d 645 (1953), the court said:

“[A]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.” Manns, supra, at 343, 217 A.2d at 850.

We note that the Liquor Code gives the board wide discretion in determining whether or not a municipality is located within a resort area. This court may not set aside the determination of the board absent a showing that the board committed a clear abuse of discretion. Commonwealth, Pennsylvania Liquor Control Board v. Myers, 62 Pa. Commw. 570, 437 A.2d 483 (1981).

The Liquor Code does not define “resort area.” The Commonwealth Court, however, has defined it as an area that is characterized by:

“[A] population increase in the geographical area surrounding the premises during certain seasons such that the usual number of liquor licenses within the geographical area is not adequate to serve the needs of the people . . . Further, it must appear that the area’s facilities are used primarily by the temporary transients or tourists and not by area residents. . In re Brandywine Valley Inn, 53 Pa. Commw. 203, 207, 417 A.2d 823, 826 (1980).

In Commonwealth, Pa. Liquor Control Board v. Remley, 62 Pa. Commw. 477, 436 A.2d 1250 (1981), the Commonwealth Court stated that, in order to qualify for the resort area exception:

“[A]n applicant must produce specific evidence of a seasonal influx of transients into the immediate environs and there must be specific findings made not only as to the availability of suitable accommodations for the transient population, but also as to the number and size of recreational facilities in the area, their proximity to the applicant’s place of business, the seasons during which the facilities are used and the number of people utilizing them. Appeal of Birchwood Center Inc., 43 Pa. Commw. 517, 403 A.2d 155 (1979); In re Aiello, 41 Pa. Commw. 345, 399 A.2d 154 (1979).” Remley, supra.

Petitioner, as the appellant, has the twofold burden under section 461(b) to show that the premises sought to be licensed are in the resort area and that there is an actual need for the license in the area. Commonwealth, Liquor Control Board v. Backer, 113 Pa. Commw. 373, 537 A.2d 100 (1988). Here, petitioner has not met his burden of showing that his establishment is located in a resort area. It is uncon-troverted that Lansford has never been held to be a resort area within the meaning of the Liquor Code.

Before the board, petitioner presented no evidence of a seasonal influx of transients which caused the population of Lansford or its environs to swell so that existing licenses could not adequately meet the needs of the area. He did not present any traffic studies, hotel/motel booking statistics, tourist influx data or the specific number of tourists or when the tourists come to Lansford.

At the hearing before this court, Agnes McCartney, tourist director for the Pocono Mountain Vacation Bureau serving Carbon County, testified that there are many tourist attractions and activities in the Jim Thorpe, Pennsylvania, area and that they attract “thousands” of people to the area. She also brought with her many exhibits evidencing that the Jim Thorpe area is a tourist area. She made a strong case for Jim Thorpe being in a resort area, but not for Lansford. Petitioner would have us find that because Lansford is within 10 miles of Jim Thorpe, Lansford is also located within a resort area. Without any evidence that these tourists impact on Lansford, physically or financially, we cannot make such a finding.

Commonwealth, Pennsylvania Liquor Control Board v. Ripley, 107 Pa. Commw. 425, 529 A.2d 39 (1987), cited by petitioner, does not support his resort area theory. Although the Borough of Ebens-berg was held to be a resort area on the basis of numerous tourist attractions 10 miles away, the quality and quantum of supporting evidence was clearly distinguishable from the instant case. One of the attractions drew one million visitors a year; Ebensberg brought in four to five million dollars in tourist revenues to the county each year and two other attractions brought in 120,000 annual visitors. Here there was no such testimony.

We, therefore, find that the Pennsylvania Liquor Control Board did not abuse its discretion and the testimony we heard at the de novo hearing does not justify this court making different findings of fact.

Because petitioner’s failure to meet his burden on the “resort area” issue is dispositive of the instant appeal, we need not address the issue of “necessity.”

We, therefore, enter the following

ORDER

And now, March 22, 1991, the appeal of Mustafa M. Khalil, t/a Rialto Encore, is dismissed. The order of the Pennsylvania Liquor Control Board dated June 26, 1989 denying petitioner’s application is affirmed.

       Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-461(b).


text:
    PennDOT v. Fisher

      Philip L. Zulli, assistant counsel-in-charge, for PennDOT.

      Todd A. Hoover, for defendant.
    March 1, 1991
   DOWLING, J.,

Mr. Fisher has appealed from a one-year suspension of his driving privileges for refusing to properly perform chemical testing as required under 75 Pa.C.S. §1547(b).

At a de novo hearing, the Commonwealth’s undisputed evidence established that the appellant blew one valid sample (0.23 percent), but did not give a second sample until more than three minutes later which, although registering 0.218 percent, was recorded by the machine as an insufficient reading. Ralph Markel, who was conducting the testing at the booking center, stated that after this occurred, “I offered him a second opportunity to re-administer the test. He said, ‘No. You had your chance.’ ” (N.T. 11.) The court also viewed a videotape of the proceedings and found as a fact that after the first sample the defendant did not blow as hard as he could have, i.e., that he supplied insufficient breath. It was agreed that the reason the machine indicated an insufficient sample was because of the lapse of time.

It is argued by Mr. Fisher that in fact he did supply two valid readings, even though the latter was indicated to be deficient; and thus, that he has fulfilled the requirements of the statute. Unfortunately, the case law on this point is against him. It has been held that one test does not constitute a valid test. Commonwealth v. Diulus, 391 Pa. Super. 379, 517 A.2d 418 (1990). In Commonwealth v. Schraf, 135 Pa. Commw. 246, 581 A.2d 249 (1990), the appellant provided sufficient breath to produce an initial reading of 0.139 percent, but when given the second test required by 67 Pa. Code §77.24, did not produce sufficient breath. The testimony was that she had not made a tight seal around the mouthpiece with her mouth. After the machine had completed its cycle, and time had run out, the appellant provided a sufficient sample which registered 0.18 percent. In overruling the trial court’s granting of a demurrer, the court stated:

“We are thus left with the question of the trial court’s interpretation of 67 Pa. Code §77.24 which states that ‘procedures for alcohol breath testing shall include, at a minimum: (1) Two consecutive actual breath tests, without a required waiting period between the two tests.’ The trial court in this case ruled that Schraf had complied with the regulation.”

The Commonwealth Court, in interpreting 67 Pa. Code §77.24, emphasized that the procedures for alcohol breath testing shall include at a minimum “two consecutive actual breath tests, without a required waiting period between the two tests.” The trial court had reason to think that there is an ambiguity in this provision and that since the defendant had provided two readings, although separated by one insufficient sample, this was in accordance with the code. In overruling the lower court, Commonwealth Court stated:

“DOT argues that the trial court’s interpretation of the regulation is erroneous, in that it omits the word ‘actual’ from the regulation. DOT argues that ‘actual’ in this context requires a test at which a valid reading is obtained. It is well settled that an administrative agency’s interpretation of its own regulation is entitled to deference unless the interpretation is clearly erroneous. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Pelton v. Department of Public Welfare, 514 Pa. 323, 423 A.2d 1104 (1987). In Flickinger v. Department of Transportation, 119 Pa. Commw. 315, 547 A.2d 476 (1988), we upheld a suspension for failure to provide a second breath test before the machine went through its cycle and purged itself. In the present case, Hays testified that when Schraf failed to provide sufficient breath on the first unsuccessful test, the breathalyzer’s time ran out. Furthermore, we must agree with DOT that the trial court’s interpretation of the regulation has the effect of reading out the word ‘actual.’ For all of these reasons, we must conclude that the trial court erred in granting the demurrer in this case. See Vasiliades v. Department of Transportation, Bureau of Driver Licensing, 134 Pa. Commw. 7, 578 A.2d 981 (1990). . .”

Finally, there is a very recent opinion, Commonwealth v. Pestock (slip opinion of December 1990), where the driver registered 0.143 percent and 0.131 percent on the machine, but the readings were recorded as deficient because he had not supplied sufficient breath. The court held that, although the regulations do not specifically address the question of what constitutes a “proper sample,” an example such as this did not constitute an “actual breath test.” It was noted that the code defines an alcohol breath test as “chemical testing of a sample of a person’s expired breath in order to determine the concentration of alcohol in the person’s blood,” and since the machine itself signalled that a deficient sample was obtained, this indicated that the true concentration of alcohol could not be determined. It also noted that the officer testified that the driver did not follow his instructions and continually allowed air to escape along the sides of the machine’s mouthpiece, which evidenced less than a total conscious effort and was tantamount to a refusal.

While we are not overly persuaded by the deci-sional law interpreting the statute and the code, it is on point; and this, of course, is binding upon us. Under the facts of the case before us the result reached is certainly an equitable one, and while the one-year suspension of license is indeed a severe penalty, the consequences of driving under the influence of alcohol are all too often of a far greater magnitude.

We are reminded of Lincoln’s statement, at the height of the Civil War, that the suspension of habeas corpus and the use of arbitrary arrest could be justified during such a national emergency, since it was better to temporarily sacrifice one part of the Constitution than to see the whole document swallowed up by chaos.

Accordingly, we enter the following

ORDER

And now, March 1, 1991, the appeal is dismissed, and the action of the Pennsylvania Department of Transportation in suspending the appellant’s license for a period of one year is affirmed.

       “(b) Procedures. . . . The procedures for alcohol breath testing shall include, at a minimum:
      “(1) Two consecutive actual breath tests, without a required waiting period between the two tests.
      “(2) One simulator test using a simulator solution designed to give a reading of 0.10 percent, to be conducted immediately after the second actual alcohol breath test has been completed. The lower of the two actual breath test results will be the result used for prosecution. . . .” 67 Pa.Code §77.24.


author: KUHN, J.,

text:
    PennDOT v. Wolfe

      Donald J. Smith, deputy counsel-in-charge, for PennDOT.

      Michael A. George, for defendant.
    March 28, 1991
   KUHN, J.,

On September 17, 1990, the undersigned held a hearing on the license suspension appeal filed by Evelyn Marie Wolfe. After hearing, the undersigned granted Ms. Wolfe 10 days to file legal memorandum on the issues with the department to respond 10 days thereafter. Ms. Wolfe filed her memorandum of law as requested but the department did not respond. After some delay, the court recalls placing a telephone call to the department’s legal department inquiring about a response. Still no response was forthcoming.

Therefore, on February 7, 1991, the court entered an order, containing findings of fact and conclusions of law, which granted the license suspension appeal. The department subsequently filed a timely appeal.

The undersigned now is advised of the department’s concern. Upon reconsideration, the court agrees that its order of February 7, 1991, was an error.

In order to establish a prima facie case in support of the suspension of a driver’s license under 75 Pa.C.S. §1547(b) the department must prove that (1) the driver was arrested for driving under the influence, (2) the officer had reasonable grounds to believe that the driver was driving while intoxicated, (3) the driver was requested to submit to a chemical test, and (4) the driver refused to do so. Patterson v. Commonwealth, Dept. of Transportation, 136 Pa. Commw. 49, 582 A.2d 700, 701 (1990). The undersigned determined that the department had estab-. lished elements 1, 3 and 4.

The issue is whether a police officer who observes a person driving a vehicle without any apparent indication that she is driving while under the influence of alcoholic beverages but who has been advised by an unknown motorist that she had previously been driving erratically and who, nevertheless, stops her vehicle, notices an odor of alcoholic beverages, observes argumentative behavior and opines that she has failed field sobriety tests has reasonable grounds to believe that the driver was driving while intoxicated.

Ms. Wolfe urged the court to find that the officer had no articulable or reasonable grounds to suspect that she had committed a Vehicle Code violation, 75 Pa.C.S. §6308(b), and, therefore, had no reasonable grounds to believe that she was driving under the influence. In retrospect, the court acknowledges that it misplaced its focus when considering the second element. Reasonable grounds for purposes of section 1547(b) must be determined after the stop and not before, regardless of whether the stop itself was legal. Commonwealth, Dept. of Transportation v. Wysocki, 517 Pa. 175, 535 A.2d 77 (1987). In the case sub judice the officer certainly had reasonable grounds to believe Ms. Wolfe was driving under the influence after he had stopped her vehicle.


author: HESS, J.,

text:
    Lewis v. PennDOT

      Donald Smith, assistant counsel-in-charge, for PennDOT.

      Gary D.A. Lewis, in propria persona.
    October 25, 1990
   HESS, J.,

In this case Gary Lewis, D.O., has appealed from a 30-day suspension of his driver’s license. There is no dispute that a notice of suspension, dated August 21, 1990, was received by him and that the reason for the departmental action was a third accumulation of six points on Dr. Lewis’ driver’s record. The pertinent provision of the Motor Vehicle Code provides in part:

“(c) Subsequent accumulation of six points — When any person’s record has been reduced below six points and for the third or subsequent time shows as many as six points, the department shall require the driver to attend a departmental hearing to determine whether the person’s operating privilege shall be suspended for a period not to exceed 30 days.” 75 Pa.C.S. §1538(c).

Dr. Lewis concedes that a hearing was indeed scheduled and that he appeared at the offices of the Department of Transportation for that purpose. According to his testimony, however, what happened at the hearing was rather curious. Dr. Lewis indicated that the “hearing” consisted of a lengthy lecture by a member of the Department of Transportation on the pitfalls of speeding and the art of avoiding points on one’s driver’s record. This lecture contained a rather astonishing admonition to avoid interstate highways because they were notorious for “speed traps.” The hearing ended with these words to Dr. Lewis: “Do you have any questions?”

At our hearing, Dr. Lewis made a number of arguments. First, he claims that he has “become entrapped in the point system” and should have been given a special points examination. He offers no legal authority for this proposition. Section 1538(c) does not, in any event, provide for an examination. Finally, we note that Dr. Lewis has already passed two driver’s examinations, one in August 1977 and another on April 29, 1988. There is, thus, no merit to this contention.

Dr. Lewis’ second point is that the Pennsylvania point system is:

“[IJnequitable ... as it is presently written because it is based upon the fact that most drivers drive an average of 10,000 miles per year. Therefore, when drivers like myself drive between 30,000 and 40,000 miles per year, their chances of accumulating points is three times greater than what is considered the average driver in this Commonwealth and the United States.”

We know of no authority, whatsoever, for this argument. To the contrary, the point could be made that one who drives three and four times more than the average should be that much more careful.

It is the appellant’s final contention which we believe has merit. In it he essentially denies that he was given any opportunity to state factors in extenuation or mitigation. Whether the department, in the final analysis, chooses to take cognizance of such factors is not for us to say. On the other hand, the right to a hearing prior to the suspension of a driver’s license involves questions of constitutional dimension. Such matters were succinctly reviewed in Bell v. Burson, 402 U.S. 535, 29 L.Ed. 2d 90, 91 S.Ct. 1586 (1971).

“Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the 14th Amendment. Sniadach v. Family Finance Corp, 395 U.S. 337, 23 L.Ed.2d 349, 89 S.Ct. 1820 (1969); Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed. 2d 287, 90 S.Ct. 1011 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege.’ Sherbert v. Verner, 374 U.S. 398, 10 L.Ed. 2d 965, 83 S.Ct. 1790 (1963). . .

“The hearing required by the Due Process Clause must be ‘meaningful,’ Armstrong v. Manzo, 380 U.S. 545, 552, 14 L.Ed. 2d 62, 66, 85 S.Ct. 1187 (1965), and ‘appropriate to the nature of the case.’ Mullane v. Central Hanover Bank & Trust Co., supra, at 313, 94 L.Ed. at 872, 873. It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision whether licenses of the nature here involved shall be suspended does not meet this standard.” Id. at 539, 29 L.Ed. 2d at 94.

While a lecture on speeding may be, for this particular appellant, “just what the doctor ordered,” it is not a substitute for a hearing. Dr. Lewis sought to make several points before us concerning the fact that the loss of his driver’s license will constitute an extraordinary hardship. In addition, he contended that the nature of the various violations on his traffic record do not warrant suspension. These are not matters for us to determine and we note, moreover, that the imposition of a license suspension by the department, even in the face of hardship, will not afford a basis to show an abuse of discretion by the department in imposing the suspension. Plant v. Commonwealth, 62 Pa. Commw. 75, 434 A.2d 1334 (1981). At the same time, we have no way of knowing whether the department, having heard out the operator on these matters, would not in the proper exercise of discretion decide not to impose a suspension. Wessels v. Commonwealth, 39 Cumberland L.J. 357 (1989). We conclude this case in the same way as Wessels, supra:

“This leads less to a conclusion that the department abused its discretion at a hearing and more to a conclusion that there has been no hearing at all. This is at odds with section 1538(c) of the Motor Vehicle Code. Accordingly, we have no choice but to remand this matter to the department for the conduct of a hearing during which the petitioner should be given the opportunity to outline his individual circumstances. We acknowledge the principle that a hearing by the common pleas court, on an appeal from suspension of motor vehicle operator’s license by the Department of Transportation, normally cures any procedural due process defect which might have been caused by the lack of an administrative hearing. White v. Commonwealth, 80 Pa. Commw. 159, 471 A.2d 149 (1984). Logic dictates, however, that this is not the case where the discretion to suspend the license lies, in the first instance, with the Department of Transportation.” Id. at 359.

ORDER

And now, October 25, 1990, the appeal of Gary D.A. Lewis from the suspension of his driver’s license is sustained and the matter remanded to the Pennsylvania Department of Transportation for proceedings consistent with our opinion filed this date.


author: BROWN, P.J.,

text:
    Commonwealth v. Hebel

      Frederick D. Lingle, assistant district attorney, for the Commonwealth.

      Arthur L. Goldberg, for defendant.
    March 13, 1991
   BROWN, P.J.,

These are PCRA proceedings wherein defendant is requesting the court to grant him credit on a prior sentence imposed in this court for time served on a sentence in Perry County which was ultimately reversed by the Superior Court and for which defendant was never resentenced.

A chronology of the pertinent procedural facts in this matter begins with a look at the Perry County proceedings. Sometime prior to May 1985, defendant was convicted of arson by a jury in Perry County. On May 2, 1985 he was sentenced to a term of one and one-half to five years in a state correctional institution. Defendant began serving that sentence on July 10, 1985. On August 14, 1986 defendant’s conviction in Perry County was reversed by the Superior Court of Pennsylvania. Thereafter the matter was scheduled for retrial but on August 19, 1987, prior to the trial, defendant, pursuant to an agreement with the Commonwealth and the court, entered a plea of nolo contendere to the charge of arson. The matter was then adjourned by the court without any sentence being imposed as indicated by order dated August 19, 1987 by the Honorable Keith B. Quigley, P.J. Subsequently on September 3,1987 Judge Quigley signed an order indicating that the criminal proceedings were concluded and it was directed that all surety heretofore posted be released.

With respect to the Clinton County proceedings, defendant was sentenced on August 1, 1986 to a term of imprisonment with a minimum of two years and a maximum of 10 years in a state correctional institution. This sentence was on the charge of robbery. It followed defendant’s being found guilty of robbery and burglary by a jury on April 23, 1984. Defendant’s post-trial motions were denied in Clinton County in part on April 16, 1985 and entirely on June 10, 1986. In imposing the Clinton County sentence the court did take into account defendant’s prior arson conviction and sentence in Perry County. A direct appeal from defendant’s conviction in Clinton County to the Superior Court of Pennsylvania was denied on May 2, 1988. Defendant’s application for reargument was denied and an allowance of appeal to the Supreme Court of Pennsylvania was further denied on November 10, 1988.

Thereafter on November 11, 1988 defendant filed a motion for reconsideration with this court which was denied. At that time he challenged the court’s consideration of his prior invalid arson conviction during his sentencing proceeding on August 1, 1986. On November 28, 1988 defendant’s motion was denied and he subsequently filed an appeal to the Superior Court of Pennsylvania. By an opinion filed June 13, 1989 the Superior Court affirmed the court’s denying defendant’s motion for reconsideration of sentencing. In so doing the Superior Court suggested that the Post Conviction Relief Act was the appropriate form in which to challenge this court’s judgment of sentence. In so doing the Superior Court declined to consider the issue raised by defendant as to whether at the resentencing hearing a trial court should consider events subsequent to the original sentence. Defendant then filed a Post Conviction Hearing Act petition with the court and following a proceeding held on that petition the matter is ready for disposition with respect to the issues raised by defendant arising out of his Perry County conviction and the impact of those proceedings including his incarceration on the present proceedings.

It should be noted that defendant’s Clinton County sentence was to have begun on August 1, 1986. He was at that time still serving the Perry County sentence so that in part his Clinton County sentence was originally contemplated to have run concurrently with his Perry County sentence. Since he began serving his Perry County sentence on July 10, 1985, and was released based on the Superior Court reversal on August 29, 1986, he had served approximately 13 and one-half months toward his 18-month minimum sentence in that county. By contrast he would have served only 29 days of the Clinton County sentence toward his minimum two-year sentence.

On May 29, 1990 defendant was incarcerated on the Clinton County sentence by order of the Honorable Judge Greevy, specially presiding, and he has been incarcerated on the Clinton County sentence since that time. It would thus appear that at the present time defendant has served approximately nine and one-half months on his Clinton County sentence since May 29, 1990 plus an additional 29 days which was served in the month of August 1986.

ISSUE

Whether defendant is entitled to credit against his current Clinton County sentence for time he served on a conviction in Perry County that was subsequently reversed without a judgment of conviction.

DISCUSSION

Defendant argues he is entitled to credit on his Clinton County sentence for the time served on the invalid Perry County conviction. Defendant has cited the provisions of 42 Pa.C.S. §9760(3) which provide as follows:

“If the defendant is serving multiple sentences and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based.”

The Commonwealth opposes defendant’s request. Initially the Commonwealth takes issue with defendant’s position that the Perry County proceedings did not result in a conviction against him. The court as a matter of law must reject the Commonwealth’s argument on this point. It is clear from the court orders offered into evidence from the Perry County proceedings that the proceedings were in fact concluded without any judgment of sentence being imposed. It is a rather concrete principle of law that a conviction does not exist in a criminal case until such time as a sentence is imposed. Although it is likely Judge Quigley declined to impose a sentence following the reversal because defendant had already served more than a year on the Perry County arson charge, this court must accept as a given in this case the proposition that defendant does not have a conviction arising out of the Perry County arson charge.

The Commonwealth argues that section 9760(3) does not apply to the present case on the basis that the Perry County and the Clinton County sentences were not multiple sentences. The Commonwealth predicates this argument on the proposition that they are not multiple sentences “according to the definition of same and the standard practice of what a multiple sentence would be.” The Commonwealth has cited no authority with respect to what it considers to be the definition of “multiple sentences,” which leaves the court in somewhat of a quandary in terms of evaluating whether defendant was serving multiple sentences in this particular case. The court has examined section 9702, which contains the definition section for the Sentencing Code, and notes that the term “multiple sentences” is not defined in that section.

The Commonwealth next argues that “[obviously, it is not the intent of section 9760 . . . that the defendant be given credit for the sentence in another jurisdiction which has since been vacated.” On the contrary, the plain meaning of section 9760(3) requires the court to give credit for time served on a sentence that is set aside, provided, however, that credit be given only for time served after the commission of the offense underlying the valid sentence.

Defendant committed the underlying offenses in this action in February 1980. Defendant was incarcerated on the Perry County conviction from July 10, 1985 to August 14,1986. Thus defendant satisfies the requirement of section 9760(3) that credit may be given only for that portion of a set-aside sentence served after the commission of the offenses underlying the valid sentences. Were the statute drafted otherwise, a criminal defendant who had served time on a subsequently set-aside conviction would have incentive to commit future criminal acts because of having credit “in the bank,” so to speak. As it is, the General Assembly wisely limited credit to criminal offenses committed prior to the credited time served.

Finally, the court must address the Commonwealth’s contention that time served in one county may not be credited by another county. The courts have had few opportunities to apply section 9760(3) and its predecessor 18 Pa.C.S. §1360(3). Defendant points the court to two 1978 cases which support the award of credit for time served.

In Gasper v. Commonwealth, 37 Pa. Commw. 26, 388 A.2d 1139 (1978) the Commonwealth Court affirmed the decision of the Board of Probation granting the defendant credit on one sentence for time served on an invalid sentence. Likewise, in Commonwealth v. Bailey, 258 Pa. Super. 364, 392 A.2d 836 (1978) the Superior Court held that a prisoner whose homicide conviction was reversed was entitled to credit on a separate and unrelated offense.

The cases cited by defendant in support of receiving credit, Bailey and Gasper, do not address the award of credit for time served in another county. It appears all the sentences in each case arose from only one county. In Commonwealth ex rel. Bleecher v. Rundle, 207 Pa. Super. 473, 217 A.2d 772 (1966), the Superior Court reiterated the rule that ‘the period of imprisonment in one county is credited only against the charges there, even though there are charges pending in other counties or states.” The Superior Court declined to credit time served prior to an acquittal in Delaware County to another sentence in Montgomery County because the time served was not “on the offense” for which defendant was sentenced in Montgomery County. The Superior Court relied on 19 P.S. §898, which provided:

“Any person who has been convicted of an offense in any court in this Commonwealth and sentenced to term of imprisonment shall be given credit toward the service of his sentence for any days spent in custody on this offense prior to the imposition of his sentence, including any days spent in custody on this offense prior to the entry of bail.” (emphasis supplied)

The Superior Court noted that it was aware of no authority or reasoning that would support defendant’s request for credit.

Indeed, it appears that at the time the Superior Court decided Rundle in 1966, the code did not allow credit on other sentences for time served on a set-aside sentence. Not until 1974 did the General Assembly enact such a “credit for time served” provision. See December 30, 1974, P.L. 1052, no. 345, §1360 (codified at 18 Pa.C.S. §1360(3)). The identical provisions of 18 Pa.C.S. §1360(3) were transferred from Title 18 to Title 42 in 1980 and are now codified at 42 Pa.C.S. §9760(3). See October 5, 1980 P.L. 693, no. 142, §401(a).

Section 9760(3) does not except time served in another county. The court is not free to rewrite the code by grafting additional provisions. Garcia v. Community Legal Services Corp., 362 Pa. Super. 484, 524 A.2d 980 (1987). In the absence of language limiting credit to sentences arising in the same county, .the court must accept the statute at face value and award defendant credit for time served in Perry County.

ORDER

And now, March 13, 1991, based upon the foregoing opinion, it is hereby ordered that the sentencing order of August 1, 1986 be modified to provide for defendant to receive credit on this court’s sentence for time spent in custody from July 10, 1985 to August 1, 1986 under his vacated Perry County sentence to no. 24 of 1984.